At the start of a jury trial in Ontario, the Judge delivers a set of relatively standard instructions to the jury, sometimes termed the civil trial opening remarks or civil trial opening speech.
These instructions are designed to educate the jury as to their role in the proceedings, the roles of the various parties, the nature of the case and finally, the general sequence of the trial that is to come.
Below, I have largely set forth the generic, brief opening remarks found in O’Brien’s Civil Jury Charge, reproduced in Ontario Courtroom Procedure, with minor edits made to add clarity.
Remarks that are substantially similar to these are given at the start of every jury trial in Ontario.
Members of the jury, plaintiff and defence counsel have chosen you as the jury to decide this case. In the next few minutes, I will tell you something about your duties as jurors and describe for you the procedure that we will follow during the trial. I will also explain to you some of the rules of law that apply in this case. During the trial and again at the end of the trial, I will give you more specific and detailed instructions about the rules of law that apply to this case. Please listen carefully to all of these instructions.
The party who brings a lawsuit is called the plaintiff. In this action, the plaintiff Mr. Smith, sues to recover damages for injuries which he says he received as a result of a motor vehicle accident that occurred on January 1, 1900. Mr. Lesage is the counsel representing the plaintiff. The party being sued is called the defendant. In this case, the defendant is Mr. Poordriver. The defendant is represented by Mr. Insurance Lawyer.
At the end of the case, you will be asked to answer questions that deal with the issues of liability and an assessment of damages for pain and suffering, out-of-pocket expenses, wage loss to trial and into the future, housekeeping expenses to trial and into the future and claims for future care costs. The evidence to be introduced and the witnesses to be called are entirely in the control of counsel that I have just introduced to you. Subject to certain matters on which I may have to make rulings from time to time, you and I will sit and listen carefully to what witnesses and counsel have to say.
C. DESCRIPTION OF TRIAL PROCEDURE
1. Opening Statement (Plaintiff)
The case begins with Mr. Lesage, counsel for the plaintiff, making an opening statement as to what the plaintiff’s case is about. What counsel says is, of course, not evidence, and if what is said is not borne out by the evidence or is contradicted by the evidence, you must ignore what counsel said. The sole purpose of this opening statement is to help you to better follow the evidence as it is introduced.
[If defendant’s counsel has requested and been granted the right to make an opening statement immediately following the plaintiff’s opening statement, instruct the jury as follows:]
Immediately following plaintiff counsel’s opening statement, counsel for the defendant will make her opening statement as to what the defendant’s case is about.
2. Calling Witnesses
Having outlined his case, counsel for the plaintiff will then call his witnesses. He will ask them questions in what is known as direct examination. The feature of direct examination is that counsel is not permitted to ask leading questions except on matters that are not in dispute. A leading question is a question that suggests the answer. Counsel must be careful not to put the answer in the mouth of the witness by the form of the question. We want witnesses to speak spontaneously. After counsel for the plaintiff has completed the direct examination of a witness, counsel for the defendant may cross-examine the witness. In cross-examination, leading questions are quite proper and the cross-examiner may suggest the answer and bring up new matters because she is testing the observations, recollections and truthfulness of the witness. When the cross-examination of the witness is finished, counsel for the plaintiff may re-examine to clear up certain matters that have been raised by the cross-examination.
After counsel for the plaintiff has called all of his client’s witnesses, counsel for the defendant has the right to present evidence.
[Defence counsel has the right to make an opening statement outlining the nature of the defence, if he sees fit, and provided he hasn’t already done so.]
Counsel for the defendant will then call his witnesses and examine them. Counsel for the plaintiff will have the right to cross-examine.
When the defence is complete, the plaintiff may have the right to call evidence in reply to answer matters that have been raised by the defence witnesses.
5. Closing Submissions
When the last witness has been heard and all of the evidence has been introduced, then counsel for each party will address you, making submissions as to what you should find; this will be followed by my charge in which I will give you the law and show you how to apply the law to the facts as you find them. You will then be asked to retire and consider your verdict.
D. EVIDENCE DEFINED
You will decide the facts in this case. You may consider only the evidence that you hear and see in the courtroom. The evidence includes what each witness says in response to the questions asked. The questions themselves are not evidence unless the witness agrees that what is asked is correct. The answers are the evidence.
The evidence also includes any things that may be made exhibits. When you go to your jury room to decide this case, the exhibits will go with you.
There are other things that are not evidence. You must not consider or rely upon them to decide this case. For example, what the lawyers and I say when we speak to you during the trial is not evidence. Only the exhibits and the things witnesses say are evidence. Radio, television, newspaper and Internet reports or anything that you may have heard from anyone else about this case or the persons or places involved in it are not evidence. You should ignore them completely.
From time to time, the lawyers on either side may object to a question asked by the other side. When that happens, I may ask you to leave the courtroom while we discuss the issue. An objection is not evidence. Just because someone objects and you are asked to go to your jury room has nothing to do with your decision in this case. We are not trying to hide anything from you. Sometimes, however, the law may not allow a particular question to be answered. Please do not speculate about what might be said in your absence should this happen.
E. NOTE-TAKING BY JURORS
If you want to take notes during the trial to help you remember what a witness said, you may do so. You may find it difficult, however, to take detailed, accurate notes and, at the same time, pay close attention to what witnesses are saying and how they are saying it.
If you decide to take notes, make sure that taking them does not interfere with your ability to listen and your duty to consider all of the evidence.
To protect the secrecy of your work, you must not take your notes with you at the end of our sittings for each day. We will make arrangements to keep them in a secure place and return them to you when we resume sitting the following day. If you decide not to take notes, it is your own individual responsibility to listen carefully to the evidence. You must not give this responsibility to any fellow juror who may be taking notes. You should also not be overly influenced by the notes or the memory of a juror who took notes. We depend on the memory and judgment of all jurors to decide this case.
1. No Transcripts of Evidence
Although the testimony of every witness has been (recorded) (taken down) by our court reporter, we will not have a written transcript of the evidence available for you to review when you go to your jury room to arrive at your verdict. If you need help to recall any parts of the evidence, I will be available to help you.
F. CONDUCT OF JURY
1. Do Not Discuss Case
As the trial proceeds, you may be tempted to discuss the case amongst yourselves when all of you are together in your jury room. I recommend you don’t. You must not come to any conclusions about the case until after you retire to consider your verdict. Keep an open mind. The time to decide the case is after you have heard all of the evidence, and listened to counsel on both sides and to my instructions about the law that applies to the facts as you find them. Some of your family, friends and fellow workers may ask you about jury duty. They may want to talk to you about the case. Please do not tell them about it or ask for any comments or advice from them. If anyone else approaches you to discuss any part of the case, please tell them you cannot talk about it. If the person continues in his or her efforts, please tell me about it. I will do whatever is necessary to stop it.
During the trial, please avoid talking with the parties, their friends or families, witnesses and lawyers. When you arrive at the courthouse each morning and return to it after lunch each afternoon, please go straight to your jury room. When you leave at lunch time or at the end of the day, please leave directly from your jury room and from the courthouse.
2. Jurors Do Not Investigate
Finally, in this case you are judges of the facts, not lawyers or investigators. You must not seek out any information, or do any research about the case, the persons involved in it, or the law that applies. Do not consult other people or other sources of information, printed or electronic. Do not investigate any part of the case on your own or together with anybody else.
G. DAILY SCHEDULE
We usually sit from 10 a.m. to 1 p.m. when we break for lunch. The sitting hours in the afternoon are usually from 2 p.m. to 5 p.m. During the trial, you may leave for lunch and go home at the end of the day. Once all the evidence is heard and I finish giving my instructions on the law, you will be sent to the jury room to reach a verdict.
At that stage, you will be kept together as jurors during the day until you reach a verdict. You will be permitted to go home at the end of the sitting day to return the following morning to continue your deliberations, if necessary.
H. FINAL ADMONITION
It is most important you hear all of the questions and answers in this case. If you have any difficulty in hearing me, a witness or counsel, please let me know at once and we will try to remedy that situation. All your deliberations are confidential and when this case is over, I recommend that you discuss it with no one. I think you can readily see the reason for keeping your discussions confidential. If you as jurors know that your comments are not likely to be repeated outside the jury room, then you will be encouraged, I believe, to talk freely and frankly with each other.
And now, it is our duty as judges to sit back and be keen, patient listeners, leaving it to the lawyers to present the case to us, to examine and cross-examine the witnesses. At all times, we will remain completely objective, approaching our duties without sympathy, without prejudice, being prepared to decide the case only on the evidence and on the law. If we do that to the best of our ability, our task will be properly carried out and a just and proper verdict will be arrived at in this case.