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Criminal - Jury Charge (3). R. v. Hoggard
In R. v. Hoggard (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal of a conviction for 'sexual assault causing bodily harm'.
Here the court revisits stereotypical evidence, and a jury charge remedy to it:[26] It is common ground that myth-based reasoning should be eradicated. As has been recently articulated in R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 42-43:The legislative and jurisprudential treatment of these issues reflects a collective understanding that courts should strive to eradicate myths and stereotypes from their decisions because they threaten the rights of complainants and undermine the truth-seeking function of trials.
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This Court has repeatedly held that “myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function” A trial is a truth-seeking process, and reliance on myths and stereotypes distorts the truth. In Mills, this Court explained that myths and stereotypes about sexual assault victims hamper the search for truth and impose “harsh and irrelevant burdens on complainants in prosecutions of sexual offences”. While the accused’s constitutional rights must remain at the forefront of any criminal trial, this Court has also acknowledged that measures can be taken to avoid reliance on myths and stereotypes without compromising those rights. [Citations omitted]. [27] Yet, myths and stereotypes about how a victim might behave persist, including in the jurisprudence. In R. v. Varghese, 2024 ONCA 555, at para. 35, this court said: “[d]iscredited myths and stereotypes endure about how a sexual assault victim should behave, often masked in ‘common sense’ language”, citing R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 9, cited by this court in Lacombe, at para. 33, and R. v. Donnelly, 2023 ONCA 243, at para. 40. As Varghese demonstrates, judges are not immune to myth-based reasoning.
[28] The issue on appeal is not whether myth-based reasoning should be eradicated. Rather it is how best to do so.
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(a) A jury instruction is sufficient and preferable
[32] The jury instructions tell the jury what the law is and how to apply it. The concept that there is no standard way for a complainant to act in response to a sexual assault is well-entrenched in the law: R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 45; R. v. Kiss, 2018 ONCA 184, at para. 101, citing D.D., at para. 65. Akin to the delayed disclosure considered in D.D. over twenty years ago, there is no basis to refute the “undeniable nature of the proposition”: at para. 66. Expert testimony is not necessary to explain this law to the jury. A jury instruction “would have effectively dispelled the possibility that the jury might engage in stereotypical reasoning, [and] it was not necessary to inject the dangers of expert evidence into the trial”: D.D., at para 64. The Supreme Court also presented additional advantages of a jury instruction at para. 67:A jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense. But of greater importance, it is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated. [33] The trial judge cautioned the jury against stereotypical reasoning four times during the trial, starting with her opening instructions. She reminded the jury that “[t]here is no single rule or way regarding how people who are the victims of trauma like sexual assault will behave during and afterwards.” For further clarification, the trial judge could have expanded and provided examples in the charge. It was not necessary to admit expert testimony.
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[42] I do not agree that expert evidence is required in order to understand jury instructions. The purpose of jury charges is to instruct the jury on how to approach a legal issue. If expert evidence is found to be necessary to explain certain jury instructions, it will likely be sought in many cases. In sexual assault trials, juries will be presumed to require such evidence to be able to understand and apply the judge’s instruction on myths and stereotypes. This, in turn, will mean that the defence might choose to lead expert evidence as to what constitutes a trauma, the duration of the phenomena, factors that may or may not affect the way a particular victim might be expected to react, and factors such as training, health and the duration of the assault.
[43] Admitting expert evidence risks opening areas of cross-examination of a complainant that are undesirable. As explained by Dr. Haskell, a person responds to trauma by reflex and habit, and that habit comes from the personal experience of a person over a lifetime. In response, the accused could argue that the complainant’s experience and prior traumas are appropriate and relevant areas of cross examination as they go to how the expert evidence can be applied.
[44] The efficient use of court resources requires a well-crafted instruction to the jury regarding myths and stereotypes, combined with vigilance, to ensure that counsel do not seek to rely on or advance stereotypical reasoning. This is a better use of court time than calling expert evidence that seeks to explain the mechanisms behind various myths and stereotypes. This type of expert evidence risks distracting and confusing the jury and lengthens and complicates trials. As explained in D.D., at para. 67: “a jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense.”
[45] For all of these reasons, I conclude that the trial judge erred by admitting Dr. Haskell’s evidence. . R. v. Ball
In R. v. Ball (Ont CA, 2024) the Ontario Court of Appeal dismisses a criminal appeal. Here the court considers the general appropriateness of the jury charge:(1) Principles of Appellate Review of a Jury Charge
[11] It is well-established that an appellate court must adopt a functional approach when considering whether a trial judge made any reversible errors in the jury charge. The charge should be considered as a whole, in the context of the entire trial, including the closing submissions of the parties. The overarching question is whether the jury charge adequately equipped the jury to determine the issues before it. A trial judge enjoys a wide discretion in fashioning a jury charge and is entitled to deference on appellate review: see e.g., R. v. Daley, 2007 SCC 53, [2007] 3. S.C.R. 523, at paras. 31, 58; R. v. Goforth, 2022 SCC 25, at paras. 20-22; and R. v. Speers, 2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 30. . R. v. A.W.
In R. v. A.W. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal on an historical sexual assault, here where a key issue was the identification of the defendant.
Here the court comments of the adequacy of a jury charge:JURY CHARGE GENERALLY
[21] An accused is entitled to a jury that is properly, not perfectly, instructed and this assessment is made on a functional basis: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-21; R. v. Odesho, 2024 ONCA 9, at para. 23, leave to appeal requested, [2024] S.C.C.A. No. 63. The issue is whether the jury is properly equipped to decide the case. To perform their function as the trier of fact, juries must be equipped by the trial judge with an accurate understanding of the law, sufficient to decide the case. A jury that is misdirected, or not directed, is insufficiently instructed: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-37.
[22] Misdirection arises where the instruction provides an inaccurate understanding of the law or is so confusing as to amount to an error of law: Abdullahi, at paras. 38-39. Non-direction may arise where there is a failure to give an instruction, either with sufficient detail or at all. Both constitute errors of law: Abdullahi, at paras. 44-46. . R. v. Chizanga [use of similar fact evidence]
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court comments on the need for a jury charge when allowing similar fact (aka 'prior discreditable conduct') evidence:(v) The necessity of proper jury instructions on the permitted and prohibited uses of evidence of Prior Discreditable Conduct
[31] Because of the dangerous potential of Prior Discreditable Conduct evidence, if such evidence is admitted the trial judge is required to instruct the jury on its use. That instruction should: (i) identify the evidence of Prior Discreditable Conduct; (ii) define the permitted use of the evidence; and (iii) caution the jury regarding its prohibited use: C. (Z.W.), at para. 109. . R. v. D.B.
In R. v. D.B. (Ont CA, 2024) the Ontario Court of Appeal allowed appeal of historical sexual offence convictions, here on arguments of several issues of misapprehension of evidence.
Here the court considers the failure to object at trial to evidence earlier admitted:[35] In fairness to the trial judge, defence counsel did not raise any concerns about this evidence at any point during the trial. That can be a consideration in the assessment of the prejudicial impact of the evidence. However, a “legal error remains a legal error irrespective of trial counsel’s position”: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 70. Upon reviewing the record, I have no reason to believe that defence counsel’s failure to object was a tactical decision: Calnen, at paras. 40-41. Therefore, the failure of defence counsel to object to the jury charge is not determinative: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 67-69.
[36] Accordingly, notwithstanding the failure of defence counsel to object, the circumstances of this case were such that the trial judge should have instructed the jury that the reaction evidence had no probative value and his failure to do so is an error of law: Abdullahi, at para 49.
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[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35.[4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue. . R. v. D.B. [IMPORTANT - gratuitious accusations of D lying]
In R. v. D.B. (Ont CA, 2024) the Ontario Court of Appeal allowed appeal of historical sexual offence convictions, here on arguments of several issues of misapprehension of evidence.
Here the court considers the hazards of gratuitously accusing the defendant of lying, in light of the presumption of innocence:[40] In Laboucan, the Supreme Court of Canda held that while there is no absolute prohibition against considering an accused’s motive to lie in assessing their credibility, this type of submission is fraught with risk because it can potentially undermine the presumption of innocence. Accordingly, where the issue is raised at trial, juries should be instructed not to presume that an accused will lie to avoid conviction. Such an instruction is consistent with one of jury instructions’ central goals: to ensure jurors do not engage in assumptions or forms of reasoning that do not respect fundamental principles such as the presumption of innocence: see R. v. Hayles-Wilson, 2022 ONCA 790, 165 O.R. (3d) 97, at para. 31.
(c) A Correcting Instruction on the Implied Motive to Lie was Required
[41] The appellant argues that the trial judge’s failure to provide a limiting instruction on the Crown’s argument would have misled the jury, causing them to place undue weight on the Crown’s argument, and ultimately undermining the presumption of innocence.
[42] The respondent argues that no special instruction was required in this case because the Crown was simply encouraging the jury to conclude that the appellant was not credible based on inconsistencies and illogicalities in his evidence.
[43] I reject the respondent’s argument that the Crown’s closing did not engage in the problematic line of reasoning identified by the Supreme Court in Laboucan. The closing address, when read as a whole, expressly urged the jury to find the appellant’s testimony was concocted by the appellant “in order to walk away from these charges”. This was improper and offended the presumption of innocence. The trial judge should have corrected the Crown’s submissions: see Hayles-Wilson, at para. 34.
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[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35.[4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue. . R. v. Bzezi
In R. v. Bzezi (Ont CA, 2024) the Ontario Court of Appeal comments on the effect of an improper criminal jury charge:[35] However, “there is no ‘unyielding rule’ mandating that improper Crown closing submissions require a new trial”: R. v. Clyke, 2021 ONCA 810, 408 C.C.C. (3d) 86, at para. 36. Rather, “[t]he test is whether the closing address ‘was unfair in such a way that it might have affected the decision of the jury’”: Clyke, at para. 36, quoting from R. v. Grover (1990), 1990 CanLII 11030 (ON CA), 56 C.C.C. (3d) 532 (Ont. C.A.), at p. 537, rev’d on other grounds, 1991 CanLII 25 (SCC), [1991] 3 S.C.R. 387. Crown counsel’s isolated rhetorical excess, while unfortunate, was not so prejudicial that it gave rise to a substantial wrong or miscarriage of justice. Indeed, Mr. Whitzman very fairly acknowledged that he was advancing this ground in support of his other grounds, rather than as a stand-alone ground that would be sufficient on its own to require a new trial. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal found an error in a murder jury charge, and recommends a correct charge:[33] The trial judge needed to instruct the jury in accordance with the principles set out in R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284. In Ching, the accused, who planned and deliberated the murder of his ex-wife, killed the victim’s uncle who intervened to stop him. This court ultimately concluded that in circumstances like these an accused will be guilty of second-degree murder as the “actual killing may well have been impulsive” rather than planned and deliberate: Ching, at para. 31, and that one can only be found guilty of first degree murder if they planned and deliberated to kill both a specific victim and anyone who gets in their way.
[34] In this case, taking into account his prior communications and attempts to scout the apartment building, it is clear that the appellant’s focus was on killing Mr. Garon (and his wife should she happen to be home when he attended there to carry out his plan[2]). There is no evidence, however, that Ms. Beniskos’ murder was the result of the same planned and deliberate assault, or that she was the intended victim of the murder.
[35] The trial judge therefore erred by not explaining to the jury that, if the appellant planned and deliberated to kill both a specific victim (i.e., Mr. Garon) and anyone who got in his way (i.e., Mrs. Garon and/or Ms. Beniskos), he would be guilty of first degree murder, but that absent such a plan, a spontaneous killing committed while carrying out the planned and deliberate murder of another victim is second degree murder: Ching, at para. 32; R. v. Dipchand, [1991] O.J. No. 1775 (C.A.), leave to appeal abandoned, [1991] S.C.C.A. No. 47.
[36] The jury’s verdict implies that they found the appellant planned and deliberated the murder of Alban Garon, and possibly Mrs. Garon, but they were never instructed, as they should have been, on whether the murder of Ms. Beniskos was planned and deliberate or whether the appellant planned to kill anyone who was present and got in the way of what he intended to do to Mr. Garon. . R. v. J. B. [IMPORTANT]
In R. v. J. B. (Ont CA, 2024) the Ontario Court of Appeal notes an important jury charge defence point:[13] As the Supreme Court noted in R. v. Cinous, “[a] trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury”: 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51; see also R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 20; Criminal Code, R.S.C. 1985, c. C-46, s. 265(4). The object is to provide the jury with the necessary tools to reach a decision on the evidence adduced at trial: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 50-54.
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[19] On this evidence, the trial judge herself properly raised the issue because there was evidence from the complainant that she did not consent to the sexual acts and evidence that, if believed, the appellant honestly but mistakenly believed the complainant was consenting. .... . R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal dismissed a terrorism-related criminal appeal. Here the court reviews the "principles governing appellate review of jury instructions":(2) Principles governing appellate review of jury instructions
[211] The principles governing appellate review of jury instructions are well known but worth repeating: see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 30-31, 53; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 54; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-43, 72; R. v. Triolo, 2023 ONCA 221, at paras. 184-85, aff’d R. v. Lozada, 2024 SCC 18, at para. 14; and R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at para. 28.
[212] A jury instruction is not an academic exercise, or a dissertation on legal principles. It is a roadmap directing the journey from deliberation to verdict, tailored to the specific case, and intended to guide twelve reasonable, intelligent laypersons to a true verdict based on the application of the relevant legal principles to the evidence. A jury instruction which serves that function is an adequate jury instruction.
[213] Jury instructions must be considered as a whole. Individual words and phrases in a jury instruction cannot be isolated and parsed to the point where they lose any connection to the rest of the charge. The instructions must be reviewed in the context of the evidence heard by the jury, and the position taken by the parties on the relevant issues.
[214] The sufficiency of a jury instruction does not depend on whether the trial judge used a specific formula or turn of phrase, or organized the instruction in a particular way. As always, the question remains: did the instructions serve their purpose?
[215] One of Mr. Jaser’s arguments presents a good example of a submission that, at root, targets phraseology rather than the substance of the instruction provided to the jury. He argues that the trial judge confused the meaning of agreement and the concept of intention when explaining to the jury the elements of the conspiracy charges. On this submission, the failure to accurately draw the line between the conduct and the intention components of conspiracy resulted in misdirection.
[216] As this court recently observed in R. v. Stordy, 2024 ONCA 284, at para. 53, when considering the meaning of the word “agreement” in s. 172.2 of the Criminal Code:There is some artificiality involved in separating the act and mental element of an agreement for the purposes of s. 172.2. The two are necessarily intertwined given the nature of the offence. [217] More to the point, it is not necessary, for the purposes of properly instructing a jury on a conspiracy charge, that the trial judge clearly distinguish between the conduct and mental components of conspiracy. What matters is not the label placed on a particular element of the offence, or how distinctions are drawn for analytical purposes, but whether the jury understands the findings it must make before convicting an accused. If the jury understood that it could only convict Mr. Jaser and Mr. Esseghaier of conspiracy if satisfied beyond a reasonable doubt that they had reached a joint consensus to bring about the alleged unlawful objects, fully intending to bring those objects to fruition, the jury was properly instructed on this issue. This would be true even if the trial judge’s instructions left them unable to explain the difference between agreeing to a common unlawful object and intending to bring about that common unlawful object. . R. v. Ruthowsky
In R. v. Ruthowsky (Ont CA, 2024) the Ontario Court of Appeal reviews basics of jury charges:(i) Principles applicable to appellate review of jury instructions
[65] An appellate court must take a functional approach to reviewing a jury charge, by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. What matters is whether the jury is given a functional understanding of its task and the issues it is required to decide: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 32-41 and 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Abdullahi, 2023 SCC 19, at paras. 35-36, 40-41 and 53-56; R. v. Badgerow, 2019 ONCA 374; 146 O.R. (3d) 35, at paras. 17-21.
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[133] As outlined above, in reviewing jury instructions, an appellate court must consider the instructions as a whole and from a functional perspective. In a jury trial, the presiding judge must review the substantial parts of the evidence and relate the evidence to the issues and the theory of the defence so that the jury appreciates the value and effect of the evidence and how the law applies to the facts as found by the jury: R. v. Azoulay, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98.
[134] A misstatement or omission of evidence in a jury instruction does not always amount to reviewable error. It may be reviewable error where a misstatement or omission relates to an important piece of evidence bearing on a determinative issue at trial or where an omission relates to a piece of evidence that is the sole support for a defence. If there are multiple misstatements or omissions, the cumulative effect must be considered: R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at para. 23; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at paras. 153-55. . R. v. Lozada
In R. v. Lozada (SCC, 2024) the Supreme Court of Canada considered the appellate test for jury charges:III. The Accuracy of the Jury Instructions
A. Relevant Legal Principles
[14] Appellate courts take a functional approach in reviewing jury instructions by asking whether a jury was properly, not perfectly, instructed so as to equip the jury to decide the case according to the law and the evidence (R. v. Abdullahi, 2023 SCC 19, at paras. 4 and 35-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 62). Importantly, the instructions must be read as a whole (Abdullahi, at para. 35). Jury instructions must be responsive to the evidence and set out the law in plain and understandable terms (R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 29-32). Responses to questions from the jury require particular care because they carry influence exceeding the instructions given in the final charge (R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 139; Abdullahi, at para. 42). . R. v. Amin
In R. v. Amin (Ont CA, 2024) the Ontario Court of Appeal engages in an extending review of 'similar fact' evidence, here in the context of a 'Mr.Big' police sting operation where the goal is to obtain a confession from the defendant wrt the other, 'target' crime. The court's apparent concern was that by inducing the defendant to become involved with the fake crimes, the jury would be likely to be prejudiced against them in the same manner that 'similar fact' evidence can.
In these quotes, the court discusses jury instructions - here in the context of similar fact ("bad act evidence"):(3) The Trial Judge Erred by Failing to Warn the Jury
[63] The trial judge also erred in law by not warning the jury about the dangers that the murder advice and the June 27 statements posed. This failure deprived the jury of a fundamental warning they needed to properly decide the case.
[64] The appellant has the right to have a properly instructed jury decide whether he is guilty or not guilty. This right required the trial judge to give the jury a sufficient understanding of the law. To do so, the trial judge had to give the jury necessary instructions on the law with enough detail to enable the jury to decide the case. He erred in law because he was required to warn the jury about the dangers of bad act evidence but did not do so: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35, 45-46, 49.
[65] The trial judge was required to warn the jury about the murder advice and the June 27 statements. Because bad act evidence is so dangerous, the general rule is that trial judges who admit such evidence must instruct the jury about its limited use and dangers: Handy, at para. 70; B. (F.F.), at pp. 733-735; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at p. 128; R. v. M.T., 2012 ONCA 511, 294 O.A.C. 111, at para. 82. The trial judge must tell the jury that they can only use other bad act evidence for the legitimate purpose for which it was admitted and cannot use it to infer that the accused is the type of person who likely committed the charged crime: Handy, at para. 70; R. v. Bomberry, 2010 ONCA 542, 267 O.A.C. 235, at para. 33. Juries need these warnings because they lack the benefit of judicial experience about this evidence’s dangers and might otherwise engage in the natural human tendency to judge people based on their bad character: Abdullahi, at para. 32; Handy, at paras. 39-40; Z.W.C., at para. 94. Failing to warn the jury risks causing it to unfairly and wrongfully convict the accused based on prejudice rather than proof: B. (F.F.), at p. 735; D. (L.E.), at pp. 127-128; Handy, at para. 139.
[66] The general rule that trial judges must warn the jury about bad act evidence’s dangers and limited uses is subject to a narrow exception: A warning is not required if the facts of the case negate any realistic possibility that the trier of fact will use bad act evidence improperly: R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, at paras. 20-21, 26. This may be the case if the bad act evidence has low prejudicial effect (R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 35), is not adduced by the Crown as propensity evidence (Beausoleil, at paras. 21-22), is primarily used by the accused rather than the Crown (R. v. A.G. (2004), 2004 CanLII 36065 (ON CA), 190 C.C.C. (3d) 508 (Ont. C.A.), at para. 8), and/or where warning the jury would prejudice the appellant by drawing attention to the bad act evidence (C.B., at para. 35). These factors are not a checklist and the presence of one or more of them will not always negate a realistic possibility of misuse.
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