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Criminal - Jury Charge (4). R. v. Murray [Bero charge]
In R. v. Murray (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal by two jointly-tried defendants, here where a "jury found them guilty of second degree murder".
Here the court considers a 'Bero' jury charge:[3] The trial judge found that the loss of this evidence violated the appellants’ rights under s. 7 of the Canadian Charter of Rights and Freedoms, but concluded that the breaches could be adequately remedied by a jury instruction along the lines proposed by Doherty J.A. in R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 67 (a “Bero instruction”). On appeal, the appellants argue that the trial judge erred by not staying the proceedings. In the alternative, they argue that the Bero instruction she gave the jury was inadequate.
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[54] In Bero, at para. 67, Doherty J.A. stated:Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied on by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence. The trial judge concluded that a Bero-type remedial instruction was “particularly apt in this case”. She included a lengthy Bero instruction in her jury charge. I will discuss the details of this instruction when I turn to the appellants’ second ground of appeal, which takes issue with its adequacy.
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[90] When assessing the sufficiency of the trial judge’s Bero instructions as a remedy for the infringement of the appellants’ s. 7 Charter rights, it is important to note that these instructions were crafted cooperatively with the parties, and included significant input from the appellants’ trial counsel. While there is some disagreement over how much of the instruction was actually written by defence counsel, the appellants do not dispute that their trial counsel did not raise any of the specific objections to the instructions that they now advance on their appeals. This is not determinative, since the ultimate responsibility for the jury charge lies with the trial judge, but it remains “a significant consideration in determining whether or not appellate intervention is warranted”: R. v. Laing, 2016 ONCA 184, 347 O.A.C. 133, at para. 45; see also R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 66-69.
[91] .... The goal of a Bero instruction is to “help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence”: Bero, at para. 67. While jurors are entitled to conclude that missing items of evidence would not have assisted the Crown, or might have assisted the defence, this inference is permissive, not mandatory. The trial judge was correct to instruct the jury that it was up to each of the jurors to decide for themselves what significance, if any, they would attach to the police failure to preserve particular items of the 7 Richgrove video footage.
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[93] .... The Bero instruction was intended to remedy the breaches of the appellants’ s. 7 Charter rights that the trial judge found had been established, and her remedial instructions needed to be tailored to reflect the breaches that she had identified. .... . R. v. Verma [re police-unrecorded admissions]
In R. v. Verma (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for importing opium.
Here the court considered jury charge requirements regarding defendant 'utterances' being used in evidence, even though unrecorded by police:(1) The unrecorded utterances the appellant allegedly made to Cst. Napoleon
[13] The appellant’s first ground of appeal is that the trial judge did not adequately caution the jury about relying on Cst. Napoleon’s evidence about the appellant’s alleged utterances about the plastic baggies, in view of her failure to audio or video record her questioning of him.
[14] In R. v. Swanek (2005), 2005 CanLII 3326 (ON CA), 194 O.A.C. 155 (C.A.), at para. 13, Doherty J.A. stated:If the police failure to make a proper recording of an alleged inculpatory statement is in issue at trial, I think a trial judge should tell the jury that the failure to make a proper recording is an important factor for the jury to consider in deciding whether to rely on the police version of the alleged statement. These comments were obiter, since Doherty J.A. concluded that the police failure to record the accused’s statement in that case “was a non-issue at this trial.” However, his comments were adopted by this court in R. v. Wilson (2006), 2006 CanLII 20840 (ON CA), 210 C.C.C. (3d) 23 (Ont. C.A.), at para. 20, where Rosenberg J.A. held that “in appropriate circumstances, a special instruction should be given to the jury where the accused contests the accuracy of [a] non-recorded statement.” Rosenberg J.A. explained further, at para. 24:[I]t was open to the jury to find that the police deliberately set out to interrogate the appellant without giving any thought to the making of a reliable video or audio record. The jury should therefore have been instructed along the lines suggested in R. v. Swanek that this was an important factor to consider in deciding whether to rely on the officer’s version of the statement. ....
[17] The critical question, however, is whether the instructions the jurors received on this issue were functionally adequate: see R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-37.
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[19] This instruction was somewhat less forceful than the recommended instruction in Swanek and Wilson, in that the jury was not expressly told to treat the lack of audio or video recording as an “important factor”. However, jury charges are not to be measured against a standard of perfection, and “[i]t is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence”: Abdullahi, at para. 35; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30. Even if the jurors had been told to treat the absence of an accurate recording as an “important factor”, it would still have been up to them to decide how much weight to give this factor in the particular circumstances of this case.
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[21] While not determinative, trial counsel’s contentment with the trial judge’s instructions on this issue is a relevant factor when assessing the adequacy of the jury charge. As Rowe J. noted in Abdullahi, at para. 68:Counsel’s silence could also support a conclusion that the charge read as a whole accurately set out the law relevant to a given issue.… One can take the view that an instruction good enough for counsel was likely good enough for the jury. [Citations omitted.] . R. v. Scordino
In R. v. Scordino (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal from a murder conviction.
Here the court considers basic principles relating to jury charges:[58] Appellate courts take a functional approach to the review of jury instructions for legal error. An accused is entitled to a jury that is properly, not perfectly, instructed. The overriding question is whether the jury was properly equipped to decide the case according to the law and the evidence – a properly equipped jury being one that is both accurately and sufficiently instructed. Any alleged errors will be considered within the context of the entire jury instruction and the trial as a whole: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. . R. v. V. K.
In R. v. V. K. (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this of being "found guilty by a jury on three counts of sexual assault".
Here the court considered jury charge doctrine:[11] Parties are entitled to a properly, not perfectly, instructed jury. On review, appellate courts are to take a functional approach to assessing jury instructions. The overriding question is whether the jury was adequately equipped to decide the case according to the law and the evidence: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-36.
[12] Trial judges are permitted to comment on, and even express opinions about, the evidence. However, if they do so, they must make it clear that the jury is free to disregard their view. A trial judge will exceed what is permissible when they 1) express an opinion that is far stronger than the facts warrant, 2) express an opinion so strongly that the jury is likely to be overawed, or 3) express an opinion that deprives an accused of a fair presentation of the evidence: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 108-10; R. v. Lawes (2006), 2006 CanLII 5443 (ON CA), 80 O.R. (3d) 192 (C.A.), at para. 22. . R. v. Shabbir
In R. v. Shabbir (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal defendant's appeal, here from charges of sexual assault.
The court considered principles of jury charges:[12] I begin my consideration of this ground of appeal by reference to certain principles that are to be applied to appellate review of jury instructions. As explained in R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, a functional approach is to be taken to that review. The principles underlying that functional approach include:(a) The accused is entitled to a jury that is properly, not perfectly, instructed.
(b) The charge must be read as a whole.
(c) It is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence.
(d) The charge must be considered not in isolation but in the context of the trial as a whole.
(e) The overriding question is whether the jury understood or was "properly equipped" with the law to apply to the evidence. ....
[16] .... As Watt J.A. observed in R. v. Adan, 2019 ONCA 709, at para. 63:An important factor in appellate review of the adequacy of jury instructions is the position of trial counsel, in particular, whether counsel objected to the charge on the issue raised on appeal. The failure to object is not decisive. A failure to object does not make whole what is otherwise an error. But a failure to object is a factor warranting consideration on appellate review. . R. v. Necan
In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder.
Here the court considered whether the SOR applicable to jury charges:[21] To this end, when reviewing jury charges for legal error, appellate courts are not to seek out perfection. Nor are they to ask whether the jury charge under review could have been better. Indeed, as with most things in life, almost every jury charge could be improved upon given the luxury of time and reflection. But that is not the world of jury trials.
[22] Accordingly, when reviewing jury charges, appellate courts must remain trained on the overarching question as to whether, in the circumstances of the entire case, the jury was properly equipped to judge the case: Abdullahi, at paras. 35-36. In answering this question, appellate courts must adopt a functional approach by considering the charge as a whole, against the backdrop of the entire trial record, including the evidence elicited and the positions taken and not taken by the parties: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 4, 34, 59. Approaching the grounds of appeal in this manner, I conclude that this jury was indeed properly equipped to judge the case. . R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal dismisses a first-degree murder appeal.
Here the court responds to a defence jury charge argument:[9] On the second ground of appeal, the appellant says that the trial judge failed to outline the evidence that the jury should have considered on the element of planning and deliberation. He criticizes the trial judge for, in essence, simply telling the jury to consider all of the evidence on this point without detailing what evidence was relevant. The appellant says that this failure was exacerbated because defence counsel, at trial, had, for tactical reasons, not addressed the element of planning and deliberation in his closing submissions.
[10] The appellant’s criticism of the trial judge’s instructions to the jury is an unfair one. The trial judge told the jury to consider all of the evidence, as she was obliged to do. However, the trial judge then went on to outline specific pieces of evidence that the jury should consider on the element of planning and deliberation: the contents of the video evidence; the timing of the incident; how quickly the events unfolded; the appellant’s movements from the altercation to the car and then back; and the words attributed to the appellant both at the time of the altercation and on his return. This is not a case like R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, leave to appeal refused, [2007] S.C.C.A. No. 258, upon which the appellant relies.
[11] We note, on this point, that the trial was a short one. The evidence would have been very fresh in the minds of the jurors. While another trial judge might have said more, the trial judge in this case identified the salient pieces of evidence that the jury needed to consider on this element of the offence. As this court noted in R. v. Huff, 2012 ONCA 86, at para. 10: “The trial judge also recounted the salient features of the evidence adduced at trial. As in almost any case, he could have said more, but we do not test the adequacy of jury instructions on this basis, else most would fail.”
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