Simon's Legal Resources

Criminal - Jury Charge (5)

. R. v. Konashewych

In R. v. Konashewych (Ont CA, 2026) the Ontario Court of Appeal dismissed two criminal appeals, these brought against convictions against both defendants for fraud, and one for "breach of trust by a public officer" under CCC s.122.

Here the court considers the suitability of jury charges:

[96] Appellate assessment of jury instructions requires a functional approach that considers the charge as a whole and in the context of the entire trial to determine whether it served its purpose – i.e., did it properly equip the jury to decide the case in keeping with the law and the evidence: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-36, 57-58 and 72. The instructions must be objective, fair and balanced, neither “promot[ing] unduly the case for the Crown” nor “effectively ignor[ing] and denigrat[ing] the defence case”: R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, at para. 158. In addition to outlining the factual issues the jury must decide and the legal principles governing those factual issues and the evidence received at trial, trial judges must outline the positions of each party and review the evidence relevant to those positions: Sanclemente, at para. 157.

[97] It is neither necessary nor desirable for a trial judge to exhaustively review every piece of evidence in a jury charge; indeed, an exhaustive review may serve only to confuse jurors as to the central issues to be decided. The obligation of the trial judge is to review the “substantial” parts of the evidence, and what this looks like will vary from case to case – the test is one of fairness: Sanclemente, at paras. 159-60. In Sanclemente, at paras. 162-63, this court provided the following guidance on how appellate courts should treat claims of imbalance in jury instructions:

First, claims of imbalance in a jury charge cannot be sustained on the basis of a microscopic scrutiny of isolated portions of the charge. Imbalance can only be established, if at all, on a review of the charge as a whole and in the context of other trial events, such as the positions put forward and the addresses of counsel.

Imbalance in a jury charge is not determined as if it were an accounting exercise undertaken to produce a balance sheet. … Fairness or balance is about assessing the whole to determine whether, in substance or effect, the instruction unduly promoted the case for the Crown and denigrated the defence case to such an extent that it was not fully presented to the jury.

[98] In cases where the “evidence that tends to show an accused committed an offence far exceeds the evidence to the contrary”, trial judges are not “obliged to spin a web of exculpatory inferences, turning each piece of circumstantial evidence every which way to reveal its every possible inference”: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 139. This is especially so where the defence position is “that the cumulative effect of all the evidence falls short of proof beyond a reasonable doubt”: Stubbs, at para. 139.

. R. v. Knight

In R. v. Knight (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions for "first degree murder, conspiracy to commit murder, and arson."

Here the court generally considers the adequacy of jury charges:

[126] The parties to a criminal trial are entitled to a jury that is properly instructed, not perfectly instructed: see e.g., Abdullahi, at paras. 35-36. Indeed, it is debatable whether there is such a thing as a “perfect” charge.

[127] Simply put, a balanced charge is one that is fair to both sides. A helpful approach to evincing whether a charge is balanced and fair is found in R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 103, in which van Rensburg J.A. said:

A determination of whether the charge is balanced and fair requires an examination of the charge as a whole. A charge is unfair where the trial judge “deliberately or inadvertently [places] her thumb on the Crown's side of the scales of justice": R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 41 or "unduly [promotes] the Crown's case and effectively [ignores] or [underplays] significant elements of the case for the defence”: R. v. B.B., 2009 ONCA 552, 251 O.A.C. 146, at para. 17.

See also R. v. Panovski, 2021 ONCA 905, 408 C.C.C. (3d) 205, at para. 103.

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[138] I reiterate the principle that, in assessing a jury charge for balance, the charge must be considered as a whole. This includes the trial judge’s review of the positions of the parties. The trial judge thoroughly recounted the positions of the parties. ....

. R. v. McKenzie

In R. v. McKenzie (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions on "three counts of assault".

Here the court considered general principles regarding jury charges:

a. Governing Principles

[32] In R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, the Supreme Court of Canada instructed appellate courts to take a functional approach when reviewing portions of a jury instruction for potential legal error. At para. 72, Rowe J. summarized the approach to be taken by the reviewing court:

In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court’s task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge’s duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case. [Emphasis in original.]