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Criminal - Jury - Closing Arguments. R. v. Beak
In R. v. Beak (Ont CA, 2025) the Ontario Court of Appeal dismissed a merged two-appellant murder appeal, here where "in addition to being guilty of sexual assault, the appellants were also guilty of first degree murder, pursuant to s. 231(5) of the Criminal Code".
Here the court considers impropriety in a Crown closing, and repair in the subsequent trial judge:[70] In the vast majority of cases, any unfairness arising from an improper Crown closing can be remedied through a timely and focused corrective instruction. The trial judge is best positioned to assess the impact and significance that an improper remark may have had on the jury. The trial judge’s decision on remedy is entitled to deference and appellate intervention is warranted only when there is a substantial wrong or a miscarriage of justice: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at paras. 182-84; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 111, 122-26, 129 and 138-140.
[71] There was no unfairness in this case. The trial judge’s corrective instruction was specific, timely and unequivocal. It identified the improper suggestion made by the Crown, explained why it was improper, and told the jury in no uncertain terms to disregard it. Nothing more was required. In any event, the issue of whether Mr. Murillo was carrying one of the metal bars in his pocket was of marginal relevance to Mr. Murillo’s culpability since he admitted that he had struck the blows that killed Ms. Estrada with the metal bar he was carrying in his hand.
[72] I would therefore dismiss this ground of appeal. . R. v. Bhogal
In R. v. Bhogal (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a jury conviction for first degree murder.
Here the court considers the issue of mistatements of evidence in both Crown jury closings and the trial judge's jury charge:[81] For this ground of appeal to succeed, the appellant must establish both that there were misstatements of the evidence, and that one or more of those misstatements caused him substantial prejudice: at R. v. Ruthowsky, 2024 ONCA 432, 439 C.C.C. (3d) 137, at paras. 134, 142. Misstatements by the trial judge and by Crown counsel are assessed differently. A trial judge’s misstatement of evidence generally will not give rise to a reversible error, especially where no objection is taken at trial, unless the misstatement relates to a key piece of evidence or “a piece of evidence that is the sole support for a defence”: R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 155. Misstatements of evidence in the Crown’s closing address will give rise to a reversible error only when they are so prejudicial that they cause a substantial wrong or a miscarriage of justice: R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 36. As Copeland J.A. explained in Ruthowsky, at para. 142:While not determinative, the absence of an objection from defence counsel may indicate that the content of the Crown’s closing address was not viewed as improper at the time and/or that the comments were not so prejudicial as to render the trial unfair. [Citations omitted.] . R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the court considers corrective jury instructions regarding 'closing submissions':[82] Timely and focused corrective instructions are usually sufficient to remedy improper comments in Crown closings: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 124, 135 and 143; R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at p. 266. When a trial judge gives a corrective instruction, this court “must acknowledge the ability of jurors to understand and follow these instructions” and “should intervene only if the trial judge exercised this well-established remedial discretion unreasonably or acted on a wrong principle”: Chacon-Perez, at para. 126. Here, the corrective instruction came right after the Crown’s closing and was therefore timely. It was also specific, directly addressed the improprieties in the Crown’s closing and made clear that the jury was to disregard entirely the problematic parts of the Crown’s submissions: Chacon-Perez, at para. 144; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at paras. 40-41 and 106; and R. v. Howley, 2021 ONCA 386, at para. 49.
[83] Additionally, I see nothing improper in the trial judge’s interventions during the appellant’s closing. When evaluating interventions by a trial judge, the fundamental issue is whether the interventions led to an unfair trial: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 29-30, leave to appeal refused, [2011] S.C.C.A. No. 547 (Hamilton), [2012] S.C.C.A. No. 46 (Reid), [2012] S.C.C.A. No. 151 (Schloss), and [2012] S.C.C.A. No. 166 (Davis). In this case, the trial judge generally reminded the appellant on several occasions to “stick to the evidence”. This was necessary and appropriate in the circumstances.
[84] There was also no imbalance in how the trial judge treated the appellant’s closing as compared to the Crown’s closing. By providing the corrective instruction, the trial judge was pointing out that some aspects of the Crown’s closing were improper, which would not have left the jury with an impression that the trial judge was favouring the Crown. . R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered the propriety of the Crown's closing arguments, here in a jury trial:Analysis
[91] A trial is an adversarial process. Like defence counsel, Crown counsel are permitted to advance their positions forcefully to a jury: R. v. Daly (1992), 57 O.A.C. 70, at p. 76. However, there are limits to proper advocacy. A closing address by Crown counsel must be neither inflammatory nor unfair. Counsel must base their submissions on the evidence at trial. This means that counsel cannot supplement the trial evidence by effectively giving evidence in their closing submissions. Nor are counsel permitted to misstate the trial evidence. Further, counsel are not permitted to put before the jury in closing submissions matters which are based on counsel’s personal experience or observations, rather than the evidence at trial: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 107; R. v. Pisani, 1970 CanLII 30 (SCC), [1971] S.C.R. 738, at p. 740; R. v. B.E.M., 2023 SCC 32.
[92] Not every improper address to a jury will require a corrective instruction. Not every improper address where no corrective instruction is given will render a trial unfair such that a retrial is required. Some deference is accorded to the assessment by a trial judge as to whether a corrective instruction is required. However, a trial judge has a duty to present the case fully and fairly to the jury. Where an improper address by Crown counsel bears directly on the central issue in a trial and no corrective instruction is given by the trial judge, it may render the trial unfair and require a new trial: Rose, at paras. 124-27; Pisani, at pp. 740-41. . R. v. Clyde
In R. v. Clyde (Ont CA, 2023) the Court of Appeal considered the SOR for an appellate challenge to a Crown's criminal closing:[16] As this court stated in R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184, an appellate court must look at whether, “considered in the context of the trial as a whole, including evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial.” In this case, we are satisfied that the appellant’s right to a fair trial was compromised. . R. v. B.E.M.
In R. v. B.E.M. (SCC, 2023) the Supreme Court of Canada states briefly a useful practice point:It is common ground that, in closing submissions to the jury, Crown counsel should not have recounted an anecdote about a personal childhood memory that had no connection to the evidence (see Pisani v. The Queen, 1970 CanLII 30 (SCC), [1971] S.C.R. 738, at p. 740). Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel (see Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16). ... . R. v. Abdullahi
In R. v. Abdullahi (SCC, 2023) the Supreme Court of Canada considered the role and function of counsel's closing arguments in a criminal jury trial, here in a case where the SCC reviewed the adequacy of jury charges:(ii) Closing Arguments of Counsel
[63] Like the evidence, the closing arguments of counsel form part of the overall circumstances of the trial; in some circumstances, these can inform the sufficiency of the judge’s instructions. Notably, the closing arguments of counsel can be relevant to whether a contingent instruction was required. For example, in Khill, defence counsel’s repeated emphasis on the final “split second” of the incident supported the need for the trial judge to provide a specific instruction on the accused’s “role in the incident” in his instruction on self-defence (paras. 134-35). Or, if counsel makes a problematic statement in closing argument, it can be incumbent on the judge to correct this and to admonish the jury to disregard counsel’s statements; a failure to do so may amount to an error (R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at paras. 63 and 126-27).
[64] This Court has stated that counsel’s closing arguments may “fill gaps” in the judge’s charge (Daley, at para. 58). However, this statement must be understood in light of the nature of the alleged error. Appellate courts have viewed counsel’s closing arguments as capable of filling gaps in the judge’s review of the evidence (see, e.g., R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R. 179, at para. 15; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145, at paras. 41 and 46; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 81). This is because judges are not required to review in detail the whole of the evidence; they are required only to review critical parts of the evidence and to ensure that the jury understands the significance of the evidence having regard to the issues in the case (Daley, at paras. 56-57; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 47).
[65] I agree with the intervener, the Criminal Lawyers’ Association of Ontario, that counsel’s closing arguments cannot replace an accurate and sufficient instruction on the law. The fact that counsel might have explained a legal principle properly will not correct the trial judge’s failure to do so (Avetysan, at paras. 23-24; R. v. Gray, 2012 ABCA 51, 522 A.R. 374, at para. 19). Juries are invariably told to take the law from the judge and not from counsel or other sources. Such an instruction reflects the trial judge’s duty to instruct the jury on the law. It also prevents the jury from cobbling together disparate and potentially inconsistent explanations of the law. Reliance on multiple sources might well not only confuse juries but also frustrate appellate review of a jury instruction for legal error, as appellate courts would not know which legal principles the jury applied.
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