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Criminal - Jury - Cross-Count Propensity Reasoning. R. v. Tello
In R. v. Tello (Ont CA, 2023) the Court of Appeal considered the jury charge issue of 'cross-count propensity reasoning':[30] In R. v. M.(B.), (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (Ont. C.A.), this court held, that on a multi-count indictment, the jury must be instructed to consider each charge separately and not to use evidence relating to one count on any other counts: at p. 14. See also R. v. Dawson, 2016 ONCA 880, 343 C.C.C. (3d) 499, at para. 22.
[31] The trial judge instructed the jury in the following way on this issue:Each count of the indictment is a separate charge. You must make a separate decision and give a separate verdict for each charge. Your verdicts on each charge may be the same, or they may be different. You must make your decision on each charge only on the basis of the evidence that relates to that charge and the legal principles that I tell you apply to your decision on that charge. You must not use evidence that relates only to one charge in making your decision on any other charge. Mr. Tello is presumed innocent of each charge against him. In each case, your verdict will depend on your assessment of the evidence and your application of the legal principles that relate to that charge. The verdict sheet you will be given will show the verdicts available on each charge. And I will tell you more about its use later in these instructions. [Emphasis added.] [32] No issue is taken with how the trial judge summarized the evidence; the concern is that the trial judge ought to have presented the evidence in a way that restricted individual pieces of evidence to specific counts on the indictment.
[33] However, that was not feasible in this case because a good deal of the evidence was relevant to all of the counts. As the Crown points out, the events surrounding the trafficking and proceeds counts took place within the context of the broader conspiracy to import cocaine. The evidence was interrelated.
[34] Moreover, defence counsel repeatedly urged the jury to consider all of the evidence in their consideration of whether the appellant was the author of the PGP messages, the credibility of UCO Joe, whether the manner in which the police preserved the PGP messages was accurate and reliable, and whether the subject-matter of the discussions between the appellant and UCO Joe was actually about cocaine. In these circumstances, it was not necessary to summarize the evidence in the siloed manner now requested on appeal. See, for example, R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at paras. 11-15.
[35] Moreover, defence counsel did not object to the instructions as given, no doubt because it would have undermined the holistic approach he urged upon the jury. While not dispositive, defence counsel’s absence of an objection is informative: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 39, 52.
[36] The appellant further submits that the trial judge did not give a sufficient warning against cross-count propensity reasoning. The concern is that the jury heard a good deal of bad character evidence and evidence of other potential conspiracies that never came to fruition, as discussed earlier. Moreover, there was a danger that the jury would use the conspiracy count to reason that the appellant was more likely to be guilty of the other three counts which, while serious, paled in comparison to the conspiracy (at least in terms of the amount of cocaine involved).
[37] It is clear that the trial judge did not specifically warn the jury that a finding of guilt on one count is not evidence of guilty on another. However, in Dawson, Feldman J.A. observed that this type of instruction is merely an example of the instruction to keep the evidence on each count separate. As she said, at para. 28: “failure to give a propensity warning is not always fatal. Rather, the court may tailor the charge in a particular case to suit the circumstances of the case.”
[38] That is what the trial judge did in this case. He gave a strong general propensity warning:You have heard evidence in this case that might suggest that Mr. Tello may have engaged in other potentially discreditable were questionable conduct, or had associations with others who might have been engaged in discreditable or questionable conduct. [39] After referring to some of this evidence, the trial judge then told the jury:Accordingly, you must not use this evidence, or this kind of evidence, to conclude or to help you conclude, that Mr. Tello is someone with a morally questionable disposition, or someone with questionable associations and relationships, who was more likely to have committed the offences to charge because of that disposition or because of those associations. Similarly, you must not seek to punish Mr. Tello for any such perceived discreditable or morally questionable conduct, or for his questionable associations or relationships with others, by finding him guilty of the offence charged, simply because he engaged in that conduct or had those associations. [Emphasis in the original.] [40] This instruction was sufficient in the circumstances. Defence counsel raised no objection to it. This ground of appeal is dismissed.
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