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Criminal - Jury Charge - Limited Use Instruction. R. v. A.S.
In R. v. A.S. (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, here brought against "his convictions, in a trial by jury, for two counts of sexual assault, one count of invitation to sexual touching, and one count of indecent exposure to a person under 16 years of age.".
The court considers the effect of a failure include a 'limited use' condition to it's jury instructions, here regarding it's instructions on collusion:e. Discussion and conclusion on collusion instruction ground
[39] As noted above, the appellant argues that, having chosen to give an instruction on collusion that applied to the defence evidence, the trial judge erred in failing to instruct the jury that the instruction did not apply to the appellant’s evidence and in failing to caution the jury that, if they rejected the evidence of the appellant’s family members on the basis of collusion, they could not use that rejection (a) to draw an inference that the appellant was lying, or (b) as circumstantial evidence of guilt. The appellant bases this argument on two lines of cases: first, R. v. Soobrian (1994), 1994 CanLII 8739 (ON CA), 96 C.C.C. (3d) 208 (Ont. C.A.); and second, R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), and R. v. U.K., 2023 ONCA 587, 430 C.C.C. (3d) 81.
[40] Soobrian involved circumstances where the Crown called a witness it knew would not support the Crown’s case (i.e. a witness friendly to the defence) in order to seek leave to cross-examine the witness and impeach them during examination in chief. The danger identified in Soobrian is that if the jury concludes the witness is lying, they may find the witness is doing so to protect the accused and use that against the credibility of the accused as a witness. This court found in Soobrian that in those circumstances, a specific cautionary instruction is required to tell the jury that if they reject the evidence of the impeached witness, they must not infer from that rejection either (a) that the accused is less credible, or (b) that the accused is therefore guilty: Soobrian, at pp. 218-19; R. v. Figliola, 2018 ONCA 578, 363 C.C.C. (3d) 94, at para. 52.
[41] The appellant acknowledges that the context in this case is different, because the Crown did not call the witnesses at issue. However, he argues that the circumstances of this case give rise to the same concerns in relation to the jury misusing a collusion finding in relation to the other defence witnesses to reflect adversely on the appellant’s credibility.
[42] The second line of cases relied on by the appellant are those which place limits on the ability of the Crown to argue that rejection of an accused’s evidence may be evidence of guilt and that discuss the required limiting instructions where issues of fabrication by an accused are raised by the Crown. The criminal law draws a distinction between disbelieved evidence and fabricated evidence. The reason for the distinction is the risk of inadvertently shifting the burden of proof by turning disbelieved evidence into positive evidence of guilt. Disbelieved evidence has no evidentiary value. By contrast, fabricated evidence may be considered as circumstantial evidence of guilt. In order to maintain this distinction, absent independent evidence of fabrication, a trier of fact is not permitted to infer guilt from the rejection of an accused’s testimony. Where the Crown alleges that the accused fabricated their testimony, the failure to give the jury a specific instruction in accordance with these principles may constitute reversible error. This is because, without a specific instruction, juries may have difficulty understanding the difference between disbelieved evidence and fabricated evidence: O’Connor, at paras. 17-23; U.K., at paras. 70-76; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at paras. 38-39, 41.
[43] The appellant argues that the principles from the O’Connor line of cases apply in this appeal because the trial Crown’s theory of collusion that was left with the jury did not distinguish between the appellant and the other members of the family. In other words, it was a theory that the appellant fabricated his evidence in collusion with his family. However, there was no evidence (independent or otherwise) of fabrication on the part of the appellant.
[44] The Crown argues that the principles from Soobrian are not applicable in the circumstances of this appeal because the witnesses concerned were not called by the Crown for the purpose of attacking their credibility. The Crown argues that the principles from the O’Connor line of cases are not applicable because the trial Crown did not implicate the appellant in the alleged collusion; although the Crown acknowledges that there are passages in the trial Crown’s jury closing that could have been clearer. In other words, the Crown argues that the trial Crown did not allege fabrication on the part of the appellant.
[45] In my view, the concerns raised in cases such as O’Connor, U.K., and
Al-Enzi, are applicable to this appeal. As a result, it is not necessary to address the appellant’s argument based on Soobrian, which would require the court to consider expanding the principles from that case to a different context.
[46] There are two fundamental problems with how the collusion issue was put to the jury in this trial. The first arises out of the Crown’s closing. The second out of the jury instructions. Both arise out of the fact that there was no evidentiary basis to permit the jury to consider whether the appellant fabricated his evidence, and in particular, whether he colluded with his family members to fabricate his evidence.
[47] The issues with the Crown’s closing may not have been fatal had a limiting jury instruction been given. But, as I will explain, this did not occur. I also want to be clear that, in concluding that it is likely the jury would not have understood Crown counsel’s collusion submission as excluding the appellant, I do not ascribe any improper motive to the trial Crown.
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[50] There was no evidentiary basis for the Crown to argue to the jury (or leave the jury with the impression it was arguing) that the appellant fabricated his evidence in collusion with his family members. The appellant was not cross-examined on whether he at any time discussed the allegations or his evidence with his family. To the extent other family members were cross-examined about family members discussing the allegations against the appellant, none were asked whether the appellant was present for those conversations. As noted above, whether the appellant was present was left unclear on the evidence at trial.
[51] Because there was no evidence that the appellant colluded with his family members to fabricate his evidence, the Crown should not have been permitted to make arguments to the jury suggesting that the appellant colluded with his family to fabricate the defence evidence.
[52] The jury instructions raise the same concern. As noted above, the instruction on collusion was left to the jury in general terms, referring to “witnesses” generally. The appellant was a witness. The plain meaning of the reference to “witnesses” in the collusion instruction included the appellant. There is every reason to believe the jury would have understood the reference to “witnesses” to include the appellant. Further, the fact that the trial judge specifically excepted the appellant’s son from the instruction (not in itself objectionable), would have signaled to the jury that the instruction applied to all of the other witnesses, including the appellant.
[53] The trial judge’s summary of the Crown position in the jury instruction reinforced that the Crown’s collusion argument was made in relation to the whole family, including the appellant, because it referred to the family members, including the appellant, collectively.
[54] As I have outlined above, there was no evidentiary basis to permit the jury to consider whether the appellant colluded with his family to fabricate his evidence.
[55] The failure to give the jury a limiting instruction in relation to the collusion instruction was an error and it was prejudicial to the appellant. The trial judge should have cautioned the jury:. that the collusion instruction did not apply to the appellant;
. that if they rejected the evidence of the appellant’s family members, or gave it less weight, on the basis that their evidence was tainted by collusion, they could not use that fact in assessing the appellant’s credibility; and,
. that if they rejected the evidence of the other family members, or gave it less weight, on the basis that their evidence was tainted by collusion, they could not use that fact to infer that the appellant was guilty of the offences charged. [56] It is well-established that jury instructions are not held to a standard of perfection on appeal. An appellate court must take a functional approach to reviewing a jury charge, and must examine the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. The issue on appeal is whether the jury understood, or was properly equipped with, the law to apply to the evidence: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at paras. 35-36, 40-41, and 53-56.
[57] In this case, the failure to provide the limiting instructions outlined above left the jury inadequately instructed on the law as it related to the fundamental credibility issues in this trial. . R. v. McDonald
In R. v. McDonald (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal murder appeal, here brought against a jury decision that "found the appellant guilty of second- degree murder".
Here the court corrects a erroneous Browne v Dunn corrective jury instruction:3. The Corrective Instruction
[71] Even if one were to accept that there was a breach of the rule in Browne v. Dunn, which I do not, there remains an insurmountable difficulty with the way in which the perceived problem was remedied. Although the remedy for a breach of the rule in Browne v. Dunn is a matter of discretion, I am of the view that the corrective instruction provided to the jury contains an error in principle.
[72] For ease, I repeat that instruction here:To decide the reason for what Mr. McDonald did or said afterwards you should consider all the evidence. As it relates to Ms. Gregory, the defence position is that you should not believe her and that you should find her account unreliable.
[Defence counsel] yesterday suggested that she made up her account. However, I must point out to you that she was not challenged in cross-examination in that way. She was not given an opportunity to explain any assertion that she was making up her testimony and as such, it is not open to you to conclude that she made it up for one reason or another.
Her reliability, and whether or how much of her evidence you will accept, is up to you but you cannot base that decision on a determination that she fabricated her story. That was not put to her. [Emphasis added.] [73] In my view, this instruction went too far because it inhibited the jury from considering whether Ms. Gregory fabricated her evidence about the phone call and, if there was a call, the contents of that call. Therefore, even if there had been a breach of the rule in Browne v. Dunn, the corrective instruction went too far.
[74] Instead, assuming a breach, at most, the jury should have been told that they could take into account the fact that Ms. Gregory was not questioned about fabricating the call or its contents when deciding the weight, if any, to be given to her evidence about the confession: see e.g., McNeill, at para. 49. Instead, consideration of fabrication was erroneously removed entirely from the calculus. The effect of the impugned instruction was to direct the jury that they had to treat Ms. Gregory’s evidence about the call as credible and could only reject it on reliability grounds. Respectfully, this was an error. The jury was not required to accept Ms. Gregory’s evidence about the call as true simply because it was not suggested to her that she was making it up or, to put it another way, “fabricating” the fact that the appellant had confessed. As before, the rule in Browne v. Dunn is one of fairness, not admissibility.
[75] Although the trial judge stated that it “was not [his] intention to lay it out that way”, and it undoubtedly was not his intention, the effect of this instruction, given in the real-time speed of a jury trial, was profound. The jury was essentially instructed that they could not find Ms. Gregory had been intentionally untruthful, leaving them only to deliberate about whether she had trouble recalling the details of the confession, but not whether it had been fabricated.
[76] Although the trial judge offered to re-read the instruction with an added clarification that the jury could believe or disbelieve any part of Ms. Gregory’s testimony, he declined to take out the erroneous part of the instruction that the jury could not base its decision on whether to accept Ms. Gregory’s evidence on a determination that she had fabricated her story. Accordingly, it is unsurprising that defence counsel was instructed “just to leave it totally”, a decision that was undoubtedly rooted in a desire to not draw more attention to the matter than necessary.
[77] The respondent emphasizes that the jury received correct instructions regarding how to approach each witness’s evidence, and that they could believe some, none or all of a witness’s testimony. This, however, is no answer to the difficulty that arose from the impugned instruction. This general instruction was inconsistent with, and undermined by, the trial judge’s specific instruction that the jury could not conclude Ms. Gregory made up the confession: “you cannot base that decision on a determination that she fabricated her story.” In these circumstances, the jury would not have understood that it was open to them to find Ms. Gregory’s evidence about the call was not credible. As a result, the trial judge’s general instruction about how much or how little to believe a witness’s testimony did not overcome and remedy his specific instruction erroneously telling the jury it could not consider whether Ms. Gregory fabricated the confession.
[78] Of course, appellate courts are not to review jury instructions against a standard of perfection. Instead, they are to ask whether the instructions, when read as a whole, equipped the jury to decide the case according to the law and the evidence: R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14. Unfortunately, that standard is not met in this case: the Browne v. Dunn instruction usurped the jury’s function by prohibiting the jury from finding the confession was fabricated because that suggestion was not put to Ms. Gregory in exactly that way. . R. v. Pierre
In R. v. Pierre (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction for second-degree murder.
Here the court considered a 'limited use' jury charge, applicable where evidence - which can be used for more than one purpose - needs to be cautioned on to limit it's use:A. The Limited Use Instruction
[55] In Calnen, at para. 113, Martin J., who in her dissenting judgment stated for the court the general legal principles that apply to the use of after-the-fact conduct, said:Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required. See also, White (2011), at para. 39.
[56] As Watt J.A. explained in McGregor, at para. 106, “Instructions limiting the use of evidence by the trial judge typically include three elements: (i) identification of the evidence to which the instruction applies; (ii) an instruction on the permitted use of the evidence, and (iii) an instruction on the prohibited use of the evidence” (emphasis in original). At paras 57-65 the court considers such instructions in light of the case facts.
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