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Evidence - Prejudice (2). R. v. Ghoreishi
In R. v. Ghoreishi (Ont CA, 2026) the Ontario Court of Appeal dismissed a Crown criminal conviction appeal.
The court considers tendency evidence [labelled 'bad character' evidence], here assessed in terms of 'prejudice':[18] Bad character evidence carries with it several types of prejudice, broadly grouped into two categories: moral prejudice and reasoning prejudice. Moral prejudice refers to the risk that the jury might convict the accused based on “bad personhood”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 102; R. v. Chizanga, 2024 ONCA 545, 172 O.R. (3d) 241, at para. 28, aff’d 2025 SCC 9, 501 D.L.R. (4th) 1; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 71-72. This involves two related concerns. First, there is a concern that the jury might engage in impermissible general propensity reasoning – concluding from the bad character evidence that the accused is the type of person who is likely to have committed the offence with which they are charged. Second, there is a concern that the jury might convict the accused simply to punish them for their other “bad acts”.
[19] The second category of prejudice is reasoning prejudice. This category encompasses a range of concerns, broadly focused on the risk that the bad character evidence may divert the jury from its task: Z.W.C., at para. 103; Chizanga, at para. 29; Handy, at para. 83, 144. Bad character evidence, unconnected or only loosely connected to the offences charged, may distract the jury and cause confusion. Dealing with such evidence may also take up undue trial time.
[20] Here, Mr. Ghoreishi’s arguments relate to the second aspect of moral prejudice: the risk that the jury might have convicted simply to punish him for his “bad acts” that did not form the basis for the charges. He argues that the trial judge ought to have warned the jury against this form of prejudice.
[21] I agree that such an instruction is preferable. Where bad character evidence is admitted, trial judges should generally warn against both forms of moral prejudice: R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at para. 62. However, the absence of an instruction in relation to one or more aspects of moral prejudice is not always fatal. Jury instructions are not held to a standard of perfection: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9. They are to be assessed functionally and as a whole, in the context of the evidence and the issues at trial, and with a view to whether there was a meaningful risk that the jury engaged in impermissible reasoning: R. v. R.M., 2022 ONCA 850, 421 C.C.C. (3d) 137, at paras. 14-20.
[22] Here, I am not convinced that there was a meaningful risk that the jury would have convicted Mr. Ghoreishi simply to punish him for his other “bad acts”. Throughout the charge, the jury was repeatedly instructed that the Crown had the burden of proving each of the essential elements of the offences beyond a reasonable doubt. As it related to the bad character evidence, the jury was also appropriately instructed on both the permissible uses of the evidence and that it was impermissible to engage in general propensity reasoning. This instruction was repeated several times throughout the charge, as the trial judge related specific pieces of evidence to the jury.
[23] It should be recalled that the two aspects of moral prejudice are related – both being concerned with a risk that the jury might convict based on “bad personhood”. As a result, the warning against general propensity reasoning attenuated the risk stemming from the other aspect of moral prejudice – the risk that the jury might convict Mr. Ghoreishi as a form of punishment for being a “bad person”.
[24] Although not determinative, it is also relevant that defence counsel[4] did not raise any concerns about this aspect of the charge at trial, despite the trial judge specifically drawing it to his attention: R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 89. Clearly, defence counsel, who was intimately familiar with his client’s case and had the benefit of witnessing the trial unfold, did not consider there to be a significant risk that the jury would convict as a means to punish Mr. Ghoreishi for his other acts.
[25] Finally, it is clear from the verdict that the jury took its role seriously and rigorously applied the burden of proof to the evidence. If the jury was simply convicting to punish Mr. Ghoreishi for his other acts, it is unclear why it would have found Mr. Ghoreishi not guilty of five of the seven charges he faced.
[26] I am satisfied that, read as a whole and in the context of this case, the jury was appropriately instructed and there is no real risk that the jury might have engaged in impermissible reasoning. I would dismiss the conviction appeal. . 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 prejudice-probative balancing:[75] A trial judge’s determination that evidence is relevant – i.e., that it has some tendency as a matter of logic and human experience to make a fact in issue more or less probable, in light of all the other evidence – is a question of law reviewable on the standard of correctness: R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, at paras. 38-41, 45. However, judicial balancing of the probative value and prejudicial effect of evidence, including decisions about whether a limiting instruction can mitigate prejudice, is a discretionary decision entitled to deference: Schneider, at para. 62.
[76] With respect to the prejudice that arises from discreditable conduct evidence, a trial judge should consider not only the potential for moral or reasoning prejudice but also “any factors that might reduce the impact of prejudice in the specific circumstances of the case”: R. v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at para. 30, leave to appeal refused, [2022] S.C.C.A. No. 220. The risk of prejudice is lower when the discreditable conduct “unfolds as part of the story” than when it relates to the accused’s behaviour in contexts removed from the charged offences: R. v. Joles, 2022 ONCA 681, at para. 10. A trial judge’s determination that the probative value of discreditable conduct evidence exceeds its prejudicial effect is owed significant deference. Appellate courts will intervene only where this balancing reflects an error of law or a misapprehension of evidence or yields an unreasonable result: R. v. Amin, 2024 ONCA 237, 171 O.R. (3d) 561, at para. 33. . R. v. P.N.W.
In R. v. P.N.W. (Ont CA, 2024) the Divisional Court considered an issue of evidentiary prejudice:[22] Had there been an admissibility hearing, the evidence would undoubtedly have been admitted. The evidence was reliable, and was probative when used, as the Crown requested, to support C.R.’s testimony that the appellant had used violence against her during the assault in question. The risk of moral and reasoning prejudice, as described in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, was slight. It is highly unlikely that the trial judge would have used the evidence to draw the impermissible inference that because the appellant was a violent person, he would have committed the assault. The evidence was specific to the nature of the relationship between the appellant and C.R., suggesting a pattern of violence by him against her in particular, showing both a pattern of physical aggression and an animus against her. It was far more likely that the trial judge used this evidence for these permissible purposes than for the prohibited purpose. There was also a low risk of reasoning prejudice. This ground of appeal fails. . R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments.
Here the court considers different types of evidentiary prejudice:(iii) Identifying the “prejudicial effect” of evidence of Prior Discreditable Conduct
[27] Assuming the evidence has sufficient probative value to potentially warrant its admission, its prejudicial effect must then be assessed. “Prejudicial effect” is not simply an increase in the likelihood of conviction since (presumably) any evidence that the Crown seeks to adduce is intended to increase the likelihood that the Crown will prove its case. Rather, “prejudicial effect” in this context involves particular forms of prejudice, namely, “moral prejudice” or “reasoning prejudice”, either of which give rise to a risk of an unfocussed trial and a wrongful conviction”: Handy, at para. 139 (emphasis in original).
[28] Moral prejudice arises when the trier of fact infers guilt on the basis of the “bad character” of the accused and convicts them not because the Crown has necessarily proven its case but merely because the accused has committed bad acts in the past. The risk of such impermissible inferences overwhelming the reasoning of the trier of fact is particularly acute where the Prior Discreditable Conduct evidence paints the accused as a person with a general disposition to commit crimes: Handy, at para. 85. The risk of impermissible reasoning is also heightened where the Prior Discreditable Conduct evidence is inflammatory or repugnant, thereby potentially leading the trier of fact to convict the accused merely to punish them for such Prior Discreditable Conduct.
[29] “Reasoning prejudice” arises where the Prior Discreditable Conduct evidence distracts the trier of fact from the real issues in the case: Handy, at para. 100. Such prejudice could occur where, as discussed above, the Prior Discreditable Conduct evidence is disputed or unclear. In these circumstances, the trier of fact may improperly focus their attention on the sufficiency of proof of the Prior Discreditable Conduct, rather than on whether the Crown has proven the particular allegations in the indictment before the court beyond a reasonable doubt.
(iv) Weighing “probative value” versus “prejudicial effect”
[30] Finally, the probative value of the Prior Discreditable Conduct evidence must be weighed against any likely moral or reasoning prejudice that would result if the evidence were admitted, to determine whether its probative value outweighs its prejudicial effect. There is no simple formula or algorithm that can be employed to make this determination, nor can it be reduced to a mere accounting exercise. Rather, it involves an assessment of the degree to which the Prior Discreditable Conduct evidence will either properly assist or inappropriately prejudice the trier of fact in their findings, considered in light of the positions of the parties and circumstances of the case as a whole and through the lens of logic and human experience: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at paras. 172-73, leave to appeal denied, [2018] S.C.C.A. No. 50. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal dismissed a first-degree murder appeal - where a judge, his wife and a neighbour were killed.
Here the court finds an error in admitting physical evidence where it's prejudice outweighed it's probative value (the court later applies the curative proviso to excuse the error):[3] For the reasons that follow, I find that the trial judge erred by admitting into evidence the contents of a bag seized from the appellant’s residence without analyzing the probative value and prejudicial effect of each item in the bag individually. This was essential given the risk that the jury would misuse this evidence by concluding the appellant was the type of person who would commit the Garon murders. ....
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(1) Admissibility of Items Seized from the Appellant’s Home
[20] The appellant argues that the trial judge erred by admitting evidence suggesting the appellant was planning other murders over the period since the Garon murders, or, in the alternative, erred by failing to give a sufficiently robust limiting instruction.
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[27] Even when evidence has a permissible use, if it also incidentally exposes the general bad character of an accused – which it did here – a trial judge must balance the probative value of the evidence against its prejudicial effect: R. v. G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at paras. 65, 69; R. v. O.R., 2015 ONCA 814, 333 C.C.C. (3d) 367, at paras. 15, 24-26.
[28] And even if a proper analysis were undertaken, resulting in the leather bag and all of its contents being admitted, it was incumbent on the trial judge to provide a sufficiently pointed limiting instruction in the final charge; one that described the evidence to which the instruction applied and clearly delineated the permissible and impermissible uses of that evidence: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 691, 693-694. Such an instruction would necessarily direct the jury to not: (1) punish the accused for past misconduct, or (2) reason from general disposition to guilt.
[29] The trial judge’s instruction did not achieve these two objectives and therefore did not go far enough to abate the risks present here.
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