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Criminal - Jury Charge - Limited Use Instruction. 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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