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Criminal - Jury - Mid-trial Instructions. R. v. Marshall
In R. v. Marshall (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, this after he "was convicted of one count of second-degree murder after a trial by jury".
Here the court considers 'mid-trial instructions' to the jury:[102] As a matter of law, the absence of a mid-trial instruction alone does not necessarily amount to reversible error. The decision to provide a mid-trial instruction is discretionary: see R. v. Howard, 2017 BCCA 263, at para. 30. As such, the trial judge was not bound by law to provide such an instruction.
[103] The issue is whether, in the absence of a mid-trial instruction, the jury was nevertheless properly instructed before rendering their decision to ensure that the accused has a fair trial.
[104] Appellate courts must take a “functional approach” in reviewing jury instructions for potential legal error by asking whether a jury was “properly, not perfectly” instructed: R. v. Lozada, 2024 SCC 18, 492 D.L.R. (4th) 75, at para. 14. A properly equipped jury is one that is accurately and sufficiently instructed: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 37. In this case, the appellant takes issue with the sufficiency of the trial judge’s instructions safeguarding the jury from propensity reasoning based on the appellant’s criminal record.
[105] The jury was properly instructed that,1. They must not use the fact the appellant had committed a crime as evidence that he was guilty of this charge;
2. They could only consider the appellant’s prior convictions to help them decide how much weight to give his testimony;
3. They were to consider the number, nature, and dates of the convictions. Some convictions, such as those involving dishonesty, may be more important while dated convictions, may be less significant;
4. They may consider the appellant’s age at the time of the earliest convictions;
5. A previous conviction does not necessarily make the appellant’s evidence unbelievable or unreliable and is only one of many factors for the jury to consider; and
6. They must not use the evidence of a previous conviction to find that the appellant is a person of bad character and therefore “likely to have committed this crime.” [106] The jury charge, which was provided to both Crown and defence in advance and which was accepted by both parties, properly equipped the jury with the tools they needed to decide the case before it and adequately guarded against the risk of general propensity reasoning.
[107] The jury was cautioned to not use the appellant’s criminal record to evaluate anything other than his credibility and they were instructed not to use evidence of any previous conviction to evaluate whether the appellant likely committed this crime.
[108] I conclude that the absence of a mid-trial instruction does not constitute a reversible error as there is no requirement to give one and the final instruction was clear. I would therefore dismiss this ground of appeal.
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