Appeal court tosses robbery convictions
Overcharges led to ‘ confusing’ jury instructions
The province’s highest court wants prosecutors to know that when it comes to jury trials, less is more.
The Ontario Court of Appeal is sending that message in a new decision that found the two defendants in a London home invasion case faced too many criminal counts, leading the judge to give “confusing” and “erroneous” guidance to jurors.
“In the end result, the jury instructions did not properly equip the jury with the tools necessary to decide this case fairly,” the threejudge panel wrote. The ruling ordered a new trial for two men convicted of robbery, assault with a weapon and other offences.
The case, which began with the accused facing 26 charges — reduced to 14 after a third defendant pleaded guilty — demonstrates the risks associated with including multiple counts in an indictment arising out of the same conduct, the panel stated.
“It would benefit the conduct of prosecutions generally if the Crown identified the key offences involved and prosecuted only those offences.”
The appellate court cited a recent Supreme Court of Canada decision that said it is incumbent on the Crown to make the trial process less burdensome, not more.
“The Crown fails in that regard when it proceeds with duplicative counts. Doing so not only increases the length of the trial; it also places a greater burden on trial judges and juries by increasing, as it does, the complexity of jury instructions,” Supreme Court Justice Michael Moldaver wrote in that 2021 decision.
Mark Halfyard, one of the Toronto defence lawyers involved in the appeal, said multiple criminal charges can complicate even the simplest of cases.
“While trial judges do their very best to instruct the jury on the law, laying multiple charges that ultimately amount to a single criminal act ( or acts) can only serve to confuse the jury and lead to costly mistakes,” Halfyard, who teamed up with Chloe Boubalos on the appeal, wrote in an email. “The way to avoid this problem is to separate the wheat from the chaff, to decant and simplify the charges that go before the jury.”
Defence lawyer Chris Rudnicki, who also represented one of the two defendants, said Wednesday that while police officers lay criminal charges, it’s up to Crown attorneys to decide which counts to proceed on — “the Crown is the one who has to go to the jury and ask for verdicts, not the police.”
The risk of proceeding with multiple counts, as was done in this case, is that the jury charge “becomes this confusing morass that the jurors don’t understand and it becomes unfair to the accused. There’s too much going on,” he said. Often overcharging happens in firearm cases, where someone is charged with nine different counts for one loaded gun, he said.
The appeal court decision should also remind judges that they shouldn’t be afraid to intervene in a trial, Rudnicki said. While a judge can’t take counts off the table, he or she can question the need for multiple charges on the basis that it will be too confusing for a jury.