A key component of a trial by judge and jury is the requirement that the judge provides appropriate instructions to the jury regarding the law that must be applied to the facts of the case they have found to be true. The purpose of the jury charge (instructions) is to help educate the decision-maker so that an informed decision can be made and ensures that the jury arrives at a verdict consistent with the law. In some cases, special instructions may also be included in the jury charge, for example, with respect to evidence that has been provided throughout the trial.

In a recent Ontario Court of Appeal decision, an individual was accused of soliciting assistance in his plan to kidnap and extort several lawyers. The accused appealed his conviction on several grounds, including the fact that the trial judge erred in instructing the jury with respect to prior consistent statements.

Accused seeks assistance in a plan to kidnap and extort lawyers

In R v. Freedland, the Crown alleged that the accused (the “appellant”) offered to pay a man (“Mr. James”) to aid him in his plan to kidnap a number of lawyers who he believed defrauded him and cheated him out of civil judgments he was entitled to. The Crown argued that the appellant planned to take the lawyers to a secluded farm and record coerced confessions admitting to their wrongdoings and would then threaten to use the confession videos as blackmail if they failed to pay him. However, this plan never materialized.

This plan became known when police arrested Mr. James on unrelated matters. Mr. James immediately began providing details of the appellant’s plan and told police that he was only going along with the plan until it was the appropriate time to notify them. However, some of Mr. James’s evidence was contradicted by other evidence. Mr. James faced the same charges as the appellant at the time of his testimony, but these were withdrawn after the appellant’s trial.

Inconsistencies in witness testimony

The appellant testified that he knew Mr. James but denied any agreement or plan to kidnap and extort lawyers. He admitted that he was angry with several lawyers and indicated that he was about to be vindicated by an esposé and would recover owed funds. Crown evidence did establish that the parties purchased a shotgun together, and a handwritten list containing several names of lawyers was produced.

The Crown’s argument relied on the jury accepting Mr. James’s evidence that the appellant sought out his assistance. While some of Mr. James’s evidence appeared credible, he was an “unsavoury witness” for a number of reasons, with the Crown arguing that he had lied to the jury when he stated that he did not actually intend to follow through with the appellant’s plan.

Judge Accused convicted and sentenced to imprisonment

The trial judge flagged this issue and provided the jury with a “strong “Vetrovec” warning” and noted that “any “deliberate lie” by Mr. James in his testimony could taint the entirety of his testimony.”

At trial, the appellant retained counsel for cross-examination of Mr. James. However, he was alone at the end of the trial and could not voice an objection when the trial judge failed to raise the issue of witness statement inconsistencies when he provided instructions to the jury.

Following deliberation, the accused was convicted of one count of counselling extortion and was sentenced to three years imprisonment. The accused was acquitted of two charges of conspiracy to kidnap and extort. These verdicts were consistent with Mr. James’s evidence.

Conviction appealed on four grounds

The accused appealed his conviction to the Ontario Court of Appeal, raising four grounds of appeal. He also commenced a motion to adduce fresh evidence with respect to Mr. James’s credibility. The Court of Appeal called on the Crown to respond to two grounds of appeal, namely:

• Whether the trial judge erred in finding that evidence provided by a store clerk was not admissible as non-expert opinion evidence; and
• Whether the trial judge erred by failing to instruct the jury with respect to the limited use the juror could make of Mr. James’s prior consistent statements.

Arresting officer provides testimony; summarizes witness’ statement

In its analysis of the trial judge’s instructions to the jury, the Court noted that Mr. James was first arrested on charges involving his former domestic partner. Upon his arrest, he told police officers that his life was in danger and began divulging details regarding the appellant’s plan. The arresting officer provided evidence at trial in response to the Crown’s questions and provided a detailed summary of Mr. James’s videotaped statement.

During this testimony, the trial judge interrupted to inquire why the officer was providing such evidence and instructed the jury that they were hearing this information as “part of the narrative to assist you in understanding why the police did what they did after receiving certain information.” Further, the trial judge instructed the jury that “out of caution’s sake, that account should come from Mr. James’s mouth.” Despite this instruction, the Crown continued to elicit evidence about Mr. James’s statements from the testifying officer.

The trial judge later repeated his concern regarding the arresting officer’s recitation of Mr. James’s statement. He noted that he warned the jury about hearsay evidence and planned to do so again later.

Trial judge did not mention prior consistent statements in the final charge to the jury

As the trial continued, no additional mid-trial instructions were provided to the jury regarding the prior consistent statements. Further, in his charge to the jury, the trial judge did not mention the prior consistent statements and the jury was not instructed that they could only make limited use of the fact that the arresting officer’s testimony was consistent with the evidence provided by Mr. James.

In its analysis, the Court of Appeal referenced the Supreme Court of Canada decision in R v. Ellard, which held that:

“because there is a danger that the repetition of prior consistent statements may bolster a witness’s reliability, a limiting instruction will almost always be required where such statements are admitted. The purpose of such an instruction is to tell the jury that consistency is not the same as accuracy[.].”

Court of Appeal orders new trial

While a trial judge’s failure to provide the jury with a limiting instruction under similar circumstances is not necessarily detrimental, such an omission can create an irreversible error leading to a miscarriage of justice. In this case, the Court of Appeal found that providing the limiting instruction to the jury was “necessary as a matter of law” as they “figured prominently in the Crown’s case.” The Court noted that Mr. James’s credibility was vital in this case and that absent a limiting instruction, the jury could have interpreted Mr. James’s recollection of his story as a “strong indicator of the reliability of that story.”

The Court of Appeal ultimately allowed the appeal on the basis that the trial judge erred in failing to instruct the jury regarding the limited use of Mr. James’s prior consistent statements and ordered a new trial. In its reasoning, the Court noted that the trial judge’s “failure to instruct the jury on the limited use of Mr. James’s prior consistent statements is non-direction amounting to misdirection.”

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