R v Araya: Court Clarifies Appellate Review of Jury Instructions

Before juries begin deliberations, the presiding trial judge imparts careful instruction on the relevant points of law. The accuracy and sufficiency of these instructions, which are, of necessity, often long and complex, are frequent grounds of appeal. In R v Araya, 2015 SCC 11 [Araya, SCC], the Supreme Court of Canada (“SCC”) ruled on the proper approach that appellate courts are to take when considering such appeals. In Araya, the Court was faced with two competing models of analysis – one focused, one holistic – and was made to choose between them. Ultimately, the court opted for the latter approach.

Facts and Findings at First Instance

On the night of 3 October 2008, Boris Cikovic, 17, was socializing with a group of friends near the tennis courts in Toronto’s Buttonwood Park. Three or four men appeared and attempted to rob members of Mr. Cikovic’s group before meeting some resistance and fleeing. Mr. Cikovic, who had used a taser on one of the assailants, pursued the would-be robbers as they fled the park. During the chase, one armed assailant turned and shot Mr. Cikovic, killing him (Araya, SCC, para 7).

Nahoor Araya was tried before a jury in 2011 on the basis that he was one of the assailants involved in the incident, although the Crown did not allege that he was the shooter. At trial, eyewitnesses were only able to provide vague descriptions of the assailants as young, black, thin, and clean shaven. With Mr. Araya disputing that he was at the park on the night in question, the vague nature of the eyewitness testimony made identification a central issue trial (Araya, SCC, para 13).

Mr. Araya’s physical appearance had changed since the events of 2008. By the 2011 trial, he had gained weight, had shorter hair, was clean shaven, and wore glasses. As a result of these changes, the Crown sought to admit into evidence two photographs of Mr. Araya taken in 2008, five days after the shooting. At the time, Mr. Araya was younger and thinner with bushy hair and some facial hair.

Defence counsel objected to the photographs, arguing that their admission would be unduly prejudicial. It was argued that the jury, if shown the photographs after having heard the vague eyewitness descriptions and noting that Mr. Araya matched that description, might, on those grounds, erroneously conclude that Mr. Araya must have been one of the assailants. We’ll refer to this as the “impermissible inference.”

The trial judge, Justice McMahon, admitted the photographs for the limited purpose of allowing the jury to consider whether the accused fit the description given by the eyewitnesses. In his instructions, he appeared to warn the jury against the impermissible inference, stating that they could not conclude that Mr. Araya was involved solely from the fact that his appearance fit the eyewitnesses’ general descriptions (Araya, SCC, para 14).

The jury convicted Mr. Araya of manslaughter. He appealed the conviction to the Court of Appeal for Ontario on seven different grounds.

Issues at the Court of Appeal 

The determinative ground (and the only one considered by the majority of the Court of Appeal) was that Justice McMahon had erred in admitting the photographs, and, in the alternative, that if the photographs were properly admitted, Justice McMahon’s limiting instructions were insufficient to protect against the prejudice posed by the photographs (R v Araya, 2013 ONCA 734, para 13 [Araya, ONCA]).

Reasons of the Court of Appeal

The Court of Appeal’s decision includes two strikingly divergent opinions. The majority, for its part, gave effect to Mr. Araya’s second ground of appeal, finding that imprecision in the trial judge’s instructions regarding the photographs gave rise to a risk of a miscarriage of justice. The dissent, in contrast, would not have allowed the appeal on this ground, based on the opposite finding that the instructions were sufficiently clear. As will be made clear below, these conflicting findings about the adequacy of the trial judge’s instructions spring from two different understandings of how such instructions are to be evaluated on appeal.

Majority’s Reasons 

Justice Gillesse, writing for herself and Laskin JA, allowed Mr. Araya’s appeal. Justice McMahon’s instructions were not sufficiently clear to protect against the potential prejudicial effect of the photographs. In her view, the limiting instructions could still have invited the jurors to make the impermissible inference from description to identity, and therefore risked a miscarriage of justice.

The majority’s evaluation rested on a focused assessment of the photograph-specific portion of the trial judge’s charge, set out at para 44 of the Court of Appeal’s judgment:

Now, you have photographs of what [the appellant] looked like five days after the shooting. … You can consider whether he fits or does not fit the vague descriptions provided by the various witnesses. You cannot, of course, however, conclude based only on the vague descriptions of what [the appellant] looked like in the photographs that he must be the person. That would be completely improper since the descriptions are so vague and people can’t identify anyone.

Justice Gillesse found that the instruction failed to make clear to the jury the risks associated with impermissibly using the photos. She focused particularly on the “confusing” third sentence (following the ellipsis), noting that it included two linguistic errors. First, a word substitution: the use of the word “photographs” for what should have read “eyewitness testimony.” Second, the phrase “he must be the person” was not sufficiently clear to bar the impermissible inference (paras 45-46).

Most worryingly, though, in the majority’s view, was that the instructions failed to explicitly set out and specify the impermissible inference that the jury must avoid making:

In short, the instruction does not clearly explain to the jury the chain of impermissible reasoning. The jury needed to be told that if they found that the appellants appearance in the photos fit the generic eyewitness descriptions, they could not conclude from that comparison that the appellant was one of the robbers in the tennis courts (para 47).

The majority’s insistence that the “jury needed to be told” about the specific impermissible inference seems to be what ultimately grounds their finding that the instructions were inadequate. This danger was exacerbated by the majority’s finding that the Crown’s  case was otherwise “not strong” – the implication here being that absent the photographs, there was not much upon which a jury could have found the conviction (para 49).

As such, Gillesse JA strongly concludes that the instruction “effectively invited the jury to treat an in-court, single photo lineup as one piece of circumstantial evidence that could be considered in determining whether the appellant was in the park that evening and/or one of the men who participated in the robbery. This was fundamentally wrong and ran the risk of a serious miscarriage of justice” (para 50). Unsurprisingly, the appeal was allowed on these grounds.

Reasons of the Dissent 

In dissent, Strathy JA (as he then was) parted ways with the majority’s analysis. Unlike the majority, he did not find that the photos constituted significant potential for prejudice–indeed he writes that “the significance of the photographs at trial has been unduly magnified on appeal” (Araya, ONCA, para 147).

Of more note, for our purposes, is the way in which Strathy JA evaluates the sufficiency of the trial judge’s instructions. Rather than a narrow and focused examination of the photograph-specific portion of the instructions, he adopts a much broader approach, citing R v Hay, [2013] 3 SCR 694:

“In my respectful view, the potential prejudicial effect of the photographs, and the extent to which the trial judge’ s instructions mitigated that effect, must be considered having regard to all the evidence before the jury, the arguments of counsel, and the trial judge’s charge, taken as a whole (Araya, ONCA, para 157).

On this mode of assessing an impugned instruction, a court is to consider the larger context in which the instruction occurs. This method seems to recognize that other factors (like those set out above) can counteract the prejudicial influence of the instruction, lessening the risk that the jury may be invited to reason improperly.

Applying the Hay-style holistic analysis, Strathy found that the instruction was adequate. He first disagreed with the majority’s finding that the photograph-specific portion of the charge itself was “confusing,” noting that the phrase “he must be the person” could only have been understood by the jury to mean one of the intruders in the park (para 159). Notably, he made no mention of the majority’s strong statement that the trial judge was required to make the jury explicitly aware of the impermissible inference.

Next, he turned to more contextual factors. He disagreed with the majority’s position that the Crown’s case was “not strong,” noting that the evidence at trial made it open to the jury to find the appellant’s testimony lacking credibility and his alibi inconsistent (paras 160-61). Indeed, Strathy JA concludes this section by noting that “There was ample evidence on which the jury could have found [the appellant] guilty” (para 162).

Finally, he considered the charge on the photographs in the context of the rest of the trial judge’s charge, noting that the judge referred to the photographs only after reviewing all of the other evidence, and that although it could have been phrased “more elegantly,” the jury would have understood the warning and the instruction appropriately, mitigating the risk (para 159).

As such, on this more holistic analysis, Strathy JA would not have found the instruction wanting, and would not have allowed the appeal.

Issues and Reasons of the Supreme Court

For our purposes, the main issue on appeal was whether, as a matter of law, the trial judge’s limiting instructions were sufficient. This required the Court to moderate the debate between the focused approach taken up by Gillesse JA and Laskin JA and the broader, contextual approach applied in Strathy JA’s dissent.

Rothstein J delivers the reasons of a unanimous Court. Almost immediately, he endorses the broader approach and rejects the narrower, more focused approach of the Gillesse JA majority. Citing R v Jaw, [2009] 3 SCR 26, Rothstein J begins his analysis by noting that “[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole” (Araya, SCC, para 39). He then goes on to tacitly reject the majority of the Court of Appeal’s  style of analysis, stating emphatically that charges should not be “endlessly dissected and subjected to minute scrutiny and criticism,” (citing R v Cooper, [1993] 1 SCR 146 at 163) and also that “Appellate courts should not examine minute details of a jury instruction in isolation” (Araya, SCC, para 39).

After providing an overview of the trajectory of the trial judge’s instructions–which, we should note, were delivered over approximately four hours (Araya, SCC, para 40)–Rothstein J considers the majority’s concerns about their sufficiency, beginning with the Court of Appeal’s less pressing worries regarding linguistic errors. First, he dismisses Gillesse JA’s concerns about the “confusing” sentence and the unclear phrase “he must be the person.” In his view, “these concerns are overstated when viewed in the context of the broader instructions” (para 44).

To support this finding, he points to other portions of the charge which, in his view, reduce the confusion and or add the necessary clarity (paras 44-46). For instance, following the impugned portion of instruction, Rothstein J notes that the trial judge adopted “clear phrasing moments” that further clarified the correct logical relationship between the photos and descriptions, such as his instruction that “[y]ou can, however, consider how the accused looked and the vague descriptions of the males as but one piece of circumstantial evidence, whether the accused’s physical appearance fit or did not fir the vague descriptions (para 45, emphasis in original).

After dismissing these less pressing concerns, Rothstein J returns to Gillesse JA’s central objection to the trial judge’s charge: the fact that the charge did not make the specific impermissible inference clear to the jury. Rothstein J roundly rejects this requirement and grounds that rejection in the jurisprudence:

Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning, without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection and minute scrutiny this Court warned against in Cooper

While the instruction regarding impermissible use was not perfect, I would emphasize Dickson CJ.’s comments in R. v Corbett, [1988] 1 SCR 670, at p. 692, that “it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system” (Araya, SCC at para 52).

Having dismissed each of the Court of Appeal’s worries regarding the sufficiency of the charge, and noting that Crown counsel did not urge the jury to adopt the impermissible inquiry, Rothstein J is satisfied that the limiting instruction, taken in context, was adequate (para 54).

He then adopted the reasons of Strathy JA regarding Mr. Araya’s five other grounds of appeal, allowed the Crown’s appeal regarding the majority’s ruling on the analysis, and restored the manslaughter conviction.

Concluding Thoughts 

The doctrinal upshot of Araya is clear: a holistic, Hay-style analysis of impugned jury instructions is clearly endorsed by the Court. Rothstein J is emphatic in his rejection of the more narrow, inference-specific model applied by the majority of the Court of Appeal. We may wonder, however, about the wisdom of the former approach. It does not seem immediately clear that, as Justice Dickson suggests, it would be “quite wrong to make too much of the risk” that the jury might improperly use evidence. Taken together, the stakes of a criminal trial and the complexity of the rules of evidence should, in this author’s view, press us towards exercising more, not less caution when reviewing the instructions given to those who are not required to provide reasons for their decisions.

*Editor’s Note: For reasons of brevity and emphasis, the above discussion did not cover several issues discussed at both appellate levels of court. Please refer to the linked case PDFs for more detail.