Law360 Canada (October 6, 2026, 8:59 AM EDT) --
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| John L. Hill |
A recent Ontario Court of Appeal decision illustrates the difficulty of overturning a jury verdict where the trial judge carefully addressed potentially problematic evidence and the sentence, although unusually severe, remains within the broad discretion afforded to sentencing judges.
In
R. v. Bleck, 2026 ONCA 576, the court dismissed Jesse Bleck’s conviction appeal and, after granting leave, dismissed his sentence appeal. The decision addresses three recurring issues in criminal trials: cross-examination about a witness’s knowledge of Charter protection against self-incrimination, jury instructions concerning a witness whose evidence changed substantially, and possible juror bias arising from social media exposure. It also demonstrates appellate restraint in sentencing.
The case arose from a July 2019 collision in London, Ont. A Nissan Altima struck 17-year-old cyclist Tristan Roby. The vehicle did not stop, and Roby’s bicycle became lodged underneath it. A witness followed the Nissan to a motel parking lot, where three occupants abandoned the vehicle and fled.
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The central issue at the five-and-a-half-week jury trial was the driver’s identity. The jury concluded that Bleck was driving and convicted him of failing to stop after an accident causing bodily harm, contrary to s. 320.16(2) of the
Criminal Code, and driving while prohibited, contrary to s. 320.18.
The Crown relied on several identification witnesses and substantial circumstantial evidence. Jonathan Fraser pursued the Nissan and described its driver, although he initially selected the wrong person from a photographic lineup. Ahmad Jamal, another occupant, gave several conflicting accounts. Jami-Lee Ford-Jones, Bleck’s former partner, initially told police that Bleck was driving and had confessed, but later said Jamal was the driver and that she had implicated Bleck out of revenge.
Other evidence connected Bleck to the driver’s seat, including his health card and birth certificate found beside it, fingerprints above the driver’s door, evidence that he regularly drove the Nissan, internet searches concerning the collision and a photograph of the damaged vehicle stored on his phone.
One important issue concerned Jamal. After initially telling police that Bleck was driving, Jamal later claimed he was the driver. His account changed after he received advice concerning s. 13 of the Charter.
Section 13 protects a witness from having incriminating testimony given in one proceeding used to incriminate that witness in another proceeding, subject to specified exceptions. In
R. v. Jabarianha, 2001 SCC 75, the Supreme Court of Canada held that cross-examination about a witness’s knowledge of s. 13 will ordinarily be improper because it can unfairly suggest that knowledge of the protection provides a motive to lie. However, exceptional circumstances may allow the probative value to outweigh the prejudice.
The Court of Appeal concluded this was such a case. Jamal’s account changed markedly after he learned about s. 13, and the evidence showed that he had specifically discussed with police whether taking responsibility would result in his being charged or going to jail.
The trial judge repeatedly instructed the jury that s. 13 was not blanket immunity and that knowledge of the provision, by itself, was not evidence of fabrication. Those safeguards were consistent with
R. v. Swick (1997), 35 O.R. (3d) 472. The Court of Appeal found no error in allowing the cross-examination.
Bleck also argued that the jury charge unfairly emphasized evidence supporting Ford-Jones’s police statement while failing to emphasize evidence undermining it.
The court rejected the argument. Ford-Jones was a “mixed witness,” providing both inculpatory and exculpatory evidence. The trial judge identified that problem and repeatedly warned the jury about the danger of relying on her police statement without confirmation.
The Court of Appeal applied the functional approach described in
R. v. Panovski, 2021 ONCA 905, which recognizes the considerable latitude trial judges have in organizing jury instructions. It also relied on
R. v. Rowe, 2011 ONCA 753, concerning the need for appropriate caution when dealing with mixed evidence.
The court concluded that the charge, considered as a whole, adequately equipped the jury to assess Ford-Jones’s evidence. There was therefore no reversible error.
During the fifth week of trial, the defence discovered that Juror No. 8 had shared a Facebook post Roby’s mother made shortly after the collision. The post included photographs, information about Roby’s condition, and a request for help identifying the driver.
During jury selection, however, the juror had answered “no” when asked whether she had encountered information about the case through social media or other sources. Bleck argued that her exposure created a reasonable apprehension of bias.
The trial judge declined to discharge her, concluding that there was no evidence she had substantively engaged with the post and that she might have forgotten seeing it. She also affirmed that she could disregard outside information and decide the case fairly.
The Court of Appeal applied
R. v. Kum, 2015 ONCA 36, and
R. v. Gordon, 2022 ONCA 799, emphasizing the deference owed to a trial judge dealing with possible juror bias. It also relied on
R. v. Spence, 2005 SCC 71, concerning the presumption that jurors will follow their oaths and the judge’s instructions. The court found no basis to interfere.
Bleck received a global sentence of four years and six months: 44 months for failing to stop after an accident causing bodily harm and a consecutive 10 months for driving while prohibited, together with a 10-year driving prohibition.
The Court of Appeal acknowledged that the sentence exceeded previous sentences for similar offences. That alone, however, did not make it demonstrably unfit. Under
R. v. Lacasse, 2015 SCC 64, and
R. v. Parranto, 2021 SCC 46, appellate intervention is justified only where an error in principle affects the sentence or the sentence is demonstrably unfit.
The sentencing judge found several aggravating circumstances, including Bleck’s previous driving-related convictions, his continued driving despite prohibitions and his prolonged effort to avoid responsibility while aware of Roby’s catastrophic injuries.
The court also noted that Parliament had increased the maximum penalty for failing to remain at an accident causing bodily harm from 10 to 14 years through Bill C-46. More recent decisions, including
R. v. Robertson, 2026 ONCA 281,
R. v. Georgopoulos, 2026 ONCA 27, and
R. v. Lojovic, 2025 ONCA 319, recognize that higher sentences may be appropriate in serious cases.
The sentencing judge considered a starting range of three to five years and imposed 44 months for the failure-to-stop offence, below the Crown’s request.
This case may serve as a precedent because it applies established principles. It confirms that questioning a witness about Charter s. 13 protection can be permitted in exceptional circumstances where the evidence provides a genuine reason to believe the protection affected the witness’s changing account. It also confirms that courts assess jury instructions as a whole rather than by isolating individual passages.
The juror issue demonstrates the high threshold for appellate intervention where a trial judge has investigated possible bias and concluded that the juror can remain impartial.
Finally, the sentencing decision reminds us that historical sentencing ranges are not rigid limits. Proportionality remains the governing principle, but, as
Parranto recognizes, proportionality can sometimes require a sentence that has not previously been imposed for a similar offence.
The Court of Appeal therefore dismissed the conviction appeal and, after granting leave, dismissed the sentence appeal. Both the jury’s verdict and the substantial sentence remain intact.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness
(Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book.
Contact him at johnlornehill@hotmail.com.
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