Law360 Canada (June 1, 2026, 1:39 PM EDT) --

John L. Hill

After a jury trial, an accused, A.S., facing two counts of sexual assault, one count of invitation to sexual touching and one count of indecent exposure to a person under 16, was convicted. He opted for a trial by judge and jury, the most expensive mode of trial for a non-legally aided accused.

He appealed to the Ontario Court of Appeal on the ground of improper jury instructions. The Ontario Court of Appeal quashed the conviction and ordered a new trial in a decision delivered April 2, 2026 (R. v. A.S., 2026 ONCA 241). The appellate court addressed the question of improper jury instructions. It did not address the unasked question of why someone would opt for a jury trial, given the factual situation.

A.S. lived in a multigenerational household with his wife, adult daughters and, later, one of his daughters’ husbands and their children. His son and daughter-in-law, along with their two sons, lived nearby. The complainant’s aunt and uncle, close family friends, lived across the street.

The complainant attended the same school as two of A.S.’s grandsons. Beginning around 2013, when she was 7 years old, the complainant was picked up after school by A.S.’s wife and cared for at his home almost every weekday until dinnertime. This arrangement continued until about 2018, except for a brief period when the complainant’s grandparents were visiting.

The complainant testified that she regarded A.S.’s family as her own and was particularly close to him. She often spent time alone with A.S. in his bedroom, where they watched children’s programs and YouTube videos. She also performed gymnastic moves on his bed, such as handstands and backbends, with his physical support. At the time of trial, the complainant was 15 years old.

At trial, she testified about three incidents during the 2015-2016 school year. She told the court that she was assaulted on the first occasion when A.S. touched her vagina. The second incident involved kissing and touching her vagina. A third incident involved A.S. exposing his penis and asking the complainant to touch it.

Some time later, the complainant’s family and A.S.’s family had an unrelated falling out. The complainant did not return to A.S.’s home. It was not until 2020 that the complainant disclosed the sexual wrongdoing to her family and to the police.

A.S. testified and denied all the allegations. In support of the defence, eight family members also testified: his wife, two daughters, son and four grandsons.

The defence evidence focused on three key points.

First, there were no sleepovers. A.S.’s wife and daughters testified that the complainant never slept at their home. The wife specifically denied that the complainant had ever slept in bed between her and her husband.

Secondly, there was no suspicious incident in the bedroom. A.S.’s wife denied ever being locked out of her bedroom and stated that she never discovered A.S. alone with the complainant in the bedroom.

Finally, there was concern about the technological evidence. A.S.’s son testified that his father was not technologically skilled and that, during 2015-2016, the television in his bedroom could not stream content from an iPad. According to the son, A.S. did not receive his first iPad until June 2018 and could not stream to the television until a Chromecast was installed in December 2018, well after the complainant had stopped attending the home. The son produced a receipt for the iPad purchase, and the four grandsons gave similar evidence, stating that A.S. mainly watched old movies on a DVD player and that they never saw the complainant watching television in his bedroom.

The family members also described the household as busy and crowded, particularly after additional relatives moved in in 2016. They testified that although A.S. sometimes helped provide snacks for the children after school, he generally spent his time alone watching movies. None of them recalled seeing the complainant alone with A.S in his bedroom or noticing any change in her behaviour toward him.

Some defence witnesses were cross-examined regarding family discussions concerning the allegations and their desire to support A.S.

The Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial because the jury was improperly instructed on collusion among defence witnesses.

The Appeal Court found a problem with the trial judge’s collusion instruction. At trial, the Crown argued that members of A.S.’s family may have discussed the allegations and coordinated their evidence to support him. The trial judge instructed the jury to consider whether any witnesses had colluded, collaborated or tainted each other’s evidence.

The Court of Appeal found that this instruction was flawed because it effectively included A.S. himself, even though there was no evidence that he had discussed the allegations or his testimony with family members. A.S. had not been cross-examined about participating in family discussions, and no witness testified that he was involved in them. As a result, there was no evidentiary basis for the jury to consider whether A.S. had colluded with his family to fabricate his evidence.

The error was serious. The Crown’s closing address repeatedly referred to A.S. and his family collectively, suggesting that the family had colluded and worked together to advance A.S.’s version of events. The trial judge’s instructions reinforced this impression by referring generally to “witnesses” and by specifically exempting only one defence witness (A.S.’s son) from the collusion instruction.

The court concluded that the jury would likely have understood the allegation of collusion to apply to all defence witnesses, including A.S.

This posed a serious risk that jurors might reject family members’ testimony because they believed the witnesses had colluded. The jury might also use that rejection to conclude that A.S. himself was lying and treat the alleged collusion as evidence of A.S.’s guilt.

There was a missing limiting instruction. The trial judge should have instructed the jury that the collusion instruction did not apply to A.S.; if they rejected the evidence of family members because of collusion, they could not use that rejection to assess A.S.’s credibility negatively; and that they could not use rejection of the family members’ evidence as evidence that he was guilty.

No such cautions were given.

Credibility was the central issue at trial. Because the case largely depended on whether the jury believed A.S. or the defence witnesses, the instructional error went to the heart of the case. The court rejected the idea that the error was harmless. This was not an overwhelming prosecution case, and the court could not say that the verdict would inevitably have been the same if the jury had been properly instructed.

As a result, the court held that the jury was not properly equipped to assess the evidence and credibility issues. The flawed collusion instruction prejudiced A.S. and constituted reversible error. The convictions were quashed, and a new trial was ordered.

The decision is good news to A.S., who believes he was the victim of a family feud. He probably feels it was a mistake ever to involve himself with the complainant or her family. Allegations of childhood abuse are the most reviled of all crimes, and anyone so accused cannot expect much sympathy. Perhaps the bigger mistake A.S. made was asking a jury to decide his guilt or innocence.
 
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) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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