The Limiting Instruction Dilemma: The Tactics of the Defence in R v Calnen
A criminal law trial can be likened to a game of chess. A good chess player, like a good defence counsel, may make a move that initially does not appear to be in their best interest but ultimately can be relied upon to secure another chance. In R v Calnen, 2019 SCC 6 [Calnen] counsel for the accused made a tactical decision not to request a limiting instruction against general propensity reasoning during the pre-charge conference, but later appealed his client’s conviction for the lack of one. By the time the case received leave to appeal to the Supreme Court of Canada (“SCC”), the endgame involved a challenge between the possibility that the jury would have engaged in general propensity reasoning—that is, the use of the accused’s predisposition to commit a crime as a reasoning factor to determine guilt—and the need for a limiting instruction.
The (Gory) Facts Underpinning This Legal Battle
Paul Trevor Calnen and Reita Louise Jordan had been in a relationship for two years and living together in Calnen’s home. On March 28, 2013, Jordan’s family reported her missing. The police first interviewed Calnen in April of that same year, and he used the opportunity to give misleading information. Still, the police suspected that Jordan’s disappearance was actually a murder and that Calnen was involved.
Calnen was arrested and charged with second degree murder, contrary to s 235 of the Criminal Code, RSC 1985 c C-46 [Criminal Code], and indecent interference with Jordan’s remains, contrary to s 182 of the Criminal Code. Upon arrest, Calnen described to the police how Jordan had died and detailed what he did with her remains after her death. His statement was entirely exculpatory: he claimed that Jordan’s death was caused by an accidental fall down the stairs of the home they shared. Calnen conducted a re-enactment for the police which was later admitted into evidence. Calnen also claimed that he had used crack cocaine at the time of Jordan’s death and again after she had died. While under the effects of narcotics, Calnen hid her body in the woods and burned her belongings. Days later, Calnen returned, burned Jordan’s body, and dispersed her remains in a nearby lake.
At trial, Calnen pled guilty to the interference charge, but the jury subsequently found him guilty of second degree murder. The issue at the Court of Appeal for Nova Scotia and the SCC revolved around the likelihood that the jury misinterpreted the accused’s discreditable conduct towards Jordan’s remains as proof of intent for second degree murder. To this effect, defence counsel questioned whether the trial judge properly instructed the jury on the use of Calnen’s after-the-fact conduct as evidence.
Was the Jury Properly Instructed?
Justice Moldaver, writing the judgement on the issue of whether the trail judge was required to provide a limiting instruction against general propensity reasoning, applied the test from R v Jacquard,  1 SCR 314 [Jacquard], which asks “whether the jury was properly, not perfectly, instructed” (Calnen para 9, emphasis added). The overriding concern of the Court was whether the jury was capable of deciding on the evidence absent a limiting instruction against general propensity reasoning. To address this concern and answer the Jacquard test, Justice Moldaver assessed the context of the trial’s proceedings.
First, Justice Moldaver found that the discreditable conduct evidence did not pose an elevated risk of propensity reasoning because the trial judge’s introductory jury instructions were “neutral, fair, and balanced” (Calnen, para 16). The trial judge specifically noted to the jury in his opening instructions that Calnen’s guilty plea to indecent interference with Jordan’s remains did not contradict his presumption of innocence on the charge of second degree murder. On the second day of trial, the jury queried whether it could consider Calnen’s guilty plea during their daily discussions. In response, the trial judge ordered the jury to “put Mr. Calnen’s guilty plea…out of [their] minds” because they required all of the evidence before coming to a final decision (Calnen, para 160). The trial judge thus insulated the jury from reasoning that Calnen’s guilty plea of indecent interference meant that he was more likely to have committed second degree murder.
Justice Moldaver also determined from the final instructions that the jury was properly equipped to make “reasonable inferences from the circumstantial evidence without resorting to specious reasoning or speculation” (Calnen, para 24). For example, the trial judge articulated the principles from R v W(D),  1 SCR 742 not once, but twice, to explain to the jury how they should apply the burden of proof beyond a reasonable doubt to the issue of credibility. Additionally, the trail judge cautioned that the evidence of Calnen burning Jordan’s body “could not, by itself, satisfy the standard of proof beyond a reasonable doubt” (Calnen, para 29). Based on these clarifications, Justice Moldaver concluded that the jury was properly equipped to draw reasonable inferences from Calnen’s after-the-fact conduct.
How Defence Counsel’s Lack of Objection Plays Out
Defence counsel for Calnen was not unaware of the issue of propensity reasoning in the jury instructions. During the trial, defence counsel raised the issue of propensity reasoning three times in objection to pieces of evidence that the Crown sought to admit. Yet when it came to the pre-charge meetings, defence counsel did not request a limiting instruction. Justice Moldaver opined that this can be taken as an indication that defence counsel sensed that a limiting instruction would not have been in his client’s best interest.
Justice Martin respectfully disagreed in her reasons dissenting in part, noting that “the jury charge is the responsibility of the trial judge and not defence counsel” (Calnen, para 203, quoting Jacquard, para 37). Given that defence counsel consistently raised the issue of propensity reasoning during the trial, “it was the trial judge’s responsibility to inquire further into the issue…when it came time to draft the charge” (Calnen, para 203).
In response to Justice Martin, Justice Moldaver cited the SCC’s refusal of leave to appeal for R v Polimac, 2010 ONCA 346 [Polimac]. In Polimac, the SCC specified that counsel’s endorsement of the jury charge is a significant factor in assessing whether the jury was properly instructed. Justice Moldaver thus reasoned that, in Calnen, defence counsel’s failure to object to the absence of a limiting instruction was an indication that the defence considered the charge to be satisfactory as-is.
Tactics of an Experienced Defence Counsel
The absence of a limiting instruction against general propensity reasoning was not overlooked by the experienced defence counsel. Justice Moldaver argued that it was a tactical decision on the defence counsel’s part to not object to the trial judge’s jury instructions. The defence encouraged the jury to believe Calnen’s police statement and re-enactment of Jordan’s accidental fall down the stairs. Defence counsel then utilized the discreditable conduct evidence in Calnen’s favour. For example, Calnen’s crack cocaine use helped to explain his irrational decisions to hide and then burn Jordan’s body (Calnen, para 48).
There is no indication on the record of a defence application to sever the charge of interference from the indictment of second degree murder. Instead, the defence attempted to use Calnen’s admission of interfering with Jordan’s remains to build his credibility around his exculpatory statement and re-enactment. With this goal in mind, the defence would have realized that a limiting instruction against general propensity reasoning would discredit Calnen as it would necessarily emphasize the negative impact of Calnen’s discreditable conduct. Without a final limiting instruction, the jury was never notified that Calnen’s discreditable conduct could be used to challenge his credibility and thereby undermine his exculpatory statement and re-enactment.
Justice Moldaver concluded that the deliberate strategy adopted by the defence counsel is the only “reasonable explanation” for the defence’s failure to seek a limiting instruction (Calnen, para 69). Yet even without a limiting instruction, the context of the trial judge’s charge to the jury was enough to provide direction on making reasonable inferences and guarded against the risk of general propensity reasoning. Ultimately, “this is not a case of a non-direction amounting to misdirection” (Calnen, para 5). The defence made a “legitimate tactical decision at trial and lost” (Calnen, para 70).
Like in a game of chess, counsel for the accused took a calculated risk with the hope that it was the key to Calnen’s absolution. Yet in doing so, the defence maneuvered themselves into a legal dead end. Subsequently, counsel for the accused must live with the consequences of the SCC restoring Calnen’s conviction for second degree murder.
 The W(D) test guides the application of the burden of proof of beyond a reasonable doubt to the issue of credibility: “First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused” (R v W(D),  1 SCR 742).