Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.
11.6 Propensity or Disposition of Co-Accused, Including Previous Convictions
(Last revised June 2012)
(This instruction is given only when there is a “cutthroat” defence – that is, when one accused claims the co-accused committed the offence.)
[1]Where more than one person has been charged with a criminal offence, each person is entitled to a decision based only on the evidence that relates to him or her. Some evidence may relate to one person, but not to another, or it may relate to more than one (or, both) in different ways. It is important for you to know what this evidence is, and how you may use it to help you decide the case. It is equally important that you understand how you must not use it to make your decision.
[2](NOA2)claims that (NOA1)committed the offence, not him/her. In advancing this claim, s/he points to a number of factors, including evidence of (NOA2)’s disposition or propensity to commit the offence. With respect to evidence of disposition or propensity, there is a special rule that I will now explain to you.
[3]The Crown cannot rely on evidence of disposition or propensity in order to prove that a person is guilty of an offence. However, one person charged is entitled to rely on this kind of evidence with respect to another in order to raise a reasonable doubt about whether the first person committed the offence.
[4]Therefore, in considering the question of (NOA2)’s guilt, you are entitled to consider evidence of (NOA1)’s propensity or disposition to commit the offence, (including evidence of his/her criminal record) together with the other evidence, for the purpose of deciding whether this evidence raises a reasonable doubt about whether (NOA2) committed the offence.
[5]However, I emphasize that you must not use evidence of (NOA1)’s propensity or disposition when you decide whether the Crown has proved (NOA1)’s guilt beyond a reasonable doubt.