COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bleck, 2026 ONCA 576

DATE: 20260810

DOCKET: COA-24-CR-1188

Zarnett, Favreau and Madsen JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Jesse Bleck

Appellant

Brian Eberdt and Miguel Waltoo, for the appellant

Evan Akriotis and Matthew Morley, for the respondent

Heard: June 1, 2026

On appeal from the convictions entered by Justice Kelly Tranquilli of the Superior Court of Justice, sitting with a jury, on August 16, 2023, and the sentence imposed on June 18, 2024, with reasons reported at 2024 ONSC 3461.

REASONS FOR DECISION

[1] On the evening of July 21, 2019, a Nissan Altima (“the Nissan” or “the vehicle”) struck a 17-year-old cyclist, Tristan Roby, in London, Ontario. The Nissan did not stop, driving away with Mr. Roby’s bicycle lodged underneath it. A witness pursued the Nissan to a motel parking lot, about 900 metres away, where three occupants of the Nissan abandoned the vehicle and fled.

[2] The only issue during the five and a half week jury trial was the identity of the driver of the Nissan, specifically whether it was the appellant, Jesse Bleck, or the appellant’s friend and fellow occupant of the Nissan, Ahmad Jamal. The jury determined that the appellant was the driver and found him guilty of failing to stop after an accident resulting in bodily harm and of driving while prohibited, contrary to ss. 320.16(2) and 320.18 of the Criminal Code, R.S.C., 1985, c. C-46. He was sentenced to a global sentence of four years and six months less credit for pre-trial custody. The appellant appeals his convictions and sentence.

[3] For the reasons set out below, the conviction appeal is dismissed, and while we grant leave to appeal the sentence, the sentence appeal is also dismissed.

I. Background

[4] While the identity of the driver was a live issue, there was no dispute that the appellant was in the Nissan, and it was conceded that although he did not own the vehicle, he regularly drove and had access to it.

[5] Three witnesses gave identification evidence at trial: Jonathan Fraser, the witness who pursued the occupants of the Nissan; Mr. Jamal; and Jami-Lee Ford-Jones, the appellant’s former partner.

[6] Mr. Fraser pursued the Nissan to the motel, where he chased and apprehended the person sitting in the rear passenger seat. This passenger was later identified as the appellant’s cousin, Trevor Guilders. Mr. Fraser testified that the driver of the Nissan was a white male with blue eyes, a brush cut, a scruffy face, about 6’2” tall, and about 220 lbs. A few days after the incident, Mr. Fraser identified an uninvolved individual in a photo line up as the driver. At trial, Mr. Fraser made an in-dock identification of the appellant.

[7] Mr. Jamal gave several police statements, in which he variously implicated himself or the appellant as the driver. At the preliminary inquiry, he initially testified that the appellant was driving the vehicle. After being advised, at the request of defence counsel, of the protections under s. 13 of the Canadian Charter of Rights and Freedoms regarding self-incrimination, he testified that he had been driving the Nissan. At trial he testified that he was the driver. The trial judge permitted cross examination about Mr. Jamal’s knowledge of s. 13 and whether this impacted his evidence. His prior statements to the police were admitted at trial but only as relevant to his credibility.

[8] About a year after the incident, Ms. Ford-Jones gave a police statement identifying the appellant as the driver of the vehicle that struck Mr. Roby. She said that immediately after the incident, the appellant called her and confessed to being the driver. She also stated that the appellant and Mr. Jamal did not look alike. Ms. Ford-Jones was facing charges of criminal harassment of the appellant and his family around this time.

[9] At the preliminary inquiry and at trial, Ms. Ford-Jones resiled from her police statement, now stating that Mr. Jamal was the driver and that she lied previously to get revenge against the appellant. At trial she testified that the appellant never confessed to her, that he did not have a vehicle and did not drive, and that the appellant and Mr. Jamal looked so similar that she sometimes could not tell them apart. She was cross-examined on her police statement, which was admitted into evidence for its truth. The trial judge instructed the jury on what use could be made of Ms. Ford-Jones’ conflicting statements.

[10] Other evidence advanced by the Crown included the following: the fact that the appellant’s health card and birth certificate were found by police next to the driver’s seat in the Nissan; the identification of the appellant’s fingerprints above the driver’s side door; several witness accounts stating that the appellant drove a silver Nissan; phone records showing a phone call from the appellant to Ms. Ford-Jones shortly after the incident as well as a text from Ms. Ford-Jones to Mr. Guilders about 15 minutes later stating “Jesse was just in. A accident [sic]”.

[11] Further, the Crown tendered evidence that during the month prior to his arrest, the appellant conducted dozens of internet searches related to “Tristan Roby” or the Go Fund Me charity created in Mr. Roby’s name. There was also a photo of a damaged Nissan dated five months after the incident saved on the appellant’s phone and a Kijiji ad using the appellant’s email address listing a 2016 Nissan for sale on Kijiji, with the description “Altima was hit in front please contact if need parts it has 100 km”.

[12] The defence position was that Mr. Jamal was the driver of the Nissan at the material time. As was his right, the appellant did not testify.

[13] During the fifth week of trial, defence counsel discovered that Juror #8 had, four years prior to the trial, shared a Facebook post made by Mr. Roby’s mother about the incident. During jury selection that juror had answered “no” to a question as to whether they had read or seen anything on social media about this case. The trial judge dismissed defence counsel’s application to have the juror dismissed.

II. Issues on appeal

[14] The appellant makes the following submissions on appeal:

(1) The trial judge erred in permitting cross examination of Mr. Jamal on his knowledge of s. 13 Charter;

(2) The trial judge gave an imbalanced jury charge in relation to the evidence of Ms. Ford-Jones;

(3) The trial judge erred in not excusing Juror #8; and

(4) The sentence imposed is demonstrably unfit.[1]

[15] In our view, none of these submissions can succeed.

III. Analysis

1. No error in permitting cross examination on knowledge of s. 13

[16] The appellant submits that the trial judge erred in permitting cross examination of Mr. Jamal on his knowledge of his right against self-incrimination as protected under s. 13 of the Charter. He argues that the circumstances of this case do not fit within the narrow exception permitting such cross examination set out by the Supreme Court in R. v. Jabarianha, 2001 SCC 75, [2001] 3 S.C.R. 430, that the probative value of Mr. Jamal’s knowledge of those protections did not exceed its clear prejudicial effect, and that the trial judge’s instructions to the jury were inadequate and exacerbated the error.

[17] Section 13 of the Charter protects a witness who testifies in any proceeding from having self-incriminating evidence used against them in any other proceeding, except a proceeding for perjury or for giving contradictory evidence: Jabarianha, at para. 1. The section potentially permits a witness to claim responsibility for an offence to absolve an accused in one proceeding with the protection that this confession could not be used by the Crown to establish their guilt in another proceeding: Jabarianha, at para. 2.

[18] The protection offered by s. 13 of the Charter is limited: it does not protect a witness from being prosecuted for the offence they confess to, as the Crown can rely on other evidence. Nor does it prevent the witness’ testimony from being introduced for purposes other than establishing guilt, such as to impugn their credibility: Jabarianha, at paras. 19-20.

[19] Generally, cross examination of a witness’ knowledge of s. 13 is not permitted. This is because any probative value of that knowledge will generally be overborne by its prejudicial effect, as it rests on the generally false assumption that a witness who knows their self-incriminating testimony is protected by the Charter is more likely to lie: Jabarianha, at paras. 18, 26; R. v. Murray (1973), 1973 CanLII 1484 (ON CA), 14 C.C.C. (2d) 467. Accordingly, the probative value of this knowledge will usually be outweighed by its prejudicial effect. However, in rare circumstances, other evidence such as a plot to lie or obtain some benefit may tip the scale “in favour of the possibility that the witness’ knowledge of s. 13 of the Charter would affect the truthfulness of that testimony”: Jabarianha, at para. 27.

[20] Whether to permit cross examination on s. 13 is a discretionary decision: Jabarianha, at para. 27. When cross examination is permitted, the trial judge should instruct the jury that s. 13 does not provide immunity from prosecution; that if other evidence is available, the witness could be prosecuted; and, that awareness of the protections of s. 13 is not proof, on its own, of a motive to lie or to fabricate evidence: R. v. Swick (1997), 1997 CanLII 1294 (ON CA), 35 O.R. (3d) 472 (C.A.), at p. 478.

[21] The trial judge carefully and correctly followed these governing principles. She determined that Mr. Jamal’s inconsistent narrative about the driver of the Nissan and observable shift in “the entire tenor” of his evidence immediately after being advised of s. 13 protections, made this one of the rare cases where the probative value of Mr. Jamal’s knowledge of s. 13 outweighed its prejudicial effect.

[22] Having permitted the cross-examination, the trial judge provided a clear limiting instruction to the jury as to the permitted use of this evidence. In addition to a mid-trial instruction, the trial judge instructed the jury that s. 13 does not provide blanket immunity, and that even if there were some evidence that Mr. Jamal was aware of the s. 13 protection, this, without more, would not be indicative of a motive to fabricate evidence. Further, at defence counsel’s urging, the trial judge highlighted that Mr. Jamal had identified himself as the driver of the Nissan in his police statement, which was not protected by s. 13.

[23] We decline to interfere with the trial judge’s discretionary decision to permit limited cross examination on Mr. Jamal’s knowledge of s. 13 of the Charter. We accept the Crown’s submission that the probative value of this knowledge exceeded its prejudicial effect, and we agree that the trial judge’s limiting instruction, directly mirroring this court in Swick, was appropriate.

[24] In the circumstances of this case, there was independent evidence that Mr. Jamal may have had a motive for testifying falsely after being informed of s.13 of the Charter. Mr. Jamal initially told the police that he was driving the vehicle that struck Mr. Roby. Yet, in February 2022, before the preliminary inquiry, Mr. Jamal told the police that he was not responsible but previously had taken responsibility because he wanted to get “clean” and rehab did not have a bed for him. He also asked the police officer “what happens if I say I did it? Would I go to jail”, which prompted the officer to explain that he could be charged with perjury or misleading if he said he was the driver when he was not.

[25] Mr. Jamal subsequently identified the appellant as the driver and again explained that he was going to “take the charge” because he wanted to get clean and because the appellant had children. At the preliminary inquiry, Mr. Jamal first maintained that the appellant was the driver and outlined his reasons for previously taking responsibility for the incident. He agreed with the suggestion that he changed his evidence when he last spoke to the police officer because he was afraid that he would go to jail. Yet, after being advised of s. 13, he reverted back to this narrative and agreed that he, not the appellant, was the driver at the time of the incident.

[26] Further, as the trial judge noted, this was not a circumstance where a bald assertion about s. 13 was being put to Mr. Jamal by the Crown. Rather, in this case, Mr. Jamal’s knowledge of s. 13 protections was readily discernable on the record. It was expressly put to him by defence counsel that “things you say in court will not and cannot be used against you” and he agreed that he did not know about that protection when he was first answering questions at the preliminary inquiry.

[27] In this case, Mr. Jamal’s shifting narrative and stated reasons for assuming responsibility for the incident, identifiable knowledge of s. 13, and the direct and observable change in his evidence after s. 13 was explained to him, increased the probative value of evidence about that knowledge in favour of permitting cross examination.

[28] We see no error in the trial judge’s resulting decision that the jury was entitled to consider Mr. Jamal’s knowledge of s. 13 of the Charter when considering possible explanation for Mr. Jamal’s inconsistent testimony, alongside appropriate limiting instructions.

2. The jury charge was not imbalanced

[29] In her jury charge, the trial judge provided an overview of the evidence of each witness, urging them to consider any corroborating evidence supporting their versions of events. The appellant submits that in so doing, the trial judge provided an imbalanced instruction regarding the evidence corroborating the police statement of Ms. Ford-Jones. Specifically, he asserts that the trial judge only mentioned the evidence corroborating the theory that the appellant was the driver, without mention of the evidence corroborating the contrary.

[30] We reject this ground of appeal.

[31] Ms. Ford-Jones was a “mixed witness” whose evidence implicated the appellant and in part exculpated him. Like Mr. Jamal, she gave conflicting evidence about whether the appellant or Mr. Jamal was the driver of the vehicle at the material time. In prior statements to the police, Ms. Ford-Jones said that the appellant had confessed that he was the driver; at trial and the preliminary inquiry, she testified to the contrary, that Mr. Jamal was the driver. As noted above, on application by the Crown, her police statement was admitted for its truth.

[32] Where a jury charge is alleged to be inadequately balanced, this court takes a functional approach, considering whether the charge, even if imperfect, adequately fulfilled its purpose: R. v. Panovski, 2021 ONCA 905, 408 C.C.C. (3d) 205, at paras. 103-04. Trial judges are afforded substantial deference in terms of how much evidence to review, what structure to use and how to organize the charge.

[33] The inclusion of a “Vetrovec” caution in a jury charge will often be appropriate in the case of a mixed witness and will be sufficient if it makes clear that it is dangerous to rely on the inculpatory portion of the evidence without confirmatory support, and that the jury must acquit if the exculpatory portions, alone or in combination with the rest of the evidence, leave the jury with a reasonable doubt: R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 33.

[34] The trial judge appropriately identified Ms. Ford-Jones as a mixed witness and instructed the jury, three times, that Ms. Ford-Jones’ police statement must be addressed differently than her trial evidence. She twice cautioned the jury that while they could rely on her police statement indicating that the appellant was the driver, it would be “dangerous to do so” and encouraged them to look for confirmatory evidence to support the police statement.

[35] While the trial judge did provide examples of confirmatory evidence for Ms. Ford-Jones’ police statement, she also set out Ms. Ford-Jones’ testimony at trial about her criminal charges, state of intoxication, and emotions when she gave her police statement, as well as her claim that the police officer took advantage of her vulnerabilities to obtain that statement. The appellant provides no examples in either his written or oral submissions of the confirmatory evidence to which the trial judge ought to have referred to achieve the “balance” he asserts was absent.

[36] It is also worth noting that defence did not object to the jury charge at the time. That charge was crafted over several days in consultation with the Crown and defence.

[37] The trial judge’s instructions on Ms. Ford-Jones evidence, viewed functionally, reveal no reversible error.

3. The trial judge did not err in not excusing Juror #8

[38] The appellant submits that the trial judge erred in not excusing Juror #8 for a reasonable apprehension of bias.

[39] We cannot accept this submission. The decision not to discharge Juror #8 was reasonable in the circumstances.

[40] In the fifth week of trial, defence counsel alerted the trial judge that Juror #8 had shared a Facebook post some four years prior.

[41] The post was made by Mr. Roby’s mother after the incident. It included photos of Mr. Roby before and after the collision and a photo of the Nissan, briefly described his medical situation, thanked people for their support and prayers, and requested the post be shared to help identify the driver. Juror #8 shared the post, without comment, one week after the incident in 2019.

[42] During the empanelling process in July 2023, Juror #8, when asked whether she had seen, read, or heard anything about the case in print media, broadcast media, social media, email communications, or any other source of information, responded “No”. When asked if she could disregard any information received from outside sources and decide the case fairly based solely on the evidence and the instructions of the judge, she answered “Yes”.

[43] The Crown proposed that the trial judge ask Juror #8 about her responses during the empanelment process to assess whether she had misled the court or simply forgotten about her interaction with the post. Defence objected to any further inquiry and simply requested that Juror #8 be discharged.

[44] A decision regarding jury discharge is entitled to considerable deference: R. v. Kum, 2015 ONCA 36, 320 C.C.C. (3d) 190, at para. 49. On appeal, the test is reasonableness: R. v. Gordon, 2022 ONCA 799, at para. 664, leave to appeal refused, [2023] S.C.C.A. No. 136.

[45] The trial judge appropriately approached the issue from the presumption that jurors comply with their oath and act in accordance with judicial instructions: see R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 21-22. She noted that there was no evidence that Juror #8 had substantively engaged with the Facebook post, that it was possible that Juror #8 had forgotten about the post by the time she was empanelled, and that, in any event, Juror #8 had affirmed that she would decide the case impartially. While she accepted defence’s preference for no further inquiry, she found that the defence could not meet its burden to demonstrate reasonable apprehension of bias in the circumstances.

[46] We see no basis to interfere with the trial judge’s decision not to discharge Juror #8.

4. The sentence was fit

[47] The appellant was sentenced to 44 months (3 years and 8 months) for failing to stop at an accident causing bodily harm and 10 months consecutive for driving while prohibited, for a total sentence of 54 months (4 years and 6 months). After credit for 264 days of pretrial custody, he was ordered to serve a further 45 months (3 years and 9 months) and 13 days in jail. He was also subject to a ten-year driving prohibition.[2]

[48] The appellant submits that the sentencing judge erred by failing to establish a nexus between the harm committed and the total sentence, thereby ordering a demonstrably unfit sentence. He emphasizes that he received the highest known sentence for failing to remain at the scene of an accident causing bodily harm.

[49] While the global sentence of 54 months exceeds prior sentences for similar offences, the reasons for sentence do not reflect any error in principle and the sentence imposed is not demonstrably unfit.

[50] Deviation from a range or starting point does not, in itself, justify appellate intervention. Sentencing judges are afforded wide latitude to craft a fit sentence based on the particulars of the case and are extended considerable deference on appeal. Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacted the sentence, an appellate court must not interfere: R. v. Paranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 29; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39, 42, 60.

[51] Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30. Each offence is committed in unique circumstances by an offender with a unique profile. As set out in Paranto, at para. 12, “this is why proportionality sometimes demands a sentence that has never been imposed in the past for similar offence”.

[52] In her thorough and careful sentencing decision, the sentencing judge canvassed the applicable principles and explained the basis for the sentence imposed. While she considered the few mitigating factors present, she identified numerous highly aggravating factors, including: the appellant’s recent Highway Traffic Act, R.S.O. 1990, c. H.8 and criminal convictions for related driving offences; his prolonged and calculated attempt to avoid responsibility over a six-month period until arrest while aware of Mr. Roby’s catastrophic injuries and the active police investigation; and the fact that he was prepared to drive despite prohibitions. She emphasized the high degree of moral blameworthiness in the appellant’s conduct and the appellant’s disregard for court orders.

[53] In addressing the sentence for failure to stop at an accident causing bodily harm, the sentencing judge appropriately noted the introduction of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21 (“Bill C-46”) in 2018. Among other changes, Bill C-46 increased the maximum sentence for failing to remain at an accident causing bodily harm from 10 years to 14 years, signaling that this offence, along with other serious driving offences, should attract significant penalties: R. v. Boily, 2022 ONCA 611, 163 O.R. (3d) 161, at para. 51. Appellate courts have correspondingly recognized the need for higher sentences for such offences: R. v. Robertson, 2026 ONCA 281, 458 C.C.C. (3d) 368, at paras. 50, 60; R. v. Georgopoulos, 2026 ONCA 27, 180 O.R. (3d) 468, at para. 26; R. v. Lojovic, 2025 ONCA 319, 177 O.R. (3d) 327, at para. 64. The sentencing judge determined that the starting range for an appropriate sentence for the appellant, in light of Parliament’s signal and “in the circumstances of this offence and this offender” was now between three and five years.

[54] We find no error in principle in her resulting assessment that the fit sentence for failure to remain was three years and eight months, outside the range proposed by the defence and less than the four year custodial sentence sought by the Crown.

[55] The sentencing judge’s determination that a fit sentence for the appellant for driving while prohibited was a one-year consecutive sentence also reveals no error in principle. The maximum sentence for this offence is ten years. As the sentencing judge noted, while the offences were connected to the same incident, the legally protected interests underpinning each offence are distinct.

[56] We do not accept that the sentencing judge erred in principle or imposed a demonstrably unfit sentence.

IV. Disposition

[57] The conviction appeal is dismissed. While leave to appeal the sentence is granted, the sentence appeal is also dismissed.

“B. Zarnett J.A.”

“L. Favreau J.A.”

“L. Madsen J.A.”

1The respondent had brought but subsequently abandoned an application for leave to adduce fresh evidence.

2No appeal is taken from this prohibition.