Background
Patrick McKenzie was convicted by a jury of three counts of assault arising from a domestic relationship that lasted approximately three years. The complainant described four discrete incidents of violence between July 2016 and December 2018, including a headbutt that caused a laceration requiring hospital treatment, a bite to her finger, strangulation and smothering with a pillow, and a final attack in which she was punched, kicked, and thrown against a wall. She delayed reporting to police until September 2019, after she became financially independent and left the relationship. McKenzie testified and denied all assaults, asserting the complainant fabricated the allegations out of revenge for his perceived infidelity, a theory supported at trial by a series of angry text messages she sent him before going to police.
McKenzie was sentenced on February 3, 2023 to 34 months’ incarceration. The Court of Appeal granted him bail pending appeal the same day. Despite a signed release order specifying immediate release, correctional and police escort officers failed to act on it: McKenzie was transported from the Brampton courthouse to Maplehurst Correctional Complex, strip searched, placed on a range with other inmates, and not released until 8:31 p.m.—approximately six hours after the release order was completed. The Crown conceded that McKenzie’s rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (freedom from unreasonable search and arbitrary detention) were breached. The circumstances were materially identical to those in two companion appeals decided the same day: R. v. Z.C., 2026 ONCA 412, and R. v. Diakoloukas, 2026 ONCA 410.
On appeal, McKenzie challenged his convictions on the ground that the trial judge’s jury instruction on myths and stereotypes about intimate partner violence was legally flawed, and separately sought either a stay of proceedings or a sentence reduction as a remedy for the Charter breaches.
The Court’s Holding
Writing for a unanimous panel, Maranger J. (ad hoc) dismissed both the conviction appeal and the sentence appeal. On the jury instruction issue, the court applied the functional approach mandated by R. v. Abdullahi, 2023 SCC 19, asking whether the charge as a whole properly equipped the jury to decide the case according to law and evidence. The impugned instruction told the jury it could not use the complainant’s delayed disclosure or her return to the relationship, “standing alone or in combination,” to draw a negative credibility inference. Although the instruction did not expressly enumerate permissible uses of that evidence, the court concluded it operated as a caution rather than an absolute prohibition. Read alongside the trial judge’s charge on prior inconsistent statements, the motive-to-fabricate defence, and defence counsel’s own closing argument—which explicitly distinguished permissible from impermissible reasoning—the jury would have understood that timing of reporting and return to the relationship remained relevant factors in the overall credibility assessment. Defence counsel’s failure to object or request a supplementary instruction was noted as a further consideration.
On sentence, the court granted leave but dismissed the appeal. The trial judge’s rejection of a conditional sentence was entitled to deference: two of the three assaults were described as particularly violent, and the trial judge properly placed general deterrence, specific deterrence, and denunciation at the forefront given the nature of intimate partner violence.
On the Charter issues, the court declined to grant a stay of proceedings, adopting the analysis in the companion decision Diakoloukas. Finding McKenzie’s circumstances virtually indistinguishable from those of Mr. Diakoloukas, the court reduced his custodial term by one month—from 34 months to 33 months—as the appropriate remedy for the ss. 8 and 9 breaches, with all other sentencing terms remaining unchanged.
Key Takeaways
- A jury instruction on myths and stereotypes in intimate partner violence cases need not recite every permissible use of delayed-disclosure evidence; it is sufficient if the charge as a whole—including the defence’s closing argument—leaves the jury properly equipped to engage in a full credibility analysis.
- Silence by defence counsel in failing to object to a jury instruction or request clarification, while not determinative, is a relevant consideration when assessing whether the charge was adequate under the functional approach from Abdullahi.
- Failure by correctional and escort authorities to honour a Court of Appeal bail pending appeal order—resulting in wrongful transport, detention, and strip search of an accused—constitutes breaches of ss. 8 and 9 of the Charter; a modest sentence reduction is the appropriate remedy rather than a stay of proceedings.
- A conditional sentence is not appropriate for serious intimate partner violence where the primary sentencing objectives are general deterrence, specific deterrence, and denunciation.
Why It Matters
This decision reinforces that anti-stereotype instructions in intimate partner violence prosecutions must be read contextually and functionally rather than in isolation. Courts will not order new trials simply because a charge omits express language about permissible inferences, provided the overall charge and surrounding trial record leave the jury properly equipped—a standard that places significant weight on defence counsel’s own closing argument and the absence of any contemporaneous objection.
The Charter remedy aspect of the case, decided alongside Diakoloukas and Z.C., signals that systemic failures by correctional authorities to process court-issued bail orders will attract appellate scrutiny and tangible consequences in the form of sentence reductions. The trilogy of companion decisions creates a clear remedial framework and puts institutions on notice that non-compliance with release orders—even if attributable to institutional confusion rather than deliberate misconduct—will not go without remedy.