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Crown Error Forces Appeal in Murder Case

Crown Error forces appeal.
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crown error

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2019 ONCA 846

DATE: 20191028

DOCKET: C61373

Juriansz, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naanan Williams

Appellant

Michael Dineen, for the appellant 

John Patton, for the respondent 

Heard: September 19, 2019

On appeal from the conviction entered by Justice John A. Desotti of the Superior Court of Justice, sitting with a jury, on January 22, 2015 and the sentence imposed on November 2, 2015.

Juriansz J.A.:

[1]           Before it convicted the appellant of second degree murder, the jury asked a question that made apparent it had been misled by Crown counsel’s incorrect description of the mens rea required for murder. The trial judge’s attempt to clarify the law was inadequate. Therefore, a new trial is necessary. 

A.            FACTS

[2]           The appellant was convicted of second degree murder for killing his uncle, Clifford Riley, in a trial before a judge and jury. He appeals from his conviction.[1]

[3]           On June 21, 2012, the appellant and his friend, Denzel Neron, went to two parties where they drank heavily and smoked marijuana. They were intoxicated.  They entered an unoccupied building owned by the appellant’s family, in which they found the appellant’s uncle.  

[4]           A fight broke out between the three men. The uncle suffered serious injuries and died of blunt force trauma to the chest. The appellant and Neron gave differing accounts of how the fight unfolded.

[5]           The appellant testified that his uncle pushed him out of the building and a fight ensued. The appellant fell, in part because of his intoxication, and his uncle got on top of him. Neron intervened, kicked the uncle, and the two continued fighting by the side of the road. The fight eventually broke up, and the appellant and Neron walked away. The appellant said his uncle cursed at them and called them “assholes”. However, he was inconsistent about whether his uncle shouted at them during the fight or after, when they were walking away. 

[6]            According to Neron, he and the appellant found the appellant’s uncle asleep on the floor of the unoccupied building. The appellant woke his uncle, demanded he get up, and began pushing him out of the building. The three men fought until the appellant and Neron knocked the appellant’s uncle down. As the appellant and Neron were walking away, the uncle sat up and began cursing at them, calling them “assholes”. The appellant jogged back, jumped, and stomped on the uncle’s leg, “jump stomped” on the uncle’s chest three times and then on his collarbone. The uncle went silent and they left. Neron and the appellant rode home on a bicycle with Neron on the handlebars.  

[7]           Neron’s trial testimony substantially contradicted a police statement he gave on June 22, 2012, in which he denied any knowledge of the killing. At trial, Neron admitted to lying to the police.

[8]           DNA consistent with that of Neron was on a necklace found near the uncle’s body. Gray Vans brand shoes seized from the appellant’s residence had a blood stain on the shoelace with a DNA profile consistent with that of the uncle. An expert qualified in footprint comparisons testified that the shoes’ soles could not be excluded as having created impressions on and around the uncle’s body, including a footprint on his chest that may be linked to the fatal injury. The appellant and Neron disagreed as to who wore those shoes at the time of the killing.

[9]           A video surveillance camera captured two men walking near the location of the fight on the night in question. The video showed two men emerging twice from the scene of the fight, corroborating Neron’s account that, after they began to walk away, the appellant had returned to stomp on the uncle before they walked away a second time.

[10]        The next day, the appellant went to see a friend who had been out with him the night before. The appellant was crying because his uncle had died. When the friend revealed that she had heard that the appellant killed his uncle, the appellant shook his head and asked her to “do me a solid”. He told her he was naïve and drunk, and the only evidence the police had on him was a shoe. He recounted that he did not remember walking home the night before. An acquaintance overheard this conversation and testified that the appellant broke down and said, “Yeah, I fucked up.”

[11]        In text messages to another friend, the appellant said, “You didn’t see anything remember just walked home”, “Stay solid”, and “we didn[’]t do shit”. He acknowledged that he told both women not to say anything. 

[12]        Both the appellant and Neron were arrested and charged with murder. Neron accepted a plea agreement that required him to testify against the appellant. He pleaded guilty to assault and to being an accessory after the fact to murder. He received a four-month sentence. 

B.            ISSUES ON APPEAL

[13]        The appellant raises five grounds of appeal, one of which he abandoned in advance of the hearing. I would allow the appeal on the first ground and find it unnecessary to deal with the other three grounds, which raise issues that may not arise on the retrial.

[14]        The appellant’s main submission is that the trial judge, by failing to correct a misstatement of the law by the Crown and by failing to provide clear, fulsome answers to the jury’s questions, permitted the jury to find him guilty of murder without being satisfied he had the subjective foresight that his uncle might die as a result of his actions. 

C.            ANALYSIS

crown error

(1)          The Crown’s Closing Submissions

[15]        In her closing address to the jury, the Crown incorrectly described the state of mind necessary to establish murder. She said:

And when you consider the issue of the intent that Mr. Williams would have had to have had, or the mental state that he would have had to have had to form the intent to kill, or that he ought to have known his actions would cause death, or was reckless to whether his actions would’ve caused death … I think there is significant evidence to prove that in fact Naanan Williams did have the necessary state of mind to know what he was doing, to kill his uncle, and to know that his actions in stomping his uncle would kill him, or ought to believe that it would likely cause death, or he just didn’t, you know, put his mind to it. He was reckless to that, okay. [Emphasis added.]

[16]        After reviewing additional evidence, she repeated: 

[A]ll that, that shows that, that Naanan Williams had the state of mind that night, had the intent to know that when he stomped or to – that he ought to have known that when he stomped on Clifford Riley that action was likely to cause his death. [Emphasis added.]
[17]        These were serious misstatements of the law with respect to the mens rea for murder. The phrase “that he knows or ought to know is likely to cause death” appeared in s. 229(c) of the Criminal Code. The Supreme Court of Canada declared that language in s. 229(c) unconstitutional in R. v. Martineau, [1990] 2 S.C.R. 633 and it has recently been repealed: R.S., 2019, c. 25, s. 77. The court made clear in Martineau that a murder conviction cannot rest on any mens rea less than subjective foresight of death: at pp. 645-46. 

[18]        In any event, s. 229(a), not s. 229(c), best applies to the circumstances of this case. Section 229(a) provides:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[19]        In R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 155-56, the court clarified that the mens rea for murder under s. 229(a)(ii) of the Criminal Code requires the Crown to prove beyond a reasonable doubt the accused’s (a) subjective intent to cause bodily harm and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death.

[20]        Defence counsel did not object and the trial judge did not correct the Crown’s misstatements immediately. Their effect on the jury and on the fairness of the trial must be assessed in the context of the whole trial, and everything the jury was told. 

crown error

(2)          The Trial Judge’s Instructions 

[21]        At the beginning of the trial, the trial judge told the jury it should take the law from him. In the course of making this point, he said:  

Counsel may also refer to some rules of law to help you understand their positions better. It is quite proper for them to do so. What counsel say about the law may be correct, but it is my job, as judge, to tell you about the law that applies. You must take that law from me.

[22]        In his jury charge, the trial judge gave the jury clear and correct instructions on the mental state required for murder. He said:

If you are satisfied beyond a reasonable doubt that Naanan Williams unlawfully caused the death of Clifford Riley, you must go onto the next question: Did Naanan Williams have a state of mind required for murder? The crime of murder requires proof of a particular state of mind for an unlawful killing to be murder. Crown counsel must prove that Naanan Williams meant either to kill Clifford Riley or meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley, and was reckless whether Clifford Riley died or not.

[23]        The trial judge told the jury he would emphasize this instruction by repeating it “at least half a dozen other times” so that the jury “got that crystal clear in your mind.” He did what he said he would. He repeatedly emphasized the correct state of mind for murder and told the jury that if they did not find that the appellant had that state of mind, their determination should be manslaughter.

[24]        However, at this stage, no one, including the trial judge, said anything about the Crown’s misstatements to the jury that it could convict the appellant if “he ought to have known his actions would cause death”. 

(3)          The Jury’s Questions 

[25]        In the course of its deliberations, the jury asked two questions that revealed it was left in confusion by the Crown’s closing and the jury instructions. 

[26]        Three or four hours into its deliberations, the jury posed the question “state of mind – pre, present and post testimony – which can be used as evidence.” The trial judge correctly answered the question by instructing the jury that the state of mind required was whether the appellant “meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley and was reckless whether Clifford Riley died or not, or he meant to kill Clifford Riley.”

[27]        On the morning of the second day of deliberations, the jury asked another question that made it obvious it was considering the issue of the appellant’s state of mind in light of the Crown’s misstatement of the law. The jury sought clarification on the legal meaning of “ought to know” and “reckless to the effects of your efforts”. The phrase “ought to know” did not appear in any part of the jury charge. Neither counsel nor the trial judge questioned the relevance of these terms to a charge of second degree murder. After consulting counsel, the trial judge answered the “ought to know” portion of the question:

There is not any, as far as I am aware, definition from any legal context or precedent. … However, “ought to know” at least piecing that together with Black’s Law Dictionary … is a general direction only, but will be taken as mandatory if the context requires. Little bit – be under a moral obligation, have as a duty, and advised or expected. That is the “ought” part. The “know” is to possess information, instruction, or wisdom, to perceive, apprehend, understand. 

crown error

[28]        Rather than disabusing the jury of the incorrect standard stated by the Crown, this instruction reinforced it. The instruction, in effect, confirmed the validity of the Crown’s statement and provided the jury with guidance as to how to apply the incorrect state of mind in its deliberations. 

[29]        The trial judge went on to answer the “reckless” portion of the jury’s question. He said: 

There is actually a legal direction with respect to “reckless” in a more commonplace expression. So I will give it in the context of which the word “reckless” is used in the charge: saw the likelihood that Clifford Riley could die from the injury but went ahead anyway and took the chance. So that is the actual formal, legal expression.

[30]        This definition would have been accurate had the trial judge stopped there. However, he went on to add: 

Then using again the Oxford Dictionary, more expanded version, “reckless”: of a person heedless of consequences of one’s actions or of danger, incautious, rash, inconsiderate of oneself or another, of an action, behaviour characterized as heedlessness or rashness, incautious, careless, wilfully careless. That is it. There is no other. There is nothing else that we have with respect to those expressions.

crown error

[31]        This erroneous instruction was all the more serious because it immediately followed the guidance the trial judge had provided about the meaning of “ought to know.” The instruction would have led the jury to understand that it could convict the appellant if he “ought to have known” his uncle would die, or if his behaviour met a dictionary definition of reckless that included mere carelessness. 

[32]        After receiving these instructions, the jury retired at 9:15 a.m. Shortly after, the Crown advised the court that she had misstated the law. She alerted the court that the jury should not be basing its decision on whether they believed that the appellant “ought to have known” his actions would have resulted in his uncle’s death. 

[33]        The jury was recalled at 9:46 a.m. and the trial judge sought to correct the misstatement of the law that had been conveyed to the jury and which it was evidently considering. The trial judge said:

Ladies and gentlemen, you probably wonder why unceremoniously we have brought you back into the courtroom when you have not asked a question. It goes back to your previous question, “ought to know”. There is no such definition in the section dealing with second-degree murder. “Ought to know” is not part of your consideration or concern. Any reference to the expression “ought to know” should be struck, deleted from your understanding in terms of your deliberations. I say that to you because that expression was used unfortunately by Madam Crown Attorney, inadvertently she used the expression “ought to know”. That is not part of the section, all right? So I am asking you to delineate, delete, whatever expression you want to do, erase my response to the query about “ought to know”. Your focus should be on reckless, which is clearly there, and not on that expression. I cannot be more definitive than that. … And I am asking you again to disregard that expression. It is not part of your deliberations. [Emphasis added.]

crown error

[34]        The jury retired at 9:52 a.m. and returned with its verdict at 10:27 a.m. 

[35]        The last instruction was intended to salvage the situation by correcting the answer given to the jury’s question about “ought to know”. Unfortunately, it did not do so fully and correctly. While the trial judge told the jury, clearly and emphatically, that “ought to know” was not the correct standard for the mens rea for murder, he was wrong to tell the jury its focus should be on “recklessness.” There are two problems with this instruction.

[36]        The first problem is that, half an hour earlier, the trial judge had left the jury with a definition of “reckless” that included carelessness. It is likely the broad dictionary definition he gave the jurors would still have been fresh in their minds. Considered in the context of that definition, telling the jury its focus should be on “recklessness” was a misdirection. 

[37]        The second problem is that the jury should have been told its proper focus should be on whether the appellant intended to cause bodily harm to his uncle that he knew was likely to result in his uncle’s death. As Cory J. explained in Cooper, at pp. 154-55:

The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not. [Emphasis added.][38]        On appeal, the Crown argues that the trial judge’s multiple repetitions of the correct mens rea standard for murder meant that the jury must have been properly informed when it began its deliberations. I do not accept that submission given the question by the jury and the trial judge’s inadequate answer. 

[39]        Questions by the jury give the clearest possible indication of the particular problem the jury is confronting: R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 528. When the jury submits a question, it must be assumed that the jurors have forgotten the original instructions and will base their subsequent deliberations on the answer to the question: S. (W.D.), at p. 531. The correctness of the original charge cannot excuse an error in the answer to the jury’s question: S. (W.D.), at p. 530-31. 

[40]        In this case the jury repeatedly received correct instructions in the main charge. But considering everything the jury was told, I conclude there is a real danger that the jury was not left with a proper understanding of the role of recklessness in the mens rea for murder and that subjective foresight of death was required. 

crown error

D.            DISPOSITION

[41]        The appellant’s murder conviction cannot be regarded as safe. I decline the Crown’s invitation to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. In this case manslaughter, rather than second degree murder, was a possible verdict on the Crown’s version of the events.

[42]        In conclusion, I would allow the appeal, set aside the conviction, and order a new trial. 

Released: “RGJ” OCT 28 2019

“R.G. Juriansz J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. L.B. Roberts J.A.”


crown error

[1] The appellant’s notice of appeal raises an appeal against sentence, but the appellant’s factum and oral submissions did not include arguments on sentence. Given the disposition of this appeal, I regard the sentence appeal as moot.




Impermissible Speculation by Crown in Jury Address leads to new trial.

A recent Ontario Court of Appeal decision has resulted in a new trial due to impermissible speculation. The Crown in their submissions to the jury presented a theory that crossed the line into impermissible speculation.

The COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walker, 2019 ONCA 806

DATE: 20191008

DOCKET: C60788

Hourigan, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Walker

Appellant

Philip Campbell and Alexander Ostroff, for the appellant

Michael Bernstein, for the respondent

Heard: September 16, 2019

On appeal from the conviction entered on March 12, 2014 by Justice Todd Ducharme, sitting with a jury, of the Superior Court of Justice.

Hourigan J.A.:

A.   INTRODUCTION

[1]          Nicholas Walker appeals his conviction for first-degree murder in the fatal shooting of Clifenton Ford. The shooting of Mr. Ford took place inside a bar and was captured on a security camera. Of critical importance at trial and on appeal is other security camera footage taken moments before the murder, in which two men are shown speaking in a stairwell in the bar. It was common ground that one of the people in that footage was Lester Coore. The Crown’s position at trial was that the other person in the stairwell video was the appellant, and that the dark object he is seen holding was a gun. The defence argued that the appellant was not in the footage and that the object was not identifiable as a gun. 

[2]          The appellant asserts three grounds of appeal:

           (i)        The trial judge erred in opining in his jury charge that he believed that the dark object in the stairwell video looked like a gun;

          (ii)        The trial judge erred in failing to caution the jury regarding the police’s method of showing the still from the stairwell video to Mr. Coore; and

         (iii)        The trial judge erred in allowing the Crown to speculate in closing that the appellant disabled a security monitor in the kitchen of the bar.

[3]          I conclude that the appeal must be allowed and a new trial ordered. As I will explain, the trial judge erred in offering his opinion about the stairwell video in circumstances where he ought to have known that it would unfairly undermine the defence on a critical factual issue. Due to the trial judge’s comment, the appellant was denied a fair trial. 

B.   ANALYSIS

1.    The Trial Judge’s Comment 

[4]          Mr. Coore’s evidence was that he recognized himself in the stairwell video and that the man standing next to him holding the dark object was the appellant, whom he was acquainted with. However, Mr. Coore denied seeing a gun that night. 

[5]          In his charge to the jury, the trial judge opined that it looked to him that the dark object in the stairwell video was a gun:

In looking at the videotape, you may wish to consider the following. There is the image of the man in the black leather jacket talking to Mr. Coore in the back stairs. I have that as being on camera 4 at 2:20:50. And ask yourself whether or not he has a gun in his right hand and whether or not, while his back is to the camera, he is loading the weapon. Now, at 21:33, it looks to me like the person in the leather jacket has a handgun in his right hand and it moves towards Mr. Coore and back, but that is something for you to decide.

[6]          In charging juries, trial judges are obliged to review the substantial parts of the evidence and relate that evidence to the issues the jurors must decide. There is no formula to determine the adequacy of the evidentiary review. Appellate courts do not demand a standard of perfection of trial judges: David Watt, Helping Jurors Understand(Toronto: Carswell, 1996), at pp. 185-88. Despite the deference paid to trial judges in crafting jury charges, it is essential that a trial judge’s summary of the evidence and the charge as a whole be fair and balanced: R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at paras. 114-18.

[7]          Beyond summarizing the evidence, a trial judge is permitted to opine on the evidence adduced at trial subject to certain limits. Watt J.A. reviewed the law regarding the permissible bounds for a judge commenting on evidence, in R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 108-10:

[108] The parties share common ground that a trial judge is entitled to express opinions on issues of fact, as strongly as the circumstances permit, provided that what is said amounts to advice, not direction, and the judge makes it clear that the jury is not bound by the judge’s views on these issues.

[109] A significant limitation is that a trial judge’s opinion can only be expressed as strongly as the circumstances permit. A trial judge is entitled to express his or her own view of the facts or of the credibility of witnesses and to express that opinion in strong terms. But sometimes, even where a judge has told the jury that it is not bound by the judge’s views on the evidence, a judge may go too far by expressing an opinion that is far stronger than the facts warrant or by expressing the opinion so strongly that the jury is likely to be overawed by it.

[110] The judge must not use such language as leads the jury to think that they must find the facts in the way the judge has indicated. And the charge must not deprive the accused of a fair presentation of the defence case to the jury. In each case, it is a question of degree and of fairness. [Citations omitted, emphasis original.][8]          In R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 23, leave to appeal refused, [2006] S.C.C.A. No. 175, Rouleau J.A. summarized the jurisprudence as follows:

What can be drawn from all of these cases is that, in this area, everything is a question of degree. The overarching principle is fairness. Within this principle of fairness is the recognition that the jury must remain the arbiter of the facts and that any comments made by the trial judge cannot amount to a rebuttal of the defence address to the jury or unfairly denigrate or undermine the position of the defence.

[9]          The question for determination on this appeal is whether the trial judge ran afoul of these principles by identifying a gun in the stairwell video. 

[10]       It is plain from the excerpt quoted above that the trial judge instructed that the ultimate determination regarding whether the man in the stairwell video held a gun was the jury’s and that he was only offering his opinion. This was consistent with other directions in the jury charge regarding the responsibilities of the judge and jury, including the statement that “[d]eciding the facts is your job, not mine”. In light of these comments, no reasonable juror who was undertaking his or her duties in a diligent manner would believe that the trial judge’s opinion was binding. 

[11]       I am also satisfied that the opinion expressed was not stronger than the facts warranted. My review of the stairwell video leads me to conclude that the trial judge had a basis to support his opinion that the man in the video appeared to be holding a gun. 

[12]       Nor am I of the view that the opinion was expressed so strongly that it would overawe the jury. The trial judge made a brief comment, which made clear that he was only expressing his opinion. He did not bolster that observation with his views on why he concluded that a gun was identifiable, nor did he attempt to persuade the jury that his opinion was the only correct one. He also did not state his opinion in absolute terms, such that it would unduly influence the jury. 

impermissible speculation

[13]       As noted, a trial judge’s opinion on the evidence in a jury charge will be rendered impermissible if it prejudices the accused’s right to a fair trial. The appellant argues that the comment about the gun was highly prejudicial. In earlier submissions to the court, the Crown took the position that the gun was not clearly visible in the stairwell video but that an inference could be drawn that it was a gun based on certain circumstantial evidence. However, after becoming aware of the trial judge’s opinion, the Crown argued in closing that the stairwell video showed a gun. According to the appellant, the trial judge inappropriately intruded into the adversarial process on an issue that he was no better position in to opine on than the jury.

[14]       In my view, the trial judge’s comment compromised the appellant’s right to a fair trial. The proof of the prejudice is found in the changing position of the trial Crown on what the stairwell video shows. During pre-charge submissions counsel addressed the issue of whether Mr. Ford, the victim, was shown to be in possession of a gun at the time of the shooting. In the course of those submissions, the Crown urged that there is no air of reality to the suggestion that the video showed a gun in Mr. Ford’s hand, and then stated as follows:

Well, I will compare it to Mr. Coore. You know, what I do in my closing and what I say and what I would say is that there’s an object that seems apparent that moves between the two men on the screen. You know, you can’t completely make out clearly that it’s a gun, but there are a number of circumstantial factors that point to the fact that it is a gun. Ultimately, perhaps the most glaring of which, is if you accept that Mr. Walker goes out and shoots Mr. Ford, you can infer that what he was displaying to Mr. Coore was a gun. So there’s evidence there upon which the inference can be drawn.

[15]       This was a significant concession by the Crown relating to whether, in the stair case video, a gun could be seen in the hand of the man Mr. Coore identified as the appellant. It meant that both the defence and Crown agreed that it was not clear from the stairwell video that the dark object was a gun. Given these submissions, the trial judge was aware that this was the state of play regarding whether a gun was visible in the stairwell video. 

impermissible speculation

[16]       Later during the pre-charge submissions, the trial judge said that he would probably tell the jury that, on his review of the security footage, he did not see a gun in Mr. Ford’s hand. This prompted defence counsel to ask the trial judge whether he would be opining on whether a gun was visible in the stairwell video:

MS. SHEMESH: Yeah, and I’m wondering if you’re doing the same with the rear stairwell. I know we didn’t get into that.

THE COURT: I don’t think so. I think what I’m going to say about the rear stairwell is I’m just going to review what Mr. Coore had to say about it in-chief and in cross. You’re talking about Mr. Coore and Mr. – 

MS. SHEMESH: If whether or not you see a gun in the rear stairwell.

THE COURT: I think in that regard, I will tell them that they should look at the hand, that to me it looks like he’s holding a gun, but that they should keep in mind that Mr. Coore didn’t see a gun and said he wasn’t shown a weapon.

MS. SHEMESH: But Your Honour is going to say, “to me it looks like a gun”?

THE COURT: I think so.

MS. SHEMESH: So you’re going to be opining on both pieces of evidence, providing your position on both pieces of evidence?

THE COURT: Probably, yes, as I can.[1]

[17]       Thus, despite knowing that the Crown was taking the position that the stairwell video was unclear, the trial judge determined that he would offer his opinion that the gun was identifiable. The Crown, now armed with the knowledge that the trial judge would be offering this opinion, took a much more aggressive position in his closing than he had previously articulated. He stated the following about Mr. Coore’s denial that he had seen a gun in the appellant’s hand:

He saw Mr. Walker with that gun. He will not admit it. His loyalty to Mr. Walker tells you why he would withhold this devastating observation, but you can conclude that it was, in fact, a gun in Mr. Walker’s hands for three reasons. The first is that you can see it for yourself on the video as Mr. Walker speaks to Mr. Coore. Mr. Walker appears to be doing something consistent with loading a gun before Mr. Coore arrives. And finally you see the same person on the video, the one who spoke to Mr. Coore and displayed what looks to be a gun, use that gun to shoot Mr. Ford minutes later. That person was, on all the evidence, Mr. Walker.

[18]       The alleged presence of the gun in the stairwell video was significant, especially since defence counsel was not strenuously contesting that the man seen in the video shooting Mr. Ford was not the same man shown in the stairwell video. If the jury concluded that a gun was indeed present in the stairwell video and accepted Mr. Coore’s evidence that the appellant was the person next to him, this would go a long way toward establishing the appellant’s guilt beyond a reasonable doubt. In short, this was a critical factual issue.

impermissible speculation

[19]       Appellate courts are obliged to ensure that an accused person receives a fair trial and that justice is not only done but that it “be manifestly and undoubtedly be seen to be done”: Brouillard Also Known As Chatel v. The Queen, [1985] 1 S.C.R. 39, at p. 13. As this court stated in R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, leave to appeal refused, [1986] S.C.C.A. No. 298, a case about judicial intervention in questioning: 

Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of interventionThe ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. [Emphasis in the original.][20]       Trial judges must be alive to the dangers of intervention in the circumstances of the case before them. They must act judiciously and consider whether the exercise of an available discretion, including opining on evidence, is appropriate or whether there is a danger it will impair the accused’s rights to a fair trial. Where such a danger is apparent, we expect trial judges to proceed with caution and decline to intervene. It is not just a question of whether an opinion can be offered but whether it should be, recognizing that a trial judge has an overriding duty to ensure that the accused receives a fair trial. 

[21]       In the case at bar, it would have been apparent to the trial judge that he was taking a more definitive position than the parties on whether a gun was identifiable in the stairwell video. There was an obvious danger that the Crown would be emboldened, or might feel obligated, to take a more aggressive position on this critical piece of evidence and withdraw his concession that the gun was not clearly identifiable in the stairwell video. This, in fact, was what happened in this case.

[22]       In the circumstances, the trial judge’s comment rendered the trial unfair because he intervened when he should not have and, in so doing, he undermined the defence’s position. By offering a stronger opinion than the one he knew the Crown was prepared to advance, he profoundly impacted the course of the argument on a critical piece of evidence. He removed a concession and strengthened the Crown’s position. When the trial judge advised counsel that he would opine on the evidence because he could, he erred in not considering whether he should offer an opinion that was stronger than the Crown’s position. This was fundamentally unfair to the appellant.

[23]       For the foregoing reasons, I would give effect to this ground of appeal and order a new trial. Below, I will briefly consider the other grounds of appeal in an effort to assist the trial judge and parties at the new trial. 

2.    Identification of the Appellant

[24]       Mr. Coore spent substantial parts of the evening in the stairwell, only briefly speaking to the appellant. During their initial interview with Mr. Coore, the police only showed him a still of the stairwell video allegedly featuring the appellant, without the context of the rest of the footage from the stairwell. When the police showed him the still, Mr. Coore already knew that the appellant was a suspect. Despite the defence arguing that the way Mr. Coore was shown the still was suggestive and required a warning in the jury charge, the trial judge offered no instruction about Mr. Coore’s evidence in this regard.

[25]       The appellant argues that showing Mr. Coore the still of the stairwell video in isolation to identify the event that took place immediately before the shooting was a process imbued with suggestion and potential prejudice, especially since Mr. Coore believed that the still would show him and the appellant. According to the appellant, that risk merited a warning from the trial judge. The precise nature of that warning is not articulated, but he suggests that the dangers associated with this evidence are very close to an in-dock identification. The appellant’s position is that the non-direction was tantamount to misdirection. 

[26]       I am not persuaded that the trial judge erred in declining to provide a specific instruction regarding the potential that Mr. Coore’s evidence was influenced by the manner in which the police showed him the still. There is nothing inherently suggestive in the police showing a witness a still or video clip and asking him or her to identify who is in it and what is happening. 

[27]       It was open to the defence to argue that this frailty and others in Mr. Coore’s evidence rendered it incredible and unreliable, and indeed the defence made much of these issues in closing submissions. Significantly, in his jury charge, the trial judge provided a detailed summary of the defence’s position in this regard, including the statement: “Lester Coore assumes that it is Mr. Walker in the photo because the police showed him one photo, but everything else about his description of their interaction is incorrect if you take the time to deconstruct what is actually on the videotape.”

[28]       I am satisfied that the frailties in Mr. Coore’s evidence were sufficiently explained to the jury to enable them to properly evaluate their impact on his credibility and reliability. The defence advanced many arguments, including one that the police’s method of showing Mr. Coore the isolated still had influenced his evidence. A special instruction was not required. Accordingly, I would dismiss this ground of appeal. 

3.    Kitchen Monitor – Impermissible Speculation

[29]       During closing submissions, the Crown commented that a security monitor in the kitchen had been unplugged. The Crown insinuated that the appellant unplugged the monitor in a failed attempt to disable the security features of the bar. This theory was not put to any witness nor did the Crown adduce any evidence that the appellant was in the kitchen that night.

[30]       In my view, the argument that the appellant disabled the monitor was not sufficiently rooted in the evidence and crossed the line into impermissible speculation. In the absence of supportive evidence, the Crown had no basis to invite the jury to draw this inference. The appellant was prejudiced by the submission, because it went to both his culpability for the murder and the issue of premeditation. 

[31]       The trial judge was obliged to instruct the jury to disregard this submission and he erred in declining to do so. While it is doubtful that this error alone would warrant a new trial, I identify it in case the Crown elects to invite the jury in the new trial to draw the same inference in the absence of a sufficient evidentiary basis. 

C.   DISPOSITION

[32]       I would allow the appeal and order a new trial. 

Released: “D.B.” October 8, 2019

“C.W. Hourigan J.A.”

“I agree. David Brown J.A.”

“I agree. David M. Paciocco J.A.”


impermissible speculation

impermissible speculation leads to new trial

[1] The appellate concedes that the trial judge’s opinion about whether Mr. Ford had a gun is not significant because, even if he did have a gun, self-defence was not available on the facts of this case.




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