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
Hourigan, Brown and Paciocco JJ.A.
Her Majesty the Queen
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.
A. INTRODUCTION 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.  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. 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.
1. The Trial Judge’s Comment 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.  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. 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. 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: 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. 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. 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.] In R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 23, leave to appeal refused,  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. 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.  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.  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.  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 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. 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. 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 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. 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. 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 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,  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,  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 intervention. The 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.] 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. 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. 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. 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 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. 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.  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.  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.” 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 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. 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.  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 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.”
 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.