COURT OF APPEAL FOR ONTARIO
Laskin, Tulloch and Strathy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Marieanne Minor
Appellant
Ian Carter, for the appellant
Lucy Cecchetto, for the respondent
Heard: June 25, 2013
On appeal from the conviction entered by Justice David J. Nadeau of the Superior Court of Justice, sitting with a jury, on May 25, 2012.
1After deliberating for three days, following a trial lasting nearly three weeks, a jury convicted the appellant of second degree murder of her husband, Robert Minor. She was sentenced to life imprisonment with no eligibility for parole for ten years. She appeals her conviction on the ground that the trial judge failed to conduct an independent review of the evidence in the course of his jury instructions. Instead, she says, he simply read to the jury prepared statements of the positions of the Crown and the defence.
2For the reasons that follow, I would allow the appeal.
A. BACKGROUND FACTS1
3On January 11, 2002, at about 3:30 p.m., the appellant’s husband was found dead in the basement of their home in Mattawa, Ontario. Firefighters made the discovery while responding to a call that the appellant had discovered soot and black smoke when she arrived home from work that afternoon. The victim died as a result of a puncture wound to the chest. He had defensive cuts and bruises, indicating a struggle.
4The police interviewed the appellant twice on January 11 and again on January 24, but no charges were laid at the time. Some seven years later, after being re-interviewed, the appellant was arrested and charged with second degree murder of her husband.
Events of January 10, 2002
5There was evidence at trial from several witnesses, who said they observed nothing unusual in the conduct of the appellant and her husband on the day before he was killed. The victim’s mother testified that she had seen him late in the afternoon and he appeared to be in good health. She agreed that the appellant and her son seemed to have a good marriage and that she got along well with the appellant.
6The appellant’s co-worker at Walmart in North Bay testified that she telephoned the appellant during the early evening of January 10. She heard the deceased joking in the background. The next day at work the appellant’s demeanour appeared to be normal, she had no marks or bruises, and she did not appear overly fatigued.
7The family doctor testified that he saw both the appellant and her husband on January 10, 2002, and observed nothing out of the ordinary in their behaviour.
Events of January 11, 2002
8A neighbour testified that in the early hours of January 11, between 1:00 and 1:30 a.m., she saw the deceased come out of the house and go to a trailer parked in the driveway. A few minutes later he returned to the porch. He was wearing a white t-shirt and sweatpants or dark jeans. She saw him leave and return to his house at least twice and possibly three times. She testified that she would have been able to hear shouting from the house if there had been any, but she heard nothing that night. The appellant and her husband appeared to her to be a happy couple.
9Another neighbour, Judy Sarrazin, testified that while out for a morning walk on January 11 she passed by the appellant’s house at about 8:00 a.m. She smelled soot or smoke, like a fire that was smouldering or not burning properly. She could not see smoke coming from the house. The windows looked dark, but she could not tell whether it was because the curtains were drawn or because there was something on the windows. She agreed on cross-examination that the smell she noticed was like a fire that was not burning very well – a fire that was burning, but struggling to maintain itself.
Injuries to the Deceased
10The deceased was found in the basement, lying on his back, wearing boxer shorts. He had a puncture wound to his chest and multiple blunt force injuries to various parts of his body. It appeared that rigor mortis had set in. His right arm was elevated above his chest and his left leg was flexed. Expert evidence at trial indicated that his body was likely in this position at death, that rigor mortis had developed within two to twenty hours after death, and that the deceased had been moved after rigor mortis had developed.
The Condition of the Residence
11The house was a single storey home with a basement. First responders found extensive fire damage on the main floor. The windows were covered with a layer of soot. Neither of the two entrance doors to the residence showed any sign of damage, but the latch on the basement door was broken.
12Inside the house, drawers in the kitchen and cupboards in the basement were found open. Dresser drawers were also open in the master and spare bedrooms, with clothes pulled out. The deceased’s wallet, containing twenty dollars and credit cards, and his house and car keys, were found in a pair of jeans on the floor of the master bedroom. There was also a pile of clothing on a chair in the master bedroom, including a pair of women’s sweatpants.
13There were no signs of blood on the main floor of the house, but the deceased’s blood was found in the basement and on both ends of a crowbar in the basement.
14Investigators found a palm print on the top of a dehumidifier in the basement, but they were unable to identify whose print it was. They ruled out the appellant and her husband as the source of the print.
15Investigators were unable to determine from the blood stains the precise sequence of events leading up to Mr. Minor’s death.
The Timepieces
16Ten timepieces, six clocks and four watches, were found in the house. All were stopped. Six were found in the bedroom:
(a) a battery-operated clock on a night table was badly damaged by fire and no time could be ascertained;
(b) a woman’s battery-powered wrist watch on the master bedroom dresser was stopped at 12:27. There was evidence that a portion above the battery might have been damaged;
(c) a battery-powered pocket watch in a closed case on the dresser was stopped at 9:45;
(d) a battery-powered wristwatch on the dresser was stopped at 4:11. Although it had some damage, there was no damage to the moving parts or internal components. The battery was intact;
(e) a decorative clock was found on the dresser. A police officer testified that the clock showed a time of 4:10 when he viewed it. A fire investigator testified that clock could have said 4:10 or 5:10. He also agreed that it was hard to tell the length of the hands, so that it could have read 2:20. When the clock was subsequently taken out of police storage, the hands were loose and the time read 2:10;
(f) a battery-operated Mickey Mouse wristwatch on the dresser was stopped at 8:45.
17Four more timepieces were found at various locations in the house:
(a) a clock in the basement was unplugged and showed a time of 12:32. It started to operate, once plugged in;
(b) a battery-operated clock on a radio cabinet in the living room had no battery in it, and was showing no time;
(c) a travel clock on a coffee table in front of the couch in the living room, where the deceased often slept, and where the appellant said he was sleeping the night before his death, was stopped at 4:10. There was evidence it was working, but the hands had fused due to heat from the fire; and
(d) a clock in the kitchen had fallen from the wall onto the ground. Witnesses variously recorded the time as between 4:10 and 4:15 and as 4:22.
18The timepiece evidence played a central role in the Crown’s theory of the case – a role that was emphasized in the trial judge’s instructions to the jury.
Forensic Evidence
19There was a considerable body of expert evidence at trial. Ten experts testified: two forensic pathologists; a forensic toxicologist; three witnesses from the Office of the Fire Marshal concerning the origin and cause of the fire, fire dynamics and burn rates; an expert from the Centre of Forensic Sciences on DNA analysis and body fluid interpretations; a fingerprint expert; a second fingerprint and palm print expert; and an expert on bloodstain pattern analysis. In addition, expert medical evidence, from a surgeon with expertise in trauma and critical care, was read into the record, describing how and over what period of time the deceased probably died.
20The evidence indicated that fires had been intentionally started in three locations in the house, probably by an open flame being applied to the living room couch, the mattress or bedcovers in the master bedroom, and a tissue box in the spare room. The expert witnesses testified that the polyurethane in the mattress and the couch caused the fire to develop rapidly and to burn intensely. It burned for no longer than about 10 or 10.7 minutes before it extinguished itself due to lack of oxygen. They testified that it would have continued to smoulder after being extinguished. Soot continued to circulate through the house because the forced air furnace was operating.
21A pathologist testified that the deceased had died as a result of a sharp force injury – a stab wound – to the chest. The deceased suffered numerous other injuries, including blunt force injuries to the forehead and scalp, the right shoulder and upper right arm, the left arm and the back of the left shoulder, the back, the buttocks, the left knee, the lower right leg, the right ankle, and the back of the right thigh and knee. There were “defensive” sharp force wounds, caused by a knife, and bruising on the hands.
22Forensic specialists testified that the victim had expired at the time the fires were set, because there was no evidence of soot in his lungs or of carbon monoxide in his blood. As noted above, they testified that rigor mortis usually takes between two and twenty hours to become established and the position of the deceased indicated that he had been moved after rigor mortis had set in.
23The sweatpants found with other clothing on a chair in the bedroom were seized by police but were not sent for DNA testing until the fall of 2007. Analysis showed the DNA of both the appellant and her husband on the waistband of the pants. As well, small spots of the deceased’s blood were found in several locations on the front of the pants.
The Appellant’s Statements
24The appellant did not testify at the trial. Nor did the defence call any evidence. However, the statements the appellant had given to the police were admitted in evidence.
25When firefighters and paramedics arrived on the scene, they observed the appellant was upset and crying, although others noted she was calm and she even joked at one point. She was interviewed by a police constable at the scene and told him she had left for work at 4:00 a.m., arriving at Walmart at 5:30 a.m.
26Later that day, she was interviewed by the police. She said she went to sleep the previous evening after taking medication at 7:15 p.m., while her husband stayed up. This was not unusual, as he often slept in the spare room or the couch in the living room. She did not give a specific time for when she woke up in the morning, but said she usually got up between 3:00, 3:30 and 4:00 a.m. She said she did not see her husband when she woke up. It was not clear where she thought he was sleeping.
27She was interviewed again on January 24, 2002. She said she went to bed about 7:45 or 8:00 p.m., set her alarm for 3:15 a.m. and left for work around 3:45 or 4:00 a.m. Again, she said she did not see her husband when she got up, but assumed he was on the couch in the living room, because she did not see him in the spare bedroom when she checked. She said she stopped for coffee on the way to work and got there around 5:30 a.m.
28The appellant was interviewed seven years later, on February 25, 2009, for about two hours. She said her husband had come to bed while she was sleeping. He got up during the night and was sleeping on the couch when she rose in the morning. She said she left for work around 4:30 a.m. The interviewing officer ultimately suggested the evidence pointed to her having murdered her husband, a suggestion she vehemently denied.
29The appellant worked a 6:00 a.m. to 3:00 p.m. shift at Walmart in North Bay. The trip from the appellant’s home to Walmart was estimated to take about 40 minutes and the appellant told police she usually left for work about 4:30 or 4:45 a.m. It was agreed that on the morning of January 11, 2002, the appellant arrived at work at 5:38 a.m., as evidenced by a video record from the store.
B. THEORIES OF CROWN AND DEFENCE
30The Crown’s theory was that in the early morning hours of January 11, 2002, the appellant stabbed her husband in the chest and left him to die on the basement floor. She started three fires in order to conceal the evidence, but once started, the fire quickly burned themselves out, leaving most of the evidence intact. The Crown said that instead of eliminating evidence, the fire left tell-tale evidence – three or four timepieces, all stopped around 4:10 or 4:11 a.m., establishing conclusively that the fire must have been started around 4:00 a.m., when the appellant was the only person with the opportunity to start it.
31The defence theory was that the facts bore all the hallmarks of a “break and enter gone wrong”. It said that the Crown theory that the appellant brutally murdered her husband of 26 years was totally out of character. The couple had a normal and happy relationship. There was no history of violence, drug or alcohol issues, or marital difficulties and no signs of impeding separation or divorce. The defence argued that the Crown’s case, founded on circumstantial evidence, was full of holes.
32There was evidence of several witnesses that the day before his death the deceased was behaving normally. He was observed by the neighbour, dressed and moving about, between 1:00 and 1:30 a.m., so he was obviously alive at that time. The neighbour heard no unusual noises that evening. On the Crown’s theory, the killing must have occurred before 2:00 a.m. because rigor mortis takes at least two hours to set in. If the fire started at about 4:00 a.m., he must have been dead by about 2:00 and certainly no later than 2:10 a.m.
33The defence said that on the Crown’s theory, there was a very narrow window of opportunity for the appellant to commit a murder, particularly one using a sharp object and a crowbar, and to move the deceased from some other location to the place where he was found. The defence argued that, considering the nature of his injuries, there must have been a significant struggle, likely involving more than one person. The unexplained palm print on the dehumidifier was consistent with an intruder.
34The defence argued that the circumstances suggested that more than one assailant was involved and that the killing must have occurred as a result of a botched robbery, after the appellant had left the house to go to work. Defence counsel pointed, in particular, to the evidence of Ms. Sarrazin, the neighbour who walked by the house the next morning, whose evidence suggested that the fire could have been burning at that time. If that was the case, and if the fire self- extinguished in about ten minutes, the death must have occurred much later than the Crown theorized.
C. THE JURY INSTRUCTIONS
35During the pre-charge conference, the judge had provided counsel with only a broad outline of the instructions he proposed to give, but he did not give them a draft of his charge.
36The judge instructed the jury in just over two hours, with a twenty minute break in the middle. In many respects, the charge followed Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005).
37The judge did not provide the jury with a copy of his instructions, but he gave them a one page outline and a decision tree on second degree murder and manslaughter.
38In the course of his overview of what he would be covering in his instructions with the jury, the trial judge told jurors that he would be reviewing the evidence:
Then, I will discuss the issues that you need to decide and review for you the evidence that relates to those issues. By doing this, I hope I can help you recall the evidence and understand how it relates to the issues that you will be asked to decide. You must always keep in mind, however, that to decide this case, you rely on what you remember the evidence was, not what counsel or I say it was. [Emphasis added.]
39The judge proceeded to instruct the jury on the duties of jurors, the general principles of law applicable to the case (including the presumption of innocence, the burden of proof and reasonable doubt), the principles of evidence (including direct and circumstantial evidence), and the rules of evidence. Most of these instructions were standard.
40Under the first heading of the outline he gave to the jurors, entitled “Duties of Jurors”, there were nine subheadings, one of which was entitled, “Judge’s Review and Comments on Evidence.” Here, the judge again told the jury that he would be reviewing the evidence and relating it to the issues. He said:
It is my duty to review what I think are the important parts of the evidence, and to relate it to the issues that are yours to decide. In doing that, I may overlook evidence you think important, or mention evidence you think is insignificant. I may make a mistake about what a witness said while testifying.
My references to the evidence are only to help you remember it, and to show you how it relates to the issues in this case. If my memory of the evidence is different from yours, it is yours that counts. You find the facts and base your decision on your memory of the evidence, not mine, not that of counsel.
Our law also permits me to comment or express opinions about issues of fact. If I do that, however, you do not have to reach the same conclusion. You, not I, decide what happened in this case, if you are able. [Emphasis added.]
41The appellant asserts that, although the judge told the jury that he would be reviewing the evidence in relation to the issues, he failed to do so.
42At an early stage of his instructions, when discussing the presumption of innocence, the burden of proof, and the requirement of proof beyond a reasonable doubt, the judge explained that the Crown was required to prove the essential elements of an offence beyond a reasonable doubt. He then said that he was going to explain this instruction “for this particular case” and referred the jury to Crown counsel’s closing address. In his closing address, Crown counsel had stated that although “[t]he Crown is not obliged to prove every piece of evidence beyond a reasonable doubt”, he was prepared to “go out on a limb here and set the bar higher for the Crown than it really has to be”. Crown counsel had told the jury that to convict they should be satisfied beyond a reasonable doubt that the timepiece evidence proved that the fires were burning at 4:10 a.m. and caused several timepieces to stop at the same time.
43The trial judge endorsed this approach by telling the jury:
This is what [Crown counsel] told you, and I want to make it clear on this instruction about reasonable doubt and proof beyond a reasonable doubt how critical the timepieces are in the Crown’s view and why they asked me and asked you to apply that criminal standard of proof to that evidence specifically.
The reason he stated that, and I am going to use my own words here, my own view, is the critical role these timepieces play for the critical timeline that he submitted to you. For Marieanne Minor to have the exclusive opportunity to commit an alleged offence, the position of the Crown is that she set these three fires before she left for work in North Bay, and we know she is photographed at the Walmart at approximately 5:28 a.m. that morning … Therefore, it is clear on this evidence during the trial that the Crown must also satisfy you beyond a reasonable doubt that these fires caused three, perhaps four, timepieces to stop at approximately 4:10 a.m. that morning and that was the time these fires were burning. But as I will explain later, there is more for you to consider. I want to make it very clear on that one particular instruction to tell you what your duty is with respect to that issue.
To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little you will believe and rely upon the testimony of any witness. You may believe some, none, or all of it. [Emphasis added].
44Later in the instructions he mentioned the fact that some 21 persons had testified in the trial, including a total of 10 expert witnesses on:
- fingerprint analysis;
- DNA analysis;
- fingerprint and palm print identification;
- causes, origins and circumstances of fires;
- fire modelling;
- blood stain pattern analysis;
- forensic pathology; and
- forensic toxicology.
45Apart from listing the names of the experts and their areas of expertise, the trial judge did not review any of the expert evidence. Nor did he review any of the numerous exhibits filed at trial, which included over 200 photographs of the crime scene.
46The trial judge summarized for the jury the evidence as to the appellant’s good character and gave them a standard instruction concerning that evidence. He also identified the statements given by the appellant to the police, explained the use the jury could make of them, and gave a W.D. instruction with respect to the evidence of the appellant as contained in the statements. Further, he discussed the submissions of counsel on motive, briefly commenting on the evidence and giving a standard instruction with respect to motive.
47After the morning break, the trial judge discussed tape recordings of messages left by the appellant for her husband on her home telephone on January 11, 2002 as well as videotapes of some of the appellant’s statements to the police. He also mentioned that several charts, summaries, photographs and schedules were filed as exhibits.
48Shortly thereafter, the trial judge turned to what he described in his outline as the “Summary of the Positions of the Crown and the Defence”. He simply read verbatim from summaries provided by counsel, describing them as the “theories” of each party.
49The Crown theory, as read by the trial judge to the jury, focused on the time of death and the time the timepieces stopped, to establish that the appellant had the exclusive opportunity to commit the crime. It referred to the eyewitness evidence that the deceased was seen entering his home in the early morning hours of January 11, the evidence that some of the timepieces had stopped at about 4:10 a.m., the pathology evidence that it would have taken at least two hours for rigor mortis to set in, and the appellant’s statement to the police that she left her home shortly after 4:00 a.m. for her 6:00 a.m. shift at Walmart. The Crown submitted that on this chronology, the appellant was the only person who could have committed the crime. It also pointed to the presence of the deceased’s blood on her sweatpants found on a chair in her bedroom, supporting the theory that she was responsible for his death.
50The defence position, as read by the judge to the jury, was that the timepiece evidence was neither uniform nor conclusive and, most important, a fire at 4:10 a.m. was inconsistent with the eyewitness evidence of Ms. Sarrazin, who testified that she stopped in front of the residence at 8:00 a.m. because she smelled soot, like a fire that was not properly burning. Given the expert evidence that the fire would have snuffed itself out due to lack of oxygen within about ten minutes of being started, this evidence, the defence told the jury, introduced reasonable doubt into whether the fire was actually burning at 4:10 a.m. or began much later, after the appellant had left for work
51The judge referred to other aspects of the defence position, including:
- the very narrow time frame that would have been available, under the Crown’s theory, for a dispute to escalate to a violent killing, in which the deceased bled to death over an indeterminate period of time;
- the defence theory of a break and enter gone bad;
- the inconclusiveness of the evidence of the deceased’s blood on the sweatpants, which also bore traces of his DNA on the waistband;
- the statements of the appellant to the police which were suggestive of her innocence;
- the absence of any visible injuries to the appellant and her apparently normal behaviour on the day of the fire.
52Having summarized the positions of the parties, the trial judge instructed the jury on second degree murder and the included offence of manslaughter. With reference to the decision tree he had prepared, he described the essential elements of the offence and identified the questions that the jury was required to answer.
53In discussing the central question for the jury, “Did Marieanne Minor cause Robert Minor’s death?”, the judge said:
To answer this question, you must consider all the evidence. Do not limit your consideration only to the opinion of the expert Dr. Toby Rose about what caused Robert Minor’s death. Take into account, as well, the testimony of any witness who described the events that took place around the time that Robert Minor was hurt and died. Use your common sense.
Robert Minor died from a single stab wound to his chest in the presence of multiple blunt force injuries. As to who caused his death, according to the Crown’s exclusive opportunity theory, Robert Minor would have had to die sometime between 1:30 and 2:10 a.m. on January 11, 2002.
54He added:
If you are not satisfied beyond a reasonable doubt that Marieanne Minor caused Robert Minor’s death, you must find Marieanne Minor not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that Marieanne Minor caused Robert Minor’s death, you must go on to the next question.
55Apart from this, and except as he recounted the theories of the Crown and the defence, the trial judge did not review any of the other evidence on the issue of whether the appellant caused her husband’s death or the issues identified by the defence that might have cast doubt on the Crown’s theory.
56Nor did the judge refer to any other evidence bearing on the other elements of second degree murder or manslaughter, other than the generic description of these elements and the definitions contained in the standard jury charges relating to these offences.
57The judge then gave his largely standard, concluding instructions to the jury about how they should carry out their task.
D. THE JURY QUESTIONS
58The jury began deliberating at about noon on May 22 and the judge adjourned their deliberations at about 9:00 p.m. The following morning, the jury delivered a note, asking if they could have a copy of Ms. Sarrazin’s evidence. In response, the judge provided them with a copy of the DVD recording of her evidence and told them that a transcript of the evidence was being prepared and would be provided to them.
59The trial judge then raised with counsel the question of whether the jury should be instructed that they should not give Ms. Sarrazin’s evidence particular weight just because they received a transcript. He mooted with counsel an instruction that they were not being provided with the evidence of any other witnesses and “should not focus exclusively on [Ms. Sarrazin’s] evidence or overemphasize it just because you have a transcript. You must decide this case based on all of the evidence.” In response to this, defence counsel raised the concern that Ms. Sarrazin’s evidence went directly to the time the fire began and was the only piece of independent evidence that conflicted with the timepiece evidence. He pointed out that when contrasted with the weight given to the timepiece evidence, the instruction being discussed by the trial judge might downplay the significance of Ms. Sarrazin’s evidence, to the detriment of the appellant.
60Defence counsel stated that when he heard the trial judge reading the statement of the Crown’s position to the jury, he was concerned that the jury would regard the timepiece evidence as determinative of his client’s guilt or innocence:
[M]y concern when I first thought – first heard that was that the jury is going to think that that’s the only issue that they really have to decide and once it’s decided, either way – for example, if they decide beyond a reasonable doubt that fire caused the timepieces to stop at 4:10, then it’s over and you don’t have to worry about W.D., you don’t have to worry about anything else in the case.
61He expressed the concern that if the trial judge gave a further instruction to the jury, he should repeat his instructions about the burden of proof on the Crown, proof beyond a reasonable doubt and the application of W.D. with respect to the versions of the appellant’s evidence in the police statements.
62Ultimately, the trial judge determined that no further instruction was required.
63The jury deliberations continued on May 23, and with no verdict reached by 7:49 p.m., the jury was sent to the hotel for the evening.
64The following morning, May 24, the jury sent additional questions to the judge. The first note asked for “clarification” on three issues: (a) the “weight of ‘character’ versus evidence”; (b) the evidence concerning the palm print on the dehumidifier; and (c) the definition of “exclusive opportunity” and “opportunity”. In a follow-up question relating to the palm print, the jury said that they would like to have the portion of the testimony from the palm print identification expert dealing with the palm print on the dehumidifier in the basement and asked “How much weight is a juror to place on an unidentified print?” Later in the morning, as the trial judge was still conferring with counsel concerning the response to these questions, there was an additional question from the jury. They asked for the definitions of “absolute certainty” and “reasonable doubt”, referred to during the judge’s charge.
65After discussing the questions and the appropriate responses with counsel, the trial judge gave further instructions to the jury at about mid-afternoon on May 24. On the issue of character evidence, he reminded the jury that there was no evidence of bad character in relation to the appellant, and he discussed the evidence of the deceased’s mother, the appellant’s co-worker and the appellant’s family doctor. He explained that they should consider the character evidence along with all the evidence in determining whether the Crown had discharged its burden.
66He then spoke to opportunity and motive, explaining that the Crown had no obligation to prove motive, but that if the jury concluded that the appellant had no motive to commit the offence it would be an important fact to consider and it might raise a reasonable doubt as to whether the Crown had proven its case. He reviewed the position of the Crown and the defence on this issue, and explained that motive or lack thereof was only a factor that might persuade them, one way or the other, whether the appellant was guilty or not guilty.
67The trial judge then turned to the question of opportunity and exclusive opportunity, explaining that evidence of exclusive opportunity could be sufficient, in and of itself, to prove identity. He repeated his instruction concerning direct and circumstantial evidence and cautioned the jury that before finding the appellant guilty on the basis of circumstantial evidence, they must be satisfied beyond a reasonable doubt that the appellant’s guilt was the only rational inference to be drawn from the proven facts.
68He then responded to the jury’s question about the palm print on the dehumidifier, reviewing the evidence and reminding the jury that they were required to consider whether it was a recent print of some other person.
69The judge then turned to the last question asked by the jury, having to do with “absolute certainty” and “reasonable doubt”. This presumably related to the standard portion of the judge’s charge in which he instructed the jury that “[t]he standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probably or likely guilty”, but that “it is nearly impossible to prove anything with absolute certainty.”
70In response to this question, the trial judge essentially repeated verbatim the instructions that he had given to the jury concerning the presumption of innocence, the burden of proof and reasonable doubt. He continued, however, by repeating to the jury, again almost verbatim, the instruction he had given to them with respect to the submission of the Crown concerning the timepieces and the undertaking of the Crown to “set the bar higher” by accepting a burden of proof beyond a reasonable doubt with respect to the timepiece evidence. He repeated his observation as to “the critical role these timepieces play for the critical timeline that [Crown counsel] submitted to you.” He also repeated his instruction that “it is clear on this evidence during the trial that the Crown must also satisfy you beyond a reasonable doubt that these fires caused three, perhaps four, timepieces to stop at approximately 4:10 a.m. that morning and that was the time these fire were burning.”
71The judge’s re-instruction was completed at 4:01 p.m. The jury returned at 10:51 a.m. the next morning with a verdict of guilty.
E. THE POSITION OF THE PARTIES ON APPEAL
Appellant’s Position
72The appellant says that the trial judge recognized he had a duty to review the evidence, promised the jury that he would, but failed to do so. Instead, he simply read the summaries of the position of the Crown and defence, prepared by counsel. Most of the charge, she submits, was generic and did not fulfill the judge’s responsibility to distill, simplify and organize the evidence, and to relate it to the issues and elements of the offence. In particular, she says that he failed to review: (a) the evidence going to the identity of the killer and whether the appellant had exclusive opportunity to commit the offence; (b) the evidence as to the appellant’s lack of motive; (c) the evidence that might support the defence theory of a break and enter; and (d) the evidence capable of supporting the included offence of manslaughter.
73The appellant also submits that the trial judge erred by instructing the jury that they should submit the evidence concerning the stopped timepieces to a “reasonable doubt” standard, thereby elevating the significance of this evidence and diverting jurors from their obligation to consider all the evidence.
74The appellant says that the failure of trial counsel to object to the charge, or to request the jury be given further instructions, is not fatal to the appeal.
Respondent’s Position
75The respondent submits that the central issue at trial was the identity of the killer. This was established by the timing of the fires and by when the deceased died in relation to the fires, and was largely based on inferences to be drawn from undisputed evidence. Crown counsel submits that the adequacy of the charge and the answers to the jury’s questions must be viewed in context. In this case, the judge’s instructions and his answers to the jury’s questions equipped the jurors to deal with the evidence and the issues. The failure of defence counsel to object is telling, she submits. While she acknowledges that the trial judge has a duty to ensure that the jury understands the significance of the evidence to the issues in the case, reference to counsel’s positions is also necessary and there is nothing wrong with weaving together the review of the evidence and the statements of the parties’ positions. The respondent submits that the charge fully and fairly set out the defence position.
F. ANALYSIS
76Before turning to the legal principles applicable to this appeal, I remind myself of the approach to be taken by an appellate court in reviewing a jury charge.
77It has been emphasized by this court that a functional approach should be taken to jury instructions, having regard to their purpose in the circumstances of the case. “The purpose of the functional approach is to organize and clarify the issues and the applicable evidence for the jury, as it is for them to decide the guilt or innocence of the accused”: R. v. Maugey (2000), 2000 8488 (ON CA), 146 C.C.C. (3d) 99 (Ont. C.A.), at para. 25; see also R. v. Garon, 2009 ONCA 4, 240 C.C.C. (3d) 516, at para. 65.
78As Watt J.A. stated in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at paras. 48-50:
Appellate review of the adequacy of jury instructions requires a functional approach in which we test the instructions against their ability to fulfill the purposes for which final instructions are given: Jacquard, at paras. 32 and 41; and MacKinnon, at para. 27.
Jury charges do not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of jury charges must acknowledge this reality, especially where the complaint is about the extent to which the trial judge has reviewed the evidence in final instructions. Appellate review on this issue includes consideration of the complexity and volume of the evidence adduced at trial, the extent of its review by counsel in their closing addresses, the length of trial proceedings, the issues to be resolved by the jury, the effect of a more complete and balanced review of the evidence, and whether counsel objected to the charge on the ground advanced on appeal. The test is one of fairness: Daley, at para. 57. Provided the evidence is left to the jury in a way that will permit the jurors to fully appreciate the issues raised and the defences advanced, the charge will be adequate: Daley, at para. 57.
A consequence of the functional approach to jury instructions and their review by appellate courts is the absence of any requirement that the instructions conform with or follow a specific structure. Substance prevails, not form. That said, it is hard to controvert the principle that organized instructions are more likely to inform the understanding of the jury than are unorganized or disorganized directives. Final instructions that display an overall organization, as well as an organized approach to individual parts, seem inherently more likely to fulfill the purposes for which instructions are given. [Footnote omitted.]
The Duty of the Trial Judge
79In all but the rarest of cases, a trial judge has a duty to review with the jurors the issues to be resolved and the evidence they may consider in resolving those issues. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 54, Bastarache J., giving the judgment of the majority, adopted what he described as “[o]ne of the classic statements describing the trial judge’s duty to review the evidence in the charge” from Azoulay v. The Queen, 1952 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98:
The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.
80Bastarache J. noted, at para. 57, that the extent of the review of the evidence will depend on the circumstances of the case. He added that the duty was succinctly put by Scott C.J.M. in R. v. Jack (1993), 1993 15019 (MB CA), 88 Man. R. (2d) 93 (C.A.), at p. 102; aff’d 1994 87 (SCC), [1994] 2 S.C.R. 310: “the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language”.
81He also pointed out, at para. 58, that the judge’s duty cannot be considered in isolation:
Finally, it should be recalled that the charge to the jury takes place not in isolation, but in the context of the trial as a whole. Appellate review of the trial judge's charge will encompass the addresses of counsel as they may fill gaps left in the charge: see Der, at p. 14-26. Furthermore, it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge's instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.
82The issue was thoroughly canvassed by this court in P.J.B. At para. 44 of that case, Watt J.A. stated:
The responsibility of the trial judge to relate the evidence to the issues raised by the defence involves two components. The first is a review of the evidence. The second is a relation of the evidence to the position of the defence. Except in rare cases, where it would be unnecessary to do so, a trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury appreciates the value and effect of that evidence: Azoulay v. The Queen, 1952 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498. Typically, trial judges review the evidence in the context of the various issues and indicate what parts of the evidence support the positions of the respective parties on those issues: MacKinnon, at para. 29. Judicial review of the evidence refreshes the jurors' memory of the evidence given. Judicial relation of the evidence to the issues improves jurors' understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.
83He concluded that the charge in that case lacked a focussed reference in relation to each count to the factual issues to be resolved, a statement of the parties’ positions, and a review of the significant features of the evidence related to the parties’ position on each count. This failure to properly instruct the jury deprived the accused of a fair adjudication of the case and warranted a new trial.
Counsel’s Closing Submissions
84The fact that counsel have reviewed the evidence in the course of their closing submissions, or that the judge has read summaries of the positions of the Crown and the defence to the jury, does not relieve the trial judge of the duty to perform an independent review of the evidence. Counsel are advocates. Their positions are argument. The jury is entitled to look to the trial judge to separate reason from rhetoric.
85The point was well made by McClung J.A. of the Alberta Court of Appeal in R. v. Selbie, 2002 ABCA 58, 361 A.R. 202. In that case, in a brief oral judgment, the Court of Appeal ordered a new trial in a second degree murder case. The grounds of appeal rested on what McClung J.A. described, at para. 2, as “bedrock principles of jury practice.” One of these was the failure of the trial judge to summarize the evidence on the key issue of the identity of the deceased’s assailant. Instead, the judge provided the jury with copies of the written positions of the Crown and the defence. McClung J.A. stated, at para. 3, that these partisan summaries were “no substitute for the entitlement of the jury to a trained, authoritative and independent review by the judge of the critical evidence touching the real issues in the case.”
86The same point was made by Watt J.A. in P.J.B., at para. 47:
The obligation to review the substantial parts of the evidence and to relate it to the issues raised by the parties is that of the trial judge, not counsel, whether prosecuting or defending. The closing addresses of counsel cannot relieve the trial judge of the obligation to ensure that the jury understands the significance of the evidence to the issues in the case, although the judge can consider the closing addresses of counsel in deciding how to discharge his or her obligations: MacKinnon, at para. 32; Royz, at para. 3; and R. v. Garon, 2009 ONCA 4, 240 C.C.C. (3d) 516, at para. 84.
87As Doherty J.A. explained in R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 387:
The trial judge’s failure to relate any of the evidence to Crooks’ position that he was not a party to any robbery was not inadvertent. As the trial judge’s response to counsel’s objection indicates, he was satisfied, based on counsel’s effective closing address, that the jury had a sufficient appreciation of the evidence relevant to that issue. Counsel’s closing cannot relieve the trial judge of his obligation to ensure that the jury understands the significance of the evidence to the issues in the case. Certainly, the trial judge can consider counsel’s closing arguments in deciding how to discharge his or her obligation. Reference to, or incorporation by reference to, counsel’s submissions are techniques which may be used by a trial judge to assist in relating the evidence to the positions of the parties on the contested issues.
88The rule that trial judges must generally review the substantial parts of the evidence in their charge to the jury is not absolute and in rare cases an independent review may not be required: see R. v. Dwyer (1977), 1977 1995 (ON CA), 35 C.C.C. (2d) 400 (Ont. C.A.), at p. 406-7; R. v. A.B., 2009 ONCA 180, 242 C.C.C. (3d) 195, at para. 10. For example, an independent review may not be necessary when the issues are “so clear-cut,” the facts are “so relatively simple” and the trial judge is satisfied that counsel has satisfactorily summarized the facts in their closing addresses: see Dwyer, at p. 407. The extent to which the evidence must be reviewed ultimately depends on the circumstances of each particular case: see Daley, at para. 57.
Absence of Objection by Counsel
89It is well-settled that while lack of objection by counsel to the judge’s charge does not bar an appeal based on misdirection, it is a factor to be taken into account. As Binnie J. noted in R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3, trial counsel are well positioned to determine whether the trial judge has adequately reviewed the evidence in relation to the defence theory. Moreover, counsel may have made a tactical decision not to request further instructions out of concern that in so doing the judge might re-emphasize damaging evidence.
90In R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, Lamer C.J., giving the judgement of the majority, stated, at paras. 37-38:
To point this out is not to say that a party waives its right of appeal on a jury charge misdirection by failing to raise the issue contemporaneously with the making of the charge. In R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, this Court made it quite clear that defence counsel's failure to object to a jury charge is not determinative, at least in the context of the applicability of the Criminal Code's curative provision. Although such a rule would act as a strong incentive for counsel to scrutinize the charge carefully and would inhibit counsel from deliberately failing to object to the charge as a matter of strategy, the Court has not lost sight of the fact that the jury charge is the responsibility of the trial judge and not defence counsel. Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials.
Nevertheless, defence counsel’s failure to comment at the trial is worthy of consideration. In Thériault v. The Queen, 1981 180 (SCC), [1981] 1 S.C.R. 336, although I dissented on unrelated grounds, Dickson J. (as he then was) expressed the proper view at pp. 343-44: “[a]lthough by no means determinative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge, upon the failure of the trial judge to direct the attention of the jury to the evidence”. In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.
91On the other hand, in R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483 (C.A.), Moldaver J.A. stated, at p. 519:
That is not to say, however, that counsel’s silence will prove fatal in all such cases. Failure to object does not relieve trial judges from their obligation to relate the evidence to the issues. In the final analysis, regard must be had to the importance of the issue; the significance of the evidence in relation to that issue and the prejudicial effect occasioned by the inadequate instruction. For reasons already stated, I am of the view that by reason of the trial judge’s failure to instruct the jury on the relevance of the appellant's background knowledge of Ross, the jury may not have appreciated its significance in assessing the appellant’s claim to self-defence under s. 34(2). Accordingly, in spite of defence counsel’s failure to object, I would give effect to this ground of appeal.
Application of these Principles
92In my view, this was not one of those rare cases in which the judge was entitled to forego a meaningful review of the evidence. Nor were the closing statements of counsel a substitute for such a review. The trial was reasonably lengthy – almost three weeks. It involved a significant body of expert evidence bearing on the DNA and blood spots found on the sweatpants, the wounds to the victim, the length of time it took the victim to expire, the time of death, whether he was moved before or after he died, when and how he sustained his injuries, when the fires were started and how long it took before they self-extinguished. The trial judge did not review any of the evidence of the ten expert witnesses concerning these issues. Given the Crown’s theory that the appellant had the exclusive opportunity to kill her husband, this evidence was crucial to the threshold question for the jury’s consideration – did the appellant cause her husband’s death?
93On this question, the trial judge did not do anything other than refer to the stab wound, the multiple blunt force injuries, and the Crown’s theory that the victim would have had to die between 1:30 and 2:10 a.m. for the appellant to have had the exclusive opportunity to commit the offence. He made no review of the other evidence bearing on the issue, instead simply instructing the jury to consider all the evidence. He told them:
To answer this question, you must consider all the evidence. Do not limit your consideration only to the opinion of the expert Dr. Toby Rose about what caused Robert Minor’s death. Take into account, as well, the testimony of any witness who described the events that took place around the time that Robert Minor was hurt and died. Use your common sense.
94By failing to conduct an independent review of the evidence, the trial judge inadvertently downplayed the defence theory and gave disproportionate weight to the Crown’s theory.
95The judge did not even discuss the evidence of the neighbour, Ms. Sarrazin, who walked by the appellant’s house in the morning and noticed the smell of a fire burning or smouldering. It is not insignificant that the first question asked by the jury, the morning after they were instructed, was for a copy of the transcript of Ms. Sarrazin’s evidence. Even then, the trial judge simply gave them the DVD and transcript of Ms. Sarrazin’s testimony, without attempting to summarize her evidence or to relate it to the other parts of the evidence.
96There was other evidence, critical to the defence theory of a robbery, that the judge also failed to review such as: the evidence that might have supported the possibility of more than one assailant; the damage to the basement door; the unidentified palm print; and the nature and extent of the injuries to the deceased. Nor did the trial judge discuss the evidence bearing on the time that it would have taken to commit the offence and for the victim to expire and whether these events could have occurred in the window of opportunity relied upon by the Crown.
97In my view, these deficiencies were substantially exacerbated by the judge’s emphasis on the timepiece evidence, both in his original instructions and in his answers to the questions from the jury.
98I set out earlier the judge’s instruction concerning the significance of the stopped timepieces and the Crown’s request that this evidence be assessed on a reasonable doubt standard.
99In response to questions from the jury, including the question concerning the definition of reasonable doubt, the judge repeated, unsolicited and verbatim, most of the comments about the timepiece evidence he had made earlier, referring again to “the critical role these timepieces play for the critical timeline” suggested by the Crown. While the trial judge went on to comment that jurors should consider all the evidence presented during the trial, the jury was left with the repetition of his comments on the significance of the timepiece evidence and the application of the reasonable doubt standard to this particular piece of evidence.
100In my view, coupled with the judge’s failure to undertake any meaningful independent review of the evidence, his focus on the timepiece evidence in the early part of his instructions invited the jury to determine the guilt or innocence of the appellant by applying the reasonable doubt standard to a single piece of evidence. As the Supreme Court of Canada stated in R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 354, this was a clear error:
[I]t is a misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence.
101As the Supreme Court noted in the later decision of R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, at para. 49, such an instruction runs the risk of “confusing the jury and inviting them to short-circuit their deliberations.” If the jury in this case found beyond a reasonable doubt that the fire caused the timepieces to stop at 4:10 a.m., there was a real risk that they would jump to the conclusion that the appellant was guilty and would fail to consider evidence that might be exculpatory. The failure to systematically review any of the other evidence, including the extensive forensic evidence, likely had the effect of enhancing the significance of the timepiece evidence in the minds of the jurors.
102Considered on its own, the error was serious. Considered together with the judge’s failure to review the other evidence or to relate it to the key issues and elements of the offences, the two errors are over-riding and the verdict is unreliable.
103While the trial judge did review some of the evidence in reading what he referred to as the “positions” or “theories” of the defence and the Crown, these were no more than summaries provided by counsel. The jury was entitled to have a dispassionate, organized and independent analysis of the evidence.
104This is not a case in which the failure of defence counsel to object to the charge should be regarded as an acknowledgment of the suitability of the instructions and to preclude a subsequent challenge. The trial judge did not provide counsel with the full charge at the pre-charge conference. Counsel could reasonably have expected, however, that the trial judge would review the evidence with the jury because he gave them his outline at the conference, indicating that he intended to do so, entirely separate from his summary of the positions of the Crown and the defence. Having failed to do so, and having elevated the importance of the timepiece evidence, it would have been difficult and confusing in any case to correct the deficiency by starting all over again, attempting to revisit all the evidence relating to the issues.
105In the final analysis, an accused person is entitled to a properly charged jury and while the failure of counsel to object is a factor to be considered, it is not a determinative factor in this case.
Failure to Instruct on Manslaughter
106The appellant also asserts that although the trial judge properly instructed the jurors on the elements of the included offence of manslaughter, he did not review any of the evidence in support of that position. This was particularly important, she submits, because neither the Crown nor the defence addressed manslaughter in the statements of their positions that the judge read to the jury. Nor had they addressed manslaughter in their closing submissions.
107The appellant acknowledges that defence counsel may not have wanted to touch manslaughter “with a ten foot pole”, but says she was entitled to a proper instruction on manslaughter so that the jury could carry out their duties. The appellant refers to the British Columbia Court of Appeal’s decision in R. v. West (1995), 1995 1209 (BC CA), 59 B.C.A.C. 135 (C.A.), at paras. 26 and 50, and this court’s decision in Maugey, at para. 25, in which Feldman J.A. stated:
Furthermore, it is no answer, as suggested by the Crown, that a full review of the evidence would have hurt the appellants, so that the trial judge’s failure to do so enured to their benefit. The purpose of the functional approach is to organize and clarify the issues and the applicable evidence for the jury, as it is for them to decide the guilt or innocence of the accused. The appellants were entitled to a proper instruction so that the jury could carry out their function in a fair manner.
108The Crown contends that the trial judge told the jury not to limit themselves to the evidence of the pathologist, who referred to the stab wound being the cause of death, and to take into account “the testimony of any witnesses who described the events that took place around the time that Robert Minor was hurt and died.” The Crown submits that the adequacy of the charge is reflected in the fact that the appellant made no objection.
109In view of the conclusion I have reached on the charge on second degree murder, it is unnecessary to deal with this issue.
Application of the Proviso
110The Crown made no submissions with respect to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. While the case against the appellant was very strong, I cannot say that a properly instructed jury would have arrived at a guilty verdict. Nor can I say that the evidence was so overwhelming that “no substantial wrong or miscarriage of justice has occurred”: see R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505.
Summary
111Adopting a functional approach to my review of the jury charge, I am persuaded that the appeal should be allowed. Except in the rarest of cases, a trial judge has a duty to review the issues the jury must resolve and the evidence it may consider in resolving those issues. While the extent of this review depends on the circumstances of each case, in my view, the trial judge in this case failed to provide any sort of meaningful review for the jury. The closing statements of Crown and defence counsel and the summary of their respective positions in the jury charge did not serve as a substitute for the judge’s review and relation of the evidence to the issues. The trial judge’s failure to review key evidence bearing on the elements of the offences and the threshold question for the jury’s consideration, namely whether the appellant caused her husband’s death, is fatal.
112This error was exacerbated by the emphasis placed on the timepiece evidence and the instruction that the jury could subject that evidence to a reasonable doubt standard.
113While defence counsel raised no objection to the charge at trial, the failure to object is not determinative and does not bar an appeal based on misdirection.
114When the emphasis of the timepiece evidence is coupled with the failure to review and relate the evidence to the key issues and elements of the offences, the verdict, in my view, cannot stand. This is not a case where the evidence against the appellant was so overwhelming, or where it can be safely said the legal error was harmless because it could have had no impact on the verdict.
G. CONCLUSION
115For these reasons, I would allow the appeal, set aside the conviction and order a new trial.
Released:
“SEP 13 2013” “G.R. Strathy J.A.”
“JL” “I agree John Laskin J.A.”
“I agree M. Tulloch J.A.”
