COURT OF APPEAL FOR ONTARIO
Cronk, Gillese and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Charles Edward Sinobert
Appellant
Frank Addario and Andrew Furgiuele, for the appellant
Michael Bernstein, for the respondent
Heard: April 23, 2015
On appeal from the convictions entered on April 13, 2012 by Justice Paul Rivard of the Superior Court of Justice, sitting with a jury.
Cronk J.A.:
I. Overview
1Wanda Taylor died in the early hours of October 14, 2010. She had been stabbed 15 times. Ms. Taylor, the appellant Charles Sinobert, and Agnes Redbreast – an eyewitness – were together at the time of the stabbing. All three had been drinking heavily. After a 12-day trial, a jury convicted the appellant of second degree murder, as well as one count of possession of a weapon dangerous to the public peace. He appeals from his convictions.
2The appellant contends that the trial judge erred in his charge to the jury by failing to relate the evidence to the live issues at trial and the positions of the parties. He further argues that the jury’s murder verdict was unreasonable.
3For the reasons that follow, I would dismiss the appeal.
II. The Trial
(1) The Evidence
4The Crown’s case against the appellant centred on the testimony of Ms. Redbreast. It was common ground at trial that, if the jury did not believe Ms. Redbreast’s account of events, then it could not find the appellant guilty of second degree murder.
5Ms. Redbreast testified that she had grown up with the appellant and had known Ms. Taylor for about ten years. At the time of the stabbing, Ms. Taylor and the appellant were dating. In the afternoon of October 13, 2010, the three began drinking beer in Ms. Redbreast’s apartment. They later walked to the beer store, bought more beer, and then took a taxi to the apartment that Ms. Taylor shared with the appellant. There, they continued to drink.
6At one point in the evening, according to Ms. Redbreast, Ms. Taylor used the telephone. The appellant got up from his seat, made a fist and appeared to be preparing to strike Ms. Taylor. Ms. Redbreast jumped up and said, “hey”. The appellant dropped his fist.
7Sometime before 10:00 p.m., they ordered more beer through a liquor delivery service. When Ms. Taylor left the apartment to pay for it, the appellant tore at least one phone jack out of the wall. Ms. Taylor returned and Ms. Redbreast told her what had happened. They examined the phone jack and decided to wait until the next day to arrange for its repair.
8Ms. Taylor and Ms. Redbreast then played some music and started dancing. According to Ms. Redbreast, this was the last thing she remembers before she blacked out. When she awoke, she saw the appellant stabbing Ms. Taylor, who was lying on her back on the floor near the couch. Ms. Taylor was not moving. The appellant was stabbing Ms. Taylor in the gut with a small knife, like a paring knife. She saw the appellant stab her two, three or four times; she could not remember the exact number.
9Ms. Redbreast testified that she jumped up and grabbed the appellant’s right wrist, twisted the knife out of his grasp and threw it away from him. She then ran out of the apartment and down the stairs, leaving the appellant seated on the sofa.
10A neighbour, Tammy Peever, testified that she encountered Ms. Redbreast on the sidewalk in front of Ms. Taylor’s apartment. Ms. Redbreast stopped her and told her there had been an “accident”. Ms. Peever promised she would call 911 when she got home.
11Ms. Redbreast then went to Diane Carrey and James McKenzie’s apartment, Ms. Taylor’s next-door neighbours. Ms. Redbreast knocked on their door and asked them to call an ambulance.
12Ms. Redbreast returned to Ms. Taylor’s apartment. She said that she found the appellant lying on the floor beside Ms. Taylor, holding her. She could not recall the arrival of the police or the ambulance. Her next memory was of waking up the following morning in a cell at the police station.
13Ms. Carrey testified. She remembered Ms. Redbreast as being very intoxicated. She called 911 around 12:28 a.m. Ms. Carrey watched Ms. Redbreast return to Ms. Taylor’s apartment. A few minutes later, Ms. Redbreast re-emerged, carrying a beer. She paced the driveway, occasionally drinking from the beer, while waiting for the police and an ambulance.
14The police found Ms. Taylor lying on her back in the living room. The appellant was lying face-down beside and partially atop her. When the police moved Ms. Taylor, they noticed puncture wounds in her chest, under her armpit and in the area of her abdomen. They found a six-inch knife blade on the floor, beneath her body. Ms. Taylor’s blood was on the blade, as was the appellant’s palm print.
15The police also found a paring knife behind the couch. Ms. Taylor’s blood was found on the paring knife. Her blood was also found on the appellant’s right hand, his jeans and his shirt, and on a jacket belonging to Ms. Redbreast.
16The police discovered the appellant unconscious on their arrival at the apartment. They placed him in a recovery position to prevent him from choking on his own tongue or vomit. When examined by paramedics at 1:10 a.m., his pulse, heart rate, blood oxygen and sugar levels were all normal and he was breathing on his own.
17The appellant was non-responsive to verbal commands and various physical stimuli. The paramedics assigned him a score of three out of 15 – the lowest possible score – on the Glasgow Coma Scale, a recognized measure of an individual’s level of consciousness. At the hospital, the appellant continued in an unconscious state. He was diagnosed as suffering from an alcohol overdose. At approximately 1:30 a.m., he scored a nine on the Glasgow Coma Scale. A sample of his blood, taken at 1:35 a.m., revealed a blood alcohol concentration of between 185 and 280 milligrams of alcohol per 100 millilitres of blood.
18Randall Warren, a forensic toxicologist, testified for the Crown. Based on the blood sample taken from the appellant in the early hours of October 14, 2010, he derived two estimates of the appellant’s blood alcohol concentration around the time of the stabbing, a few hours earlier. Using two methodologies, he estimated that the appellant’s blood alcohol level between 11:30 p.m. on October 13 and 12:30 a.m. on October 14, 2010 would have been somewhere between 195 and 320 milligrams of alcohol in 100 millilitres of blood (based on his testing of the blood sample taken at the hospital at 1:35 a.m.) or between 255 and 307 milligrams of alcohol in 100 millilitres of blood (based on his analysis of the blood alcohol measurements reported by the hospital). According to Mr. Warren, either estimated concentration could have rendered an inexperienced drinker unconscious, though an experienced drinker may have been able to function.
19The appellant did not testify.
(2) The Jury Charge
20The trial judge commenced his charge with standard instructions regarding the role of the jury, the duties of jurors, the presumption of innocence, the standard of proof beyond a reasonable doubt, the proper approach to assessing evidence, and the difference between inference and conjecture. He summarized the expert evidence that had been led at trial, before turning to the issue of motive. He told the jury to consider, specifically, whether Ms. Redbreast’s opportunity and motive to commit the murder gave rise to a reasonable doubt concerning the appellant’s culpability for the stabbing of Ms. Taylor. He added:
You must understand there is no burden on the defence to prove beyond a reasonable doubt that Agnes Redbreast or anyone else stabbed Wanda Taylor. The issue is, does that evidence relative to Agnes Redbreast, taken with all of the other evidence in this case, produce reasonable doubt that Mr. Sinobert stabbed Wanda Taylor?
21The trial judge cautioned the jury on Ms. Redbreast’s criminal record and its impact on her testimony, indicating: “The prior convictions are just one of many factors for you to consider. Again, use your common sense and experience.”
22The trial judge next provided a detailed summary of the evidence (25 pages), beginning with Ms. Redbreast’s account of the stabbing and its aftermath. In so doing, he outlined the frailties in Ms. Redbreast’s testimony, the hazards of relying on eyewitness evidence, and the evidence of Ms. Redbreast’s own intoxication on the night in question. He summarized the evidence of the neighbours, police officers, paramedics and doctors who testified at trial. He outlined the evidence of Mr. Warren, the Crown’s expert toxicologist, who tested the blood samples obtained from the appellant and Ms. Taylor, the forensic pathologist who conducted the autopsy on Ms. Taylor’s body, and one of the forensic biologists who analyzed items from the crime scene.
23The trial judge then turned to the law and the requisite elements of second degree murder. As suggested by this court in R. v. J.S., 2012 ONCA 684, 292 C.C.C. (3d) 202, at para. 42, citing the Ontario Specimen Jury Instructions (Criminal), the trial judge converted each element into questions: “[D]id Mr. Sinobert cause Wanda Taylor’s death? ... Did Charles Sinobert cause Wanda Taylor’s death unlawfully? ... Did Charles Sinobert have the state of mind required for murder?” In elaborating on the third question, the trial judge twice set out the forms of intent required for murder. In accordance with s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46, he described the specific intent required for murder as “either the intention to cause the victim’s death” (s. 229(a)(i)) or “the intention to cause the victim bodily harm that the killer knew was likely to cause death, or was reckless whether death ensued or not” (s. 229(a)(ii)).
24The trial judge discussed the issue of intoxication in the context of mens rea. He told the jury that, “[t]here is abundant evidence here that Mr. Sinobert was not a sober person”. However, the trial judge did not re-canvass the expert or other evidence of the appellant’s intoxication in this part of his charge.
25Finally, the trial judge explained the legal tests for manslaughter and possession of a weapon dangerous to the public peace and the decision trees and verdict sheets provided to the jury. He read, verbatim, the positions of the Crown and the defence as supplied by counsel, and provided a standard concluding instruction.
26After deliberations, the jury convicted the appellant of the second degree murder of Ms. Taylor and possession of a weapon dangerous to the public peace.
III. Issues
27The appellant advances two grounds of appeal.
28First, the appellant argues that the trial judge failed to properly instruct the jury because he did not relate the evidence to the issues at trial and the positions of the parties. In particular, the appellant says that the trial judge failed to relate the evidence to: i) reasonable doubt flowing from Ms. Redbreast’s testimony; and ii) the applicability of the intoxication defence on both forms of mens rea found in s. 229(a)(ii) of the Criminal Code. As a result, the appellant submits, the jury charge was flawed both in form and content.
29Second, the appellant argues that the jury’s verdict on second degree murder was unreasonable. He contends that Ms. Redbreast’s evidence was so unreliable, and the evidence of the appellant’s intoxication so clear, the jury could not reasonably have found him guilty of second degree murder.
IV. Analysis
(1) Adequacy of the Jury Charge
30The appellant argues that the trial judge failed to link the evidence to the defence position and to the key issues in the case – namely, the problems with Ms. Redbreast’s evidence and the potential impact of the appellant’s intoxication on the likelihood that he stabbed Ms. Taylor and, if he did, on whether he had the requisite intent for murder.
31Specifically, the appellant submits that the trial judge erred in his instructions regarding Ms. Redbreast’s evidence because he failed to clearly relate the shortcomings in her testimony to the principle of reasonable doubt. Further, the appellant maintains that the trial judge failed to relate the evidence of the appellant’s intoxication to both the mens rea and the actus reus elements of murder.
(a) Governing Principles
32The basic requirements of a jury charge are well established. The trial judge must provide the jury with an understanding of:
(1) the factual issues to be determined;
(2) the law relating to those factual issues and to the evidence led during the trial;
(3) the parties’ positions; and
(4) the evidence relevant to the positions of the parties on the various issues.
See R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 50, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 13; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 134-35; R. v. Charles, 2011 ONCA 228, 270 C.C.C. (3d) 308, at para. 17, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 392; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 386.
33In J.S., at paras. 35–39, Watt J.A. elaborated on the governing principles regarding the assessment of the adequacy of a trial judge’s final jury instructions. He said in part:
First, a trial judge presiding in a jury trial is required, except in cases where it would be needless to do so, to review the substantial parts of the evidence and give the jury the position of the defence, so that, in the end, the jury can appreciate the value and effect of that evidence.
Second, we test the adequacy of jury instructions against their ability to fulfill the purpose for which instructions are provided. We do not test them to determine whether or to what extent they adhere to or depart from some particular approach or specific formula.
Third, it is the substance, not the form of final instructions that determines whether those instructions have satisfied or fallen short of what we require of them.
Fourth, a trial judge frequently relates the evidence relevant to the positions of the parties on the controversial issues by reviewing the substance of the evidence that bears upon each issue and indicating to the jury what parts of the evidence may support each party’s position. Describing the substance of the evidence does not require a regurgitation of every syllable spoken by any or every witness. Rather, it calls for a measured approach that pares to the evidentiary core of the case, for and against, on the issue under discussion. Evidence reviewed once need not be reviewed twice, provided the instructions make it clear that the same evidence may be of service in the resolution of more than one issue. [Citations omitted.]
34An appellate court must exercise considerable restraint in reviewing a trial judge’s instructions. The question is not whether an approach other than that employed by the trial judge might have better equipped the jury to perform its task, but rather whether the instructions, considered as a whole, fulfill the four basic requirements set out above. As noted in Huard, at para. 52, “[t]he standard is adequacy, not perfection.”
(b) Relating Ms. Redbreast’s Evidence to Reasonable Doubt
35At trial, it was the position of the defence that Ms. Redbreast was an unreliable witness and that she, rather than the appellant, had stabbed Ms. Taylor. The appellant argues that, in these circumstances, it was incumbent on the trial judge to relate the many frailties in Ms. Redbreast’s evidence to reasonable doubt flowing from her testimony.
36In particular, the appellant submits that it was insufficient for the trial judge to simply summarize the evidence on its own, at the outset of his charge. Rather, it was necessary that he clearly relate Ms. Redbreast’s evidence to reasonable doubt by linking reasonable doubt to: i) Ms. Redbreast’s impaired memory; ii) the inconsistencies in her testimony, including between her evidence at trial and her statements on other occasions and between her description of events and the forensic evidence; and iii) Ms. Redbreast’s statements and conduct immediately after the stabbing, as described by various other witnesses at trial.
37By failing to tailor his charge to these specific issues, the appellant says, the trial judge failed to clearly relate the evidence to the defence position and to equip the jury to understand the value and effect of the evidence.
(i) Ms. Redbreast’s Evidence
38In support of these arguments, the appellant points, especially, to the following aspects of Ms. Redbreast’s testimony.
39Ms. Redbreast, who was 55 years old at the time of trial, testified that she had been an alcoholic since her teens. She acknowledged that heavy drinking affects her mood and her memory. She did not recall much of the night of October 13-14, 2010. She agreed, on cross-examination, that she was as intoxicated then as she ever had been.
40Ms. Redbreast also testified that she did not remember why she went back to the apartment after seeking help, despite knowing that the appellant was in the apartment with a knife.
41During cross-examination, defence counsel suggested that Ms. Redbreast killed Ms. Taylor. The following exchange took place:
Q. I’m going to suggest something as to what happened in that apartment. Charlie Sinobert was passed out in an alcoholic coma. Passed out on the – totally. But for some reason you and Wanda got into a fight, you got angry, you got aggressive, you were not like you are normally when you’re sober or a little bit drunk, and you stabbed Wanda. And then immediately left, and ended up blaming it on Charlie. Is that what happened?
A. I don’t remember.
42Defence counsel also asked about two statements Ms. Redbreast allegedly made to friends, Jacky Neeposh and Mary Tessier, following the stabbing. She was asked if she had told Ms. Neeposh, “I’m not scared at all, I’ll do it again, I killed Wanda”, and if she had told Ms. Tessier that she wasn’t sure whether she or the appellant had stabbed Ms. Taylor. Ms. Redbreast claimed that she could not recall making either statement. Ms. Neeposh and Ms. Tessier did not testify at the trial.
43The appellant also stresses various inconsistencies and contradictions between Ms. Redbreast’s statements to police, her evidence at the preliminary inquiry, her trial testimony, and the forensic evidence, including the following:
(1) in her statement to police, Ms. Redbreast said that the appellant had used an overhand motion to stab Ms. Taylor. At trial, she testified that he had used an underhand motion;
(2) Ms. Redbreast told the police that the appellant had not been standing during the stabbing. At trial, she said the opposite;
(3) Ms. Redbreast could not explain the presence of her own blood in different locations in the apartment or Ms. Taylor’s blood on a jacket that admittedly belonged to Ms. Redbreast;
(4) Ms. Redbreast initially testified that she had taken the paring knife away from the appellant and thrown it away. However, later in her evidence, she stated that she could not, in fact, recall what she had done with the paring knife; and
(5) at the appellant’s preliminary inquiry, Ms. Redbreast testified that the appellant had pulled two phone jacks out of the wall, one “behind the cabinet” and one “behind the couch”. At trial, she said that she had only seen him pull one jack out of the wall, behind the television cabinet, and that “I don’t know what he was doing” when “he went behind the couch”.
44Defence counsel’s cross-examination of Ms. Redbreast at trial concluded by addressing directly the frailties of Ms. Redbreast’s memory:
Q. Well, we’ve reviewed the statements and you’ve heard – you know that your story changes, right?
A. Yes.
Q. And the reason for that is that you don’t have any clear memories, whether it’s because of the alcohol or whatever, you don’t have any clear memories. Isn’t that fair?
A. Yes.
Q. The answer is yes?
A. Yes.
Q. And that’s why sometimes since October 2010 sometimes you’ve said, “I might be responsible for this.” That’s why, because you have no clear memories. Isn’t that true, ma’am?
A. I don’t remember. I don’t know.
(ii) Instructions Regarding Ms. Redbreast’s Evidence
45I am satisfied that the trial judge’s charge, read as a whole, adequately related the frailties of Ms. Redbreast’s evidence to the principle of reasonable doubt and equipped the jury to assess the reliability of her testimony. I say this for the following reasons.
46Ms. Redbreast’s evidence was critical to the Crown’s case against the appellant for second degree murder. There is no dispute that her testimony suffered from significant shortcomings, as highlighted by the defence at trial. As a result, it was necessary that the jury clearly understand the import of the defence challenge to the reliability of her evidence and the potential for reasonable doubt arising from it.
47The trial judge began his review of the evidence with a description of Ms. Redbreast’s testimony. He noted that she had testified that she had been an alcoholic since her teens and that “[s]he consumed alcohol to forget about things.” He referred, for the second time in his charge, to her criminal record, which had been filed as an exhibit.
48The trial judge also highlighted the gaps in Ms. Redbreast’s memory. He reminded the jury of her evidence that she had passed out on the night in question and that she could not recall: i) how many times she saw the appellant stab Ms. Taylor; ii) whether the neighbour who answered the door when she went for help was male or female; iii) speaking to anyone else while seeking help; iv) the arrival of the ambulance or the police; v) providing a statement to police; and vi) any of her time in custody at the police station before waking up in a cell the next morning.
49The trial judge went further. He also told the jury:
In cross-examination Miss Redbreast agreed that when she became severely intoxicated her memory was affected to the point where sometimes she remembered nothing.
She agreed that on the evening in question she did not recall sitting down after dancing with Wanda. She did not recall who answered the neighbour’s door when she knocked. She did not remember speaking to someone on the street. She recalls returning upstairs, but does not know what she did between knocking on the neighbour’s door and going back upstairs. She recalls putting her beer down on the sidewalk, but does not know if that happened after the first time she left the apartment or the second time. She does not know why she returned upstairs. She does not remember the police or the ambulance that evening. She has no memory of entering the police vehicle and giving a statement, nor does she have any memory of insisting on going back to the apartment to get her jacket. She does not remember being arrested, going to the police station or anything recorded on the audio tape at the station. She concedes she blacked out due to her level of intoxication.
Miss Redbreast testified that her level of intoxication that evening was at the highest it has ever been.
50The trial judge also drew the jury’s attention to Ms. Redbreast’s admission that she becomes angry, aggressive, and cannot control her anger when intoxicated; to the things she allegedly said to her friends Ms. Neeposh and Ms. Tessier about the killing but does not remember saying because she was drunk; and to her failure to explain why she returned to the apartment, where the appellant was still present with a knife, after first seeking help.
51The trial judge described, in some detail, the inconsistencies between Ms. Redbreast’s evidence at trial, her police statement, and her testimony at the preliminary inquiry. He pointed out that she had told the police that she had seen the appellant use an overhand motion to stab Ms. Taylor, but testified at trial that he had used an underhand motion. He noted that she had given diverging accounts of what she had done with the knife after grabbing it from the appellant and that “she did not have a real memory of the knife”. And, he reminded the jury that she had testified at the preliminary inquiry that she had seen the appellant yank two phone jacks out of the wall, but her evidence at trial was that she had only seen him pull one. Later in his charge, in summarizing the evidence of one of the investigating police officers, the trial judge noted that “Constable Seguin … testified he saw no phone jacks ripped from the wall or frayed wires.”
52The trial judge went on to set out the defence position regarding Ms. Redbreast’s evidence. As I have already said, in so doing, he read to the jury, verbatim, from the text of the defence position that counsel at trial had provided. He reminded the jury that the appellant claimed that Ms. Redbreast was the stabber; that the appellant emphasized her intoxication and the gaps in her memory; that he maintained that Ms. Redbreast’s evidence was unreliable; and that he relied on Ms. Redbreast’s alleged inculpatory statements to Ms. Neeposh and Ms. Tessier and the various inconsistences in her testimony.
53With respect to the inconsistencies in Ms. Redbreast’s testimony, the trial judge told the jury:
When a witness says one thing in the witness box, but has said something you find to be quite different on an earlier occasion, your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’ testimony.
54After further discussing the proper use of inconsistent statements, the trial judge moved to the issue of eyewitness identification evidence. At this point, I note that the appellant submits that this part of the trial judge’s instructions was unnecessary and distracting because the defence did not challenge Ms. Redbreast’s identification of the appellant at trial.
55I disagree, for several reasons.
56It is true that the trial judge warned the jury of the dangers of eyewitness identification. However, in the same instruction, he alluded to the issue of the reliability of Ms. Redbreast’s evidence. He posed this question for the jury’s consideration: “Has Miss Redbreast expressed uncertainty about what she saw or about what she remembers?” He also coupled his instruction to this explicit warning: “A significant difficulty in this case is, much of the evidence is from Agnes Redbreast who consumed substantial quantities of alcohol.” And, earlier in his charge, the trial judge had cautioned the jury:
The case against Charles Sinobert depends to a large extent on the eyewitness testimony of Miss Redbreast.
You must be very cautious about relying on eyewitness testimony to find Mr. Sinobert guilty of the offences charged.
57In my view, when these comments are considered as a whole, the trial judge’s inclusion of a standard instruction on the dangers of eyewitness identification was not misleading or distracting. While his instruction related to Ms. Redbreast’s identification of the appellant as Ms. Taylor’s assailant, it also focused on the general reliability of an eyewitness who, as the trial judge put it, was “a drunken source”.
58Moreover, during the pretrial conference in this case, defence counsel at trial rejected the Crown’s position that this was a recognition, rather than an identification, case. Counsel submitted that the case was “akin to a type of eyewitness identification [case]” because of the frailties in Ms. Redbreast’s evidence and the state of her intoxication. In light of this position by the defence, the inclusion of the challenged instruction on eyewitness identification was neither surprising nor unnecessary. Nor did it attract any objection from defence counsel.
59The trial judge also underscored that the jury was required to consider all the evidence implicating the appellant in the death of Ms. Taylor, including the reliability of Ms. Redbreast’s testimony. He explained:
What is required … before you find Mr. Sinobert guilty of any offence, is that you be satisfied beyond a reasonable doubt, on the whole of the evidence, that it was Mr. Sinobert who committed that offence.
A significant difficulty in this case is, much of the evidence is from Agnes Redbreast who consumed substantial quantities of alcohol.
The drinking has multiple significance. It may affect judgment at the time. It may affect memory of the events in issues. It may affect the comparison standard regarding what weight is to be given to discrepancies in testimony. In whose testimony is the more reliable standard found and why?
I want you to exercise great caution, not to become an advocate for one side or the other, but I do want to impress upon you the importance of the facts with which you are called upon to deal. I want to impress upon you the inherent frailty of evidence emanating from a drunken source.
[Emphasis added.]
60Later in his charge, when setting out the elements of the offence of murder, the trial judge alluded back to his earlier discussion of Ms. Redbreast’s testimony, in this fashion:
[D]id Mr. Sinobert cause Wanda Taylor’s death?
To answer this question consider all the evidence…. Take into account … the testimony of any witness who described the events that took place around the time that Miss Taylor died. Again, use your common sense.
Did Charles Sinobert cause Wanda Taylor’s death unlawfully?
Your deliberations in this regard will cause you to carefully consider the evidence of Agnes Redbreast, which I have reviewed with you.
[Emphasis added.]
61Contrary to the appellant’s submission, this is not a case like J.S., in which the trial judge failed to outline in his charge the position of the defence and relevant evidence, elicited on cross-examination, that supported the defence position on key issues. Here, the trial judge pointed to the very aspects of Ms. Redbreast’s evidence that the appellant says undermined her reliability. Defence counsel made no objection at trial to the manner in which the trial judge elected to do so.
62Nor does R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, assist the appellant. In that case, the trial judge did not review the evidence in his jury charge, instead providing the jury with copies of his own written notes, taken during the trial. In setting aside the appellant’s convictions, this court indicated, at para. 154, that “an oral regurgitation of the evidence adduced at trial in bulk fails to meet the requirement of Azoulay, much less adhere to the ‘decant and simplify’ mandate of Jacquard” and that “[a]n undifferentiated … summary … devoid of any attempt to separate the wheat from the chaff and to relate the essential features of the evidence to the issues on which they bear, falls short of what is required” (citations omitted).
63The appellant contends that the jury charge in this case can similarly be described. Again, I disagree.
64In this case, the trial judge drew the jury’s attention to problems created by Ms. Redbreast’s admitted drunkenness on the night in question, including the impact of her intoxication on her memory of events, her judgment at the time of the incident and the weight to be given to her various versions of events. As I outlined above, he specifically alerted the jury to Ms. Redbreast’s impaired memory issues, her diverging accounts of events in her police statement, her preliminary inquiry evidence and her trial testimony, and her conduct in the aftermath of the stabbing.
65In light of these instructions, I do not accept the appellant’s assertion that the trial judge failed to relate Ms. Redbreast’s evidence to the issue of reasonable doubt or to the defence position that her testimony was unreliable and that she was the person who stabbed Ms. Taylor. On my reading of the charge, the trial judge did so unambiguously.
66I note, as well, that defence counsel provided the jury with a lengthy recitation of the weaknesses in Ms. Redbreast’s evidence in his closing address. In several instances, he specifically connected those weaknesses to the forensic evidence.
67Finally, I emphasize that the trial judge fully and fairly reviewed Ms. Redbreast’s testimony, including the shortcomings in her evidence, near the outset of his charge. Contrary to the appellant’s argument, he was not obliged to do so a second time. When the charge is considered as a whole, it left the evidence with the jury in a fashion that allowed it to appreciate the critical issues and the defence claim that Ms. Redbreast’s evidence was unreliable and gave rise to a reasonable doubt concerning the appellant’s culpability for second degree murder.
(c) Evidence of the Appellant’s Intoxication
68That the appellant was very drunk on the night of Ms. Taylor’s stabbing is not in contention. The central question at trial was whether the appellant was so intoxicated that: i) there was a reasonable doubt as to whether he did, in fact, stab Ms. Taylor; or ii) if he did stab Ms. Taylor, there was a reasonable doubt as to whether he had the required mental state for second degree murder.
69The appellant argues that the trial judge erred in charging the jury by not highlighting, in the context of mens rea, the evidence of the appellant’s extreme intoxication on the night of Ms. Taylor’s death. Given the extent of the appellant’s alcohol-induced impairment, the appellant submits that the trial judge ought to have emphasized the availability of the defence of intoxication on both formulations of the requisite intent for second degree murder, including the “foreseeability” route contemplated under s. 229(a)(ii) of the Criminal Code. The appellant further argues that the trial judge erred by failing to relate the intoxication evidence to the actus reus of the offence of murder, that is, to the question whether the appellant stabbed Ms. Taylor at all.
70I see no reversible error in the trial judge’s instructions on these issues.
71In his review of the evidence led at trial, the trial judge referred extensively to the fact and magnitude of the appellant’s intoxication. He summarized the evidence of the first responders who found the appellant in a near comatose state on their arrival at the crime scene and that of the physician who treated him at the hospital, who concluded that the appellant was suffering from an alcohol overdose. He also reminded the jury of the evidence of the Crown’s expert toxicologist, Mr. Warren, that the appellant’s estimated blood alcohol level around the time of the stabbing would “generally … cause extreme levels of intoxication” and that “[a]n inexperienced drinker could be in a coma”, though “[o]ne who is highly tolerant of alcohol may be able to function.”
72Later in his charge, the trial judge outlined the mens rea requirement for second degree murder with specific reference to both branches of the requisite intent for murder set out under s. 229(a)(ii) of the Criminal Code. In so doing, he also distinguished between murder and manslaughter:
Did Charles Sinobert have the 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 Mr. Sinobert meant either to kill Wanda Taylor or meant to cause Wanda Taylor bodily harm that Mr. Sinobert knew was likely to kill Miss Taylor, or was reckless whether she died or not. The Crown does not have to prove both. One is enough. All of you do not have to agree on the same state of mind, as long as everyone is sure that one of the required states of mind has been proved beyond a reasonable doubt.
If Mr. Sinobert did not mean to do either, he committed manslaughter.
73Shortly thereafter, the trial judge reiterated:
[The] specific intent required for murder is either the intention to cause the victim’s death or the intention to cause the victim bodily harm that the killer knew was likely to cause death, or was reckless whether death ensued or not.
[The] accused must foresee that his intentional causing of bodily harm was likely to cause death and deliberately disregard the fatal consequences, that is, he must be reckless whether death ensues or not.
74The trial judge also drew an explicit link between the appellant’s intoxication and the requisite mental element for murder:
The state of Mr. Sinobert’s mind at the time of causing death is a question of fact for you to determine. You will carefully consider the entire evidence bearing on that issue, including the surrounding circumstances and the conduct, words and demeanour of Mr. Sinobert leading up to causing death.
You may also deal with the intent issue by rational inference from proven facts, that is, by circumstantial evidence. It is a reasonable inference that a sane and sober person intends the natural consequences of that person’s acts.
There is abundant evidence here that Mr. Sinobert was not a sober person. You must take into account his consumption of alcohol, along with all of the other evidence relevant to intent, in determining whether to draw the inference that he had the intent required for murder.
If you find Mr. Sinobert was so intoxicated that he was incapable of forming the intent required for murder or if you have reasonable doubt on that issue he must not be found guilty of murder.
If you find Mr. Sinobert was capable of forming that intention, he cannot be convicted of murder unless you are also satisfied beyond a reasonable doubt that at the relevant time he had that intention. A person may have the capacity to form the intention without having the intent. The ultimate issue is, has it been proved beyond a reasonable doubt that Mr. Sinobert actually intended the fatal consequences of his act? The issue is not whether Mr. Sinobert was intoxicated, but whether his consumption of alcohol, when taken with the other relevant factors, gives rise to a reasonable doubt on the issue of required intent.
You will have to consider, firstly, whether Mr. Sinobert had the capacity to form the intent and, secondly, whether he did, in fact, form that intention.
If you find Mr. Sinobert had the capacity to form the intention required for murder, and had such intention, it is no defence that he acted as he did because of alcohol or that he would not have acted that way if he had been sober. A person may be drunk or intoxicated to a high degree and, yet, be able to form the intent to act as he or she acts.
There is no burden on Mr. Sinobert to prove drunkenness. It is the Crown who must satisfy you beyond a reasonable doubt [that] Mr. Sinobert had the intent required for murder when he inflicted the fatal wounds, notwithstanding his consumption of alcohol.
The inference of either special intent required for murder is one that may be drawn. If you consider that inference is not correct or if you have reasonable doubt that it is correct then the inference should not be drawn.
[Emphasis added.]
75The appellant argues that the trial judge erred in these instructions by not revisiting the relevant expert and police evidence concerning the appellant’s intoxication, including the evidence of his blood-alcohol levels. The trial judge failed, the appellant says, to explain the significance of the intoxication evidence to both the likelihood that the appellant committed the stabbing and the importance of considering whether the appellant had the requisite intent for murder.
76I cannot accept this argument.
77First, the issue of intent. There can be no serious suggestion that the trial judge failed to devote sufficient attention to the evidence of the appellant’s intoxication, including the pertinent police and expert evidence, in his charge to the jury. The critical issue is whether the trial judge’s instructions on the requisite intent for murder, quoted in part above, adequately related the evidence of the appellant’s intoxication that he had previously summarized to that issue and to the principle of reasonable doubt. In my view, they did.
78In his impugned instructions on the mental element for second degree murder, the trial judge indicated that “[t]here is abundant evidence here that Mr. Sinobert was not a sober person,” as he advised the jury to “take into account [the appellant’s] consumption of alcohol, along with all of the other evidence relevant to intent, in determining whether to draw the inference that he had the intent required for murder.”
79By this point in his charge, the trial judge had already summarized, at some length, the observations and opinions of the various witnesses who testified about the appellant’s inebriation. Having done so once, the trial judge was not obliged to do so again. See e.g., R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314; Huard, at paras. 56-57; J.S., at paras. 38-39. His instructions on the intent for second degree murder reminded the jury of the evidence of the appellant’s intoxication, directed the jury to take account of that evidence and of “all of the other evidence relevant to intent”, and expressly connected the appellant’s consumption of alcohol to reasonable doubt. To repeat, the trial judge instructed the jury that:
The issue is not whether Mr. Sinobert was intoxicated, but whether his consumption of alcohol, when taken with the other relevant factors, gives rise to a reasonable doubt on the issue of required intent.
80In my view, the trial judge was required to do no more. While, of course, it was open to the trial judge to repeat the salient aspects of the evidence concerning the appellant’s intoxication when he outlined the mens rea required for second degree murder, it was not necessary that he do so. Based on the instructions he did give, the jury could have been under no misapprehension that the evidence of the appellant’s intoxication was directly relevant to the question whether he had the necessary intent for murder under either branch of s. 229(a)(ii) of the Criminal Code.
81Moreover, the trial judge concluded his charge by outlining the positions of the Crown and the defence. His summary of the defence position again highlighted the evidence of the appellant’s intoxication:
At about 12:50 a.m. Mr. Sinobert was found by the police unconscious and unresponsive. Emergency personnel found him to be in a comatose state with a Glasgow Coma Scale of three out of 15, lowest possible score. While attending to Mr. Sinobert this score was recorded at three different times. Mr. Ryan testified that this score represents near death. This was confirmed by Mr. Randall Warren of the Centre of Forensic Sciences, who said that an alcoholic coma is in the continuum of the last stage before death.
The prosecution’s theory that at about 12:15, 35 minutes earlier, Mr. Sinobert was alert and accurately [sic] stabbing Miss Taylor does not make sense. There is no evidence to suggest that an individual can go from an alert, active state to a comatose state, near death, in that period of time.
82It is also significant that defence counsel at trial had the opportunity to comment on a draft of the trial judge’s jury charge, and did so. He made no objection to the trial judge’s instructions on intoxication and the mens rea for second degree murder, or to his review of the evidence of the appellant’s intoxication and the defence position on that issue. His failure to object weighs heavily against the appellant’s claim, advanced for the first time before this court, that he was deprived of a fair trial by reason of deficient instructions on intoxication in the context of the required mental element for second degree murder. See e.g., Stubbs, at para. 138; R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 37 - 40, aff’d 2014 SCC 64, [2014] 3 S.C.R. 283; J.S., at para. 40; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.), at paras. 14-15.
83There is an additional, important consideration. In the course of its deliberations, the jury sought clarification from the trial judge on the following question: “Can you, please, describe question number three in more detail, ‘Did Charles Sinobert have the state of mind required for murder?’ Define state of mind”.
84In responding to this question, the trial judge reiterated much of his original instruction on intent. However, at the request of defence counsel, he added this direction:
Consider as well … the evidence of the police officers who arrived at the scene and who found [the appellant] unresponsive on the living room [floor]. Consider the evidence of the medics who treated him and how they described his condition. Consider the evidence of Dr. Toner who examined him and who described his condition, how unresponsive he was for a period of time. Consider the Glasgow Coma Scale evidence. Consider all of the evidence that relates to the consumption of alcohol, which is relevant to the intention, to the state of mind in determining whether or not to draw the inference that he had the intention required for murder.
85The trial judge continued:
I am obliged to ensure that you understand that that common sense inference [that a sane and sober person intends the natural consequences of his acts] may be drawn only after an assessment of all the evidence, including the evidence of intoxication, and the inference cannot be drawn if you are left in a reasonable doubt about Mr. Sinobert’s intention.
If you find that Mr. Sinobert was so intoxicated that he was incapable of forming the intention required for murder or if you have a reasonable doubt on that issue then he must not be found guilty of murder.
86The appellant argues that these instructions were insufficient to convey to the jury the significance of the evidence of the appellant’s intoxication to the mens rea required for murder as provided for in s. 229(a)(ii) of the Criminal Code.
87I would not give effect to this argument.
88In his answer to the jury’s question, the trial judge drew the jury’s attention to the specific evidence of the appellant’s intoxication and to the key question whether that evidence gave rise to a reasonable doubt concerning his intention for murder. In my view, any deficiency in his initial charge relating to this issue was remedied by the trial judge’s answer to the jury’s question on mens rea.
89I stress that the trial judge thoroughly reviewed the evidence of the appellant’s intoxication in his original charge. He was not obliged to detail all that evidence again in his answer to the jury’s question. Contrary to the appellant’s submission, the trial judge’s references, in his answer, to the evidence of specific witnesses, to the Glasgow Coma Scale and, broadly, to “all of the evidence that relates to the consumption of alcohol” were adequate in the circumstances to remind the jury of the nature and significance of the evidence of the appellant’s intoxication to the issue of intent and the principle of reasonable doubt.
90I reach a similar conclusion regarding the appellant’s assertion that the trial judge failed to relate the evidence of the appellant’s intoxication to the actus reus element of the offence of murder.
91The appellant contends that the trial judge’s focus in his instructions on the appellant’s intoxication was on the issue of intent. He submits that this focus could have led the jury to presuppose the occurrence of the act itself. In other words, if, in instructing the jury to consider whether the appellant was so intoxicated that he could not form the mens rea for second degree murder, the trial judge implicitly accepted that the appellant was not too drunk to have stabbed Ms. Taylor, then the jury may not have devoted proper attention to whether the Crown had established the actus reus of the offence of murder, beyond a reasonable doubt.
92I would reject this contention.
93Reasonable doubt as to whether the appellant in fact stabbed Ms. Taylor formed a critical plank in the defence case at trial. The defence argued that the fact of the appellant’s extreme intoxication, by itself, gave rise to a reasonable doubt whether he stabbed Ms. Taylor. As the appellant’s counsel said in his closing address to the jury: “Charlie Sinobert was in an alcoholic coma, near death. This alone is reasonable doubt.”
94In his charge, the trial judge repeated the defence assertion that the appellant had been too drunk to stab Ms. Taylor. Indeed, the trial judge’s opening words in summarizing the defence position, which defence counsel had drafted, could not have done more to emphasize the issue of actus reus. He said:
The following is the position of the defence. Charles Edward Sinobert did not stab Wanda Taylor. The evidence does not prove that Mr. Sinobert stabbed Ms. Taylor. In fact, the evidence suggests that Agnes Redbreast or some other person killed Miss Taylor.
95Further, as the appellant himself emphasizes, Ms. Redbreast’s account of the stabbing was the linchpin of the Crown’s case against the appellant for murder. The flaws in her evidence were made clear to the jury, both by defence counsel and by the trial judge in his charge. Since the jury could not have returned a guilty verdict for murder without believing Ms. Redbreast’s version of events, it follows that the jury accepted her testimony that the appellant stabbed Ms. Taylor, notwithstanding his severe intoxication.
96The appellant maintains, however, that the jury might well have rejected Ms. Redbreast’s evidence if the trial judge had properly related the intoxication evidence to the issue whether the appellant in fact stabbed Ms. Taylor.
97I do not accept the premise of this argument – that the trial judge’s instructions were deficient on this key issue.
98As outlined above, the trial judge made ample reference to the evidence of the appellant’s severe intoxication on the night in question. Having already reviewed the intoxication evidence in detail, he unambiguously recounted the defence position that, not only did the appellant not stab Ms. Taylor, the intoxication evidence made clear that he could not have done so.
99In these circumstances, while the trial judge did not again review the evidence of intoxication when he set out the actus reus element of the offence of murder, it would have been clear to the jury that it could not accept Ms. Redbreast’s claim that the appellant stabbed Ms. Taylor without first coming to grips with the significance of the evidence of the appellant’s intoxication.
100I conclude on this issue with these observations.
101As I have said, the standard of appellate review on a challenge to a trial judge’s treatment of the evidence is not one of perfection. A charge will be adequate so long as the jury can fully appreciate the factual issues it must determine and the defence presented: Daley, at para. 57; Saleh, at para. 142. As Lamer C.J. confirmed in Jacquard, at pp. 320–21, “accused individuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries” (emphasis in original). See also R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39; Huard, at para. 52.
102This was not a particularly complex case. The jury essentially had to decide two things: i) whether it believed Ms. Redbreast’s evidence, despite its flaws; and ii) whether, notwithstanding his intoxication, the appellant had stabbed Ms. Taylor, causing her death unlawfully, with the requisite intent for second degree murder. Ms. Taylor was murdered in her apartment and there were two other people present: Ms. Redbreast, who testified that she saw the appellant stab Ms. Taylor repeatedly, and the appellant, who did not testify. The central issues in the case related to the reliability of Ms. Redbreast’s testimony, whether the appellant had stabbed Ms. Taylor and, if so, whether the defence of intoxication had been made out. In my view, the trial judge’s instructions put the relevant evidence to the jury “in a manner that … allow[ed] it to fully appreciate the issues and the defence presented”: Daley, at para. 57. In the circumstances of this case, no more was required.
(3) Unreasonable Verdict
103The appellant argues that, given the frailties of Ms. Redbreast’s testimony and the uncontradicted evidence of the appellant’s extreme intoxication, described above, no properly instructed jury, acting judicially, could reasonably have found the appellant guilty of second degree murder.
104In support of this argument, the appellant renews many of his earlier submissions regarding the weaknesses in Ms. Redbreast’s evidence and the significance of the evidence of the appellant’s intoxication.
105With respect to Ms. Redbreast, the appellant says that her evidence was so deeply flawed that no reasonable jury could have depended on it to reach a guilty verdict. He submits that Ms. Redbreast was an unreliable witness whose testimony did as much to bolster the defence position at trial – namely, that Ms. Redbreast was the real killer – as that of the Crown. To convict the appellant of murder on the basis of her evidence was, in the appellant’s submission, unreasonable.
106This flaw in the Crown’s case, the appellant says, was exacerbated by the undisputed evidence that, on the night of the stabbing, the appellant was inebriated to the point of unconsciousness. The appellant submits that there was a real possibility that he was in an alcohol–induced coma when the stabbing occurred. Even if he was conscious, a jury could not reasonably conclude, on the evidence, that he had the capacity to form the requisite intent for murder. Although a manslaughter conviction might not have been unreasonable, the jury’s verdict on murder was.
107In my view, this ground of appeal must also fail.
108The test for an unreasonable verdict is uncontroversial. To conclude that a verdict is unreasonable, the reviewing court must be satisfied that the verdict is not one that “a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at p. 282.
109Moreover, a verdict based on credibility assessment is unreasonable if the trial court’s credibility assessments cannot be supported on “any reasonable view of the evidence”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 34, quoting R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7 (emphasis in original). As the Supreme Court indicated in W.H., at para. 30, “the court of appeal must show great deference to the trier of fact’s assessment of witness credibility given the advantage it has in seeing and hearing the witnesses’ evidence.” See also R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p. 835; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 131–132.
110Finally, when an unreasonable verdict argument is advanced on appeal, the reviewing court “must not act as a ‘13th juror’ or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record”: W.H., at para. 27. Rather, the reviewing court is required to “review, analyse and, within the limits of appellate disadvantage, weigh the evidence”: Biniaris, at para. 36.
111The jury was entitled to accept some or all of Ms. Redbreast’s evidence. Based on the evidence adduced at trial, this jury was well aware of Ms. Redbreast’s admissions that she was drunk on the night of the stabbing and that alcohol consumption affected her memory. Defence counsel thoroughly canvassed the shortcomings in her evidence that touched on the crucial events of the evening. So did the trial judge in his jury charge. In these circumstances, the jury could not have been blind to the problems in the reliability of Ms. Redbreast’s testimony. It was for the jury to decide how much weight it would place on each memory lapse and inconsistency in her account of the night of the stabbing.
112Furthermore, the physical evidence was consistent with the appellant’s having stabbed Ms. Taylor in the manner Ms. Redbreast described. Recall that Ms. Taylor’s blood was found on the appellant’s right hand, his jeans and the paring knife. Only a small amount of Ms. Taylor’s blood was found on the rear calf of Ms. Redbreast’s jeans, compared to the larger quantity of Ms. Taylor’s blood found on the left thigh, right knee, and groin area of the appellant’s jeans. Further, the appellant was found lying atop Ms. Taylor, with a large knife blade bearing his palm print beneath her. In these circumstances, it was open to the jury to accept the core of Ms. Redbreast’s narrative – that she awoke from a drunken state to see the appellant stabbing Ms. Taylor.
113Similarly, I am not persuaded that the evidence of the appellant’s intoxication was such that a jury could not reasonably return a verdict of guilty for second degree murder. Though there was evidence that the appellant’s blood alcohol content would have been very high at the time of the stabbing, there was also expert toxicological evidence that an experienced drinker would not necessarily have been rendered unconscious or dysfunctional at the blood alcohol levels experienced by the appellant. The jury was explicitly warned to carefully consider all the evidence, including the evidence of the appellant’s intoxication. The record reveals no reason to conclude that the jury failed to heed this instruction.
114I have already concluded that there was no misdirection to the jury regarding the level and significance of the appellant’s intoxication. It is for the jury to assess, as a matter of fact, whether an accused was so intoxicated as to be relieved of liability for a particular offence. The jury in this case was equipped to make that determination with respect to the appellant. That the appellant was very drunk at the time of the crime does not render the jury’s murder verdict unreasonable.
115In the end, therefore, I am not persuaded that the weaknesses in Ms. Redbreast’s testimony and the evidence of the appellant’s intoxication at the time of the stabbing operated, either alone or in combination, to render the jury’s second degree murder verdict unreasonable.
V. Disposition
116For the reasons given, I would dismiss the appeal.
Released:
“OCT 15 2015” “E.A. Cronk J.A.”
“EAC” “I agree E.E. Gillese J.A.”
“I agree Grant Huscroft J.A.”