R. v. Hungwe
[Indexed as: R. v. Hungwe]
Ontario Reports Court of Appeal for Ontario LaForme, Watt and Nordheimer JJ.A. May 16, 2018
142 O.R. (3d) 22 | 2018 ONCA 456
Case Summary
Criminal law — Trial — Conduct of trial judge — Trial judge questioning defence witnesses — Reasonable person would conclude from questions that judge disbelieved witnesses — Questions seriously compromised accused's right to a fair trial — Perception of bias increased by extemporaneous remarks in jury address all implying that accused's arguments misguided or without substance — Cumulative effect of trial judge's interventions and comments in his charge prejudicing fair trial right of accused — Appeal from conviction allowed.
Criminal law — Trial — Jury trial — Challenge for cause — Trial judge choosing to give instructions to entire jury panel prior to commencing challenge for cause — Instructions containing deficiencies but communicating essential elements of trier's duties — Triers not showing any misapprehension of their duties during challenge — Deficiencies in instruction not so serious as to warrant new trial.
The accused were convicted of offences arising out of a home invasion robbery. They appealed, arguing that the trial judge's conduct rendered the trial unfair and that he erred in his instructions to the rotating triers with respect to the challenge for cause process during jury selection.
Held, the appeal should be allowed.
The tenor of the trial judge's questions to the defence witnesses would cause a reasonable person to conclude that he disbelieved the witnesses. The trial judge questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory of the case. While a trial judge is entitled to ask a witness questions, the right to ask questions must be exercised with great caution, especially in a jury trial. Questions to clarify a point, or to ask that an answer be repeated, or the like, are all proper questions. Questions that suggest that the judge favours one side or the other are not. The trial judge's questions suggested that he had aligned himself with the prosecution. The judge had provided counsel with a copy of his instructions to the jury and they had an opportunity to object prior to it being delivered. While delivering his charge to the jury, he made extemporaneous additions, all of which suggested that the theory of the defence was misguided or without foundation. The cumulative effect of the trial judge's interventions, and comments in his charges, prejudiced the right of the accused to a fair trial.
The trial involved a challenge for cause based upon possible racial prejudice. Defence counsel asked for, and received, permission to use rotating triers and an order excluding the prospective jurors from the courtroom while the challenge for cause was determined. In order to save time and effort, the trial judge decided to give instructions to the entire jury panel, prior to the challenge process commencing. While there were deficiencies in the instructions in this case, they communicated the essential elements of a trier's duties, and a review of the challenge process did not suggest any misapprehension by the triers of those duties. The deficiencies were not so serious as to warrant a new trial.
Cases Considered
R. v. Li, 2004 CanLII 18634 (ON CA)
Other Cases Referred to
R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA); R. v. Brown, 2005 CanLII 3939 (ON CA); R. v. Douglas (2002), 2002 CanLII 38799 (ON CA); R. v. Grant, 2016 ONCA 639; R. v. John, 2017 ONCA 622; R. v. Largie (2010), 2010 ONCA 548; R. v. McManus, 2017 ONCA 188; R. v. Murray (2017), 2017 ONCA 393; R. v. O. (L.), 2015 ONCA 394; R. v. Stewart, 1991 CanLII 11753 (ON CA); R. v. Stucky, 2009 ONCA 151; R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Valley, 1986 CanLII 4609 (ON CA)
Statutes Referred to
Canadian Charter of Rights and Freedoms, s. 11(d)
Authorities Referred to
Watt, David, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015)
APPEAL
Appeal by the accused from the convictions entered on October 4, 2013 and the sentence imposed on January 24, 2014 by Roy J. of the Superior Court of Justice, sitting with a jury.
Michael Davies and Meaghan McMahon, for appellant Dennis Hungwe.
Anthony J. Does, for appellant Christian Nkusi.
Howard L. Krongold, for appellant Moussa Daoui.
John Hale, for appellant Richard Issachar Ellis.
Jonathan Dawe, for appellant Geovanni Nicholas Ellis.
Andreea Baiasu, for respondent.
JUDGMENT
The judgment of the court was delivered by NORDHEIMER J.A.
Introduction
1The five appellants were tried jointly on a multi-count indictment in the Superior Court of Justice in Ottawa before the trial judge sitting with a jury. The charges all arose out of what was alleged to have been a home invasion robbery. The charges included robbery; being unlawfully in a dwelling-house; pointing a firearm; possession of a prohibited firearm; and unlawful confinement. After a 20-day trial, the jury found each of the five appellants guilty on most of the charges against them.
2The appellants appeal from these convictions on the basis that (i) the trial was rendered unfair by certain conduct of the trial judge and (ii) the trial judge erred in his instructions to the rotating triers with respect to the challenge for cause process during jury selection. The appellant Dennis Hungwe further appeals on the basis that (iii) the trial judge erred in his jury instructions in respect of the use of prior consistent statements. Finally, the appellant Richard Ellis seeks leave to appeal his sentence in the event his conviction appeal is unsuccessful.
3The record shows that the trial judge questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory of the case. In my view, the cumulative effect of the trial judge's interventions, and comments in his charge, prejudiced the appellants' right to a fair trial. I would therefore allow the conviction appeals and order a new trial. As such, there is no need to address Richard's sentence appeal.
Background Facts — The Crown's Case
4In February 2012, Gilbert Carby, then 46 years old, lived at [number omitted] Glynn Avenue in Ottawa with his partner and their respective daughters. The house was a bungalow with a finished basement.
5Carby testified that he operated his own business promoting music events and parties. The defence maintained that he was also a drug dealer and pimp. Carby denied this, but acknowledged that he had previously been "in the business of pimping" and had a prior conviction for drug importing. He also admitted that he kept marijuana in the house for his own use, which he shared with his teenaged daughter. He denied that he sold drugs to other people or that he kept a gun for protection.
6Carby had a recording studio in his basement that he rented out as part of his music promotion business. The rest of the basement was "geared for entertainment", with a bar, dance floor, pool table, large screen TV and video game consoles. Carby described it as "kind of like a rec centre, like a drop-in, as it were, for people to come and play games and chill". He frequently hosted poker games that typically attracted around 18 players and lasted until 3:00 a.m. or 4:00 a.m. He agreed that his guests and the musicians who used his basement studio often drank and smoked marijuana and sometimes fell asleep and spent the night there. However, Carby denied selling them alcohol or drugs, or running his poker games for profit.
7On the night of February 1, 2012, Carby hosted a poker game in the basement of his home. He testified that, at around midnight, the appellant Christian Nkusi, who Carby knew by the nickname "Weezy", called to ask whether there was poker game that night. Nkusi was a friend of the daughter of Carby's partner and had played poker at the house before. Carby told Nkusi they were not playing poker that night but that there would be a game the next day. Both of these things were untrue. Carby explained at trial that he had lied to Nkusi because the game had already started and he wanted to get him off the phone.
8Carby testified that on the following night, February 2, 2012, he went to lie down in his basement bedroom between 9:00 p.m. and 10:00 p.m. He was not sure who else was in the house besides his partner and the children, but thought that two of his friends were probably in the basement. At around 11:30 p.m., Carby's partner told Carby that she was going out to visit her sick mother. Carby fell asleep a short while later.
9Carby testified that at around 4:00 a.m. on February 3, 2012, he received a phone call from Nkusi, who asked if there was a poker game that night. Carby said there was no game, and Nkusi then asked if Carby "had any weed", to which Carby replied no. A few minutes later, Carby's partner called and said she would be returning home in about ten minutes. When Carby heard knocking at the back door a few minutes later, he assumed it was her and went upstairs to let her in. Carby said that he was only wearing boxer shorts. Instead of his partner, Carby found "two black guys", both strangers, standing outside. He opened the back door and the men asked whether he had any weed. Carby replied that he did not. At this point, two other men, also strangers, appeared and entered the kitchen. Carby testified that one of these men was black. The other looked Lebanese. At trial, Carby identified the first two black men as Dennis Hungwe and Geovanni Ellis, the third black man as Richard Ellis, and the "Lebanese" man as Moussa Daoui. However, Carby said that he had never seen any of them before and did not know any of their names at the time.
10Carby testified that Daoui opened the freezer door and looked inside. Richard said, "It is what it is" and drew a gun. Daoui then hit Carby in the face with something in his hand. Carby retreated downstairs to the basement bar area, and the four men followed. They took Carby into his bedroom and demanded: "Where's all the money at? We know you have money and we know you have drugs." One of the men tried unsuccessfully to use the belt from Carby's pants to bind his hands. Richard then put his gun to Carby's head while Daoui held a knife to his throat and they demanded money again, saying they would not leave without it. When Carby continued to insist that he had no money or drugs, the four men "beat [him] up for a good ten seconds" and then took him out to the bar area.
11At this point, Richard gave his gun to one of the other men to watch Carby while he tore some phone wire out of the ceiling which he used to tie Carby's wrists. Meanwhile, the other two men were going around the basement "rounding up equipment, like Xboxes and the big screen TV" and piling it at the bottom of the stairs. When they moved a couch that blocked the entrance to Carby's recording studio they discovered one of Carby's friends, who Carby had not previously realized was in the basement. Carby heard the men shout in surprise and then what sounded like them beating the friend, and the friend screaming. Carby's friend testified that one of the black men cut his face with a knife.
12Carby testified that, shortly after the men brought him to the bar, one of them came down the stairs and announced that the police were there. At this point, the men "all changed their tone" and began telling Carby to clean up his face. They addressed him as "Gilly" and "acted like they knew [him]" even though he did not know any of them. The men went into Carby's bedroom and tried to climb out the back window, but it was too small. When they returned to the bar, Carby lied and told them that they could get to an exit by going through the storage room at the back of the basement. When the men went into the storage room, Carby went up the stairs and left the house through the back door.
Background Facts — The Defence Case
13Richard and Geovanni Ellis are cousins and close friends. At the time of trial, Richard was 28 years old and Geovanni was 20 years old. They spent the evening of February 2-3, 2012 together at Geovanni's mother's house in western Ottawa until around 1:00 a.m., when a friend of Geovanni's named Alan came over and picked them up in a silver Honda. They picked up Richard's friend, Daoui, downtown and then drove to Vanier in east Ottawa to attend a party at the apartment of another of Richard's friends named Mike. Alan eventually left the party but told Geovanni he could borrow the Honda to drive home, explaining "[i]t's stolen anyways". It was an agreed fact that the Honda was stolen from its owner sometime after 7:30 p.m. on February 2, 2012.
14The Ellis cousins and Daoui spent the next few hours drinking, smoking marijuana and listening to music. When the Ellis cousins ran out of marijuana, they asked a friend if he knew anyone nearby who could sell them more drugs at that time of the night. The friend said he knew a dealer in the Overbrook area of Vanier who "was always up and always had weed". He made a phone call and told the person he was calling that he would be sending three friends over. He then instructed the Ellis cousins to go to [number omitted] Glynn Avenue -- Carby's address -- and knock on the back door, where "Gilly" would be waiting for them. They had never heard this name before.
15The Ellis cousins and Daoui drove to Carby's house in the stolen Honda. They parked outside and Geovanni decided to leave the car running because he had had difficulty starting it. They were planning to buy half an ounce of marijuana, which they expected would cost between $80 and $120, and then return to the party. Daoui had money and was going to pay for the drugs. None of the three men were armed.
16On arriving at the address, the three men knocked on the back door and Carby, whom they had never seen before, invited them down to the basement. He was fully dressed, wearing pants and a collared shirt. The Ellis cousins and Daoui inspected a sample bag of Carby's marijuana and told him they would buy a half-ounce. Daoui did not speak English fluently so the Ellis cousins did most of the talking. Carby announced that he was raising the price and that it would cost them $250, explaining that they had nowhere else to go at that hour, "[s]o it's my price or nothing". The Ellis cousins objected and protested that this was "bullshit" and that Carby was trying to extort them. As the discussion became heated, Carby reached to his waistband and pulled out a handgun. Richard saw the gun in Carby's hand, but Geovanni only saw the hand movement and concluded that Carby "was going to grab a gun". The Ellis cousins and Daoui all rushed at Carby and wrestled him to the ground, at which point Geovanni saw the gun on the floor. Richard kicked it aside before picking it up and putting it in his pocket.
17Suddenly, another man -- Carby's friend -- rushed at them screaming. The Ellis cousins had not previously known he was in the dimly lit basement and did not know where he came from. Geovanni saw that Carby's friend was holding something in his hand but could not see what it was. Daoui, who was closest to Carby's friend, grabbed him in a bear hug and threw him to the floor. Carby's friend fell face down and did not move. Geovanni went to stand over him to make sure he did not get up again. Neither Richard nor Geovanni realized that Carby's friend had cut his face or saw how this happened. However, based partially on a knife that was found by the police in close proximity to Carby's friend's discarded shirt outside of the house, the defence theorized that Carby's friend had been holding a knife and had accidentally cut his own face when Daoui threw him to the floor. While Geovanni and Daoui were dealing with Carby's friend, Carby resumed fighting. Richard testified that he took Carby's gun from his pocket and hit Carby with it a few times. He denied ever pointing the gun at either Carby or his friend. The Ellis cousins both denied that they or Daoui ever demanded money from Carby or took any of his property, apart from his gun, and denied taking anything from Carby's friend.
18The Ellis cousins and Daoui decided to tie Carby up "so they could leave without getting shot". Richard tore some electrical cable from the ceiling and began tying Carby's hands, with a view to restraining Carby long enough so they could get away. As he did so, they heard a knock on the back door. Geovanni went upstairs to look and saw a police car parked outside. He locked the back door and returned to the basement and reported "the cops are here". Everyone began to panic, but Carby told them not to worry. He said that he would go talk to the police and "make them go away". He told them to go hide in the storage room, and they followed his advice. Geovanni knew that he was in breach of a probation order and did not want to gamble that the police would believe their story, since they were in Carby's house and had arrived in a stolen car. Richard hid the gun in the storage room because he did not want to be arrested with it, and thought that one of the others hid the sample bag of marijuana. A few minutes later, they heard the police announce that the house was surrounded. The Ellis cousins and Daoui followed the directions of the police to exit the house one by one.
19Both Ellis cousins testified that they had never met their co-defendants, Hungwe and Nkusi, before seeing them in court. They had not realized that Hungwe was in the house that night and did not know where he had been or what he had been doing. They also did not know how Nkusi came to be sitting in the back of the stolen Honda they had left parked outside, which was where the police found him.
20Nkusi explained in his police statement that he had gone to the house to visit. He called and knocked on the door but nobody answered. It was a cold winter night, so when Nkusi saw the car parked out front with its engine running, he got into the back seat to stay warm while he called a friend to come pick him up. He did not know who the car belonged to or what it was doing there. He was still sitting in the car when the police arrived.
21Hungwe, as was his right, did not testify. However, his position was advanced at trial through his ex-girlfriend's testimony. Hungwe's position was that he knew Carby and was simply fortuitously present when the events occurred and that he did not participate in the altercation. He was in the home consistent with the fact that it served as a neighbourhood drop-in centre and that people often came over and spent the night. His ex-girlfriend contradicted Carby's evidence that he and Hungwe were strangers. The ex-girlfriend testified that she had grown up in the area and knew Carby both from the neighbourhood and as a friend of her mother's. She explained that, during the two years she and Hungwe dated, she had seen Hungwe and Carby exchange greetings and chat at social occasions in a way that showed that they were acquainted. She also testified that she had never met the Ellis cousins, Daoui or Nkusi, and that Hungwe never mentioned their names.
22After their arrest, the appellants were searched and transported to the police station. None had a knife or any other weapons in their possession. Nor did they have any gloves or stolen items on them. The police did find a knife and Carby's friend's shirt in a snowbank near the stolen car, which as noted above, formed part of the defence's theory that the knife belonged to Carby's friend.
23In a subsequent search of the house, the police found a loaded .22 calibre handgun in the basement storage room, hidden behind a mattress that was leaning against the wall. No other guns, knives or gloves were found. The gun was tested for fingerprints and DNA but neither were found. Officers also found three bags of what appeared to be marijuana in the basement along with some other drugs.
The Issues
24There are three issues raised in these appeals. The first two issues are raised by all of the appellants. The third issue is raised by the appellant Hungwe alone. Those issues are that:
(1) the trial judge infringed the appellants' rights to a fair trial by the manner in which he (a) questioned certain defence witnesses and (b) made certain comments during the course of his charge to the jury;
(2) the trial judge gave inadequate instructions to the triers during jury selection on the challenge for cause process;
(3) the trial judge failed to properly charge the jury in respect of prior consistent statements made by Carby.
25I will deal with each of these issues in turn.
Analysis
1(a) The Trial Judge's Conduct in Questioning Witnesses
26The defence called a number of witnesses, three of whom are essential to this issue. One was Geovanni's mother, who gave evidence that Carby had a reputation in the West Indian community as a drug dealer and a pimp. After counsel completed their examinations of the witness, the trial judge began to ask questions. In the course of his questions, the trial judge asked Geovanni's mother about Carby's reputation as a drug dealer and pimp and whether the police knew about it. The following is but a brief excerpt of the exchange that occurred:
THE COURT: In answering the Crown, you said that you're not aware if your son or your nephew, here, consume drugs.
A. Yes, I -- I don't know if they do. I really don't.
THE COURT: You don't know if they do?
A. I don't know.
THE COURT: Did anyone tell you that their alleging here that they were going over to buy drugs from Gilly's when this whole incident happened.
A. I heard that in a bail hearing and preliminary hearing.
THE COURT: You heard that in a bail hearing?
A. Yes.
THE COURT: And you didn't -- that didn't tweak that they're using drugs, if they're going up . . .
A. Well, she's asking me if I'm aware. I've never seen them, I've never been . . .
THE COURT: You've never . . .
THE COURT: Yes. And as far as you're concerned, the police should be aware of that?
A. They should be.
THE COURT: Yes. We just had a police officer testify here earlier, who was working Overbrook for a number of years, which is the area where he lives . . .
A. Uh-hmm.
THE COURT: . . . and he said the police have no information on that.
A. I don't . . .
THE COURT: You're not?
A. I don't know -- I can't answer to what he said. I don't know about that.
THE COURT: No. But you're satisfied that that's what he is?
A. I'm positive, yeah.
THE COURT: So, what you're saying is that the police are -- would appear not to be on top of things as far as he's concerned?
27In total, the trial judge's questioning of Geovanni's mother occupied six pages of transcript.
28The next witness was the appellant Richard Ellis. Again after counsel had finished their examinations, the trial judge began questioning Richard. Two areas in particular were canvassed, that is, that Richard had not seen Hungwe in the basement and that Carby had been fully clothed when they arrived at the house.
29On the first topic regarding the presence of Hungwe, the following exchange occurred:
THE COURT: Okay, and you've testified that Mr. Hungwe was not with you when you went inside the house, is that right?
A. Like, when we went to go . . .
THE COURT: To buy the drugs, you said . . .
A. No, he was not with us.
THE COURT: "He was not with us.", he didn't ride in the car with you?
A. No.
THE COURT: He didn't come inside the house with you?
A. No.
THE COURT: You didn't see him downstairs in the house?
A. No.
THE COURT: You understand that's a problem.
30On the second topic, that is, the state of Carby's clothing, the following exchange took place:
THE COURT: Okay. You heard the evidence of the police officers that when he ran outside, he had no pants on and he had no shirt. He had a t-shirt or something on, just boxer shorts and a t-shirt and his cable around his hand. Some said both hands, I think some said they weren't sure. You heard that?
A. Yes, Your Honour.
THE COURT: Yes, and you never saw him undress?
A. All I know is that we left him there in the room . . .
THE COURT: Yes.
A. . . . he was still inside the house . . .
THE COURT: Yes.
A. . . . and we just went in the back room and I don't know how long he was there for.
THE COURT: Yes.
A. I'm not sure, but . . .
THE COURT: Yes.
A. . . . he was fully clothed though.
THE COURT: Yes. You understand that -- how would he get the shirt, a button-down shirt off if the hands were tied in the front of him? Do you understand what I mean? If he's got hands . . .
A. I -- I understand, but, like I said, on -- on the way -- when he told us to go to the back room, he started trying to, like, untangle it. I don't know . . .
THE COURT: Yes.
A. . . . if he successful did that. Maybe -- maybe he took it off, took his shirt off, retied it, I don't know, but I know for sure that he was trying to unmangle it. Like, he was trying to take it off before he went outside to go talk to the police.
THE COURT: So, you think that probably what might have happened is that he got the cables off, undressed, put the cables around his hand again and ran outside?
31The trial judge's questioning of Richard took up more than five pages of transcript.
32The next witness was the appellant Geovanni Ellis. Once again, after counsel finished their questions, the trial judge questioned Geovanni on the issue of how both Carby, and Carby's friend, had come to have cuts on their faces. The following exchange took place regarding Carby:
THE COURT: No re-examination. Mr. Ellis, just to clear up or attempt to clear up a couple of things here, did you see a knife at all being yielded [sic] by anybody that night?
A. Not at all. No.
THE COURT: No, and did you or anyone else put a knife to the neck of Gilly that night?
A. No.
THE COURT: You didn't see any of that?
A. No.
THE COURT: Okay. So, maybe we could give the witness Exhibit number -- Madam Clerk, Exhibit number 8. And if you look at Exhibit number 8, photograph number three and number four. You see that?
A. Yeah, I see that.
THE COURT: Yes, okay. You heard the evidence of Mr. Gilly saying that a knife had been put to his neck and these marks there on his neck were caused by knife being put there. You heard that evidence?
A. That's what -- that's what he said, yes.
THE COURT: Yes, and you didn't do that and you didn't see anyone else do that to him?
A. No, not at all.
THE COURT: Okay. So, do you have any explanation of how he would have injuries or marks there?
33Later, the following exchange took place with respect to the cut to the face of Carby's friend:
THE COURT: You didn't see any blood in his face or anything else?
A. No.
THE COURT: Okay. You heard his evidence about the slash that he got, the number of stitches that he got?
A. Yes, I heard his evidence.
THE COURT: Yes, and if you look at Exhibit number 8, photograph number two, three, you see the slash on his face and the stitches there?
A. I see a cut. I wouldn't . . .
THE COURT: Is that -- sorry, what are you . . .
CLERK REGISTRAR: Exhibit number 8?
THE COURT: It's Exhibit number 12 . . .
CLERK REGISTRAR: Okay.
THE COURT: . . . that he should be looking at.
CLERK REGISTRAR: Okay. That's the right one, yes.
THE COURT: Okay. Have you got that . . .
A. Yeah.
THE COURT: . . . Mr. Ellis?
A. Yeah.
THE COURT: Okay. You didn't see any of this?
A. No.
THE COURT: No?
A. No.
THE COURT: Any explanation how he might have got that?
34In all, the trial judge's questioning of Geovanni also took up five pages of transcript.
1(b) The Trial Judge's Comments During the Jury Charge
35There were a number of instances where the trial judge, as he was instructing the jury, departed from the written jury charge that had been reviewed by counsel. I do not consider it necessary to review each and every one of those instances. The following examples will suffice.
36In his charge to the jury, the trial judge gave a standard instruction to the effect that the evidence did not have to answer every question in the case. However, he then departed from his prepared text and said the following with respect to defence counsel's submissions regarding inadequacies in the police investigation:
And you have heard counsel raise questions about forensic evidence. Where is the DNA? Where is [sic] the fingerprints? Why didn't the police do this or why didn't the police do that? No case is perfect. You get the case -- the facts have unfolded. The Crown -- police investigated, they put the evidence before you, but there is no case -- I have been at this awhile, you know, I have been before the Courts many years, over 40 years, I have yet to be in a case where I say, well I think every question has been answered. That is human nature. This is human nature where, you know, we do not get that. And in this case, when you heard all the police officers come back and forth in here you -- one could hardly conclude that the police in this case did not throw enough resources at the investigation of this case.
37Another instance occurred when the trial judge was instructing the jury on the use of demeanour in assessing the evidence of witnesses. In particular, he referred to concerns that defence counsel had raised about how Carby's friend had given his evidence. The trial judge said, in part:
And, it is for you to decide, but I would caution you about -- and I think you observed that. An individual like Mr. Simon, who is jumping all over and reacting and everything else, it does not mean that his evidence is not reliable or that he is not telling the truth. You have got to look at the context of what happened, his -- is his evidence consistent with the evidence of other witnesses, what took place, and as, I think, counsel for the Crown has pointed out, much of his evidence is corroborated by other independent evidence. So, I mean, that is one circumstance that you were -- would emphasize a classic case of where careful [sic] about judging somebody about their demeanour.
38Another example occurred when the trial judge addressed the issue of whether Carby was involved in drug activity at the time of the alleged robbery. On this point, the trial judge said to the jury:
You recall that counsel in their cross-examination and in their -- some in their closing comments to you, made it sort of appear as though their records were recent and you recall that they made accusation [sic] that Mr. Carby was a pimp and was a drug dealer and so on. And Crown counsel dealt with that. You would consider the evidence whether there is evidence now to support this. One of the counsel, in his closing comments, expressed the opinion that Mr. Carby was still involved in criminal activity. And you have to ask yourself, is there evidence of this? There is some and you consider that evidence. And -- but he said -- was still involved in criminal activity but at a reduced rate. Again, ask yourself, is there evidence of this type of activity and at a reduced rate? I don't intend to deal anymore with that, because Crown has dealt with that evidence.
Propriety of the Trial Judge's Questions and Jury Charge Comments
39It is a long-standing common law principle, and enshrined in s. 11(d) of the Canadian Charter of Rights and Freedoms, that any person accused of a crime is entitled to a fair and impartial trial. Trial judges are charged with ensuring that, to the degree possible, such a trial will take place. A critical component of ensuring a fair and impartial trial revolves around the conduct of the trial judge. As is often said, "justice should not only be done, but should manifestly and undoubtedly be seen to be done": R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256. In that same spirit, a trial judge must be conscious of not only being impartial, but being seen to be impartial.
40There is no doubt that a trial judge is entitled to ask a witness questions. However, the right to ask questions must be exercised with great caution, especially in a jury trial. Questions to clarify a point, or to ask that an answer be repeated, or the like, are all proper questions. Questions that suggest that the judge favours one side or the other are not.
41These are not new principles. They are ones of long-standing expression. These general principles are well-stated in R. v. Valley, 1986 CanLII 4609 (ON CA), where Martin J.A. said, at p. 230 C.C.C.:
The judge's role in a criminal trial is a very demanding one, sometimes requiring a delicate balancing of the interests that he is required to protect. The judge presides over the trial and is responsible for ensuring that it is conducted in a seemly and orderly manner according to the rules of procedure governing the conduct of criminal trials and that only admissible evidence is introduced. A criminal trial is, in the main, an adversarial process, not an investigation by the judge of the charge against the accused, and, accordingly, the examination and cross-examination of witnesses are primarily the responsibility of counsel. The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted.
42Justice Martin then made it clear that there are limits on the rights of trial judges to question witnesses. He gave examples of where questioning by a trial judge had given rise to the quashing of a conviction. One of those examples was as follows, at p. 231 C.C.C.:
Questioning of an accused or his witnesses to an extent or in a manner which conveys the impression that the judge is placing his authority on the side of the prosecution and which conveys the impression of disbelief of the accused or defence witnesses . . .
43Justice Martin then concluded on this subject by stating the standard to be applied when determining whether interventions by a trial judge had infringed the accused person's right to a fair trial. He said, at p. 232 C.C.C.:
Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.
44An isolated intervention by a trial judge would not normally render a trial unfair. Instead, as is the case here, it is the cumulative effect of multiple interventions that must be considered. As is also the case here, the interventions must be considered in light of any other conduct by the trial judge that may magnify the impact of those interventions. The trial judge's extemporaneous comments in his jury instructions fall into this latter category. As Doherty J.A. said in R. v. Stewart, 1991 CanLII 11753 (ON CA), at p. 320 C.C.C.:
Improper questions by the Crown, unfortunate remarks and inappropriate questions made by a trial judge, and unsubstantiated findings of fact do not per se amount to reversible error. It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.
45The impact of the trial judge's interventions must also be considered in light of two other factors: R. v. Stucky, 2009 ONCA 151, at para. 66. One factor is whether the trial judge permitted counsel the opportunity to ask further questions after the trial judge asked his or her questions. In this case, the trial judge provided that opportunity. However, providing the opportunity for counsel to ask further questions, when the gravamen of the concern is that the trial judge is telegraphing his view of the evidence to the jury, has marginal, if any, rehabilitative prospects. Once the trial judge's opinion is conveyed, there is little that further questioning by counsel can do to remove the resulting sting.
46The other factor is whether counsel objected to the trial judge's questioning. In this case, while defence counsel did not object at the time, they did raise an objection, later in the trial, and asked that the trial judge include a specific instruction in his jury charge to ameliorate the effect of his questions. The trial judge refused to provide any such instruction.
47In my view, the tenor of the trial judge's questions could leave a reasonable person with no other impression except that the trial judge did not believe the defence witnesses. Indeed, it appeared that the trial judge viewed their evidence as incredible. For example, the trial judge set up an inappropriate conflict between the evidence that Geovanni's mother gave about Carby and what the trial judge said that the police knew. I note that the stated knowledge of the police was apparently based solely on the evidence of a single police officer. The trial judge also improperly called upon both of the Ellis cousins to give explanations for the evidence of other witnesses, undoubtedly leaving the impression that such explanations were not forthcoming because the other witnesses were telling the truth.
48The biased impression against the appellants left by the trial judge was then exacerbated by his various comments to the jury during the course of his jury instructions. I will say, as a general proposition, that when a trial judge has provided a draft of his jury instructions to counsel, and received their comments on that draft, it is generally a risky step for a trial judge to then add other commentary "on the fly" as s/he delivers her or his instructions. While there may undoubtedly be occasions when some alteration is necessary, because an error or omission is discovered as the instructions are given, the addition of unscripted commentary should generally be avoided.
49In my view, the questions asked by the trial judge, and the manner in which they were asked, seriously compromised the appearance of a fair and impartial trial. There could be no doubt in the minds of the jurors, or to an outside reasonable observer, that the trial judge had aligned himself with the Crown in this prosecution. That impression was only reinforced by the comments offered by the trial judge during the course of his jury instructions.
50On that latter point, I would reiterate that a balanced charge to the jury is essential to a fair trial. As this court said in R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), at paras. 114, 115 and 117, per curiam:
. . . we think it important to underscore the significance of the charge to the jury and the need for trial judges to be fair and balanced in their recitation of the evidence and their review of the position of the parties.
The charge to the jury is a central feature in any jury trial. In the context of our adversarial process, its strength lies in its objectivity. In an otherwise partisan atmosphere, the jury is entitled to look to the charge to guide it safely through deliberations and assist it in arriving at a true verdict according to law.
. . . not all mistakes are alike. Some can be easily avoided. Failing to provide the jury with a fair and balanced charge is one of them. There is no justification for jury charges that are not even-handed.
51A similar point was made in R. v. Largie (2010), 2010 ONCA 548, where Watt J.A. said, at para. 127:
A jury charge must also be even-handed, the instructions fair and balanced. No sides should be taken and no editorial comment should intrude.
See, also, R. v. McManus, 2017 ONCA 188, at para. 102.
52In this case, the various extemporaneous comments made by the trial judge, during the course of his charge to the jury, were all directed against the defence. They all tended to suggest that any issues that the defence had with the Crown's case were either without substance or were misguided. These comments would only have served to reinforce in the minds of the jurors the message that the trial judge had delivered through his questions of the defence witnesses, that is, that the defence could not answer the Crown's case.
53In my view, the trial judge's conduct irretrievably compromised the fairness of the trial.
2. The Challenge for Cause Procedure
54This trial involved a challenge for cause based upon possible racial prejudice. There was a single question put to each prospective juror. As part of the challenge for cause process, defence counsel asked for, and received, permission to use rotating triers as set out in s. 640(2) of the Criminal Code. Defence counsel also asked for, and received, an order excluding the prospective jurors from the courtroom while the challenge for cause was determined: see, e.g., R. v. Grant, 2016 ONCA 639, at para. 18; and R. v. Murray (2017), 2017 ONCA 393, at para. 60, per Watt J.A.
55One of the practical disadvantages of using rotating triers, when prospective jurors are excluded from the courtroom during the challenge process, is that the trial judge is required to repeat any instructions to the triers as many as 12 or 14 times. To avoid that practical inconvenience, some trial judges will choose to give the instructions for the triers to the entire jury panel, prior to the challenge process commencing. That is what the trial judge chose to do in this case. Counsel did not object to this.
56The trial judge told the entire jury panel what the challenge for cause question would be. He also told the jury panel about the process of using triers and that the triers would determine whether a prospective juror was acceptable or not acceptable after he or she answered the question. Specifically, the trial judge said:
They listen to the question, they listen to the answer, they can confer with each other, and they decide after the answer whether the person who has answered the question, the candidate, is acceptable or not acceptable as a juror in this case.
57The trial judge then went on to explain how a prospective juror would be determined to be acceptable or not acceptable. An acceptable juror was described as someone "who would likely approach his or her duty with an open mind and decide the case on the evidence given at trial, and the legal instructions given by the trial judge".
58The challenge process then began. No further instructions were given to any of the triers until the point where 11 jurors had been sworn. The jury panel was exhausted by that time and a new jury panel had to be brought in. In the course of addressing this second jury panel, the trial judge gave slightly fuller instructions regarding the challenge for cause process and the duties of the triers. It is the process utilized with the first panel that is the focus of the appellants' complaint.
59The appellants submit that the trial judge failed to instruct the first jury panel on the importance of the challenge for cause process, that is, the desire to find impartial jurors. The appellants also complain that the trial judge did not instruct the triers, as the process proceeded, that for any prospective juror to be acceptable, both triers had to agree that the prospective juror was acceptable, but also that they had the right to disagree on that issue. Finally, the appellants complain that the triers were not told that they had the right to retire to a separate room to consider their decision.
60It is incontrovertible that there were deficiencies in the instructions that the trial judge gave respecting the duties of the triers. While there is nothing wrong with a trial judge giving those instructions to the jury panel as a whole (especially with the agreement of counsel), the trial judge should make it very clear to the jury panel why he or she is doing this, and the importance of the instructions: R. v. Douglas (2002), 2002 CanLII 38799 (ON CA), at paras. 19-22, per Moldaver J.A. Among other things, the trial judge should make it clear to the jury panel that they must listen carefully to the instructions because each of them may be called upon to be a trier at some point.
61The instructions should then cover each of the following areas:
(1) The process is designed to give each side the fairest trial possible.
(2) Each prospective juror will be sworn or affirmed to tell the truth in answering the question.
(3) Every jury panel member will be asked the same question. He or she will give an answer. The triers' job is to listen to the answer each person gives and decide, based on the answer, whether that person is acceptable or not acceptable.
(4) An acceptable juror is a person who would likely approach jury duty with an open mind and decide the case on the evidence given at trial and the legal instructions given by the trial judge.
(5) The acceptability of a prospective juror is determined on a balance of probabilities.
(6) Just because a person has a prejudice or bias against a racial or ethnic group does not mean, by itself, that the person is not acceptable as a juror to try the case. However, before finding anyone who has a prejudice or bias against a racial or ethnic group acceptable as a juror, the triers must find that that person would likely put that prejudice or bias aside in deciding the case.
(7) The role of the triers is to examine the impartiality of any prospective juror based on their attitudes towards matters of race and whether their ability to decide the case solely on the evidence will be affected by their attitudes.
(8) For anyone to be acceptable as a juror, both triers must agree that the person is acceptable. However, they do not have to agree on the acceptability of any person. Before they give their decision, they should discuss the matter between themselves in the jury box. They also have the right to retire to a room to consider their decision, if they wish.
62As an aside, on the last point, I appreciate that there are often practical difficulties that would be encountered if the triers actually did wish to retire to a separate room to consider their decision. I see nothing wrong with a trial judge adding a comment to his or her instruction to the effect that it would probably not be necessary for the triers to do so in normal circumstances. What is important is that the triers know that the option exists.
63If a trial judge does decide to instruct the entire jury panel at once with respect to the role of a trier, then it is also desirable that the trial judge should ask each trier, as they are sworn, if they heard the instructions and whether they have any questions. In this way, the trial judge can be satisfied that the jury panel member was actually listening when the instructions were given. A trial judge may also wish to give the triers a written copy of the instructions, for their reference, while they are performing their duties as triers.
64There is no absolute rule regarding how these instructions should be communicated to the triers. Different judges will express the instructions in different ways. The point is to ensure that the various topics are covered so that the triers understand their role. If it becomes apparent, as the challenge process unfolds, that any trier does not understand his or her role, then the trial judge should reinstruct them.
65While not perfect by any means, the trial judge in this case did communicate the essential elements of a trier's duties. A review of the challenge process does not suggest any misapprehension by the triers in terms of those duties. Indeed, at one point, two triers initially disagreed on the acceptability of a prospective juror. The trial judge told them to talk about it and the triers then agreed on the acceptability of the juror. This incident clearly shows that the triers understood that they had the right to disagree.
66The appellants rely principally on the statement made in R. v. Li, 2004 CanLII 18634 (ON CA), where Borins J.A. said, at para. 32, that the deficiencies in the instructions in that case were "fatal". I do not view that decision, especially when read in the context of other decisions of this court, as standing for the proposition that deficiencies in the instructions on the challenge for cause process will always render the conduct of the trial so defective as to require it to be redone. Rather, the extent of the deficiencies, and their potential impact, will have to be evaluated on a case by case basis. As this court said in R. v. Brown, 2005 CanLII 3939 (ON CA), at para. 33, per Simmons J.A.:
As other decisions of this court have illustrated, the fact that a trial judge may not have recited the precise words used in Hubbert, or may have omitted one or more of its recommended elements, does not necessarily give rise to reversible error. Rather, the issue to be determined is whether the circumstances of the particular case reveal a reasonable likelihood that the triers misunderstood the nature of their task and the procedure they were to follow.
67In my view, the deficiencies in the trial judge's instructions to the jury panel regarding the duties of the triers were not so serious as to warrant a new trial. In reaching that conclusion, I would observe that the importance of an impartial trial, and the concern that racial prejudice could play in that regard, would not be matters that would be lost on ordinary members of the public who are called for jury duty. They would readily understand the need to inquire into such matters. Despite some of the antiquated aspects of the overall jury selection process, the importance of the challenge for cause process is not one that ordinary members of the public would not be able to grasp as the process played out. I would also note that none of the defence counsel raised any objection, during the course of the challenge process, as to the manner in which it was conducted.
68I would not give effect to this ground of appeal.
3. The Prior Consistent Statement Issue
69As I noted earlier, this issue is raised by the appellant Hungwe alone. It deals with the use of certain statements made by Carby in various Facebook messages. This issue arises out of Carby's evidence that he did not know any of the four males who tried to rob him, including Hungwe. Hungwe called his ex-girlfriend to dispute Carby's evidence that he did not know Hungwe.
70The ex-girlfriend knew both Hungwe and Carby. Carby acknowledged that he and the ex-girlfriend were "Facebook friends". The ex-girlfriend gave evidence that she had seen Carby and Hungwe exchange greetings and engage in small talk at social events in a fashion that led her to believe that they knew each other.
71During the Crown's cross-examination of the ex-girlfriend, the Crown began to ask her about Facebook messages between her and Carby. The messages were a conversation between Carby and the ex-girlfriend between September 2011 and September 2012. These messages had only come into the Crown's possession during the trial, just prior to the Crown closing its case, and after Carby had given evidence.
72In the messages between them, Carby tells the ex-girlfriend, among other things, that he did not know any of the men who committed the robbery. The specific message read: "All I know there was 4 black and a white . . . I don't know none of them soo. U know what I mean." He also told her that he had no recollection of meeting and talking to Hungwe at a particular time.
73During this questioning, counsel for Hungwe raised an objection. Counsel asked the trial judge to give a mid-trial instruction to the jury on the use of prior consistent statements. The trial judge said that he planned to give such an instruction "at some point". No such instruction was ever given.
74The issue arose again in the Crown's closing submission. Crown counsel said, in part:
You'll recall that she [the ex-girlfriend] even tried to persuade Mr. Carby, via those [Facebook] messages, that he had met Mr. Hungwe at Paris'. Why? Because she wanted to bait Mr. Carby. Despite all her efforts, Mr. Carby told her he did not remember. Mr. Carby was consistent and unshaken. That means he didn't change, he didn't waiver, he didn't hesitate when he told [defence counsel] he did not recall Ms. -- meeting [the ex-girlfriend] and Mr. Hungwe at Paris'.
75After the Crown's closing, defence counsel again asked for an instruction on the use of prior consistent statements. The trial judge said that he would provide an instruction but referred to providing an instruction on prior inconsistent statements instead. In the end result, no specific instruction was provided on prior consistent statements. The trial judge, however, did reference the issue about the Facebook statements in his jury charge. In doing so, he said:
Now, let me deal with what we referred to as prior statement or prior inconsistent statement . . . You recall that [the ex-girlfriend] and . . . the daughter of Mr. Carby who testified, they were cross-examined about their text messages and -- I think it was text messages mostly and I do not know if there was Facebook involved in that as well, but they were examined about something they exchanged with others and they said in their texts and so on. And so, those are some of the statement that I am talking about and I want to discuss with you here.
In other words, again, what is important is the evidence of what the witness said here. The earlier statement, and you will notice we do not make the earlier statement exhibits because we want you to rely on the evidence under oath in the witness box here. And so the earlier statement is not evidence unless the witness says "Yes, I accept that. I agree with that."
Carby, of course, had not accepted the Facebook statements because this issue arose after he had completed his evidence. He was not recalled to address it.
76There can be no debate that an instruction on prior consistent statements ought to have been given by the trial judge, especially after counsel requested one. The trial judge did, however, communicate the essential element of a prior consistent statement instruction in the portion of his jury charge excerpted above. While it was not the best way to communicate the point about prior consistent statements, it was, in my view, sufficient. I note that inadequacies in an instruction on prior consistent statements are not necessarily fatal: R. v. Murray, 2017 ONCA 393, at para. 155.
77Justice Doherty also dealt with the failure to give a jury instruction on prior consistent statements in R. v. O. (L.), 2015 ONCA 394. He said, at para. 38:
Certainly, the [prior consistent statement] instructions could have been given and, in a perfect jury charge, would have been given: e.g. see R. v. Austin (2006), 2006 CanLII 39077 (ON CA), at paras. 32-34. However, perfection is not the standard: R. v. Ellard, 2009 SCC 27, at paras. 41-42. I am satisfied that the failure to give these instructions in this case did not constitute a legal error.
78That conclusion applies with equal force in the instant case. I would not give effect to this ground of appeal.
Conclusion
79Given my concerns regarding the trial judge's interventions and the comments he made during the course of giving the jury charge, I am not satisfied that the appellants received a fair trial. Consequently, the appeals must be allowed, the convictions set aside and a new trial ordered.
Appeal allowed.
Notes
1 The appellants were variously convicted of offences under ss. 87(2), 95(2), 266, 268, 279(2), 344(1), 349(1), 355(b) and 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.
2 Justice Martin's analysis in Valley has been repeatedly affirmed by this court, including most recently in R. v. John, 2017 ONCA 622, at paras. 47-51.
3 Indeed, theoretically, if there were a jury of 14 selected plus two alternates, the instructions might have to be given 16 times.
4 All of these requirements are set out in the Honourable Justice David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at Preliminary 12-B and 12-C.
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