Her Majesty the Queen v. Murray

[Indexed as: R. v. Murray]

Ontario Reports

Court of Appeal for Ontario

Laskin, Gillese and Watt JJ.A.

May 17, 2017

138 O.R. (3d) 500 | 2017 ONCA 393

Case Summary

Criminal law — Evidence — Prior consistent statements — Crown witness admitting during cross-examination that she did not tell entire truth in her first statement to police but insisting that her second and third statements were truthful — Trial judge permitting Crown to re-examine witness on parts of first police statement that were consistent with her trial testimony — Trial judge instructing jury that prior consistent statements were not admissible to prove their truth and were admissible only to assist jurors' assessment of witness' credibility — Re-examination appropriate in light of defence counsel's vigorous attack on witness' credibility — Defence counsel not objecting to re-examination nor to contents of instruction limiting use of prior statement — Charge to jury not constituting misdirection or non-direction.

Criminal law — Trial — Charge to jury — Reasonable doubt — Trial judge instructing jury that standard of proof was "closer" to certainty of guilt than to probability — Trial judge not required to instruct jury that reasonable doubt was "much closer" to certainty — Trial judge's ill-advised equation of reasonable doubt with doubt for which juror could provide reason not fatal — Instruction on reasonable doubt adequate.

Criminal law — Trial — Charge to jury — "Vetrovec" warning — TJD shooting deceased from vehicle driven by accused — TJD pleading guilty to first degree murder in youth court and sentenced on agreed statement of facts — TJD testifying as Crown witness at accused's trial — TJD resiling from agreed statement of facts and giving evidence which exculpated accused — Trial judge declaring TJD to be hostile witness — Trial judge not erring in giving jury Vetrovec instruction in connection with TJD's evidence — Accused at trial seeking instruction and not objecting to its contents.

Criminal law — Trial — Conduct of trial judge — Trial judge interrupting frequently during Crown's examination-in-chief and during cross-examination and making disparaging and prejudicial remarks during testimony of hostile Crown witness whose evidence exculpated accused — When witness refusing to answer how he obtained murder weapon judge directing TJD be handcuffed and removed from courtroom — Comments leaving no doubt about trial judge's opinion regarding issue of accused's knowledge of TJD's plan to kill the deceased — Trial judge's interventions rendering trial unfair and conviction must be set aside on this ground.

Criminal law — Trial — Jury trial — Challenge for cause — Trial judge erring in giving defence counsel binary choice between rotating triers with unsworn prospective jurors in courtroom during challenges for cause or static triers with unsworn prospective jurors excluded from courtroom — Third option of rotating triers with unsworn prospective jurors excluded open to defence counsel and judge would then have made discretionary decision regarding excluding prospective jurors — Defence counsel deciding on static triers as he wanted to have unsworn prospective jurors excluded — Defence counsel not making formal application under s. 640(2.1) of Code to exclude sworn and unsworn jurors but what occurred was functional equivalent to application under s. 640(2.1) — Defence counsel not objecting to static triers and got what wanted when prospective jurors excluded — Jury properly constituted — Criminal Code, R.S.C. 1985, c. C-46, s. 640(2.1).

Facts

The accused was charged with first degree murder. A youth, TJD, shot the deceased from a vehicle driven by the accused. Another youth, CL, was a passenger in the vehicle. TJD pleaded guilty to first degree murder in youth court and was sentenced on an agreed statement of facts. CL pleaded guilty to being an accessory after the fact to murder and received a sentence of time served. It was common ground that a race-based challenge for cause was warranted at trial. Defence counsel wanted to exclude unsworn prospective jurors from the courtroom during the challenges. The trial judge gave defence counsel a choice between static triers with unsworn prospective jurors excluded and rotating triers with unsworn prospective jurors present in the courtroom. Defence counsel chose static triers.

The Crown's case against the accused turned on whether he was aware that TJD intended to kill the deceased. CL testified for the Crown and gave evidence that furnished the basis for the Crown's claim that the accused aided TJD in the planned and deliberate murder of the deceased. The Crown called TJD as a witness. TJD took full responsibility for the murder of the deceased, and claimed that neither the accused nor CL knew of his plan to shoot the deceased. He resiled from the agreed statement of facts entered on his guilty plea. The trial judge declared him to be a hostile witness and permitted Crown counsel to cross-examine him. During TJD's testimony, the trial judge interrupted frequently and disparaged his evidence. The accused was convicted. He appealed.

Decision

Held, the appeal should be allowed.

The trial judge erred in giving the defence a binary choice between static triers with unsworn prospective jurors excluded and rotating triers with unsworn prospective jurors not excluded. In fact, there were three available options: (i) rotating triers with the unsworn prospective jurors remaining in the courtroom; (ii) rotating triers with the unsworn prospective jurors excluded from the courtroom; and (iii) static triers with both sworn and unsworn prospective jurors excluded from the courtroom. In the absence of a formal application by defence counsel under s. 640(2.1) of the Criminal Code to exclude the sworn and unsworn jurors from the courtroom during the selection process, what occurred in this case could only be sustained if what occurred was the functional equivalent of an application under s. 640(2.1). Given that defence counsel's primary request was that unsworn prospective jurors be excluded from the courtroom during the trial of the challenge for cause, what occurred was indeed the functional equivalent of an application under s. 640(2.1). Defence counsel's failure to add "and sworn jurors" to the request to exclude unsworn jurors was not fatal to that conclusion. The jury was properly constituted.

The trial judge's repeated interventions during TJD's testimony left no doubt of his views of TJD and his evidence. His remarks were disparaging and prejudicial. TJD's evidence that the accused knew nothing about TJD's plan to kill the deceased was the only evidence that could counteract CL's evidence against the accused. What occurred marred the appearance of fairness and left no doubt where the judge stood about the issue of the accused's foreknowledge about the murder. The conviction should be set aside on that basis.

In the circumstances, the trial judge did not err in giving the jury a Vetrovec instruction with respect to TJD's evidence. As a consequence of TJD's status as a "mixed" witness called by the Crown, the trial judge had a discretion to give that caution. Moreover, it was the defence position at trial that the trial judge should give a Vetrovec instruction with respect to TJD's evidence. While the trial judge did not make it clear that the desirability of confirmatory evidence applied only to the inculpatory aspects of TJD's testimony and not to the exculpatory features, defence counsel did not seek an instruction distinguishing between the inculpatory and exculpatory components of TJD's testimony and did not complain about its omission.

During her cross-examination, CL admitted that she was not entirely truthful in her first statement to the police, but insisted that she was truthful in her second and third statements. Defence counsel vigorously cross-examined CL, taking the position that she had lied from the outset to get out from under a charge of first degree murder and added details in her later statements to further incriminate the accused. In light of defence counsel's attack on CL's credibility, the trial judge did not err in allowing the Crown to re-examine CL on parts of her first statement to the police that were said to be consistent with her trial testimony. He correctly instructed the jury that prior consistent statements are not admissible to prove their truth and were admissible only to assist the jurors in their assessment of CL's credibility.

In his instructions to the jury on the standard of proof, the trial judge said that reasonable doubt falls "closer" to certainty of guilt than to probability. The instructions on reasonable doubt, while not error-free, were adequate. In Ontario, an instruction that locates proof beyond a reasonable doubt "much closer to absolute certainty than to probable guilt" is not mandatory. Nor was it mandatory for the trial judge to instruct the jurors that they had to be "sure" of guilt before they could convict. The trial judge's ill-advised equation of a reasonable doubt with a doubt for which a juror could articulate a reason was not a fatal error.

Judgment

WATT J.A.:

The Background Facts

[1] Shawn James was a drug dealer. Bleecker Street was his turf.

[2] Early one Sunday morning in July several years ago, Shawn James was outside an apartment building on Bleecker Street. A Beck Taxi with dark-tinted rear windows rolled up the street. Boysie Murray was the driver. C.L. was the front seat passenger. And a youth, T.J-D., was the only passenger in the rear seat.

[3] The taxi stopped as Shawn James walked along the street. The rear window opened. T.J-D. fired three shots from a semi-automatic 9 mm handgun. One of the shots struck and killed Shawn James. The taxi drove off.

[4] Each of the occupants of the taxi was arrested. Each was charged with first degree murder.

[5] T.J-D. pleaded guilty to first degree murder in Youth Court. He received a youth sentence of ten years.

[6] C.L. pleaded guilty to being an accessory after the fact to the murder of Shawn James. She received a sentence of time served.

[7] A jury found Boysie Murray guilty of first degree murder. T.J-D. and C.L. testified as witnesses for the Crown at Boysie Murray's trial. Murray did not testify or call any witnesses in his defence.

[8] Boysie Murray appeals his conviction on several grounds. These reasons explain why I would order a new trial.

The Case for the Crown

[13] The occupants of the Beck Taxi that early Sunday morning in July were well known to each other. They shared an interest in crack cocaine. C.L. was a crack addict who supported her habit by acts of prostitution. T.J-D. and Boysie Murray were drug dealers.

[14] In large measure, the case for the Crown relied upon the evidence of C.L. By the time of trial, C.L. had ceased drug use and prostitution, upgraded her educational qualifications and was a second-year student at a community college.

[15] The narrative provided by C.L. about the events that preceded, accompanied and followed the shooting of Shawn James furnished the basis for the Crown's claim that Boysie Murray aided T.J-D. in the planned and deliberate murder of Shawn James.

[16] It was the evidence of C.L. that as she, Boysie Murray and T.J-D. drove downtown in the Beck Taxi, Murray asked her to phone Shawn James on a cellphone. C.L. was unable to do so because her own cellphone, which contained James' number, was still at Vanier Correctional Centre from which she had recently been released.

[17] According to C.L., as Murray drove the taxi up Bleecker Street, he said "there he is". Murray drove around the block and came up Bleecker Street a second time. Murray stopped the taxi near the walkway to 375 Bleecker. James walked in front of the taxi heading towards the front entrance of the building. C.L. heard the rear window of the taxi being rolled down. She then heard shots. James fell to the ground.

[18] Boysie Murray asked T.J-D. whether he had "got him". T.J-D. said that he had. Murray accelerated away and headed back to the Scarborough apartment building from which they had departed for downtown. En route, Murray stopped the cab and told C.L. to clean the car. She did so.

[19] When C.L., Murray and T.J-D. returned to the apartment, the driver whose cab they had used to go downtown to "re-up" their drug supply was still there. Murray and T.J-D. took off their sweatshirts. Each was wearing a bulletproof vest. C.L. fell asleep. When she woke up, C.L. saw news coverage of the shooting of Shawn James on a local television channel. Murray was speaking on a telephone. C.L. heard him say "the General is dead".

The Defence Case

[20] Trial counsel for Boysie Murray challenged the credibility of C.L. and the reliability of her evidence. In essence, counsel alleged that C.L., desirous of a favourable disposition on her original charge of first degree murder, concocted evidence against Murray, supplementing her original account with further details that implicated Murray as an aider and abettor of James' murder with knowledge in advance of T.J-D.'s plan to shoot and kill James.

[21] The Crown also called T.J-D. as a witness at trial. He had pleaded guilty to first degree murder in Youth Court and was then serving a sentence of ten years. T.J-D. was represented by counsel when he entered his guilty plea. Counsel acknowledged, as did T.J-D., that the agreed statement of facts read at the plea and sentencing proceedings correctly stated what had occurred.

[22] At trial, T.J-D. resiled from the agreed statement of facts filed in support of his guilty plea. He admitted that he shot Shawn James, but said that he never "accepted" the contents of the agreed statement of facts. It was his evidence, oft-repeated, that he shot Shawn James when the opportunity to do arose. Neither Boysie Murray nor C.L. knew in advance of the shooting what he (T.J-D.) was doing.

[23] T.J-D. refused to answer questions about where and from whom he had obtained the gun he used to shoot Shawn James and from whom he bought drugs. In each case, he based his refusal on a concern for his life were he to reveal his sources.

[24] In some respects, his account was contradicted by the photographic record obtained from surveillance cameras in the taxi and at the Scarborough apartment building from which he, C.L. and Murray left and to which they returned after the shooting.

[25] T.J-D. denied several specific allegations advanced by the Crown to establish Murray's guilt as a party to a planned and deliberate murder. In particular, T.J-D. denied

(i) that the dispute about the drug-dealing terrain on Bleecker Street involved Murray as well as himself with James;

(ii) that the occupants of the cab had first spotted James on Bleecker Street, then circled the block a second time before the shooting;

(iii) that Murray said anything, in particular, "there he is", before the shooting and had asked whether he (T.J-D.) "got him" after the shots were fired; and

(iv) that Murray said "the General is dead" when a news report of the shooting appeared on the television at the Scarborough apartment.

[26] Trial counsel for Murray did not openly embrace all aspects of T.J-D.'s version of the relevant events. Counsel acknowledged that much of what T.J-D. said in his testimony was at once incredible and unreliable. But counsel invited the jury to have a reasonable doubt about Murray's guilt based on the impulsive nature of the shooting and Murray's lack of knowledge and assistance to T.J-D. in the shooting.

The Grounds of Appeal

[27] Boysie Murray (the "appellant") advances five grounds of appeal. As I would paraphrase them, the appellant contends that the trial judge erred

(i) by requiring the trial of the challenges for cause to be conducted by static triers if unsworn jurors were to be excluded from the courtroom during the challenge for cause procedure;

(ii) by frequently and improperly intervening and expressing opinions about the credibility of T.J-D. and the reliability of his evidence, thus rendering the trial unfair;

(iii) in giving a Vetrovec caution in connection with the evidence of T.J-D., who was favourable to the defence, and in failing to point out evidence that was confirmatory of his testimony;

(iv) in permitting the Crown to put before the jury C.L.'s previous statements and further in instructing the jury that the testimony of C.L. was enhanced by her previous consistent statements; and

(v) in misdirecting the jury on the standard of proof required to establish guilt.

Ground #1: The Use of Static Triers to Decide the Challenge for Cause

[28] This ground of appeal was raised in a supplementary notice of appeal and was not part of the oral argument. Counsel agreed to file supplementary written materials and have this issue determined on the basis of those written materials.

[29] A brief canvass of the circumstances in which the error alleged is said to have occurred provides a helpful point of departure.

The Challenge for Cause

[30] It was common ground that a race-based challenge for cause was warranted at trial. The challenge proceeded on the basis of a single question to be asked of each prospective juror by trial counsel for the appellant.

The Selection of Triers of the Challenge

[31] In an appearance about three weeks before jury selection was to begin, the trial judge inquired of counsel whether they had agreed on the method by which the trial of the challenge for cause would be determined. The trial judge described the available options in these terms:

So, now, the other question is, do you want the panel in or out? In other words, are you agreed to so-called static jurors as opposed to rotating? Because if you want rotating jurors, then I usually leave the whole panel in during the process.

[DEFENCE COUNSEL]: Well, what we had decided was the rotating, which is the system I'm more familiar with.

THE COURT: But that means, then, that everybody is going to stay in the courtroom.

[DEFENCE COUNSEL]: And then, of course, everybody gets to hear everybody's excuses.

THE COURT: So do you want to think that one over?

[DEFENCE COUNSEL]: Yes, I do.

THE COURT: Okay.

The discussion then turned to the manner in which static triers would be selected. Defence counsel indicated that he had no experience with static triers.

[32] The discussion about the mode of trial of the challenge for cause resumed when the jury panel summoned for the trial appeared at the courthouse. In the absence of the panel, the trial Crown reminded the trial judge that s. 640 of the Criminal Code, R.S.C. 1985, c. C-46 requires an application by the accused for exclusion of prospective [and sworn] jurors from the courtroom during jury selection. The trial judge confirmed his understanding of the wording of the statutory provision (s. 640(2.1)) and continued:

They can't have the best of both words. So what they're going to do is, if they want, it's got to be a formula, if they want jurors to remain in the court, then--if they don't want the jurors to remain in the court, then it's going to be static jurors. So it's an application, in effect, to exclude the panel from the Court during the process.

On the other hand, if they want the rotating jurors, I'll only let them have the rotating jurors if in fact the panel remains in the courtroom during the process. So that's the way it's going to be.

[33] After a brief recess to permit counsel to consider their final decision on the mode of trial of the challenge, the following exchange occurred:

[CROWN COUNSEL]: Are we doing static or rotating?

[DEFENCE COUNSEL]: We're doing static.

THE COURT: So you want the panel out during the process?

[DEFENCE COUNSEL]: That's correct.

The jury was selected using static triers.

The Arguments on Appeal

[34] The appellant says that the trial judge erred in ruling that if counsel wanted the unsworn prospective jurors excluded from the courtroom during the selection process, the trial of the challenge for cause would be determined by static triers. Treating the method by which the trial of the challenge would be determined as a binary choice, dependent on whether counsel wished unsworn prospective jurors in or out of the courtroom during the selection process was wrong.

[35] According to the appellant, where a challenge for cause is tried by rotating triers, a trial judge has a discretion to exclude unsworn prospective jurors from the courtroom during the selection process. The amendment which created the static triers mode of trial of the challenge for cause -- s. 640(2.1) -- neither expressly nor impliedly ousted the well-established discretion of the trial judge to exclude unsworn jurors from the courtroom during the selection process using rotating triers. Exclusion preserves and promotes the impartiality of the selection process.

[36] The appellant contends that the trial judge peremptorily told the parties that there were only two procedures available for the trial of the challenge for cause:

(i) rotating triers with the balance of the jury panel -- the unsworn prospective jurors -- in the courtroom during the selection process; or

(ii) static triers with the balance of the jury panel -- the unsworn prospective jurors -- outside the courtroom during the selection process.

To put the available procedures as a binary choice is wrong in law. Its effect was to deprive the appellant of an available choice and his preferred method of trial, rotating jurors, with the unsworn prospective jurors excluded from the courtroom.

[37] In the end, the appellant says, he was forced to select a mode of trial of the challenge -- static triers -- for which he never expressed a preference, in order to preserve and promote the impartiality of the selection process by excluding unsworn prospective jurors from the courtroom during selection. This prophylactic measure was also available when the challenge was tried by his preferred method -- rotating triers. The denial of this option created an unfair selection process and warrants a new trial.

[38] The respondent counters with the submission that although the trial judge did not expressly offer the appellant the option of choosing rotating triers with the unsworn prospective jurors excluded from the courtroom during the selection process, he (the trial judge) did not preclude defence counsel from seeking such a procedure for jury selection. The trial judge explained that with rotating triers he "usually" left the unsworn prospective jurors in the courtroom during selection, not that he always did so. Defence counsel never made submissions seeking any departure from the trial judge's "usual" rule.

[39] In this case, the respondent says, defence counsel was offered ample opportunity to decide on the mode of trial of the challenge. He chose static triers with the unsworn prospective jurors excluded from the courtroom during selection. The appellant's preferred choice -- rotating triers with the unsworn prospective jurors out of the courtroom during selection -- is not a method of selection available as of right. The appellant must demonstrate why exclusion of unsworn prospective jurors is necessary to preserve impartiality when rotating triers are to be used. But the appellant offered nothing in support of such an order. The trial judge cannot now be faulted for failing to direct a method of trial of the challenge that he was never invited to consider.

The Governing Principles

[40] The Criminal Code offers two methods of trying the truth of challenges for cause, provided the ground of challenge is something other than that the name of the prospective juror is not on the panel, a decision that is assigned to the trial judge: Criminal Code, s. 640(2) and (2.1).

[41] The first method, which we designate as "rotating triers", has been part of our criminal procedure since the enactment of our first Criminal Code in 1892. Until 2008, it was the only method available to determine the truth of a challenge for cause. This method, authorized by s. 640(2) of the Criminal Code, requires no application by either party.

[42] Section 640(2) contains no reference to the presence or exclusion of unsworn prospective jurors from the courtroom during selection. In like manner, it says nothing about excluding jurors who have been sworn, but are no longer participating as triers of the challenge, from the courtroom as the challenge process continues.

[43] Since 2008, the Criminal Code has offered a second method of trial of challenges for cause. Section 640(2.1) and (2.2) authorize the use of what are described as "static triers" to determine the truth of the challenge for cause. This procedure may only be invoked by an accused, requires a preliminary finding of fact by the presiding judge and may result in the exclusion of all jurors -- sworn and unsworn -- from the courtroom during jury selection. Put another way, the static trier procedure is only available on satisfaction of two conditions precedent:

(i) an application by the accused; and

(ii) a finding by the presiding judge that exclusion of all jurors -- sworn and unsworn -- from the courtroom during the trial of the challenge is necessary to preserve the impartiality of the jurors.

Where these conditions precedent have been met, the judge may make an order excluding all jurors -- sworn and unsworn -- from the courtroom during the trial of the challenge: Criminal Code, s. 640(2.1). The triers are selected in accordance with s. 640(2.2).

[44] The available procedures to try challenges for cause, when each may be invoked and the consequences for unsworn prospective jurors have been the subject of recent decisions of our court and remain to be determined in several other outstanding appeals. These authorities establish several principles that inform the decision in this case.

[45] In R. v. Noureddine (2015), 128 O.R. (3d) 23, 2015 ONCA 770, this court emphasized that static triers were not merely an alternative method to rotating triers to try challenges for cause. Trial of the challenge by static triers is only available where

(i) an accused applies for exclusion of all jurors during the trial of the challenge for cause; and

(ii) the judge is satisfied the exclusion of all jurors is necessary to preserve the impartiality of the jurors ultimately selected.

See Noureddine, at para. 35.

[46] These requirements are cumulative. Absent an application by an accused to exclude all jurors from the courtroom during the trial of the challenge for cause, static triers may not be used to try the truth of the challenge: Noureddine, at para. 37; R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184, at paras. 28-30.

[47] The Noureddine court acknowledged the undoubted authority of a trial judge to manage the jury selection process to make effective use of court resources and ensure fairness to all parties: Noureddine, at para. 38; R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737, at para. 85. Whether this authority be described as an inherent jurisdiction or characterized otherwise, it does not clothe trial judges with the power to make orders that contradict or brush aside (mandatory) requirements of the Criminal Code. And so it is that a trial judge's determination to use static triers to try the truth of a challenge for cause in situations that do not satisfy the requirements of s. 640(2.1) cannot acquire sustenance as an incident of a trial judge's inherent jurisdiction to manage the jury selection process: Noureddine, at para. 38.

[48] The decision in Noureddine is also helpful in assessing the impact of errors in the determination of the mode of trial of challenges for cause. In combination, an order for static triers that denies an accused the benefits of using rotating triers, contrary to the language in s. 640(2); that requires rotating triers absent an application by the accused for static triers; and overrides the insistence of the accused that rotating triers be used creates an appearance of unfairness. This appearance of unfairness cannot be saved harmless by either proviso in s. 686(1)(b) of the Criminal Code: Noureddine, at paras. 48-55, 57 and 68.

[49] The decision in Noureddine left open the possibility that the proviso in s. 686(1)(b)(iv) could be applied if an accused had agreed to the use of static triers, but had failed to bring an application required under s. 640(2.1). Such a procedural irregularity may fall within the sweep of s. 686(1)(b)(iv): Noureddine, at para. 57.

[50] In R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, the accused brought a race-based challenge for cause and asked, initially at least, for the challenge to be heard by rotating triers with the unsworn jurors excluded from the courtroom during jury selection: Grant, at para. 14. The trial judge seemed to acknowledge that he had a discretion to make the order sought, but declined to do so. After a dialogue with defence counsel, the trial judge asked whether they wanted rotating or static triers. Defence counsel responded:

If . . . the Court does not want to exercise discretion to allow rotating triers and the jury out, then we'll take the static triers.

The trial judge directed that the challenge be tried by static triers: Grant, at para. 15.

[51] On appeal, the appellants argued that the jury, selected by the use of static triers, was improperly constituted and required that their convictions be quashed: Grant, at para. 16.

[52] The Grant court reached three conclusions:

(i) that the discretion trial judges had to exclude unsworn prospective jurors when challenges for cause were determined by rotating triers prior to the 2008 amendment authorizing static triers remained after the static triers amendment became law;

(ii) that the trial judge recognized that he had the discretion to exclude unsworn prospective jurors when the truth of the challenge for cause was determined by rotating triers, but did not err in refusing to exercise it because the appellants gave him no good reason to do so; and

(iii) the appellants' decision to choose to have static triers should be treated as an application under s. 640(2.1) to exclude both sworn and unsworn jurors from the courtroom during the challenge for cause proceedings.

See Grant, at para. 18.

[53] In Grant, this court recognized that prior to the amendment authorizing the use of static triers to determine the truth of the challenge for cause, trial judges who were restricted statutorily to rotating triers had a discretion to exclude unsworn prospective jurors from the courtroom during the trial of the challenge. This discretion was not ousted by the 2008 amendments. But this exclusion is not for the asking, in other words, as of right. Exclusion is discretionary, linked to the need to preserve impartiality in the jury selection process. A trial judge, invited to exercise this discretion is entitled to insist on a sufficient reason for doing so. What is sufficient depends on the circumstances of each case: Grant, at para. 41.

[54] Although the point did not arise in Grant, some courts have held that this discretion to exclude unsworn prospective jurors when the truth of the challenge for cause is tried by rotating triers extends to sworn jurors who are not acting as triers: Swite, at para. 28; R. v. English, 84 C.C.C. (3d) 511, at pp. 533-34 C.C.C., leave to appeal to S.C.C. refused [1994] 1 S.C.R. vii, [1993] S.C.C.A. No. 465, 87 C.C.C. (3d) vi.

[55] What also emerges from Grant is that the absence of a formal application under s. 640(2.1) to have sworn and unsworn jurors excluded during the trial of the challenge for cause and to have static triers try that challenge is not dispositive against the use of static triers. Substance trumps form. A decision by defence counsel to choose static triers may amount to the functional equivalent of an application to exclude sworn and unsworn jurors under s. 640(2.1): Grant, at para. 51. Likewise, a desire to exclude prospective jurors during the challenge process and satisfaction with properly vetted static jurors: R. v. Mansingh, 2017 ONCA 68, 136 W.C.B. (2d) 16, at para. 12.

The Principles Applied

[56] This is a case that falls close to the line. On balance, however, as I will explain, I would not set aside the appellant's conviction on this ground.

[57] When the subject of the mode of trial of the challenge for cause was first raised by the trial judge, defence counsel indicated that he wanted the unsworn prospective jurors excluded from the courtroom during the selection process. Counsel made no reference to the exclusion of sworn jurors and added that his only prior experience with challenges for cause had involved the use of rotating triers. At no point did defence counsel object to the use of static triers or say that he did not wish static triers.

[58] The trial judge explained that there were two options available for trial of the challenge. The options were linked to the location of the unsworn prospective jurors during the selection process. According to the trial judge, the choices were

(i) rotating triers with unsworn prospective jurors remaining in the courtroom during jury selection; or

(ii) static triers with the unsworn prospective jurors excluded from the courtroom.

[59] The trial judge never wavered from these options for trial of the challenges for cause. He never suggested, for example, that unsworn prospective jurors could be excluded from the courtroom if the challenges were tried by rotating triers, provided there was good reason to do so to ensure the impartiality of the selected jurors. Quite the contrary, the trial judge made it clear that defence counsel could not have "the best of both worlds", by which I understand the trial judge to have meant rotating triers with unsworn prospective jurors excluded during the selection process.

[60] The trial judge was wrong to limit the available modes of trial of challenge for cause to the binary choice he put to counsel. In fact, there are three options available for the trial of a challenge for cause:

(i) rotating triers with the unsworn prospective jurors remaining in the courtroom;

(ii) rotating triers with the unsworn prospective jurors excluded from the courtroom; or

(iii) static triers with both sworn and unsworn prospective jurors excluded from the courtroom.

In the future, at least in cases of uncertainty, trial judges might consider advising counsel of the available alternatives in language similar to what appears in s. 536(2) of the Criminal Code about elections of mode of trial.

[61] In this case, defence counsel's decision to have the challenge for cause tried by static triers resulted from his request to have unsworn prospective jurors excluded from the courtroom and the trial judge's dictate that such an exclusion was only available with static triers. In the absence of a formal application by defence counsel under s. 640(2.1) to exclude the sworn and unsworn jurors from the courtroom during the selection process, what occurred here can only be sustained if what occurred was the functional equivalent of an application under s. 640(2.1).

[62] What requires close scrutiny here is the substance of what occurred, not its form.

[63] In this case, defence counsel's primary request was that unsworn prospective jurors be excluded from the courtroom during the trial of the challenge for cause. What was of concern to defence counsel was that juror impartiality might be compromised were the unsworn prospective jurors to remain in the courtroom hearing the responses given by their colleagues in answer to the questions posed in the challenge for cause. Although counsel did not request exclusion of sworn jurors during the selection process, I do not consider the absence of such a request fatal to a conclusion that what occurred was the functional equivalent of an application under s. 640(2.1). Where static triers are the mode of trial of the challenge for cause, selected jurors have no role to play in the selection process, as would be the case with rotating triers. Further, the role of selected jurors commences when selection (including any alternative and additional jurors) has been completed and the person accused is about to be given into their charge. The exclusion of sworn jurors from the courtroom when static triers determine the truth of the challenge for cause is an inevitable consequence of the use of static triers. And so it is that I do not regard the failure of defence counsel to add "and sworn jurors" to the request to exclude unsworn jurors as fatal to my conclusion that what occurred here was the functional equivalent of an application under s. 640(2.1).

[64] Two further points buttress my conclusion.

[65] First, defence counsel never rejected the use of static triers. What he wanted was the exclusion of unsworn prospective jurors during the selection process. He got what he wanted. All he said about static triers was that he was unfamiliar with their use. Further, he appeared satisfied with the trial judge's proposal about how the static triers would be selected.

[66] Second, to insist that counsel must request the exclusion of both sworn and unsworn jurors before that occurred can be considered the functional equivalent of an application under s. 640(2.1) is to sacrifice substance on the altar of form.

Ground #2: The Interventions of the Trial Judge

[67] The second ground of appeal advanced asserts that the number and nature of interventions by the trial judge during the evidence of the defence-friendly Crown witness T.J-D. resulted in an unfair trial, thus constituted a miscarriage of justice that warrants a new trial.

The Additional Background

[68] An appreciation of this ground of appeal requires some additional background about the witness and a representative sampling of the interventions said to warrant our intercession.

The Witness

[69] T.J-D. was 20 years old when the trial Crown called him as a prosecution witness at the appellant's trial. He had pleaded guilty to first degree murder as the shooter of Shawn James and been sentenced under s. 42(2)(q) of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended, to ten years, including carceral and conditional supervision components.

[70] The trial Crown anticipated that T.J-D. would prove a difficult witness and likely require an application to cross-examine him under s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, or as a hostile witness at common law. She was not disappointed. T.J-D. lived up to the expectations of the trial Crown. The trial judge declared T.J-D. hostile and permitted the trial Crown to cross-examine him early during the examination-in-chief.

[71] During his examination-in-chief, T.J-D. took full responsibility for the unlawful killing of Shawn James. Neither the appellant nor C.L. knew of his plan to shoot James or his purpose in doing so. It was clear for all to see at trial, as T.J-D. admitted on several occasions, that he would not and did not say anything that would make the appellant a party to the unlawful killing of the deceased.

[72] The version of events described by T.J-D. at trial was also at odds with the agreed statement of facts entered on his plea of guilty and acknowledged as accurate there. At every opportunity, T.J-D. distanced himself from what was admitted on his plea of guilty. His position, that he killed Shawn James but did not "accept the facts" on his plea of guilty, was a constant refrain throughout his evidence. On the version of events he presented at the appellant's trial, he did not commit first degree murder, but was guilty of second degree murder, having shot James when the opportunity presented itself. It was a version of events that was contradicted not only by the agreed statement of facts, but also by incontrovertible evidence produced by video surveillance cameras in the taxi and at the apartment building in Scarborough.

The Interventions

[73] To determine the outcome of this ground of appeal, it is not necessary to trawl through the entire catalogue of judicial interventions said to result in an unfair trial. The claim includes at least 70 questions directed to T.J-D. in examination-in-chief and a further 50 comments on the contents of his testimony, as well as his character and the motivation that underpinned his volte-face from the contents of the agreed statement of facts on which his plea of guilty to first degree murder was based. A representative sample will suffice.

[74] Shortly after the trial judge declared T.J-D. a hostile witness and permitted Crown counsel to cross-examine him, the trial judge commented that T.J-D.'s memory loss was feigned and that he was simply unwilling to tell the truth about relevant events as he recalled it.

[75] The trial judge characterized T.J-D.'s refusal to acknowledge the truth of several aspects of the agreed statement of facts entered to support his plea of guilty to first degree murder as "ridiculous".

[76] T.J-D. denied that, as C.L. had testified, the appellant said "the General is dead" when a news report of James' death was shown on the television at the Scarborough apartment to which C.L., T.J-D. and the appellant had returned after the shooting. In the presence of the jury, the trial judge commented:

Well, we'll see if the jury -- the jury will determine whether or not your words to the court indicate that that wasn't true. So go on. The jury will make that determination; you won't.

[77] When Crown counsel asked T.J-D. whether the police located the taxi at the Scarborough apartment building the day after the shooting, the witness responded with a familiar mantra, "I did not support it". The trial judge interjected on the basis that the answer was not responsive to the question. The trial judge repeated the question to which T.J-D. responded, "No, they're not supported". After an interjection by defence counsel that perhaps T.J-D. did not understand the difference, the trial judge said:

He understands exactly what's going on. He thinks he's smarter than we are, that's the problem.

[78] Crown counsel asked T.J-D. from whom or where he had obtained the gun with which he shot Shawn James. T.J-D. answered, "I can't disclose that, ma'am". In the jury's presence, the trial judge, on his own initiative, directed that T.J-D. be handcuffed and removed from the courtroom. He then explained to the jury:

I've gone through this experience several times. The usual result in a murder case is the witness will refuse to answer, and then I have to sentence him for contempt. And the problem is, if the person is not undergoing sentence, then they've got something to fear. But if they're undergoing sentence, as Mr. [J-D.] is, they virtually have nothing to fear. So it's an exercise in futility and they end up refusing to answer. So I just wanted to explain to you that distinction about what happens.

Had he been a witness, certainly coming in with no criminal record, not under sentence, there is no right to simply say I refuse to say so, I can compel him to answer, and then there's a stick there, they're fearful of being sentenced to jail. This person has no fear of being sentenced to jail because he's already doing a considerable sentence as a young offender.

[79] Later in examination-in-chief by the Crown, T.J-D. refused to disclose who was driving the car in which he was arrested in the appellant's presence. The trial judge remarked, again in the presence of the jury:

I'm not going to compel him. It's going to lead nowhere so I think the jury will make whatever -- the jury will basically probably find he's incredible in much of what he says. So we'll go from there.

[80] After a brief discussion in the jury's absence during which time the trial judge characterized T.J-D.'s attitude in the courtroom as "defiant of the Court", the jury returned and the trial judge asked T.J-D. whether he still refused to answer the question although he was compelled to do. T.J-D. confirmed his previous response and the reason: "Sir, if I answer that, it put ( sic ) my life in jeopardy". The judge observed:

It's a very convenient excuse that he's giving. So let's see where we go.

[81] Finally, during the pre-charge conference in the absence of the jury, the trial judge commented on T.J-D.'s evidence, adding: "I mean you might say it's B.S., ninety-nine percent".

The Arguments on Appeal

[82] The appellant acknowledges the authority of a trial judge to intervene in the questioning of witnesses to assist the trier of fact. That said, no authority permits a trial judge to insert him or herself into a case in such a manner or to such an extent as to compromise an appearance of fairness, to denigrate any witness or to impose his or her opinions about the motivation or credibility of a witness or the reliability of the witness' testimony.

[83] According to the appellant, the lens of analysis we should employ on review is whether what occurred compromised the appearance of fairness essential to the trial process. Where a witness has been diminished by the trial judge in the presence of the jury, an appearance of unfairness sufficient to warrant reversal has been established.

[84] In this case, the appellant continues, the trial judge's interventions, taken together, were intrusive, insulting and lop-sided. They created the impression that the trial judge was placing his authority on the side of the Crown. Further, that the judge disbelieved the evidence of T.J-D. whose testimony provided the only support for the appellant's defence that, unaware of T.J-D.'s purpose or plan, he could not be convicted as an aider or abettor in either degree of murder.

[85] The appellant says that it was obvious that T.J-D. shot and killed Shawn James. T.J-D. committed murder as a principal. What was equally obvious was that T.J-D. was a friend of the appellant whom he wanted to help by his testimony. T.J-D. was an unreliable witness whose testimony was at odds with the agreed statement of facts on the basis of which his plea of guilty was accepted and with many incontrovertible facts established at trial. But it was the core of T.J-D.'s testimony -- that the appellant was an unwitting bystander at an impulsive, unplanned shooting -- in which the appellant's only prospect of acquittal resided. The effect of the trial judge's interventions was to eradicate any prospect of a reasoned, objective assessment of this exculpatory feature of T.J-D.'s evidence, render the trial unfair and the conviction a miscarriage of justice.

[86] The respondent reminds us that we should begin our analysis mindful of a strong presumption against appellate interference on the ground of undue judicial intervention in the conduct of a trial. Myriad reasons exist for judicial intervention. To focus or clarify the evidence. To curtail the introduction of irrelevant or repetitive evidence. To dispense with proof of obvious or agreed upon matters. And, importantly here, to ensure that the way a witness answers, or fails to answer a question, does not unduly hamper the presentation of the evidence or the progress of the trial. And it is the trial judge, not a reviewing court, who is best situated to take the temperature of the trial and to determine whether and to what extent intervention may be required.

[87] The respondent says that the fundamental question to determine on appellate review is whether, from the perspective of a reasonable observer present throughout the trial, the interventions of the trial judge, considered in the context in which they arose, led to an unfair trial, thus caused a miscarriage of justice.

[88] The respondent does not gainsay that the trial judge intervened frequently, sometimes unnecessarily, and said some things that would have been better left unsaid. In some instances, however, the interpositions were in service of trial management, for example, in calling to order a confrontational witness who seemed to consider himself in charge of the questioning and management of the trial proceedings. In every event, what is of concern is not the number of interventions, but rather their effect and impact on the actual and apparent fairness of the trial.

[89] According to the respondent, what occurred here had no impact on the defence advanced at trial or the jury's assessment of it. The issue of T.J-D.'s credibility was left to the jury with several reminders about the need to keep an open mind and to disregard the trial judge's expressed or apparent views on the issues of fact. It is also not without significance that experienced counsel did not object to most interventions, complain about any impediments to his own cross-examination of T.J-D. and, in closing, went to great lengths to distance himself from the bulk of T.J-D.'s evidence and the attitude he displayed in giving it.

The Governing Principles

[90] Once again, the parties differ little on the principles we are to apply in determining this ground of appeal. Where they part company is on the result the application of those principles yields on this case.

[91] It is well established that a trial judge is no longer a mere referee, an ear and eyewitness who must sit passively while counsel present the case as they see fit: R. v. Felderhof (2003), 68 O.R. (3d) 481, at para. 40; Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 232, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91, 276 O.A.C. 398 n; R. v. Brouillard, [1985] 1 S.C.R. 39, at p. 44 S.C.R. We accept that not only may a judge intervene in the adversarial process, but also that sometimes intervention becomes essential to ensure that justice is done in substance and appearance: Brouillard, at p. 44 S.C.R.

[92] A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas, at paras. 233-34.

[93] Trial judges should be cautious in the exercise of these various incidents of what might be compendiously described as the trial management power. For the most part, a trial judge should confine herself to her own responsibilities, leaving counsel and the jury to their respective functions: R. v. Valley, 26 C.C.C. (3d) 207, at p. 231 C.C.C., leave to appeal to S.C.C. refused [1986] 1 S.C.R. xiii n, [1986] S.C.C.A. No. 298; R. v. Torbiak, 18 C.C.C. (2d) 229, at pp. 230-31 C.C.C.

[94] The principal types of intervention that attract appellate disapprobation include, but are not limited to,

(i) questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

(ii) questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

(iii) intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

(iv) inviting the jury to disbelieve the accused or other defence witnesses.

See Valley, at pp. 231-32 C.C.C.; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 71.

[95] Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. A strong presumption exists that a trial judge has not intervened unduly at trial: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 166, [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 46, 304 O.A.C. 398 n, 304 O.A.C. 397 n and 303 O.A.C. 395 n; Chippewas, at paras. 231, 243.

[96] When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine is whether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer present throughout the trial: Hamilton, at para. 30; Stucky, at para. 72. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72.

[97] The question ultimately to be decided is whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. The analysis is not mathematical. And what is critical is what occurred in the presence of the jury. Events that took place in their absence, at least in most cases, cannot affect them or their decision: Valley, at p. 235 C.C.C.

The Principles Applied

[98] As I will explain, I would give effect to this ground of appeal.

[99] This ground of appeal focuses on the trial judge's treatment of a single witness in a trial that lasted several weeks. The witness was not someone on the periphery of the case, who sketched in a few lines of background. T.J-D. was the person who shot and killed Shawn James from the back seat of a taxi driven by the appellant in which the principal Crown witness, C.L., was a front-seat passenger. T.J-D. pleaded guilty to and was convicted of a planned and deliberate first degree murder.

[100] But T.J-D. was no ordinary witness. He was, to borrow a significantly understated descriptive used by the trial judge in his charge, a "problematic" witness. And for several reasons. He was sufficiently antagonistic to the Crown, the party who called him, to be declared hostile and subject to cross-examination in examination-in-chief. His language was crude, I suspect deliberately so. He was unresponsive in his answers to questions, preferring to ignore or rearrange and answer them as he chose. He was contemptuous of the court process. He was disrespectful to the Crown when she asked him directly a question he did not like or pressed him to respond to a previous question to which he had provided a non-answer.

[101] T.J-D. was also a witness with an agenda to promote. He was bent on exculpating the appellant, his friend and fellow traveller in the drug business. And in service of his agenda, T.J-D. was at best indifferent to the objective realities of the case and gave evidence inconsistent with the facts admitted on his plea of guilty to first degree murder.

[102] Witnesses like T.J-D., regrettably not an unknown species in the trial of criminal cases, test the patience of trial judges, whether sitting alone or with a jury. For that is the lot of the trial judge. The conduct of such witnesses warrants judicial intervention, to bring them to book, to ensure that their answers are responsive to the questions put and that the way the witness answers or does not answer questions does not hamper the progress of the trial.

[103] In jury trials, trial judges must always keep in mind that they are neither an advocate nor the trier of fact. The position of established neutrality of trial judges require that they should confine themselves as much as possible to their own responsibilities, leaving to counsel and the members of the jury their respective functions.

[104] In this case, the defence advanced on the appellant's behalf related to his state of mind. He was not an aider or abettor of T.J-D.'s planned and deliberate murder of Shawn James because he did not have any knowledge of such a plan. If T.J-D.'s evidence that the killing was impulsive -- an opportunity provided and taken when James unexpectedly appeared -- was believed or raised a reasonable doubt, the appellant was entitled to be acquitted of murder. This testimony was the sole basis upon which the appellant could rely to counteract the inculpatory force of the evidence of C.L.

[105] The trial judge's repeated interventions during the testimony of T.J-D. left no doubt of his views of T.J-D. and his evidence. His remarks were disparaging and prejudicial, leaving no doubt where the trial judge stood on the issue of the appellant's knowledge. What occurred marred the appearance of fairness so vital in criminal proceedings. To a reasonable observer, the trial judge had cast his lot with the prosecution. The conviction must be set aside.

Ground #3: The Vetrovec Instruction

[106] This ground of appeal focuses on what is said to be an error in providing a Vetrovec instruction in connection with the evidence of T.J-D., a witness called by the Crown who provided a version of events exculpatory to the appellant.

[107] A convenient place to begin consideration of this ground of appeal is with a brief reference to the trial judge's charge in connection with T.J-D.'s evidence and a snapshot of the arguments advanced on appeal.

The Charge to the Jury

[108] The trial judge grouped C.L. and T.J-D. together in what he termed "problematic witnesses". He identified the circumstances that made T.J-D. a problematic witness:

(i) he was an accomplice in the murder of Shawn James;

(ii) he was undoubtedly the shooter who intentionally killed Shawn James;

(iii) he pleaded guilty to first degree murder, but claimed he had acted impulsively when testifying at trial, thus providing a version of events inconsistent with his guilty plea;

(iv) he was a close friend of the appellant who refused to disclose the appellant's identity when he pleaded guilty, although he knew that the appellant was driving the cab at the time of the shooting; and

(v) he was a drug dealer.

[109] After listing the circumstances that made T.J-D. a problematic witness and required the "utmost caution" in any assessment of his evidence, the trial judge added:

Of course, the witness [J-D.'s] evidence is largely favourable to the accused Murray.

[110] The trial judge cautioned the jury about relying on the evidence of C.L. and T.J-D. in these terms:

The reliability of the evidence of the Crown witnesses [T. J-D.] and [C.L.] is problematic. There is a real and significant risk that these witnesses may be perjuring themselves on various material matters. Thus, you must assess his or her evidence with utmost caution as to its reliability on essential matters. You must look for confirmatory evidence which may be used as enhancing his or her credibility and reliability as a witness.

Even if you were to find that there is confirmatory evidence which tends to enhance the reliability of the witness' problematic evidence, that is not the end of your assessment of the reliability of his or her evidence. It is still necessary for you to assess the evidence tending to undermine the reliability of his or her evidence.

In order for evidence to be confirmatory of the witness' testimony, it need not implicate the accused in the crime or even establish an essential element of the crime charged.

I will repeat that.

In order for evidence to be confirmatory of a witness' testimony, it need not implicate the accused in the crime or establish an essential element of the crime charged, but it must relate to a significant matter.

Furthermore, evidence may be confirmatory, even though it does not -- it's a negative -- does not relate to a disputed matter. Nonetheless, in order for evidence to be confirmatory it must emanate from a person other than the problematic witness, or emanate from an exhibit. For example, from a video or from a photo.

Furthermore, the independent evidence from a third party or an exhibit must be confirmatory of the problematic witness' credibility on a significant matter.

[111] The trial judge then turned to C.L.'s testimony and explained to the jury the necessity of them seeking confirmation of it. He said:

Insofar as Ms. [L.'s] evidence at the trial tends to favour the Crown's case, it is necessary for you to determine whether or not there was confirmatory evidence that may be viewed as strengthening her general credibility and reliability as a witness.

[112] After listing several items of evidence that were potentially confirmatory of the evidence of C.L., the trial judge added:

Finally, let me say that [C.L.] is to be commended, rather than condemned, for attempting to rehabilitate her life. She appears to have been drug free even after her guilty plea in December of 2008. After that time, she was no longer subject to a sentence and her only motive to keep drug free is to rehabilitate herself.

[113] The trial judge did not suggest to the jurors items of evidence that may be confirmatory of the testimony of T.J-D. He concluded his instructions on "the problematic witnesses" in this way:

The problematic witness may be telling the truth, even in the absence of confirmatory evidence of the witness' reliability.

You must keep in mind the substantial risk that the witness may not be telling the truth. A problematic witness may be lying to you on a material matter, even if you find as fact that there is confirmatory evidence of the witness' reliability.

Thus, you must keep in mind that risk that the witness may not be telling the truth in your careful assessment of his or her evidence, and from your determination of whether the witness is telling the truth or is lying.

In the end, the onus remains on the Crown to satisfy you that the witness is telling the truth on various essential matters.

The Arguments on Appeal

[114] The appellant says that the trial judge made three errors in connection with his instructions about the "problematic witness" T.J-D.:

(i) in including T.J-D., whose evidence favoured the appellant, in a Vetrovec caution;

(ii) in advising the jury that they must look for confirmatory evidence in connection with T.J-D.'s testimony; and

(iii) in listing potentially confirmatory evidence in connection with C.L., but not with respect to T.J-D.

[115] In the submission of the appellant, a Vetrovec instruction was not warranted in connection with T.J-D. The trial judge was entitled to caution the jury about the frailties associated with the testimony of T.J-D. But what occurred here was no mere caution, rather a full-throat Vetrovec warning. This warning was not appropriate for a witness, albeit called by the Crown, whose evidence was exculpatory of the appellant, or at the least not befitting the exculpatory parts of the evidence if he were considered a "mixed" witness.

[116] In addition, the appellant continues, the trial judge erred in instructing the jury to look for confirmatory evidence for the testimony of T.J-D., a witness whose core testimony was exculpatory of the appellant. If, however, an instruction on the need to search for confirmation were appropriate, the failure to include reference to confirmatory evidence reflects error. A mistake exacerbated by the imbalance created by the listing of potentially confirmatory evidence for C.L.

[117] The respondent rejects the claim of error advanced by the appellant. A Vetrovec caution was justified for the evidence of T.J-D. To omit such a caution would have created a serious imbalance and permitted the jury to act on the unconfirmed evidence of T.J-D. to the extent it inculpated the appellant, but required a diligent search for confirmatory evidence in finding guilt on the basis of C.L.'s testimony.

[118] The respondent says that the contents of the Vetrovec caution were appropriate and did not impose a burden of proof on the appellant. The trial judge was careful to limit the desirability of confirmatory evidence to testimony that implicated the appellant (the evidence of C.L.). The instructions link this requirement to the onus of proof. It was a reasonable exercise of discretion not to refer to specific evidence that confirmed T.J-D.'s testimony. The appellant would have been prejudiced had the trial judge made reference to confirmatory inculpatory evidence.

[119] This instruction was acceptable to trial counsel for the appellant and achieved a functional and understandable distinction between inculpatory and exculpatory evidence.

[120] Mindful of the obligation of an appellate court to take a functional approach when invited to find error in a jury charge and to consider the instructions as a whole, the respondent points out that the exculpatory aspect of T.J-D.'s evidence -- that the appellant knew naught of what T.J-D. was about -- was the subject of a W. (D.) direction by the trial judge. Such an instruction clarified the role of this aspect of T.J-D.'s evidence, left no doubt of its exculpatory effect and properly assigned the ultimate burden of proof.

The Governing Principles

[121] Precedents abound in connection with Vetrovec warnings since their origin about 35 years ago in R. v. Vetrovec, [1982] 1 S.C.R. 811. From the dizzying array of precedent, I extract five principles of significance to the ground of appeal advanced here.

[122] First, Vetrovec cautions are appropriate only where the tainted witness is giving evidence that assists in the demonstration of guilt. These witnesses are almost invariably testifying on behalf of the Crown: R. v. Tzimopoulos, 29 C.C.C. (3d) 304, at p. 340 C.C.C., leave to appeal to S.C.C. refused [1987] 1 S.C.R. xv, 76 N.R. 80 n; R. v. Chenier, 205 C.C.C. (3d) 333, at p. 352 C.C.C.

[123] Second, a Vetrovec caution is not to be given in respect of the testimony of an accused or witnesses who testify on his or her behalf: R. v. Hoilett (1991), 3 O.R. (3d) 449, at pp. 451-52 O.R.; R. v. Pilotte, 163 C.C.C. (3d) 225, at para. 92, leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 379, 170 C.C.C. (3d) vi n. The rationale that underlies this principle is that any instruction that invites the jury to look for confirmation of evidence adduced or relied upon by the defence impermissibly transfers a burden of proof to an accused and is contrary to the commands of R. v. W. (D.), [1991] 1 S.C.R. 742.

[124] Third, in the case of "mixed" witnesses, that is to say, witnesses called by the Crown who give evidence that is partially inculpatory and partially exculpatory, a trial judge has a discretion, but not a duty, to give a Vetrovec instruction: Tzimopoulos, at p. 341 C.C.C.; R. v. Gelle, 2009 ONCA 262, 244 C.C.C. (3d) 129, at paras. 14, 16; R. v. Tran (2010), 103 O.R. (3d) 131, 2010 ONCA 471, 257 C.C.C. (3d) 18, at para. 27.

[125] Fourth, where a Vetrovec caution is given for a "mixed" witness called by the Crown, a trial judge should make it clear that the desirability of confirmatory evidence applies only to the inculpatory aspects of the witness' testimony, not to its exculpatory features: R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 33-34. To fail to mark out this distinction risks an impermissible transfer of a burden of proof to the accused and a compromise of the principles in W. (D.): Chenier, at p. 353 C.C.C.

[126] Finally, where a trial judge gives a Vetrovec caution in connection with exculpatory evidence, or where the instruction given is unclear in its scope, a reviewing court may look to the balance of the charge and the conduct of the parties to determine whether a substantial wrong or miscarriage of justice has occurred: R. v. Shand (2011), 104 O.R. (3d) 291, 2011 ONCA 5, at para. 221, leave to appeal to S.C.C. refused [2011] S.C.R. xii n, [2011] S.C.C.A. No. 270.

The Principles Applied

[127] For several reasons, I would not accede to this ground of appeal.

[128] First, T.J-D. was a "mixed" witness called by the Crown. He gave evidence that included some inculpatory features, but was largely exculpatory of the appellant on the critical issue of knowledge. In practical terms, the exculpatory aspect of T.J-D.'s evidence afforded the only sustenance for the appellant's denial of complicity in the murder of the deceased.

[129] Second, as a consequence of T.J-D.'s status as a "mixed" witness, the trial judge had a discretion to give a Vetrovec caution in relation to T.J-D.'s evidence, likewise in the language used to convey that caution. In addition, as I will discuss later, the Vetrovec caution was requested by trial counsel for the appellant.

[130] Third, the trial judge's error was not in including a Vetrovec caution in connection with the evidence of T.J-D., but in failing to distinguish between its inculpatory aspects, where confirmation was desirable, and its exculpatory components, where it was not.

[131] Fourth, the functional approach to the assessment of the adequacy of a jury charge and the obligation to view it as a whole makes it clear that the vice of a Vetrovec instruction that includes exculpatory evidence may be alleviated by other parts of the charge. In this case, that task was completed by a W. (D.) instruction expressly relating to the exculpatory aspects of T.J-D.'s evidence.

[132] Finally, it was the defence position at trial that the trial judge should give a Vetrovec instruction with respect to the evidence of T.J-D. Counsel did not seek an instruction distinguishing between the inculpatory and exculpatory components of T.J-D.'s testimony; did not complain about its omission; was satisfied that any reference to the desirability of confirmatory evidence should be omitted; and offered no dissent from the language used in the instruction given by the trial judge.

Ground #4: Re-examination of C.L. and Jury Instructions About Her Previous Consistent Statements

[133] This ground of appeal has a dual aspect. The first has to do with the propriety of Crown counsel's re-examination of C.L. on parts of her first police interview consistent with her testimony at trial. The second alleges error in the trial judge's instructions on the use jurors could make of C.L.'s prior consistent statements.

[134] Some additional background and brief references to the re-examination and jury instructions are necessary to provide the ground work for the discussion that follows.

The Additional Background

[135] C.L. was a critical witness for the Crown. She accompanied the appellant and T.J-D. from the Scarborough apartment to the Bleecker Street area to "re-up" their depleted supply of crack cocaine. She was in the front passenger seat of the taxi when T.J-D. fired the shots that killed Shawn James. She cleaned up the interior of the cab as the trio drove back to the Scarborough apartment.

[136] C.L. provided three statements to the police about what had happened before, at the time of and after the shooting. The statements varied in detail and in their inculpatory effect on the appellant. In her evidence at trial, C.L. admitted that she did not exactly tell the truth in her first statement. The gist of the account she provided at trial was contained in her second statement with some further details added in her third interview shortly before trial.

[137] Defence counsel vigorously cross-examined C.L. Counsel took the position that C.L. had lied from the outset to get out from under the charge of first degree murder, adding details in her later statements to further incriminate the appellant. Defence counsel suggested on several occasions that C.L.'s first statement was full of lies, including positive misstatements about events and omissions of key facts. C.L. agreed. However, C.L. insisted that, except for the two details she added in her third interview, her second statement was truthful.

The Re-examination

[138] At the outset of her re-examination of C.L., the Crown proposed to play the first police interview with C.L. in its entirety. The Crown explained that defence counsel had cross-examined C.L. extensively on the statement in service of counsel's claim that the statement was full of lies. By replaying the statement and asking questions about it, the Crown sought to establish that, in many respects, the statement was consistent with C.L.'s testimony.

The Ruling of the Trial Judge

[139] The trial judge reminded the Crown that the scope of re-examination was limited. He would not permit her to review the entire statement with the witness, but did allow her to play and re-examine C.L. on specific parts of it that were said to be consistent with her trial testimony. Defence counsel offered no objection to the proposed re-examination. The first police interview was not filed as an exhibit at trial.

The Charge to the Jury

[140] The trial judge explained to the jury that prior consistent statements could not be used as evidence of the truth of their contents. He then instructed the jury about the permitted use of such statements:

Instead, a fact of a prior consistency is only admissible as to the witness' credibility to show that he or she has been previously consistent on a particular matter.

Again, all these prior out-of-court statements are not admissible to prove their truth. Instead, they are admissible only to help you in your assessment of the credibility of the witness, [C.L.].

[141] The trial judge then explained the evidentiary value of prior inconsistent statements before embarking upon his Vetrovec instruction in connection with the testimony of C.L. and T.J-D.

[142] Defence counsel did not object to the instructions on prior consistent statements.

The Arguments on Appeal

[143] The appellant contends that the trial judge was wrong to permit the re-examination of C.L. on the portions of her first police interview consistent with her testimony at trial.

[144] The appellant says that the defence position at trial was that C.L. had lied from the outset in the hope that the charge of first degree murder she then faced would "go away". As time passed, C.L. embellished the original story with further details. The re-examination simply repeated things said earlier under oath that did not involve any suggestion that C.L. had changed her story or acknowledged lies in the first interview that had not been thoroughly canvassed in both examination-in-chief and cross-examination. This was not proper re-examination.

[145] The appellant submits that defence counsel never alleged that C.L.'s first police interview was "total lies". The re-examination was not justified on the basis of anything that arose out of cross-examination and was extremely prejudicial to the appellant.

[146] As for the charge to the jury, the appellant says that because of the volume of the interview canvassed in re-examination, there was a clear and present danger that the jury could infer that these statements enhanced C.L.'s credibility. Careful instructions were required. But what was said simply exacerbated the problem and enhanced the likelihood of improper use.

[147] The respondent denies any impropriety in the re-examination permitted or the instructions given.

[148] The respondent says the re-examination was proper in light of the cross-examination that alleged the first police interview was "full of lies". Necessity required the re-examination to provide the jury with the appropriate context for the assessment of the significance of the alleged inconsistencies on the credibility of C.L. and the reliability of her evidence.

[149] The respondent reminds us that experienced defence counsel did not object to the re-examination. This provides a reliable indication of its propriety and the absence of any prejudice associated with it.

[150] In connection with the jury instructions, the respondent points out that the trial judge provided the jury with an express instruction that the prior consistent statements could not be used as evidence, much less proof of the truth of their contents. This was important to guard against misuse. In explaining that the statements could be used "as to" the witness' credibility, the trial judge used language that is consistent with the authorities and attracted no objection from defence counsel either before or after the charge was given.

The Governing Principles

[151] It is well established that, as a general rule, prior consistent statements of a witness are not admissible: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. This is so because these statements are self-serving, lack probative value and are superfluous in light of the witness' presence at trial: R. v. Evans, [1993] 2 S.C.R. 629, at p. 643 S.C.R.; R. v. S. (D.D.), 2006 NSCA 34, 207 C.C.C. (3d) 319, at para. 83; R. v. J. (M.A.), 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 45.

[152] The prohibition against the introduction of prior consistent statements of a witness is not absolute: Ellard, at para. 32. Prior consistent statements may provide important context in which a trier of fact may assess an attack on the witness' reliability based on alleged inconsistencies. And consistencies may counter, or at least mitigate, a claim that a witness was not credible or their evidence reliable because of many prior inconsistent statements: R. v. O. (L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34, 36; J. (M.A.), at para. 46.

[153] But cross-examination of a witness on alleged inconsistencies between the witness' trial evidence and prior statements does not render admissible the contents of all prior consistent statements of the witness. Where evidence of a prior consistent statement is offered as support of a witness' credibility, a trial judge must decide whether, in all the circumstances, evidence that the witness made a prior consistent statement could assist the trier of fact in making an accurate assessment of the witness' credibility by removing potentially erroneous impressions fostered by an incomplete picture of what the witness said or failed to say. Relevant factors in this determination include

(i) the general rule that prior consistent statements are of no assistance in assessing credibility;

(ii) the likelihood of prejudice to an accused or the orderly and timely conclusion of trial proceedings; and

(iii) the extent to which the prior statement should be admitted.

See R. v. Hunter, 182 C.C.C. (3d) 121, at para. 5.

[154] Where prior consistent statements have been admitted in a jury trial, a trial judge must apprise the jury of the limited use it may make of this evidence. This instruction should advise jurors that the prior statement is in no sense evidence or proof of the truth of what is said: R. v. Divitaris, 188 C.C.C. (3d) 390, at para. 31; R. v. Austin, 214 C.C.C. (3d) 38, at para. 33. On the other hand, these statements are relevant to an assessment of the credibility of the witness and the reliability of his or her evidence: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 11-12; O. (L.), at paras. 34-36; R. v. Perkins, 2015 ONCA 521, 123 W.C.B. (2d) 311, at para. 9.

[155] Inadequacies in final instructions on the evidentiary use of prior consistent statements are not necessarily fatal: O. (L.), at para. 38; J. (M.A.), at para. 47. After all, perfection is not the standard appellate courts are to apply in assessing the adequacy of jury instructions: Ellard, at paras. 41-42; O. (L.), at para. 38. Of some importance is the failure of trial counsel to object: Ellard, at para. 47; O. (L.), at para. 40.

The Principles Applied

[156] I would reject this ground of appeal in both respects advanced in argument.

[157] First, admissibility.

[158] An essential feature of the appellant's defence at trial involved a vigorous attack on C.L.'s credibility and on the reliability of her evidence. Part of the attack focused on inconsistencies between the testimony C.L. gave at trial and her first police interview or statement. The attack included contradictory statements and omissions.

[159] In response to these claims of inconsistency, the Crown was entitled to attempt to rehabilitate the witness by reference to consistencies between the two accounts. These consistencies provided context for the jury to better evaluate the impact of the inconsistencies on C.L.'s credibility and the reliability of her evidence. They countered or mitigated the defence claim that C.L. was testimonially unreliable in part because of the inconsistencies between her first statement and her trial testimony.

[160] It is also not without significance that trial counsel appears to have taken no objection to the re-examination. This affords some indication that he did not consider the re-examination unwarranted in light of his own cross-examination of C.L. or unduly prejudicial. The danger of jury misuse of the prior statement was further reduced by the fact that it was not filed as an exhibit (nor should it have been) available for review in the jury room.

[161] In connection with the charge to the jury, I am satisfied that nothing said or left unsaid by the trial judge constituted misdirection or non-direction amounting to misdirection.

[162] Of single importance to instructions on evidence of limited admissibility, such as prior consistent statements, is a direction about the prohibited use of that evidence. That instruction was given here in unexceptionable terms. The jury was plainly told that they could not use the prior statement as evidence of the truth of its contents. Nor did the instruction on the permitted use of the evidence exceed what was permissible. The jury was not told that prior consistent statements enhanced the credibility of C.L. (which would have been wrong), only that they were "admissible as to the witness' credibility to show that he or she has been previously consistent on a particular matter". Such an instruction does not exceed what this court and the Supreme Court of Canada in Stirling have said is appropriate.

[163] Trial counsel did not object to the content of this instruction. While not fatal, the failure to object affords some evidence that he did not consider the instruction inappropriate or prejudicial to his client's case.

Ground #5: The Instructions on the Standard of Proof

[164] The final ground of appeal challenges the adequacy of the trial judge's final instructions on the standard of proof. To determine whether this ground of appeal warrants reversal, it is helpful to begin with an excerpt of the instructions before turning to the arguments of counsel and the principles that govern our decision.

The Charge to the Jury

[165] The core of the appellant's complaint inhabits the following passage in the trial judge's charge:

Furthermore, reasonable doubt may arise because you are unable to determine the credibility or reliability of particular witnesses in relation to essential matters. Even if you are satisfied that the accused is probably or likely guilty, that is not sufficient. In that case, you must give the benefit of the doubt to the accused and acquit him of the particular charge because the Crown would have failed to satisfy you of the guilt of the accused on the higher standard of proof beyond a reasonable doubt.

Proof on a balance of probabilities is attained at 51 percent of possibility; whereas, proof to a certainty is attained at 100 percent of possibility. Proof beyond a reasonable doubt, the criminal standard, falls closer to certainty than it does to proof on a balance of probabilities, the civil standard.

However, it is important to keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty and so the burden of proof on the Crown is to prove guilt beyond a reasonable doubt, but not beyond any conjectural or speculative doubt whatsoever. Thus, the Crown is not -- that's a negative -- is not compelled to prove guilt to the impossible degree of proof to its certainty.

Furthermore, if you were to be asked by your fellow jurors as to why you have reasonable doubt, you must be able to articulate in a logical and common sense manner the objective basis of your particular reason or reasons for having reasonable doubt. After all, your doubt must be based on reason -- it must be reasonable -- not conjectural or speculative.

The Arguments on Appeal

[166] The appellant says that the trial judge's modifications of the instruction suggestion in R. v. Lifchus, [1997] 3 S.C.R. 320, and other model formulations, shifted and understated the standard required of the Crown to prove guilt. In locating the standard of proof between probability of guilt, on the one hand, and certainty of guilt, on the other, the trial judge diluted the standard of proof by describing it simply as "closer", rather than "much closer" to certainty. The trial judge failed to equate proof beyond a reasonable doubt or describe it as a standard of certainty when he said that the Crown was not required to prove guilt to a certainty.

[167] The appellant fastens onto two further aspects of the instruction on standard of proof as reflecting error. The trial judge failed to include a direction that to find the appellant guilty, the jurors must feel "sure" of his guilt. The second complaint impeaches the instruction that for a juror to have a reasonable doubt, the juror must be able to articulate in a logical and common sense manner the objective basis for that doubt. Such an instruction is wrong in law because it distorts and dilutes the burden of proof. Only a conviction requires the articulation of a reason for reaching the conclusion.

[168] The respondent finds no fault with the trial judge's final instructions on the standard of proof. While the respondent acknowledges that the trial judge departed from the Lifchus model, the charge, read as a whole, does not create any reasonable likelihood that the jury misapprehended the correct standard of proof required to establish guilt.

[169] The respondent says that, taken as a whole, the charge contained all the essential elements required by Lifchus and none on the list of instructions to be avoided. All that is required is that the instruction achieves substantial compliance with Lifchus, a threshold this instruction meets.

[170] The respondent rejects the claim that the omission of the modifier "much" in the phrase "closer to absolute certainty than to probable guilt" reflects error. Inclusion of this reference is not mandatory and the omission of "much" is of no moment when the instruction is considered as a whole as it must be. Likewise, the complaint about inclusion of a reference to feeling "sure" about guilt. The jury was well schooled in the degree of certainty required for conviction.

[171] The respondent disagrees that in describing a reasonable doubt as a doubt for which a juror could articulate in a logical and common sense manner the objective basis for the doubt, the judge distorted the burden of proof. Even if this court finds otherwise, the respondent contends that when the charge is considered as a whole and a functional approach to adequacy applied, the jury was adequately instructed.

The Governing Principles

[172] It is well settled that the gold standard for jury instructions on the standard of proof is that suggested by Cory J. in Lifchus, at para. 39. But it is not a catechism or magical incantation. While departures from it are a perilous endeavour, substantial compliance with its principles, albeit not its precise language, is sufficient: R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 12; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, at para. 22; R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, at para. 16.

[173] On review of an instruction on the standard of proof that is not Lifchus-compliant, a reviewing court must determine whether the charge, read as whole, gives rise to a reasonable likelihood (not a mere possibility) that the jury misapprehended the correct standard of proof: Avetysan, at para. 12; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 233.

[174] It is not fatal to a claim of Lifchus-compliance that an instruction

(i) fails to include a direction that jurors must be "sure" of an accused's guilt before they may make a finding of guilt;

(ii) omits a reference to the modifier "much" when stating that proof beyond a reasonable doubt falls closer to absolute certainty; or

(iii) includes an erroneous instruction that a reasonable doubt is a doubt for which a juror could articulate a reason in a logical and common sense manner.

See R. v. Palarajah, 2010 ONCA 625, 268 O.A.C. 50, at paras. 8-11, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 283, 294 O.A.C. 394 n; R. v. McLennan, 2016 ONCA 732, 343 C.C.C. (3d) 39, at paras. 76-77; R. v. Carrière, 159 C.C.C. (3d) 51, at paras. 27-29.

The Principles Applied

[175] For several reasons, I would not give effect to this ground of appeal.

[176] First, I am satisfied that the instructions, which are not free of error, substantially comply with the Lifchus mandate. They include nothing that is to be excluded from final instructions under Lifchus and everything that is to be included.

[177] Second, the inclusion of a reference to "sure" as expressing the degree of persuasive force required of the case for the Crown to prove guilt, if accompanied by an appropriate explanation of its meaning, is a helpful inclusion but not a mandatory component of an instruction on the standard of proof.

[178] Third, in this province, an instruction that locates proof beyond a reasonable doubt "much closer to absolute certainty than to probable guilt" is not mandatory. Its omission here, coupled with the balance of the instruction, did not diminish or dilute the level of certainty required to establish the appellant's guilt.

[179] Fourth, the ill-advised equation of a reasonable doubt with a doubt for which a juror could articulate a reason is not, on its own or in the context of the instruction as a whole, a fatal error.

[180] Finally, these instructions were accompanied by flawless directions on the presumption of innocence and the burden of proof, as well as a W. (D.) direction that focused the jury's attention on the critical issue at trial. None attracted an objection from trial counsel.

[181] In the end, I am satisfied that there was no reasonable likelihood that the jury misapprehended the correct standard of proof. The charge was adequate.

Conclusion

[182] For these reasons, I would allow the appeal, set aside the conviction and order a new trial on the ground that the trial judge's interventions and comments during the evidence of T.J-D. caused an appearance of unfairness that constituted a miscarriage of justice.

Appeal allowed.

End of Document