Court of Appeal for Ontario

Date: December 13, 2018

Docket: C57346

Panel: Strathy C.J.O., Nordheimer J.A., McKinnon J. (ad hoc)

Between

Her Majesty the Queen

Respondent

and

Kenneth Ivall

Appellant

Counsel:

Michael Lacy and Deepa Negandhi for the Appellant

David Finley and Jacob Sone for the Respondent

Heard: October 15, 2018

On appeal from the conviction entered on February 27, 2013 by Justice Terrence A. Platana of the Superior Court of Justice, sitting with a jury.

McKinnon J. (ad hoc):

Overview

[1] The appellant was charged with the second degree murder of Edward Wilson, along with his co-accused Angela Duchene. The trial took place over two months in the winter of 2013 in Kenora, Ontario.

[2] Three weeks into the trial, defence counsel for Duchene was appointed to the bench and another member of his firm took over her defence. He negotiated a plea of guilty for Duchene to the lesser-included offence of manslaughter. She was sentenced to 10 years and 8 months less pre-trial custody of 7 years and 8 months. She was then called as a witness by the Crown and implicated the appellant in the murder of Wilson. On February 27, 2013, the appellant was convicted of second degree murder and on June 28, 2013, the trial judge accepted a joint submission and sentenced the appellant to life imprisonment without eligibility for parole for 16 years.

[3] The appellant appeals his conviction. For the reasons stated below, I would dismiss the appeal.

Background Facts

[4] On March 21, 2009, the appellant and his then girlfriend, Duchene, were outside the bar located at the Tower Motor Hotel ("the Tower") in a town near Kenora, Ontario. It was just after last call, at 2:00 a.m., and both the appellant and Duchene had been drinking heavily. The deceased, Edward Wilson, was also outside the bar. Duchene pointed Wilson out to the appellant and identified him as "the stalker" who had sexually assaulted her on a previous occasion, which resulted in the appellant confronting Wilson and the pair engaging in a verbal altercation. Wilson punched the appellant in the face, causing him to bleed profusely. This in turn caused Duchene to make retaliatory remarks at which point Wilson slapped her hard in the face.

[5] A group of young men standing nearby observed the confrontation. They were thought to be from the Minaki area (the "Minaki boys"). The Minaki boys began to assault Wilson and dragged or chased him around the side of the hotel, repeatedly punching and kicking him in the head and torso for about 30 seconds to a few minutes. One of the men, Ian Hagar, delivered a vicious and potentially fatal "soccer style" kick to Wilson's head. Following this kick, there was no movement from Wilson which caused some of the Minaki boys, including Hagar, to fear that the kick may have been a fatal blow. The group fled, leaving Wilson apparently unconscious on the ground.

[6] According to two of the Minaki boys, Mike Fleury and Josh Rheault, when they left Wilson outside the Tower, they could hear a "snoring" or heavy breathing sound coming from Wilson. None of the Minaki boys observed any injuries to Wilson, however, Rheault noticed a slight, one-inch cut above Wilson's right eyebrow. No one called 911.

[7] The appellant and Duchene remained out front of the Tower during the assault on Wilson by the Minaki boys, but did not participate. No witness from outside the hotel saw the appellant around Wilson during the assault, nor was the appellant observed delivering any punches or kicks.

[8] A patron, who was staying at the Tower that evening, stated that at 2:32 a.m. she was woken by the sounds of yelling and screaming. She testified that she heard a female say: "Hold him down. Hold him down", and a man say: "I'm going to fucking kill him". The patron also heard "stomping" and what sounded like a "very violent assault". She did not look outside her window. The last thing she heard was someone say, "Let's get outta here" and then the commotion was over.

[9] Just before 3:00 a.m., a number of Ontario Provincial Police officers (Delorme, Duggan, Royal, Miles, and Davis) met at a Tim Hortons near the Tower for a coffee break. Ron Lalonde, a friend of both the appellant and Duchene, entered just behind the officers. Duchene then entered, followed a few minutes later by the appellant. Several of the officers suspected that the group was quite intoxicated, based on their demeanour. One officer described Duchene as "jumpy" and "possibly high". Two of the officers noticed that Duchene went to use the washroom.

[10] Officers Delorme, Duggan, Royal, and Davis testified that they observed a wet, shiny, red, blood-like substance on the top and/or side of the appellant's shoe. Some of the officers also observed a red stain on the appellant's baseball cap. At approximately 3:00 a.m., Lalonde, Duchene, and the appellant left the Tim Hortons.

[11] At 3:44 a.m., a train engineer entered the Tim Hortons and notified the officers that his train had passed over a body on the nearby tracks. The body had been severed below the neck, partially through the shoulder area. The head, upper arms, and forearms were found clear of the train tracks.

[12] Police searched the area near the tracks and noticed a large concentration of what appeared to be blood on the snow on the trail that led from the area of the Tower to a line of railway tracks. They also observed an area of grass estimated to be approximately 2.5 feet in diameter that appeared to be matted down with a large quantity of blood and a cigarette lying right in the middle. One officer described what appeared to him to be "long drag marks" in an area close to the matted down grass.

[13] Lalonde had met the appellant through Duchene, whom he had known for years. On the evening in question, Lalonde had been at the same bar as them, drinking throughout the evening. Lalonde left the bar at around 2:45 a.m. or 3:00 a.m. and planned to stop at the nearby Tim Hortons before walking home. He was permitted to be in the bar after the last call because he was a friend of the bartender. He did not see any fights at the bar that night. Lalonde testified that as he was walking towards Tim Hortons away from the Tower on A Street West, he bumped into the appellant and Duchene, who were walking in an easterly direction on A Street towards the Tower. Lalonde assumed they had just come from Tim Hortons and were on their way home. According to Lalonde, he noticed a red spot, smaller than the size of a "toonie", on the appellant's baseball cap. When he asked the appellant about it, the appellant was very calm and said something like, "shit happens" and that it "wasn't a big deal".

[14] Lalonde testified that he did not perceive anything out of the ordinary. The appellant and Duchene appeared "very normal" and did not seem nervous or upset. Lalonde claimed that the three chatted briefly, and he invited them over to his place to continue drinking and partying. He recalled Duchene being excited about the idea but the appellant just wanting to go home.

[15] According to Lalonde, the group parted ways and he went to Tim Hortons alone and then walked home. Lalonde had no memory, even after being shown videotape evidence, of being inside the Tim Hortons with the appellant and Duchene. Further, Lalonde had no recollection of leaving Tim Hortons, however, he did have a vague recollection of having a dispute over a bagel while there.

[16] According to the videotaped statement given by Duchene's to the police, portions of which were admitted for the truth of their contents, when the appellant saw Lalonde approaching along A Street West, he had her make sure that Lalonde did not take the pathway heading to the train tracks where he would have come across Wilson.

[17] At some point that night, Hagar asked Fleury to drive him back to the Tower so that he could check on the condition of Wilson. Fleury's truck was captured on the Tim Hortons video surveillance camera making a right hand turn off of Lakeview Drive, driving down the lane way between the Tim Hortons and the nearby building at 3:01 a.m., and exiting the Tim Hortons driveway at 3:04 a.m. According to Fleury and Hagar, while they were driving, they saw a man and a woman on the side of the road close to Tim Hortons. They drove back to the hotel where the Minaki boys were staying and did not return to where Wilson had been left.

[18] The following morning, the Minaki boys learned that someone had died. They panicked and discussed among themselves whether they should go to the police, and if so, what they should say. With the exception of Hagar, all of the Minaki boys involved in the assault provided statements to the police within days of March 21, 2009. They also turned over their clothing and shoes to the police. At trial, they all admitted to lying during their statements to the police by minimizing their involvement in the assault and omitting details about the nature of the attack. Furthermore, they all agreed to keep Hagar's name from the police, fearing that he could have possibly killed Wilson during the assault. As a result of the Minaki boys' attempt to keep Hagar's participation in the assault a secret, the police did not interview or even know about Hagar until ten months following the event, and as such, never forensically examined Hagar's shoes and clothing.

[19] The appellant was arrested for attempting to obstruct justice by being a party, along with Duchene, to cleaning his clothing and boots on the evening of March 21, 2009. He gave a voluntary videotaped statement to the police. The appellant denied being involved in the assault of Wilson and had no recollection of kicking anyone. Other than describing the interaction outside of the Tower (which was consistent with the evidence of other witnesses), the appellant did not provide any information about the events that followed. The appellant told the police that he was wearing Timberland shoes, black pants, a vest, and a turtleneck. Video surveillance showed the appellant wearing jeans, not black pants.

[20] The Crown played the videotaped statement as part of its case at trial, for the purpose of showing that the appellant lied about what he was wearing that night and to suggest that he was not forthcoming with information about what he did after the Minaki boys left the Tower, and what transpired on the trail by the train tracks.

[21] The Crown's theory at trial was that after the Minaki boys left the Tower, the appellant and Duchene walked alongside the Tower and came across Wilson. They dragged Wilson's body up a nearby trail leading to the train tracks, continued the assault, and then placed Wilson's body face down on the tracks. A train drove through the area shortly thereafter, decapitating and dismembering Wilson's body.

[22] Dr. Pollanen, a forensic pathologist, testified that the cause of death was blunt head and facial trauma. The major mechanism of death was aspiration of blood. Positional asphyxia may have played a role in Wilson's death given that he was found lying face down on the train tracks. Dr. Pollanen testified that there were two major classes of injury on Wilson's body: the injuries that occurred prior to the train hitting him; and those that occurred at the point of impact with the train.

[23] All of the injuries Dr. Pollanen observed were consistent with punching and kicking. He observed a bloody imprint on Wilson's bare back, consistent with the sole of a shoe or boot. While Dr. Pollanen was unable to say whether Wilson was alive or deceased when he was placed on the tracks, he was able to conclude that Wilson was deceased when the train passed over him. In Dr. Pollanen's opinion, the assault related injuries sustained by Wilson prior to the train running him over were unlikely to have been fatal had Wilson received timely medical treatment.

[24] At trial, Duchene described her relationship with the appellant as one of "friends with benefits", and that the pair were living together at the time of the homicide. According to Duchene, on the day of the assault she and the appellant had been drinking heavily and using drugs. Duchene admitted to being highly intoxicated that evening and, in her view, the appellant was equally as intoxicated as she was.

[25] According to Duchene, neither she nor the appellant participated in the Minaki boys' assault on Wilson. Instead, Duchene and the appellant went home and passed Wilson, who was not moving, along the way. Duchene testified that she slapped Wilson's face and kicked him in the face and torso two or three times. She did not hear any noises coming from Wilson and was unsure whether he was breathing. While she had a clear recollection of the events up to this point, Duchene testified that her memory of the remainder of the evening was "fragmented". At some point she grabbed one of Wilson's arms while the appellant grabbed the other. Together they dragged Wilson onto the trail leading to the train tracks.

[26] Police thoroughly searched the area around the Tower and found no evidence of Wilson's blood. The closest blood deposits attributed to Wilson were located 44 meters to the west of the Tower on A Street West. Dr. Pollanen testified that Wilson's injuries would have resulted in "considerable" external blood loss and that he would have expected to see blood loss at the location where the injuries were inflicted. There was evidence of considerable external blood loss along the trail leading up to the tracks, including an area of pooled blood that was attributed to Wilson.

[27] Duchene testified that she was close to the top of the trail, near the train tracks, when she saw the appellant stomping on Wilson's head repeatedly with his right boot. She said the appellant's kicks "sounded really wet". She stated that she tried to get the appellant to stop but was unsuccessful. She could hear sounds coming from Wilson as though he were "gasping for air". According to Duchene, the appellant was angry with Wilson and said: "This piece of shit's gonna get it." Duchene stated that she could feel Wilson's blood spatter onto her face and believed that some ended up on her pants and shirt. Upset by the situation, she began to walk away. The appellant followed "after a little bit" and arrived home a few minutes after her. According to Duchene, she believed that Wilson had been left on the trail leading to the train tracks.

[28] The appellant and Duchene returned to their nearby home, located on the other side of the train tracks. The pair were possibly observed by a neighbour shortly after 3:00 a.m. coming up from the railway track area. A housemate of the appellant and Duchene was awoken at approximately 3:30 a.m. by the two talking loudly.

[29] According to Duchene, once they were both home, she and the appellant began "bickering". She was angry with him because he had left his "really bloody" socks and shoes balled up behind the bathroom door. She testified that his right sock and his right shoe were "drenched" as though he had "stepped in a really deep puddle". Duchene further noted that the appellants right pant leg was "really dark red at the bottom." Afraid that the police were going to come looking for them, she threw his shoes, pants, and socks into the washing machine. She could not recall what she did with the clothing after that. Duchene claimed that she washed the appellant's clothes on her own and not because he asked her to. She did not, however, wash her own clothes. Duchene testified that at the time she felt scared, confused, and jittery; she took a valium and eventually fell asleep.

[30] The Crown played excerpts from Duchene's videotaped statement regarding the plan to distract Lalonde and avoid the possibility of him discovering Wilson's body by the train tracks. Duchene testified that viewing the videotaped excerpts did not assist in refreshing her memory, and that she had no independent recollection of the statement or of the appellant telling her to take Lalonde to Tim Hortons.

[31] During her testimony, Duchene claimed that she did not know how Wilson's body came to be on the train tracks. She testified that she did not see the appellant move Wilson and did not know whether Wilson was breathing when she last saw him. She stated that when she last saw him, Wilson did not move, that his eyes were closed, and that he was not making any noises.

[32] Duchene further testified that she had reviewed her entire statement to police and had no recollection of making it, nor did she remember having spoken to them. She claimed that reviewing portions of her statement would not assist in refreshing her memory with respect to how Wilson ended up on the tracks; whether the appellant told her to distract Lalonde so that he would not see Wilson's body; and whether Wilson was breathing when she last saw him. Accordingly, the Crown brought an application to have portions of Duchene's police statement, including the purported conversation between her and the appellant about distracting Lalonde, admitted into evidence for the truth of its contents. That application was successful.

[33] In addition to the testimony of Duchene, the Crown led evidence that Wilson's blood was found on the appellant's jacket and his blue sweater. Defence counsel conceded that the appellant was wearing those articles of clothing that night. Wilson's blood on these items arguably could not have come from the altercation outside the Tower as on all accounts, including the appellant's, the appellant did not inflict any injury on Wilson during the brief interaction and was not involved in the ensuing assault by the Minaki boys. Wilson could also not be excluded as one of the sources of the blood stain on a pair of jeans found at the appellant's apartment. In addition, a pair of Kodiak Pathfinder boots were found inside a duffle bag at the apartment that appeared to be freshly cleaned. Blood was detected on the right boot, although its quality was insufficient for comparison.

[34] Two footwear experts opined that the right boot seized from the appellant's apartment could not be excluded as the source of the impression on Wilson's body, an impression that Dr. Pollanen opined was created by blood. Further, a forensic video analyst testified that the boots could not be excluded as being the footwear the appellant was wearing in the Tim Hortons surveillance footage from the day of Wilson's death.

[35] Regarding the items worn by Duchene, Wilson could not be excluded as the source of the blood found on the outside cuff of her black hooded sweatshirt nor as the source of blood transfer and spatter stains found on her right boot.

[36] On the morning of March 23, 2009, Officer Wiebe was working as a guard with the Kenora Police Service. She saw the appellant and Duchene lodged in separate cells and overheard their conversation. According to Officer Wiebe, the appellant and Duchene were engaging in "lovey-dovey talk", telling one another how much they loved each other, how they could not wait to get married, and that if they got married they would not have to testify against each other. Officer Wiebe heard them discussing how drunk the appellant was and that he did not remember the evening's events. At one point, Officer Wiebe heard the appellant say to Duchene, perhaps in a questioning tone: "So we did hurt someone really bad". Officer Wiebe also heard the appellant tell Duchene: "That fucking guy will never slap you again."

[37] Regarding the guilty plea, Duchene testified that the Crown offered her a plea to manslaughter and a withdrawal of the charge of attempting to obstruct justice. Duchene explained that part of the deal was that she would have to provide a new statement, to be approved by the Crown, and that she would later be subpoenaed as a witness to testify against the appellant.

Issues

[38] The appellant appeals his conviction on the following grounds:

1. The trial judge erred in his treatment of the Minaki boys' evidence;

2. The trial judge erred by ruling that excerpts from the unsworn videotaped statement of the co-accused turned Vetrovec witness, Duchene, that were not adopted at trial could be used for the truth of their contents;

3. The trial judge erred by failing to adequately review and relate the evidence to the "rolled up" charge addressing intoxication and provocation and failed to impress upon the jury the admonition that the "sane and sober" inference is permissive and subject to a consideration of the evidence of intoxication;

4. The trial judge erred by failing to adequately relate exculpatory evidence provided by the appellant to the burden of proof and the presumption of innocence in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742;

5. The trial judge erred by permitting the Crown to adduce opinion evidence of a police officer regarding the veracity of the appellant; and

6. The cumulative effect of the trial judge's interjections over the course of the trial, in addition to the admission of highly prejudicial evidence, undermined the fairness of the appellant's trial.

Issue 1: Did the trial judge err in his treatment of the Minaki boys' evidence?

Appellant's Position

[39] The appellant submits that the trial judge erred in his treatment of the Minaki boys' evidence by: (1) failing to provide the jury with an adequate instruction cautioning them about how to approach the evidence of the Minaki boys, who admitted to lying to police and who had a motive to fabricate and minimize their involvement in assaulting Wilson; and (2) failing to leave the jury with the appellant's alternate theory that the Minaki boys were responsible for Wilson's death.

[40] The appellant submits that causation was one of the main issues at trial and that the assault by the Minaki boys caused significant injury to the deceased, which resulted in bleeding. The Crown's position at trial was that the assault by the Minaki boys did not cause serious injury to Wilson.

[41] All of the Minaki boys admitted to having lied to the police, panicking upon realizing that the person they assaulted the previous evening had died, and concealing Hagar's identity, thereby depriving the police of relevant evidence.

[42] During the pre-charge conference, given the concerns with the Minaki boys' evidence, both counsel suggested that a Vetrovec caution was required in respect of their evidence and that of Duchene: R. v. Vetrovec, [1982] 1 S.C.R. 811. The Crown argued that such a warning was necessary because the defence would inevitably take the position that the Minaki boys killed Wilson. The trial judge interjected and stated that based on the defence counsel's opening address to the jury, he understood the defence position to be that Duchene was solely responsible. Both Crown and defence counsel clarified that the defence position was that Wilson's death was a result of the combined actions of both the Minaki boys and Duchene. The trial judge stated that he would comment on the state of intoxication of the Minaki boys and that their evidence "can only be charitably said as confusing". The trial judge advised counsel that he would provide "a general" Vetrovec warning with respect to the Minaki boys' evidence and a "very specific" one with respect to Duchene's evidence.

[43] The trial judge also indicated that he did not propose to go into any great detail with respect to the Minaki boys' evidence and that the critical aspect that the jury needed to know about was Wilson's condition after he was assaulted by them. The trial judge added that he was taking this position based on the evidence about Wilson's condition at the time the Minaki boys left him on the roadway and because none of the forensic evidence indicated there was blood on any of the Minaki boys. However, this was not accurate since blood was in fact detected on Fleury's shoes. Further, this summary ignored the fact that Hagar's clothing and shoes were never examined. Although the trial judge presented the jury with the facts in this manner, he later re-instructed the jury on this point after being corrected by counsel.

[44] The trial judge briefly mentioned in a section of his charge dealing with prior inconsistent statements that the Minaki boys had lied to the police. He stated: "You have heard many of the … [Minaki boys] testify. Many or all of them admitted they had previously lied to police". However, the trial judge failed to reiterate during his review of the evidence that the Minaki boys had tried to cover up and minimize their involvement; that they had lied to police to keep Hagar's identity hidden; and that, because of their lies, neither Hagar's shoes nor his clothing were seized or forensically tested.

[45] Given the circumstances surrounding the nature of the Minaki boys' evidence, the absence of physical evidence from Hagar, and the theory of the defence, the appellant's position is that the jury ought to have been more strongly cautioned about the Minaki boys' evidence. Instead, the trial judge made the following statement about their evidence:

You heard evidence from a number of individuals who testified as to events that took place outside the Tower Motel that evening. I do not propose to review all of their evidence with you. Needless to say, there was much confusion and contradiction in the evidence given by [the Minaki boys].

[46] The trial judge then proceeded to summarize the evidence of each of the witnesses who were outside the Tower that evening.

[47] The appellant submits that it was clear from some of the trial judge's comments throughout the trial and during the pre-charge conference that it was his view that the evidence relating to what took place outside the Tower was less relevant and less significant than what Duchene testified happened by the train tracks. These comments suggest that the trial judge misapprehended or failed to appreciate the significance of the evidence relating to the assault on Wilson by the Minaki boys and the issue of causation. The appellant contends that by placing little, if any, significance on the events that preceded the events by the train tracks, the trial judge effectively dismissed the defence theory that the Minaki boys had caused or contributed to Wilson's potentially fatal injuries, and that Duchene was contributorily responsible for Wilson's death because she rolled him onto his back, causing him to aspirate on his own blood.

[48] The appellant submits that this error was exacerbated by the trial judge's failure to expressly refer to the defence theory that the Minaki boys contributed to Wilson's death. In his charge to the jury, the trial judge mentioned that the defence had two alternative theories, but went on to describe only one – that Duchene caused Wilson's death. The trial judge omitted the alternative position that the Minaki boys caused Wilson's death.

[49] The manner in which the trial judge approached the Minaki boys' evidence culminated in a brief summary of their evidence in the charge and a complete absence of the defence position relating to the potential effect that the Minaki boys' assault had on Wilson. The appellant contends that on a functional assessment of the trial judge's charge to the jury, this significant omission rendered the charge unbalanced and impacted the fairness of the trial.

Respondent's Position

[50] The respondent submits that the trial judge did not misrepresent the position of the defence. The trial judge set out the position that counsel sought to advance, namely, that it was Duchene who assaulted Wilson, but if the jury found that the appellant was involved then they should only convict him of manslaughter. There was no alternate theory pertaining to the Minaki boys. The possible role of the Minaki boys was only part of the theory that it was Duchene who killed Wilson. From his opening address, it was defence counsel's position that Duchene killed Wilson and that the appellant played no role in anything that happened to Wilson after the events at the Tower. In his closing address, defence counsel argued that Duchene could have even strangled Wilson. The defence suggested that the events at the train tracks evidenced a personal act of revenge, that Duchene had such a motive, and that it was possible that the Minaki boys had a role in moving Wilson up the pathway.

[51] In his closing address, defence counsel also submitted that it was Hagar's kick to Wilson that may have caused injuries that potentially played a part in him aspirating his own blood. The defence further argued that Duchene's act in turning Wilson on his back also played a role. The trial judge later confirmed with defence counsel that he was "not suggesting that the incident involving the Minaki boys was ultimately what caused the death of Mr. Wilson." Defence counsel replied: "except that perhaps it was an additional compounding factor". There was the following exchange:

The Court: Okay, so your theory is, what I'm to focus on is that it was [Duchene]

Mr. Watkins [defence counsel]: Yes. Through the flip or a combination …

The Court: …who effected the death of Mr. Wilson.

Mr. Watkins: Absolutely sir. …

[52] Both counsel then expressly agreed to provide the trial judge with a written summary of their respective positions by the following afternoon so that he could properly charge the jury on these theories.

[53] When the trial resumed the following week, the trial judge gave his charge to the jury, wrapping up the respective theories of the Crown and the defence. To summarize the trial judge's charge regarding the latter, defence counsel submitted two possible scenarios, namely, that it was Duchene alone who killed Wilson; or in the alternative, if the jury found that it was the appellant who had killed Wilson, that he lacked the specific intent for murder and should be found guilty only of manslaughter.

[54] This summary has been impugned for the reason advanced by the appellant. However, it is a reasonable inference that the trial judge communicated to the jury the defence position that defence counsel wanted him to give. Defence counsel did not object to the charge. The defence would be expected to raise an objection if the trial judge misstated the defence theory or position.

[55] The summary was consistent with defence counsel's opening and closing addresses. While the summary did not include the possible role of Hagar's kick, it did include the possible role of Fleury and Hagar by the train tracks. Defence counsel had suggested that Fleury and Hagar might have been involved in the killing of Wilson based on their evidence that they went looking for Wilson at around 3:00 a.m. The Tim Hortons surveillance video camera footage showed Fleury's white pickup truck pass Tim Hortons at 3:01 a.m. and then return at 3:04 a.m., a span of only three minutes. Having regard to the observations of the police officers, Wilson would no longer have been on the roadway at this time and it would have been impossible for Fleury and Hagar to have attended near the train tracks where a large amount of Wilson's blood was discovered.

[56] The respondent submits that no further warning about the Minaki boys' evidence was required. It was for the trial judge to decide what was required, and this court should not interfere with that exercise of discretion. The trial judge reminded the jury that the Minaki boys had lied, and that their recollection of the events may have been affected by alcohol and confusion in the circumstances of the assault. The trial judge also gave a balanced view of their evidence and that of related witnesses.

[57] Further, after Duchene's guilty plea the defence focused on Duchene's role in Wilson's death. Thus the possible role of the Minaki boys was of secondary significance. Notably, there was no forensic evidence to connect the Minaki boys to the scene by the train tracks.

[58] Finally, while the pre-charge colloquy between the trial judge and counsel respecting what warnings should be given preceded closing addresses, it is a fair reading of that exchange that the trial judge's charge was not set in stone. He was open to further discussion. To read the trial judge's comments, one might have thought that he was going to give two Vetrovec warnings, one specific to Duchene and a one generally regarding the Minaki boys. However, defence counsel did not object to the charge on the bases now advanced on appeal.

Disposition

[59] I would not give effect to this ground of appeal.

[60] In my view, the trial judge provided an adequate instruction in cautioning the jury about how to approach the Minaki boys' evidence. In the course of his charge, he reviewed the salient features of their evidence.

[61] With respect to the failure to give a specific Vetrovec warning to the jury concerning the Minaki boys' evidence, the trial judge told the jury that the Minaki boys all admitted to lying to the police and that there was "much confusion and contradiction in their evidence." These words would have clearly impressed upon the jury that they should approach the evidence of the Minaki boys with heightened caution.

[62] I do not accept the appellant's submission that the trial judge erred by failing to leave the jury with the appellant's alternative theory that the Minaki boys were causally responsible for Wilson's death. Defence counsel's primary theory was that Duchene's actions, combined with the earlier assault by the Minaki boys, caused Wilson's death. Defence counsel had an opportunity to submit his theory of the case in writing to the trial judge, and did not object to this aspect of the charge to the jury.

[63] The trial judge did not misrepresent the position of the defence. There was no alternative theory pertaining to the Minaki boys. The possible role of the Minaki boys was only part of the theory that it was Duchene who killed Wilson. This position is supported by the fact that in his closing address, defence counsel submitted that it was Hagar's kick to Wilson that may have caused the injuries that played a part in him aspirating his own blood. Defence counsel further argued that Duchene's act in turning Wilson onto his back also played a role. The trial judge later confirmed with defence counsel that he was "not suggesting that the incident involving the Minaki boys was ultimately what caused the death of Mr. Wilson." Defence counsel replied, "[e]xcept that perhaps it was an additional compounding factor." As stated earlier the exchange between the trial judge and defence counsel during the pre-trial conference confirmed the point "absolutely."

[64] As the respondent noted, defence counsel would be expected to raise an objection if the trial judge misstated the defence theory or position. It was the position of the defence that the assault by the Minaki boys caused significant injury to the deceased which resulted in bleeding. However, defence counsel's theory was that Wilson's death was ultimately caused by Duchene rolling him onto his back causing his airway to become obstructed by blood.

[65] While the trial judge erred in stating that none of the forensic evidence indicated that there was any blood on any of the Minaki boys' clothing, this error was fully corrected in the trial judge's re-instruction to the jury after counsel brought it to his attention.

[66] Finally, in describing the essential elements for second degree murder, the trial judge stated the following in relation to whether the appellant caused Mr. Wilson's death:

You may wish to consider the evidence of the incident outside the Tower involving the Minaki boys. In particular look at what evidence you find with respect to the injuries suffered by Mr. Wilson after the beating. Does the evidence indicate he was still alive then? [Emphasis added.]

[67] In my view, this instruction left no doubt in the mind of the jury that they had to determine whether the Minaki boys had caused Wilson's death.

Issue 2: Did the trial judge err by ruling that excerpts from the unsworn videotaped statement of the co-accused turned Vetrovec witness, Duchene, that were not adopted at trial could be used for the truth of their contents?

Appellant's Position

[68] The trial judge ruled that an unsworn videotaped statement provided by Duchene to the police proximate to the events in question was voluntary and could have been introduced by the Crown as against Duchene in the event that she remained an accused. The introduction of this statement would not have amounted to evidence against the appellant. When Duchene became a witness, the Crown successfully applied to cross-examine her on three aspects of the statement pursuant to s. 9(2) of the Canada Evidence Act.

1. An alleged interaction with Lalonde in order to distract him from taking the trail to the train tracks;

2. The sound made by Wilson when the appellant purportedly kicked him; and

3. How the appellant purportedly dragged Wilson's body to the train tracks.

[69] Under cross-examination, Duchene did not remember the events and testified that she did not remember giving the statement on account of her own intoxication at the time of the events. Over the objection of the defence, the Crown successfully applied to have the three items of Duchene's statement noted above, admitted pursuant to the principled exception to the hearsay rule. The trial judge granted the Crown's request and admitted the statement for the truth of its contents. The appellant submits that the trial judge erred in principle by so doing on the basis that the statement did not meet the test for threshold reliability.

[70] Duchene's prior statement was presumptively inadmissible hearsay. The dangers associated with introducing hearsay evidence and undermining the fairness of the trial were not overcome because there was no effective means by which to test the declarant's perception, memory, narration, or sincerity, particularly in light of the absence of a present memory of having even made the prior statements. The appellant submits that the trial judge's ruling failed to adequately assess threshold reliability, specifically that a witness who has no memory of giving a statement and no memory of what was said during the statement cannot be cross-examined.

[71] In his ruling, the trial judge erroneously held that the inability to cross-examine only went to ultimate weight, relying on a brief endorsement of the Supreme Court of Canada in R. v. Biscette, [1996] 3 S.C.R. 599.

[72] The inability to cross-examine is properly considered at the threshold reliability stage. The appellant maintains that Duchene's prior statement could not meet the bar of threshold reliability because she was heavily intoxicated during the events she described in her statement, she was intoxicated at the time of making the statement, and she admittedly lied during the statement. The statement was not made under oath and was not cautioned. Duchene could not say whether she was trying to tell the truth. At the time she provided her statement, Duchene had a motive to falsely implicate the appellant and to exculpate herself.

[73] The appellant further submits that the trial judge failed to highlight for the jury the concerns potentially undermining the reliability of the statement and failed to alert the jury to the inability to cross-examine on the statement, and how that should affect the weight to be given to the statement.

Respondent's Position

[74] The respondent submits that, even if the segments of Duchene's police statement were improperly admitted due to the trial judge's failure to conduct the proper threshold reliability assessment, the admission of this evidence did not result in a miscarriage of justice. The curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, applies because there is no reasonable possibility that the verdict would have been any different had the evidence been excluded. Further, the trial judge provided sufficient jury instructions on this evidence.

[75] This evidence was only one part of the body of evidence that the Crown relied on to prove the appellant's state of mind, namely, that he either intended to kill Wilson or intended to cause Wilson bodily harm that he knew was likely to cause death, and to eliminate reasonable doubt arising from intoxication, provocation, or some combination of both. The evidence available to the Crown included:

1. Duchene's testimony describing the appellant stomping on Wilson's head;

2. Duchene's testimony regarding the appellant's statements during the assault on Wilson;

3. Dr. Pollanen's testimony describing the serious injuries to Wilson's head;

4. The copious amount of blood along the trail leading to the tracks;

5. The testimony of the police officers who were at the Tim Hortons, describing the apparent blood stains on the appellant's shoes and hat;

6. Duchene's testimony regarding cleaning the appellant's clothing and shoes;

7. The forensic analysis of the appellant's clothing and shoes;

8. The photograph of the bloody impression of a shoe left on Wilson's body, which was not inconsistent with the appellant's shoes;

9. The details in the appellant's police statement that arguably evidenced good recall (relevant to establishing the degree to which he was intoxicated); and

10. The final act of leaving Wilson on the train tracks. It was a reasonable inference that the final act was in the nature of a deliberate coup de grâce. Both the Crown and the defence relied on this fact.

[76] The respondent submits that much of this evidence was corroborative of Duchene's account of the events.

[77] That said, the respondent submits that the excerpts were properly admitted under the principled exception to the rule against hearsay. The respondent contends that the trial judge did not err in relying on Biscette, where the court concluded that the inability to cross-examine on account of the witness' failure of memory alone, is not a reason to bar admission of hearsay evidence, but rather goes to its weight.

[78] Furthermore, Biscette was followed by this court in the decision of R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, in which Watt J.A., citing Biscette, stated at para. 58:

…. After all, it may be open to question whether the inability to effect a complete cross-examination due to a witness' asserted failure of memory is a reason to bar admission of the statement or is a factor for consideration on the issue of weight. [Citation omitted.]

[79] Further, the respondent submits that the trial judge's instructions were sufficient and cannot be disassociated from his Vetrovec warning concerning the evidence of Duchene, which immediately followed his instruction that the jury could rely on portions of her videotaped statement for its truth. The trial judge stated: "There is good reason to look at Angela Duchene's evidence with the greatest care and caution. You are entitled to rely upon Angela Duchene's evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so". The placement of this warning and its strong language ensured that the jury approached Duchene's evidence, including the hearsay excerpts, with the utmost care. Notably, defence counsel raised no objection to the charge on this point.

[80] The Crown at trial abandoned their reliance on two of the three excerpts of Duchene's videotaped statement ruled admissible by the trial judge, and proceeded to rely only on the portion relating to the appellant asking Duchene to distract Lalonde. The respondent submits that notwithstanding her memory loss, Duchene was effectively cross-examined and the cross-examination filled 130 pages of transcript. In addition, the videotape obtained from the Tim Hortons shows Duchene entering the Tim Hortons, and the presence of Lalonde and the appellant. Duchene was fully cross-examined with respect to what was on the Tim Hortons videotape.

[81] While Duchene could not remember portions of her statement in which she recounted her meeting with Lalonde and going into Tim Hortons, entering the washroom, and seeing blood on her hands and washing it away, the Tim Hortons videotape evidence tends to support the truth of her statement, notwithstanding her loss of memory. More to the point, the cross-examination was conducted by defence counsel, who played the videotape for Duchene and the jury frame by frame.

Disposition

[82] I would not give effect to this ground of appeal.

[83] Factual findings that underpin a trial judge's determination of admissibility are entitled to deference from appellate courts. Trial judges are well placed to assess the hearsay dangers in individual cases and the effectiveness of any safeguards to assist in overcoming those specific dangers. Absent an error in principle, a trial judge's determination of threshold reliability is entitled to deference on appeal: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81; Chretien, at para. 44.

[84] In the case at bar, the only issue to be determined by the trial judge was the reliability of the statement. Necessity was not an issue because Duchene had no memory of the making of her statement. She was, however, available for cross-examination.

[85] As was pointed out by Watt J.A. in Chretien, at para. 50, the reliability analysis refers to threshold, and not ultimate reliability:

Were it otherwise, we would fail to maintain the distinction between admissibility and weight or reliance, breaching the divide between the role assigned to the trier of law, on the one hand, and the trier of fact, on the other. Threshold reliability involves a determination of whether the evidence is worth receiving for assessment by the trier of fact. [Citations omitted.]

[86] In R. v. B (K.G.), [1993] 1 S.C.R. 740, at pp. 795-96, the Supreme Court of Canada set out three factors relevant to determining the threshold reliability of a hearsay statement: (i) the statement is made under oath or solemn affirmation after a warning about the consequences of an untruthful account; (ii) the statement is videotaped in its entirety; and (iii) the opposite party has a full opportunity to cross-examine the witness on the statement (see also: R. v. Zaba, 2016 ONCA 167, 336 C.C.C. (3d) 91, at para. 10; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 71; R. v. Kanagalingam, 2014 ONCA 727, 315 C.C.C. (3d) 199, at para. 32).

[87] Duchene's statement was videotaped, thus the jury could see and hear her. While the statement was not made under oath, she was available for cross-examination at trial.

[88] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49, the Supreme Court stated that the "[hearsay] evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it."

[89] In finding that the evidence was reliable in this case, the trial judge cited the case of R. v. Trieu (2005), 74 O.R. 3d 481 (C.A.). In Trieu, two perpetrators of a robbery made police statements inculpating the accused then later recanted. The statements were videotaped but not taken under oath. The trial judge admitted the statements and this court upheld the decision, holding that there were sufficient collateral indicia of reliability to admit the statements for the truth of their contents. Moldaver J.A. (as he then was) in Trieu stated at para. 78:

In sum, if cross-examination at trial remedies "the most important of the hearsay dangers" and videotaping brings the declarant before the triers of fact, thereby providing them with "access to the full range of non-verbal indicia of credibility" and "eliminating the danger of inaccurate recording which motivates the rule against hearsay evidence," then the role of the oath as a further reliability indicator must surely be a modest one. Stated simply, I believe that when the other two indicators are present, the oath has very little burden to shoulder in the threshold reliability assessment. [Emphasis added.]

[90] Rosenberg J.A. in his concurring judgment, at para. 33, remarked on the effectiveness of cross-examination in establishing reliability in the face of a witness' lack of memory:

As to the lack of contemporaneous cross-examination, Lamer C.J.C. held that the opportunity to cross-examine in front of the triers of fact at trial was an adequate substitute. Subsequent cases have made the point that this must be a real opportunity. Where the declarant/witness takes the position that he or she knows nothing of the events or the taking of the statement the opportunity to cross-examine is illusory and does not serve as an adequate substitute. But that was not the case here. Both declarants gave detailed accounts of the planning and execution of the home invasion and of the circumstances surrounding their prior statements. [Emphasis added.] [Citation omitted.]

[91] In this case, Duchene gave detailed testimony at trial concerning her involvement in the events leading to the death of Wilson. However, she lacked memory of the three items in question, which prompted the ruling admitting her previous statement for its truth regarding those items.

[92] Crown counsel at trial abandoned two of the three items ruled admissible by the trial judge, and proceeded to rely only on the evidence relating to the appellant allegedly asking Duchene to distract Lalonde.

[93] Duchene was not a recanting witness alleging that what she had said in her previous statement was untrue. She was a witness who simply had no memory of having made the statement and was unable to say whether it was true in relation to the specific items that she could not remember. Duchene was fully cross-examined with respect to the events of the fatal night and a review of the cross-examination reveals that she was fully responsive to each and every question posed by defence counsel. It would be erroneous to assert that the cross-examination was illusory. The fact that defence counsel was unable to effect a complete cross-examination relating to the items in question because of Duchene's loss of memory should not act as a bar to the admission of the prior statement for its substantive use in these circumstances. The jury was able to watch videotaped portions of her statement and assess for themselves the reliability of the evidence in the light of the strong Vetrovec warning given by the trial judge.

[94] In determining that Duchene's statement could be admitted for its truth, the trial judge relied on the law as set out in Khelawon in to assess the issue of threshold reliability.

[95] A separate issue arises on appeal as to whether the proffered statement would be admissible in view of the recent decision of the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, which elaborated on the requirements for threshold reliability, particularly with regard to what sort of confirmatory evidence may be used in its determination. Bradshaw, at para. 27, states that threshold reliability is established when hearsay is sufficiently reliable to overcome the dangers arising from the difficulty in testing it. These dangers can be overcome, and threshold reliability established, by showing that there are adequate substitutes for in-court, contemporaneous cross-examination to sufficiently test the truth and accuracy of the statement (procedural reliability), or that there are circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Procedural reliability and substantive reliability are not mutually exclusive and may work in tandem to establish threshold reliability (Bradshaw, at para. 32).

[96] In my opinion, the proffered hearsay would be admissible under the revised Bradshaw test. In addition to the indicia of procedural reliability, to which I have already referred, the hearsay statement regarding the distraction of Lalonde has substantive reliability.

[97] Similar to an issue in Bradshaw, it could be argued that Duchene had a motive to lie and shift the blame in order to reduce her own culpability in Wilson's murder. However, her statement is supported by corroborative evidence. Duchene's statement is primarily corroborated by the videotape evidence from the Tim Hortons surveillance cameras showing Lalonde entering Tim Hortons – first followed by Duchene, and a few minutes later by the appellant at about 3:00 a.m. The second source of corroboration is in the testimony of Lalonde himself, wherein he described his encounter with Duchene and the appellant as he walked toward the Tim Hortons. While Lalonde did not recall specifically going to Tim Hortons, he did recall a dispute at the restaurant over a bagel. Furthermore, Lalonde testified that he walked home using the street and not the pathway leading to the train tracks. Once at Tim Hortons, the street provided the shorter route home for Lalonde. These three items of independent evidence support Duchene's statement that the appellant asked her to distract Lalonde and bring him to Tim Hortons.

[98] Furthermore, in speaking with the police and disclosing that she had been asked to distract Lalonde from discovering Wilson's body, Duchene directly inculpated herself in the crime. There were no inducements offered at the time her statement was made.

[99] Concerning other reasonable hypotheses regarding this piece of evidence, it could be said there was a chance encounter between the appellant, Duchene, and Lalonde. In my view that theory is belied by the time the meeting occurred (approximately 3:00 a.m.), and the Tim Hortons surveillance video. This evidence lends support to the proposition that there was substantive reliability to the statement.

[100] In sum, both procedural and substantive reliability were present.

[101] Another striking feature of the trial judge's charge is that when he gave the Vetrovec warning to the jury, he told them, as is required, that they must look for some confirmation of Duchene's evidence from somebody or something other than Duchene in deciding whether Crown counsel has proven the case against the appellant beyond a reasonable doubt: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. The trial judge stated: "to be confirmatory, the testimony of another witness or witnesses or other evidence should help you restore your faith in relevant parts of Angela Duchene's evidence." It is normal for trial judges to point to evidence capable of being viewed as confirmatory when giving a Vetrovec warning. In this case, the trial judge pointed to no such evidence, thus advantaging the appellant.

[102] Even if I am wrong in my analysis of the admissibility of the statement in question, there is no reasonable possibility the verdict would have been different had the trial judge refused the Crown's motion to have the statement admitted for its truth and the curative proviso would be appropriate to apply in this case.

Issue 3: Did the trial judge err by failing to adequately review and relate the evidence to the "rolled up" charge addressing intoxication and provocation and failing to impress upon the jury the admonition that the "sane and sober" inference is permissive and subject to a consideration of the evidence of intoxication?

Appellant's Position

[103] The appellant submits that during the pre-charge conference both counsel requested that the trial judge provide a "rolled up" charge to address the issues of intoxication and provocation. The Crown suggested that even if provocation was not met, the trial judge ought to instruct the jury that they had to consider provocation cumulatively with intoxication. While the trial judge provided the standard instruction dealing with intoxication and provocation in a rolled up charge, he failed to adequately review and relate the relevant evidence to the issues in a meaningful manner. For instance, regarding the evidence of the appellant's intoxication, the trial judge noted that the appellant "may have been in an intoxicated condition at the time of the alleged killing" and suggested that the jury refer to the evidence of certain witnesses, including Duchene, and some of the police officers as well as the video surveillance from Tim Hortons.

[104] While an exhaustive iteration of the evidence was not required during this portion of the charge, it was incumbent upon the trial judge to relate the evidence in a meaningful way to the issues of intoxication and provocation, and to clearly explain how the two combined to potentially raise a reasonable doubt on the issue of intent.

[105] The appellant submits that the trial judge's instructions in this case failed to make that critical link and the trial judge ought to have clearly connected the common-sense inference and the effects of alcohol on the formation of intention. He ought to have told the jury that even though they might be of the view that on the facts the appellant was not sufficiently drunk to reduce murder to manslaughter, alcohol could nonetheless be a factor that, coupled with provocation, could negate the existence of the specific type of intent required for a finding of guilt for murder as charged.

Respondent's Position

[106] The respondent states that the trial judge's instructions on the mens rea for murder and his review of the relevant evidence, adequately related the evidence to the appellant's state of mind. The trial judge instructed the jury on the state of mind required for second degree murder and as part of those instructions, he told the jury that the Crown must prove the required intent beyond a reasonable doubt. He repeatedly directed the jury to consider all of the evidence in order to determine the state of mind of the appellant. The trial judge then instructed the jury to specifically consider the evidence of intoxication, and he reviewed in summary some of the evidence that the appellant had been intoxicated, which had been exhaustively reviewed earlier in his charge.

[107] The trial judge then directed the jury to consider evidence that the appellant was provoked or angry, which he instructed was also relevant to state of mind. The trial judge said:

You should consider this evidence, not just by itself on the particular issue to which it relates, but all together, and along with any other evidence that might suggest that Kenneth Ivall acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did, and without either state of mind necessary to make the unlawful killing of Edward Wilson murder.

[W]hen considered along with the other evidence I have described [i.e. intoxication], evidence of anger may raise a reasonable doubt whether, when he killed Edward Wilson, Kenneth Ivall had either state of mind required for murder.

[108] Regarding the "sane and sober" inference, the trial judge instructed the jury that they may, not must, draw the inference, and should only do so after considering all of the evidence, including that of intoxication.

[109] There was no objection to the charge on this issue. Defence counsel did not request a more detailed review of the evidence regarding the appellant's anger. It was the appellant's position that he had no involvement in Wilson's death. A detailed review of the anger evidence would have worked against that position since anger and revenge would have provided a motive for the appellant to harm Wilson.

Disposition

[110] In my view, this ground of appeal must fail, substantially for the reasons advanced by the respondent.

[111] In addition, I would note that the trial judge departed from the standard specimen jury instructions outlined in Watt's Manual of Criminal Jury Instructions, (Toronto: Carswell, 2005), dealing with how to assess the testimony of witnesses, by adding a special warning regarding the consumption of alcohol. The trial judge stated:

The ingestion of alcohol and the passage of time can exact a toll on the perception and memory of us all. The fact that individuals had consumed alcohol does not mean that their trial testimony must be discarded. It does mean that their testimony must be examined with some care in the context of all the trial evidence led.

[112] This portion of the charge highlights the fact that the trial judge was alive to the issue of intoxication and warned the jury to pay special attention to that issue relating to all witnesses on the night in question.

[113] With respect to provocation, had the trial judge gone further than he did when describing the elements of provocation and related the evidence to the law, it would have undermined the theory of the defence that it was Duchene who killed Wilson. It would have suggested that the appellant had the motive to kill Wilson. The appellant was not prejudiced by the rolled up charge.

[114] With respect to the "sane and sober" inference submission, the trial judge took pains to relate the concept to the state of intoxication of the appellant and committed no error in that portion of the charge.

Issue 4: Did the trial judge err by failing to adequately relate exculpatory evidence to the burden of proof and the presumption of innocence in accordance with R. v. W. (D.)?

Appellant's Position

[115] The appellant submits that the statement made by the appellant to the police was exculpatory, and as such, if it were believed or if it raised a reasonable doubt, the jury was required to acquit the appellant of murder: R. v. W.(D.). The trial judge should have instructed the jury accordingly or given a functionally equivalent instruction, but did not do so.

[116] In his instruction on the essential elements of second degree murder, specifically under the heading of whether the appellant caused Wilson's death, the trial judge listed the various pieces of evidence that the jury may wish to consider in answering the question. The trial judge said: "You should consider also the evidence of Mr. Ivall himself in his videotaped statement where he denied any involvement in the killing of Mr. Wilson." The appellant states that this is the only reference in the entire charge to the appellant's exculpatory statement and that the brief reference to the exculpatory statement did not sufficiently or fairly relate the reasonable doubt standard to the exculpatory nature of the statement, which undermined the central theme of the defence, namely that the appellant was not responsible for Wilson's death.

Respondent's Position

[117] The respondent submits that the trial judge's charge as a whole adequately explained the burden of proof to the jury. The omission of an explicit W.(D.) instruction in this case does not constitute an error.

[118] The focus of appellate review of jury charges is whether the trial judge adequately explained the law to the jury. Perfection is not the test. The proper approach is to undertake a "functional and contextual" review of the charge as a whole: R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. There is no required W.(D.) formula which must be followed in every case. Rather, what is required is that the jury understand the burden and standard of proof and their application: R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at para. 33; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13.

[119] Subsequent to Bucik and B.D., this court in R. v. King, 2013 ONCA 417, 309 O.A.C. 39, at paras. 13-19, considered the absence of an explicit W.(D.) formula instruction in the context of an accused person's exculpatory statement to the police and found no error. Similarly, this court found no error in R. v. E.H., 2014 ONCA 622, at paras. 9-12, where the accused gave testimony denying the alleged offence.

[120] The respondent submits that this appeal is similar to the cases of King and E.H. because the charge in this case achieved its function. It is replete with passages explaining that the Crown bore the burden of proving the appellant's guilt beyond a reasonable doubt, that the burden never shifted, and that the jury had to consider all the evidence in deciding whether the Crown met that burden. The jury was also told that if they were not sure of the appellant's guilt after considering all of the evidence, they were to find him not guilty. Nothing in the charge suggested that the jury was to choose between two versions of events.

[121] The respondent submits that the charge tied the appellant's statement, and the issue to which it had potential exculpatory value, to the standard of proof. In the charge respecting the essential element of causation of death, immediately after directing the jury that they should consider the appellant's denial of involvement in his police statement, the trial judge instructed the jury to acquit if they were not satisfied beyond a reasonable doubt that the appellant caused Wilson's death. The trial judge stated:

You should consider also the evidence of Mr. Ivall himself in his videotaped statement where he denies any involvement in the killing of Mr. Wilson.

If you are not satisfied beyond a reasonable doubt that Kenneth Ivall caused Edward Wilson's death, you must find Kenneth Ivall not guilty. Your deliberations would be over.

[122] The respondent submits that the error in Bucik that led to a new trial was based on the very specific factual circumstance in that case. In Bucik, in addition to the accused's exculpatory statement, there were also exculpatory aspects to the eyewitness identification evidence which combined, in a complicated way, to provide "potentially fertile ground in which to plant the seeds of reasonable doubt": Bucik, at para. 38. Here, the only exculpatory evidence was the appellant's denial. The exculpatory significance of the appellant's statement was obvious and required no further elaboration to connect it with the burden and standard of proof.

[123] Furthermore, the respondent submits that defence counsel did not request a W.(D.) instruction in the pre-charge conference, nor did he object to this aspect of the charge when the trial judge invited comment following it. This demonstrates that the defence was satisfied that the instructions left the issues fairly for the jury's consideration.

[124] The respondent further points out that defence counsel did not place great emphasis in his closing address on the appellant's denial of involvement in his statement as important exculpatory evidence, instead focusing primarily on the appellant's willingness to provide information. Indeed, counsel conceded that "maybe" the appellant saw more than he had told the police about.

Disposition

[125] I would not give effect to this ground of appeal.

[126] Throughout his charge, the trial judge accurately set out the burden of proof and the presumption of innocence. The trial judge repeated verbatim the standard wording from Watt's Criminal Jury Instructions, and in addition, at the conclusion of his charge, following the summation of the positions of the Crown and the defence, repeated the instructions about the presumption of innocence and the requirement of proof beyond reasonable doubt, at all times stating that "you must find Kenneth Ivall not guilty of an offence unless the Crown satisfies you beyond a reasonable doubt that he is guilty of it."

[127] Significantly, the jury was provided with copies of the trial judge's charge in writing. There can be simply no issue that the concepts of the presumption of innocence and proof beyond reasonable doubt were clearly communicated to the jury.

[128] The appellant submitted that there was only one reference in the entire charge to the appellant's exculpatory statement. However, at another portion of his charge, the trial judge stated:

What another person says may provide a context for understanding what Kenneth Ivall said; but only Kenneth Ivall's words, as understood in this context, are evidence of what Kenneth Ivall has done or intended to do.

[129] Defence counsel did not request a W.(D.) instruction at the pre-charge conference nor did he object to this aspect of the charge when the trial judge invited comment following the charge. In King, this court considered the absence of an explicit W.(D.) instruction in context of an accused's exculpatory statement to the police. The court found no error on the basis that the charge, read as a whole, properly explained the appropriate burden and standard of proof: at para. 19. The court noted at paras. 16-17:

However, in circumstances such as this, where W.(D.) is necessary, the question is not whether the exact words suggested by Cory J. can be found. The question is whether the jury was properly equipped by having the appropriate burden and standard of proof explained to them. In this case, I would answer that question in the affirmative.

The charge was replete with passages instructing the jury that the Crown bore the burden of proving the appellant's guilt beyond a reasonable doubt, that burden never changed and that the jury had to consider all of the evidence in deciding whether the crown had met this burden.

[130] The same is true in this case. This appeal is similar to the cases of King and E.H. The charge as a whole adequately explained the burden of proof to the jury and related the appellant's exculpatory evidence to the reasonable doubt standard. The omission of an explicit W.(D.) instruction does not constitute an error on these facts.

Issue 5: Did the trial judge err by permitting the Crown to adduce opinion evidence of a police officer regarding the veracity of the appellant?

Appellant's Position

[131] The appellant submits that the trial judge erroneously permitted Officer Cooke to express his opinion about whether everything the appellant was saying was true in light of the police theory as to his involvement in the murder. At trial, Officer Cooke, who took the appellant's statement, was cross-examined about the objective veracity of aspects of the statement, namely, whether things the appellant said were confirmed by physical evidence that was discovered by the investigation. In re-examination, and over the objection of defence counsel, the Crown adduced evidence that notwithstanding any such confirmation, the police were of the opinion that the appellant was not being forthcoming about where he went after Tim Hortons because of the police theory at that time that he went back to beat the victim and place him on the train tracks. Specifically, Officer Cooke testified:

Speaking with Mr. Ivall it was very clear to me that he was, he was very willing to speak about what happened outside the Tower Motel, what happened with gentlemen chasing another man around a corner, and being in Tim Hortons. When I questioned him in regards to walking to Tim Hortons he admitted that he had taken the back road. When I asked him if he had saw that gentleman that had hit him before he said he didn't remember. It was clear to me during that statement that Mr. Ivall didn't want to speak about, or was reluctant to speak about leaving the Tower and going to Tim Hortons, and even more more [ sic ] so leaving Tim Hortons and going home. [That did not accord with our investigation] because we had evidence that Mr. Ivall had contact with, with a gentleman that punched him after he left the Tower Motel. He wasn't willing to speak to me about that. He had said that he didn't remember that. [Emphasis added.]

[132] In overruling the objection, the trial judge commented: "surely [the Officer] can give testimony as to what he believed. He couldn't say what Ivall might have believed … but he can say what he believed based on the circumstances".

[133] The appellant submits that the cross-examination was proper and adduced admissible evidence, but that the re-examination was improper and adduced inadmissible evidence. The appellant submits that Officer Cooke's belief about whether the appellant was being truthful was irrelevant. This type of evidence, especially coming from the officer in charge of the investigation, is tainted by the hallmark flaws generally associated with evidence in the form of a witness' impression of the truthfulness of an accused. The trial judge ought to have intervened and halted this prejudicial commentary and immediately provided a strong and clear corrective instruction to the jury to ignore the officer's remarks, and to place no weight on his interpretation of the appellant's evidence.

[134] The appellant submits that the jury ought to have been instructed that they could not consider Officer Cooke's opinion when assessing the appellant's credibility. Instead, the jury was left with Officer Cooke's prejudicial opinion evidence, clothed with the additional credibility of an experienced police officer who would be seen by the jury as being knowledgeable and trained in conducting interviews with accused persons and assessing truthfulness and honesty. The jury was left with the impression that they could draw an adverse inference from the failure of the appellant to discuss certain things in his statement in contravention of his right to remain silent.

Respondent's Position

[135] The respondent submits that Officer Cooke's evidence concerned the appellant's cooperativeness, not his credibility. The appellant's cooperativeness was an issue raised by defence counsel as part of his trial strategy and no unfairness resulted in the re-examination of Officer Cooke. In his statement to the police, the appellant denied having any contact with, or seeing Wilson after Wilson punched him outside the Tower. The appellant said he and Duchene went to Tim Hortons with Lalonde and then walked home.

[136] In the cross-examination of Officer Cooke, defence counsel focused on the appellant's alleged cooperativeness during the interview. The inference sought was that the appellant's cooperation was indicative of his innocence, but the cross-examination went well beyond the "objective veracity" of aspects of the appellant's statement. Defence counsel repeatedly asked for the officer's opinion about the eagerness of the appellant to assist the investigation by providing pertinent information. In re-examination, Officer Cooke clarified this evidence, saying that while the appellant was willing to speak about certain events, it was clear he did not want to speak about other events. Contrary to the appellant's submissions, Officer Cooke did not express an opinion about whether the appellant was being truthful, nor did the testimony draw an objection from defence counsel at trial.

[137] The respondent submits that in assessing whether a limiting instruction was required, the appellate courts must examine the specific circumstances of the case. Tactical decisions of counsel are highly relevant to the analysis. Jury instructions must be tailored to the issues raised and the positions taken at trial.

[138] There was no suggestion that the jury could draw an adverse inference from the appellant's exercise of his right to stay silent (other than to rebut the defence claim that he was cooperative).

[139] In his charge, the trial judge did not include Officer Cooke in his listing of the expert witnesses who were permitted to give opinion evidence. The jury would have known that Officer Cooke was not entitled to give an expert opinion.

[140] Defence counsel did not object to the evidence elicited from the officer. He did not seek a limiting instruction at the pre-charge conference, nor did he raise an objection to the charge on this issue.

[141] The officer's opinion that the appellant was reluctant to discuss certain events would have been evident to any reasonable juror contrasting the appellant's statement with the rest of the evidence. Even defence counsel in his closing address suggested that "maybe" the appellant saw more than what he told police.

[142] The respondent submits that in these circumstances no limiting instruction was required.

Disposition

[143] I would not give effect to this ground of appeal.

[144] During the cross-examination of Officer Cooke, defence counsel undertook a strategy attempting to demonstrate that the appellant was cooperative with the police. In doing so, he opened the door to the questions put to Officer Cooke by the Crown in re-examination. The appellant cannot now take issue with evidence adduced from Officer Cooke in explaining the degree of the appellant's cooperativeness during the police interview.

[145] This did not amount to opinion evidence with respect to the credibility of the accused. The answers of Officer Cooke related directly to the issue of cooperativeness which was raised by defence counsel.

[146] In my view, no limiting instruction was required in these circumstances.

[147] Finally, there is nothing in the trial judge's charge which suggested that the jury could draw an adverse inference from the appellant's right to remain silent with respect to certain portions of his interview with Officer Cooke.

Issue 6: Did the cumulative effect of the trial judge's interjections over the course of the trial, in addition to the admission of highly prejudicial evidence, undermine the fairness of the appellant's trial?

Appellant's Position

[148] The appellant submits that the trial judge's interjections undermined the fairness of the appellant's trial by: improperly curtailing cross-examination on the basis that it was repetitive or duplicative without giving sufficient latitude to the defence; continually calling on the defence to establish the relevance of a line of questioning and suggesting that the cross-examination could not stray from the "central issues" in the case; and frequently reprimanding and admonishing defence counsel in front of the jury.

[149] The trial judge displayed impatience with counsel during many of these interruptions, the effect of which would be visited upon the accused. Moreover, although these interjections might appear to be innocuous standing alone, their cumulative effect undermined the fairness of the trial. As noted in R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 24, when viewed in the context of the proceedings as a whole, the trial judge crossed "the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy[ed] the appearance of fairness".

[150] In addition to repeated interjections, the trial judge erred by admitting highly prejudicial evidence, which further impaired the fairness of the trial.

[151] The appellant points to a number of examples of such evidence, including evidence relating to a book found in the possession of the accused during the search of his premises entitled "One Hundred Most Infamous Criminals". The Tower bartender testified that she noticed the appellant had a book with him about "serial killers". The Crown argued that the reference was relevant for narrative because the book had been found in the possession of the accused. The trial judge permitted the reference to the book as "part of the narrative" and because it had "some aspects of relevance" to it.

[152] During the trial, the appellant noted that one of the exhibit boxes in court had the words "Homicide Solved" written on it. Following discussions between defence counsel and the court, the trial judge addressed the issue in the presence of the jury and placed all of the items from the original exhibit boxes into new boxes.

[153] Another concern raised by the appellant relates to the trial judge's instruction to the jury on reasonable doubt following defence counsel's address, in which defence counsel stated:

The court will tell you about what a reasonable doubt is. I'm not going to spend a lot of time on it. But it is, I think, probably closer to certainty than to not. It is something that traditionally we are almost certain that the person is guilty of the offence. It does not equate necessarily to innocence.

[154] The appellant submits that the trial judge simply told the jury "it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so", and that "absolute certainty is a standard of proof that is impossibly high". The trial judge did not charge the jury on the basis of the wording contained in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, and did not inform the jury that if standards of proof were marked on a measure, proof beyond a reasonable doubt would be much closer to "absolute certainty" than to "probable" or "likely" guilt.

Respondent's Position

[155] In answer to these submissions, the respondent admits that, while another judge may have intervened less, the appellant's arguments regarding the trial judge's interventions, prejudicial evidence, and Crown comments in this case did not render the trial unfair, nor did they create an appearance of unfairness.

[156] The respondent relies on the direction in Snow, at para. 24, where this court stated that "a trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides". There is a strong presumption that a trial judge conducted himself fairly and impartially. The fundamental question is whether the interventions led to an unfair trial. Isolated expressions of annoyance by the trial judge as a result of frustration with counsel do not in themselves create unfairness. Interventions should not be judged in isolation, but in the broader context of the entire trial.

[157] The respondent submits that due to the length of the trial (estimated to last six to eight weeks, and ultimately concluding at the end of the eighth week), and additional considerations such as jurors staying in hotels and winter driving conditions in Kenora, the trial judge was properly concerned with ensuring that the evidence being called was relevant, understandable, and not excessively repetitive. The trial judge intervened and made comments to this end to all counsel, not only the appellant's counsel at trial. The trial judge's approach to managing the trial was balanced. The respondent submits that the trial judge's interventions in defence counsel's cross-examinations were well warranted on many occasions. Defence counsel frequently asked questions that were improper or highly repetitive.

[158] The appellant has not identified any intervention that made it impossible or difficult for him to advance his defence. The jury would not have held the trial judge's interventions against the parties. The high test for establishing an apprehension of bias is not met in this case. None of the appellant's complaints, alone or in combination, resulted in an unfair trial or an appearance of an unfair trial.

[159] As to the book evidence, it is submitted that while a limiting caution regarding the title of the book would have been preferable, the book had relevance to the issues as it tied the appellant to the room where his bloody clothing was found. Defence counsel did not request a caution at the pre-charge conference nor did he object to the charge on the basis of the absence of any caution.

[160] With respect to the trial judge's final instructions regarding the standard of reasonable doubt, the trial judge tracked the wording suggested by Cory J. in R. v. Lifchus, [1997] 3 S.C.R. 320.

[161] With respect to the exhibit boxes, the trial judge agreed to follow precisely the procedure requested by defence counsel. As a result, no prejudice could have arisen.

Disposition

[162] I would not give effect to this ground of appeal.

[163] I agree that while another judge may have intervened to a lesser degree, it must be borne in mind that the trial was estimated to last six to eight weeks during the winter in Kenora. Many of the jurors resided far from Kenora. On occasion during the trial, jurors had to stay in hotel rooms. The judge frequently discussed driving conditions with jurors and the safety concerns they posed. The trial judge was concerned that the case might exceed the eight week limit that counsel had estimated.

[164] In the absence of the jury, the trial judge warned counsel that if they continued to be unduly repetitive, he would interrupt them in front of the jury – which he did. A review of his interjections convinces me that he was even-handed with all counsel. While he interjected with defence counsel more than with Crown counsel, a review of the transcript reveals that defence counsel was frequently being highly repetitive in his questions. The jury could not have surmised that his impatience was directed toward the appellant's counsel alone.

[165] More importantly, there is no basis for suggesting that defence counsel was barred from raising relevant matters in cross-examination. The record demonstrates that the concern of the trial judge related to needless repetition, and ensuring that questioning related to the live issues in the trial.

[166] A trial judge has a duty to manage a trial and is responsible for ensuring that it is conducted in an orderly manner according to the rules of procedure governing the conduct of criminal trials: R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230, leave to appeal refused, [1986] S.C.C.A. No. 298; R. v. Assoun, 2006 NSCA 47, 207 C.C.C. (3d) 372, at para. 265, leave to appeal refused, [2006] S.C.C.A. No. 233.

[167] The legitimate scope of cross-examination is not without its limits. A trial judge has the right and the duty to prevent a trial from being unnecessarily protracted by questions directed to irrelevant matters: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 60. A trial judge is entitled to curtail questions by defence counsel that are irrelevant, prolix, and repetitive: Snow, at para. 25. The right to cross-examine a witness is not absolute or limitless: R. v. Cameron (2006), 208 C.C.C. (3d) 481 (Ont. C.A.), at para. 21.

[168] An accused person is entitled to a fair trial, not an endless one. Trial judges are entitled to restrict a line of cross-examination that would not further the resolution of the issues in the case and might only serve to distract or to confuse the jury thereby needlessly prolonging the trial. In this case, the trial judge frequently intervened but the interventions did not undermine the fairness of the trial.

[169] With respect to the submission that the trial judge should have used the wording regarding the reasonable doubt standard set out in Starr, no prejudice was occasioned to the appellant by the use of the wording employed in Lifchus. The jury was clearly informed of the appropriate standard on numerous by the trial judge in the following words:

It is not enough for you to belief that Kenneth Ivall is probably or likely guilty. In those circumstances, you must find him not guilty because Crown counsel would have failed to satisfy you of his guilt to that threshold of beyond a reasonable doubt. Proof of probably or likely guilt is not proof of guilt beyond a reasonable doubt. You should remember, however, that it is nearly impossible to prove anything with absolute certainly and Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.

[170] At no time during his charge to the jury did the trial judge suggest that defence counsel's description of reasonable doubt tracking the wording in Starr was in error. Defence counsel did not object to the trial judge's charge on this point, nor did defence counsel request any correction. In my view, the jury would have a full appreciation of the appropriate standard of proof in these circumstances.

[171] Regarding the trial judge's admission of the book, I agree with the respondent that a limiting caution regarding the title of the book would have been preferable, but note that defence counsel did not request any caution at the pre-charge conference nor did he object to the charge on the basis of the absence of any caution. The failure to caution the jury on this point was, in the context of all the evidence, of little moment.

[172] Concerning the exhibit boxes, the trial judge immediately acquiesced to defence counsel's request that the boxes be replaced by unmarked boxes. There is no evidence to suggest that the jury saw what was written on the boxes and it was clear from the trial judge's charge that they could only deal with the evidence before them. The accused was entitled to the presumption of innocence and could only be convicted if the Crown proved the case beyond a reasonable doubt. As stated earlier, the trial judge repeated these instructions on numerous occasions during the course of his charge, and again at the conclusion of the charge.

[173] As I noted earlier, the focus of appellate review of jury charges is whether the trial judge adequately explained the law to the jury. Perfection is not the test. The proper approach is to undertake a functional and contextual review of the charge read as a whole: Jacquard, at paras. 32-33.

[174] In sum, a contextual analysis of the conduct of the proceedings convinces me that the appellant received a fair trial.

Conclusion

[175] It is for these reasons that I would dismiss the appeal.

"Colin McKinnon J. (ad hoc)"

"I agree G.R. Strathy C.J.O."

"I agree I.V.B. Nordheimer J.A."

Released: December 13, 2018

"GRS"