Her Majesty the Queen v. Ibrahim

[Indexed as: R. v. Ibrahim]

Ontario Reports

Court of Appeal for Ontario

Rouleau, Trotter and Zarnett JJ.A.

July 26, 2019

147 O.R. (3d) 272 | 2019 ONCA 631

Case Summary

Criminal law — Trial — Charge to jury — Reasonable doubt — Accused claiming that he struck deceased with his taxi due to momentary lapse of attention — Trial judge leaving liability for manslaughter based on unlawful act of dangerous driving with jury — Trial judge failing to explain how accused's evidence could give rise to reasonable doubt in relation to the mens rea required for dangerous driving — Evidence of accused person's state of mind may be capable of raising reasonable doubt on whether the mental element of dangerous driving has been established regardless of whether or not that evidence is accepted as true.

Criminal law — Trial — Mistrial — Trial judge dismissing defence application for mistrial based on reasonable apprehension of bias — Trial judge being critical of manner in which defence counsel brought application and making unfounded allegations of professional misconduct by defence counsel in his reasons for dismissing application without first raising those concerns with defence counsel and giving him opportunity to respond — Trial judge conducting mistrial application in injudicious manner — Trial judge's conduct having no impact on overall fairness of trial.

Criminal law — Trial — Trial judge — Reasonable apprehension of bias — Trial judge's comments and interventions during defence counsel's examination of witnesses and submissions being unwarranted but not giving rise to reasonable apprehension of bias.

Facts

The accused was charged with second degree murder. He struck the deceased with his taxi and drove over him. The Crown alleged that he intentionally hit the deceased while in the throes of road rage. The accused claimed that he did not see the deceased and collided with him as a result of a momentary lapse of attention. During the trial, defence counsel applied for a mistrial, alleging that the trial judge's comments, deportment and interventions while defence counsel was examining witnesses and making submissions gave rise to a reasonable apprehension of bias. The trial judge dismissed that application. The trial judge left liability for manslaughter based on the unlawful acts of assault and dangerous driving with the jury. The accused was convicted of manslaughter. He appealed.

Held

The appeal should be allowed.

The trial judge failed to instruct the jury in accordance with the principles set out in R. v. W. (D.) in relation to liability for manslaughter based on the unlawful act of dangerous driving. He was right to conclude that, due to the modified objective nature of liability for dangerous driving, the classic W. (D.) instruction could not be given. However, the accused's evidence still had exculpatory potential in assessing whether the Crown had established the elements of dangerous driving. Whether accepted as true or not, evidence of an accused person's state of mind may be capable of raising a reasonable doubt on whether the mens rea for dangerous driving was proven. The trial judge's instructions had the effect of improperly neutralizing any exculpatory value of the accused's testimony as it related to dangerous driving.

The manner in which the trial judge handled the mistrial application was injudicious. He was highly critical of defence counsel for bringing the application without proper notice and without formally serving the materials on the Crown ahead of time or filing them with the court in advance of oral argument. He accused defence counsel of professional misconduct. He was displeased with the affidavits filed in support of the application. However, the Crown at trial took no objection to the timing of the application, the service of the materials, or the admissibility of the affidavits. More importantly, the trial judge raised none of those concerns with counsel at the time. Defence counsel was not afforded the opportunity to respond to the serious concerns raised by the trial judge, including the allegations of professional misconduct. However, given that that portion of the proceedings occurred entirely in the absence of the jury, the trial judge's conduct did not have any impact on the overall fairness of the trial.

While some of the trial judge's comments and interventions during defence counsel's examination of witnesses and submissions were unwarranted, they did not, either individually or in combination, give rise to a reasonable apprehension of bias.

Authorities

Considered:

Other cases referred to:

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, ss. 34, 150.1(4), 222(5)(a), (b), 229(a), (i), (ii), 232, 249(1)(a), 265(1)(a), (b), 320.13(1)
Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130

APPEAL

Appeal by the accused from the conviction entered by R.A. Clark J. of the Superior Court of Justice, sitting with a jury, on October 30, 2015.

Christopher Murphy, for appellant.

Joan Barrett, for respondent.

BY THE COURT:

A. Introduction

[1] Ralph Bissonnette was riding his longboard on a street in downtown Toronto. The appellant was driving a taxi in the same direction. The appellant changed lanes, collided with Mr. Bissonnette and ran over him, killing him instantly.

[2] The appellant was charged with second degree murder. The Crown alleged that, in the throes of road rage, the appellant intentionally hit Mr. Bissonnette with his taxi. The appellant's position was that he was unaware of Mr. Bissonnette's presence, and collided with Mr. Bissonnette as a result of a momentary lapse of attention as he was changing lanes.

[3] The jury found the appellant guilty of manslaughter. The trial judge sentenced him to four years' imprisonment.

[4] The appellant argues that the trial judge erred in his instructions to the jury on how to apply the principles in R. v. W. (D.) to liability for manslaughter based on the unlawful act of dangerous driving. He also submits that the trial judge's conduct during the trial created a reasonable apprehension of bias.

[5] For the reasons that follow, we would allow the appeal based on the trial judge's instructions to the jury. While we would not give similar effect to the reasonable apprehension of bias argument, we feel obligated to comment on the manner in which the trial was conducted.

B. The Trial Judge's Instructions to the Jury

(1) Introduction

[6] The appellant was charged with second degree murder: Criminal Code, R.S.C. 1985, c. C-46, s. 229(a). The Crown did not allege that the appellant intended to cause Mr. Bissonnette's death (s. 229(a)(i)); instead, it argued that the appellant intended to cause bodily harm to Mr. Bissonnette that he knew was likely to cause death, and was reckless as to whether death ensued (s. 229(a)(ii)).

[7] Early on in the trial, during a discussion about included offences, the Crown submitted that the appellant could be found guilty of manslaughter as a result of criminal negligence pursuant to s. 222(5)(b), or based on an "unlawful act" pursuant to s. 222(5)(a) -- with the unlawful act being assault (s. 265(1)(a), (b)), dangerous driving (s. 249(1)(a)), or even careless driving under s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H.8. The issue was discussed from time-to-time during the trial. Ultimately, the trial judge left liability for manslaughter based on the unlawful acts of assault and dangerous driving with the jury. Further, he instructed the jury on the partial defence of provocation, providing another route to manslaughter: Criminal Code, s. 232.

[8] The appellant testified and gave an explanation of how the collision occurred. He described conduct that was suggestive of momentary inattention or carelessness, rather than a marked departure, which is the fault standard for dangerous driving. The trial judge gave the standard W. (D.) instruction in relation to second degree murder, and assault as a basis for unlawful act manslaughter. He took a different path with dangerous driving. The trial judge's instructions will be considered in detail below, but the following brief passage from the instruction illustrates the appellant's complaint that the trial judge failed to instruct the jury in accordance with the principles set out in W. (D.) in relation to liability for manslaughter based on the unlawful act of dangerous driving. The trial judge instructed the jury as follows:

If you accept as true Mr. Ibrahim's explanation, or you are left with a reasonable doubt that it might be true, that does not necessarily mean that he is not guilty of dangerous driving. It may or it may not, depending on the facts you find concerning the overall nature of his driving.

The trial judge then instructed the jury "to consider whether a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in driving in the manner that you find Mr. Ibrahim drove".

[9] As explained in greater detail below, we conclude that the trial judge's instructions were deficient. The trial judge correctly instructed the jury on the elements of dangerous driving as set out by the Supreme Court in R. v. Beatty and R. v. Roy. Moreover, he was right to conclude that, due to the modified objective nature of liability for dangerous driving, the classic W. (D.) instruction could not be given. However, the appellant's evidence still had exculpatory potential in assessing whether the Crown had established the elements of dangerous driving. The trial judge's instructions improperly neutralized this potential by failing to explain how the appellant's evidence could raise a reasonable doubt.

(2) Factual Background

(a) Evidence Adduced by the Crown

[10] It was not disputed that Mr. Bissonnette was killed when the appellant changed lanes and Mr. Bissonnette was struck by the appellant's taxi. It happened around 6:00 p.m. on a spring day that was clear, dry and sunny. Many people were walking on the sidewalk on both sides of the road.

[11] The Crown relied on a video recording from a security camera mounted on a nearby building. The video shows Mr. Bissonnette on his longboard, travelling in the curb lane, by the front right passenger side bumper of the appellant's taxi. Mr. Bissonnette's left hand makes contact with the taxi, close to the side mirror. Mr. Bissonnette is then shown leaning over the passenger side hood as the taxi appears to veer abruptly to the right. Fortunately, what happened next was not captured on camera. The taxi mounted the curb and ran over Mr. Bissonnette, crushing his head. The taxi came to a halt on the road, close and parallel to the curb, a short distance from the point of impact.

[12] The Crown called 14 civilian witnesses who were either walking or driving in the area. Some of them heard yelling moments before the collision. Three witnesses saw Mr. Bissonnette's hands aggressively hit the taxi. Some heard a loud cracking noise, which was likely the sound of Mr. Bissonnette's longboard breaking apart. Others did not directly see or hear the collision.

[13] There were conflicting accounts of Mr. Bissonnette's movements before the collision. It was unclear whether he was on the road for his entire journey, or whether he used the sidewalk at times. However, it would appear that he tracked a good part of the route that the appellant took after dropping off his last fare, which involved at least two turns.

(b) The Appellant's Account

[14] The appellant was arrested at the scene and was charged with dangerous driving. Later that night he was charged with second degree murder. The police alleged that the appellant and Mr. Bissonnette had a verbal dispute and that the appellant intentionally ran him down.

[15] In a statement to the police, the appellant said he was driving on King Street, looking for a fare. He did not see Mr. Bissonnette before hitting him. There was no verbal dispute. He said: "I thought first I struck some skateboard. I ran into the skateboard. That's what I heard"; "I didn't change lane. I didn't change lane at all"; and "I'm not turning anywhere sir." He gave a different version at trial.

[16] The appellant, who was 46 years old at the time of the trial, testified that he had driven a taxi for approximately 19 years and had travelled over 800,000 kilometres in the ten years prior to the incident. He did not often encounter people on longboards or skateboards; he estimated seeing a skateboarder "once a month or once in six months".

[17] The appellant testified that he dropped off a fare to the east of where the collision occurred, approximately six minutes away. He then travelled west along Mill Street, north on Parliament Street, and then west along King Street East. The appellant reported no unusual incidents and said he was unaware of Mr. Bissonnette on his longboard.

[18] Shortly before the collision, the appellant stopped at a red light, in the curb lane. He proceeded through the intersection and continued in the same lane. Ahead of him, a white car slowed to make a right-hand turn, causing the appellant to change lanes. As he returned to the curb lane, he struck Mr. Bissonnette -- approximately 204 feet from where the white car made its turn. It would have taken approximately five seconds to cover this distance, assuming speeds of 35 to 50 km/h. The appellant said he was looking straight ahead the entire time, even though he was looking for a fare and was changing lanes. He acknowledged that he did not give 100 per cent of his attention to his surroundings. He did not check his blind spot because he did not think that anything was in the curb lane after the white car had turned. The appellant said he did not see Mr. Bissonnette. He denied that there was a verbal dispute.

[19] The appellant testified that his front wheel caught the longboard, causing a loud noise. His steering wheel became locked and he was unable to steer. He said that he froze and was unable to lift his foot off the gas pedal. He did not realize that he had hit anyone until he got out of his taxi to see what happened.

(3) The Positions of Counsel at Trial

[20] In pre-charge discussions, defence counsel agreed that the jury should be instructed on the unlawful act of assault, but not dangerous driving. He argued that the evidence disclosed nothing more than momentary inattention on the appellant's part. The Crown insisted that the jury be instructed on dangerous driving as a basis for unlawful act manslaughter.

[21] Ultimately, the jury was left with multiple routes to a conviction for manslaughter. Dangerous driving was only part of the picture. In his reasons on sentence, the trial judge found that the appellant intentionally hit Mr. Bissonnette with his car with knowledge that he would cause "some significant degree of bodily harm". However, that determination is irrelevant to our consideration of this issue on appeal.

(4) Analysis

(a) The Elements of Dangerous Driving

[22] As noted, the appellant submits that in light of his account of the incident, the trial judge erred by failing to provide a W. (D.) instruction in relation to liability for manslaughter based on the unlawful act of dangerous driving. Before turning to an examination of the trial judge's instructions, it is necessary to consider the offence of dangerous driving, and the principles set out in W. (D.). We will begin by briefly reviewing the elements of dangerous driving, including the modified objective fault standard, and the role, if any, of the subjective perceptions of an accused person. Next, we will review the W. (D.) framework and how this framework applies in relation to offences with an objective fault requirement, such as dangerous driving.

[23] The Supreme Court has addressed liability for dangerous driving on numerous occasions: see Beatty; Roy; R. v. Hundal. The actus reus of the offence is driving in a manner that is dangerous to the public, "having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place": s. 249(1)(a); Beatty, at para. 43. The focus of the inquiry is the manner of operation of the vehicle, not the consequences of the driving: Beatty, at para. 46; Roy, at paras. 33, 35. The mens rea for the offence is a marked departure from the standard expected of a reasonable person in the circumstances: Beatty, at para. 48; Roy, at paras. 36, 38. This fault requirement was summarized by Cromwell J. in Roy, at para. 36:

It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[24] The trial judge correctly explained these elements to the jury. The trial judge properly instructed the jury on what constitutes a marked departure: Beatty, at para. 37; Roy, paras. 39-42. He warned against leaping from the tragic consequences of the driving to a conclusion about dangerousness: Beatty, at para. 46; Roy, at para. 35. The trial judge emphasized that even good drivers may experience a momentary lapse of attention, and that such momentary inattention does not reach the level of a marked departure: Beatty, at para. 71, per McLachlin C.J.C. and para. 34, per Charron J.; Roy, at para. 37.

[25] As mentioned above, the appellant's position is that his evidence reveals conduct occurring over mere seconds, amounting to nothing more than non-criminal carelessness. He relies on R. v. Willock, in which Doherty J.A. held, at para. 31, that while "[t]here can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure . . . conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum". See, also, Beatty, at para. 48.

[26] Consequently, the fact of the conduct having occurred in a three to five second interval is not determinative of guilt. What matters is what occurred within that interval, framed by the overall nature of the accused person's driving and the standard expected of a reasonable driver in the circumstances.

(b) The Relevance of an Accused Person's Explanation

[27] Although dangerous driving engages a modified objective standard of fault, the Supreme Court has emphasized the potential significance of any explanation offered by the accused person. Beatty is the leading authority on this point. In Beatty, Charron J. considered the modified objective test as set out in Hundal, and observed that one of the difficulties in the application of the Hundal test was how to deal with evidence of the accused's state of mind: Beatty, at para. 42. Charron J. noted that there was uncertainty in the case law as to whether evidence of the accused's state of mind is relevant in determining if the conduct constitutes a marked departure, or whether it should be considered in a distinct analysis on potential exculpatory defences.

[28] Charron J. explained, at para. 43, that while the test requires an objective assessment, the accused's actual state of mind may be relevant in making the assessment of whether the conduct amounted to a marked departure:

. . . it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused's manner of driving, evidence about the accused's actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea.

Accordingly, Charron J. summarized, at para. 43, the mens rea component of the offence, and explained how evidence of the accused's state of mind and explanations offered by the accused should be considered by the trier of fact:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[29] Charron J. went on to elaborate on how to apply this aspect of the test for dangerous driving, at para. 47, under the heading "Determining the Mens Rea". She emphasized that while subjective mens rea is not an element of the offence, evidence of the accused's actual state of mind forms part of the totality of the evidence that the trier of fact must consider. She said the following, at para. 47:

In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver.

[30] While the example provided by Charron J. in the latter portion of the passage quoted above suggests intentionally driving in a dangerous manner may amount to a marked departure, she also explained that, in different circumstances, evidence of the accused's state of mind may raise a reasonable doubt as to whether the conduct was the result of a marked departure. In the following passage, which is critical to the analysis in this case, Charron J. links the testimony of the accused to reasonable doubt, at para. 49:

If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused.

[31] Cromwell J. followed this approach in Roy, at paras. 39-41. Cromwell J. explained that determining whether the marked departure fault element is established will generally require the trier of fact to draw inferences from all the circumstances: at para. 39. This in turn requires the trier of fact to examine all of the evidence, including evidence about the accused's actual state of mind.

[32] Although evidence of an accused person's state of mind is relevant to fault for dangerous driving, it operates differently within the modified objective framework than it would in the case of an offence based on subjective mens rea. Factual assertions in an accused person's evidence -- about things observed, actions performed, the sequence of events, etc. -- may be helpful to a jury in determining whether the Crown has proved the fault requirements for dangerous driving. Such testimony may well raise a reasonable doubt.

[33] However, given that these subjective perceptions must be considered within an objective framework, their acceptance does not necessarily lead to a verdict of not guilty. That is, it may be possible for the trier of fact to accept the accused's evidence about what occurred but find that the marked departure standard has been proved. Still, as Beatty makes clear, the testimony of an accused person about his or her perceptions may be capable of raising a reasonable doubt about whether a reasonable person in the circumstances would have been aware of the risk created by the conduct. Indeed, the wording in Beatty, at para. 49, directs that where such evidence is adduced, the trier of fact must consider whether this evidence raises a reasonable doubt. This is consistent with the underlying justification for the modified objective test as explained by Charron J. in Beatty, at para. 8:

Objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct . . . However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal.

[34] Therefore, in light of the direction in Beatty, the testimony of an accused person may be relevant to the actus reus of dangerous driving, as well as the two interrelated mens rea elements: (i) whether the conduct in question constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances; and (ii) whether a reasonable person in similar circumstances would have been aware of the risk of the danger involved in the conduct manifested by the accused.

(c) The Application of the Principles in W. (D.)

[35] The appellant argues that the trial judge fell into error by failing to provide a classic W. (D.) instruction in relation to dangerous driving. The appellant makes two submissions in support of his argument. First, he submits that the trial judge erred by instructing the jury that they could find the appellant guilty of manslaughter even if they accepted his evidence of how the incident occurred. He submits that in doing so, the trial judge "essentially told the jury that for the purposes of the unlawful act of dangerous driving it does not matter whether they believe what the appellant told them". Second, he submits that if believed, the appellant's testimony would constitute a "complete defence" to manslaughter based on the underlying unlawful act of dangerous driving, therefore a classic W. (D.) instruction was necessary.

[36] In considering these complaints, it is helpful to return to the suggested language in W. (D.). Writing for the majority, Cory J., at p. 758 S.C.R., wrote that a trial judge "might well instruct the jury on the question of credibility" along the following lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Judges have tinkered with the language of this formulation over the years. Some judges prefer a four-part approach over the three-part approach set out by Cory J. However, the core remains the same -- the instruction is meant to explain how reasonable doubt applies to credibility. More specifically, the instruction is intended to convey to the jury that they must consider whether based on the whole of the evidence, including the testimony of the accused, they are left with a reasonable doubt.

[37] The classic W. (D.) formulation will not always be appropriate; it depends on the context: R. v. Dinardo, at para. 23; R. v. S. (J.H.), at para. 13. For example, it may be inappropriate to give the instruction when the accused person's testimony, even if believed, does not negate criminal liability: R. v. McClenaghan, at para. 31. In other situations, the instruction must be modified. For example, in R. v. Thiara, it was held that the trial judge did not err in modifying her W. (D.) instructions in light of the fact that the appellant's evidence was partially inculpatory and partially exculpatory.

[38] Objective fault components present challenges for the classic W. (D.) framework. The issue has been addressed infrequently by appellate courts. However, as the following review of the case law suggests, if there is a trend to be discerned from the cases, it is to dispense with such an instruction altogether when dealing with objective fault requirements. The question on this appeal is whether that approach sits comfortably with Charron J.'s discussion in Beatty about evidence of the accused person's state of mind, and an accused person's explanation in response to a charge of dangerous driving. As discussed below, the better course in cases involving a charge of dangerous driving is to provide a modified W. (D.) instruction.

[39] Turning to the cases considering W. (D.) instructions and objective fault requirements, R. v. Dunchie involved an appeal from a conviction for sexual interference and other offences. The appellant argued that the trial judge erred by failing to provide a W. (D.) instruction. The court disagreed, holding, at para. 15, that the "classic W. (D.) instruction would not have been accurate in this case", given the objective element in s. 150.1(4) of the Criminal Code (mistake of age) that requires an accused person to take "all reasonable steps" to ascertain the complainant's age. The court reasoned that even if the jury accepted the appellant's testimony, he was not necessarily entitled to an acquittal on the charges of sexual assault and sexual interference. Moreover, the court was satisfied that the trial judge's general instructions on reasonable doubt and the burden of proof were otherwise sufficient.

[40] In R. v. Sadiqi, the appellant appealed two convictions for first degree murder. At trial, the appellant acknowledged that he intentionally killed both victims, but relied on the partial defence of provocation. On appeal, he argued that the trial judge erred in failing to provide a W. (D.) instruction in the context of provocation. This court rejected this argument, holding, at para. 21: "Given the objective component of the provocation defence, the jury could have accepted the appellant's evidence and still have been satisfied beyond a reasonable doubt that provocation was unavailable. The traditional W.D. formulation did not work in respect of provocation." The court in Sadiqi was ultimately satisfied that the reasonable doubt instruction as a whole properly equipped the jury to approach the elements of the offence and the provocation defence: at para. 22. See, also, R. v. Reid (a self-defence case); and, generally, R. v. Ryon, at paras. 31, 51.

[41] In R. v. Reynolds, the appellant ran over a man in a mall parking lot, causing him bodily harm. The appellant testified that he had been driving carefully and did not realize he drove over someone and dragged that person under his car. The trial judge did not reject this evidence, but nonetheless found the appellant guilty of dangerous driving causing bodily harm.

[42] This court allowed the appeal because the trial judge's analysis of the mens rea for dangerous driving was inadequate. However, the court briefly commented on the further complaint that the trial judge failed to apply W. (D.), at para. 9:

The trial judge stated at the beginning of his reasons that "[he did not] find this a matter which involves any consideration of W. (D.) ." We will not dwell on this issue, except to say that, in our view, it is unwise for a trial judge, in most cases where the accused testifies or where there is evidence favouring the defence, not to conduct a W.(D.) analysis. That said, there is authority for the view -- at least where it is an objective element of the defence that is in play -- that the W.(D.) formulation does not always work; in some circumstances, it may be possible to find an accused guilty even where the trier of fact accepts his or her evidence: see R. v. Dunchie, at para. 15, and R. v. Sadiqi, at para. 21.

The court explained, at para. 10, that the trial judge could have accepted the appellant's testimony, but still considered whether the appellant's failure to foresee the risk constituted a marked departure in the circumstances.

[43] We also refer to R. v. Griffith, a case dealing with criminal negligence causing death and other offences. The appellant testified at trial that he drove in the manner that he did because he was attempting to extricate himself from a potentially violent confrontation. On appeal, he argued that the trial judge failed to engage in a W. (D.) analysis. In rejecting this ground of appeal, Fitch J.A. held that because the trial judge was required to apply a modified objective test, "[a]cceptance of the appellant's testimony . . . would not necessarily lead to an acquittal": at para. 51. See, also, R. v. Hecimovic, at para. 35, affd 2015 SCC 54.

[44] In their oral arguments, both parties relied upon the decision of the Court of Appeal for Saskatchewan in R. v. Nahnybida, a decision rendered after the appellant's trial. In that case, the accused drove his car into a ditch, killing his passenger. At trial, he was acquitted of impaired driving causing death, but convicted of dangerous driving causing death.

[45] The Court of Appeal for Saskatchewan upheld the conviction. The main issue, both at trial and on appeal, was whether the appellant fell asleep and, if so whether it merely amounted to momentary inattention. Writing for the court, Schwann J.A. reviewed the trial judge's instructions on momentary inattention. The trial judge provided a W. (D.) instruction that started in the following way [at para. 49]: "If you believe Mitch Nahnybida that he did not operate a motor vehicle in a manner dangerous to the public, considering all the circumstances, you must find him not guilty of this offence." The trial judge also provided instructions relating to the other branches of W. (D.). Schwann J.A. held, at para. 50: "Based on the charge, I am satisfied the jury not only had the appropriate legal framework before them but were reminded of Mr. Nahnybida's testimony and his evidence that related to his momentary lapse defence."

[46] In our view, the jury in Nahnybida was more than "reminded" of the accused person's evidence; they were told that acceptance of this evidence mandated a finding of not guilty. However, in fairness, the import of this aspect of the W. (D.) jury instruction was not squarely in issue in that case. Consequently, it is of limited assistance in resolving the issue on this appeal.

[47] Similarly, none the cases discussed above consider the W. (D.) issue in any detail. However, it would appear that the disinclination to provide a W. (D.) instruction is rooted in the first branch of the classic formulation -- "if you believe the evidence of the accused, obviously you must acquit". With a modified objective standard of fault, exculpatory testimony from the accused does not lead inexorably to an acquittal. However, such evidence is a factor to consider. The difficultly associated with the first branch of the W. (D.) test in this context was explained in Hecimovic (a dangerous driving case), at para. 34:

In setting out the first leg of the three-part W. (D.) instruction, the judge stated "[i]f I believe the accused, I must acquit". I agree with the Crown that the instruction required modification in the circumstances of this case because it was possible that the respondent could potentially have been found guilty despite the acceptance of her testimony. Even if she was believed, the degree of care exercised by her could have been found to be a marked departure from the standard of care a reasonable person would have observed in the respondent's circumstances.

[48] But this is not the end of the inquiry. The accused person's perceptions of the situation may be capable of contributing to reasonable doubt on whether the modified objective standard is met. This is reflected in the words of Charron J. in Beatty, at para. 49 (reproduced above), when she said, "the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct".

[49] In these circumstances, the first prong of the classic W. (D.) formulation is inapplicable. However, whether accepted as true or not, evidence of an accused person's state of mind may be capable of raising a reasonable doubt on whether any of the elements of dangerous driving have been established by the Crown. This is precisely the point that a W. (D.) instruction is meant to bring home to the jury -- that the verdict must be based on the whole of the evidence, and the jury must consider whether the evidence as a whole raises a reasonable doubt.

(d) The Trial Judge's Instructions to the Jury

[50] Overall, the application of W. (D.) was challenging in this case. The trial judge was required to address some offences with purely subjective fault requirements (i.e., murder and assault), as well as the objectively driven offence of dangerous driving. In Dunchie, at para. 16, which involved a similar situation, this court said that the trial judge must make a "judgment call" on whether to provide a W. (D.) instruction for subjective offences after deciding not to do so with respect to an offence with an objective component. The court recognized the potential for confusion in these circumstances. That confusion was realized in this case.

[51] The trial judge instructed the jury without error on the substantive components of dangerous driving. He also provided an accurate and detailed account of the appellant's evidence. The appellant's position that he suffered from a momentary lapse of attention was put squarely before the jury.

[52] In his instructions to the jury on the elements of the offences, the trial judge first dealt with the offence of assault (as a basis for unlawful act manslaughter). No W. (D.) instruction was provided at this juncture. The trial judge then turned to the elements of dangerous driving. After explaining the fault requirements for this offence, he reviewed the evidence, including that of the appellant. The trial judge gave the following instruction (part of which is reproduced in para. 8, above):

It is no defence, necessarily, to a charge of dangerous driving that the driver of a motor vehicle did not see what he hit before he hit it. Although I have earlier said that momentary inattention or mere carelessness does not amount to dangerous driving, one is obliged when driving a motor vehicle to keep a proper lookout for hazards. If you accept as true Mr. Ibrahim's explanation, or you are left with a reasonable doubt that it might be true, that does not necessarily mean that he is not guilty of dangerous driving. It may or it may not, depending on the facts you find concerning the overall nature of his driving.

Once again, as I have already said, mere momentary inattention on Mr. Ibrahim's part, without more, will not suffice as a basis upon which to conclude that Mr. Ibrahim is guilty of dangerous driving. You must go on to consider whether a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in driving in the manner that you find Mr. Ibrahim drove.

[53] The trial judge then provided the following instruction (an almost verbatim account of what Cromwell J. wrote in Roy):

You must ask yourselves two questions.

First, considering all the evidence, would a reasonable person have foreseen the risk and taken steps to avoid it?

If so, the second question is did Mr. Ibrahim's failure to foresee the risk and/or his failure to take steps to avoid it, if such steps were possible, amount to a marked departure from the standard of care expected of a reasonable person in Mr. Ibrahim's circumstances?

[54] The trial judge next instructed the jury on the intent for murder in s. 229(a)(ii) of the Criminal Code. No W. (D.) instruction was given at this point. The trial judge then instructed the jury on the partial defence of provocation enumerated in s. 232 of the Criminal Code.

[55] Finally, towards the end of his charge, the trial judge returned to the appellant's evidence and provided the following instruction on the first branch of W. (D.). This passage contains language (underlined below) that the appellant submits is incorrect. The trial judge said:

First, if you believe Mr. Ibrahim's testimony that he did not have any altercation with Mr. Bissonette before his car struck him and the first he knew of any problem was after he struck him when he felt his car going over something, that would mean that he did not commit murder and you must find him not guilty of murder. It would also mean that he did not commit manslaughter by virtue of having committed the unlawful act of assault contrary to s. 265(1)(a) or (b).

As I've already explained, whether he may have committed manslaughter by virtue of having committed the unlawful act of dangerous driving will remain for you to consider.

[56] The trial judge instructed the jury that if they could not decide whether to believe the appellant or not, they "must" find him not guilty of murder or manslaughter by means of having committed the unlawful act of assault. The trial judge again singled out dangerous driving for special consideration in the following passage:

Once again, just as was the case if you believe his account, even if you cannot decide whether to believe Mr. Ibrahim or not, insofar as he acknowledges having hit Mr. Bissonette it will remain for you to determine whether he may have committed manslaughter by virtue of having committed the unlawful act of dangerous driving.

[57] For the sake of completeness, we include the remaining components of the trial judge's W. (D.) instructions:

A third point. Even if you do not believe Mr. Ibrahim's evidence, if it leaves you with a reasonable doubt as to his guilt or a reasonable doubt on any element of the offence you are then considering, you must find him not guilty of that offence.

Fourth, even if you do not believe Mr. Ibrahim's account and you are not left with a reasonable doubt that what he says might be true, nonetheless, you may only convict Mr. Ibrahim of the offence that you're then considering if the rest of the evidence that you do accept proves his guilt of that offence beyond a reasonable doubt.

[58] The trial judge concluded this aspect of his instructions by warning the jury not to simply choose between competing versions of events, because doing so "would not be giving proper consideration and effect to either the presumption of innocence or the principle that an accused must be proven guilty beyond a reasonable doubt".

[59] Taken together, the trial judge's instructions on the application of W. (D.) were confusing. His instructions had the effect of improperly neutralizing any exculpatory value of the appellant's testimony as it related to dangerous driving.

[60] The trial judge was correct to conclude that the first prong of a traditional W. (D.) instruction was inapplicable in the circumstances. Acceptance of the appellant's evidence did not mandate an acquittal. However, the trial judge put it too strongly when he instructed the jury, "If you accept Mr. Ibrahim's explanation, or you are left with a reasonable doubt that it might be true, that does not necessarily mean that he is not guilty of dangerous driving." Although this sentence may be technically correct, it was expressed in a manner that tended to undermine any exculpatory potential of the appellant's evidence. We do not accept the appellant's submission the trial judge essentially told the jury that it did not matter whether or not they believed the appellant's evidence. However, the trial judge's instruction tends to gesture in that direction.

[61] The jury should have been instructed in no uncertain terms that the appellant's evidence -- whether accepted as true or not -- was relevant to whether the Crown had proved each of the elements of dangerous driving beyond a reasonable doubt. We acknowledge that the trial judge's third and fourth points set out above could be taken as an attempt to revive the appellant's testimony as being capable of amounting to reasonable doubt. But this can only be achieved by construing the qualifying words (underlined in the quoted passage, at para. 57, above) "on any element of the offence you are then considering" and "of the offence you're then considering" as including the offence of dangerous driving. However, dangerous driving had already been immunized from this treatment in earlier portions of the charge. Considered as a whole, the final instructions on how to deal with the appellant's evidence in relation to dangerous driving would have been confusing.

[62] As there must be a new trial, the question arises as to how the jury should be instructed if the appellant testifies again. We derive great assistance from Reid, in which this court considered the application of W. (D.) to self-defence in s. 34 of the Criminal Code. Writing for the court, Moldaver J.A. (as he then was) provided the following guidance, at para. 72:

. . . I would suggest that in future cases, when the defence of self-defence is raised and the trial judge believes that a W. (D.) instruction is warranted, the jury should be instructed along these lines with respect to the first two principles:

If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

[63] This approach may be adapted to the context of dangerous driving. One suggested approach would include the following two elements:

(1) If you accept the accused's evidence and, on the basis of it, you have a reasonable doubt about whether the Crown has satisfied any one of the offence elements required to prove dangerous driving, as I have explained those elements to you, you will find the accused not guilty.

(2) Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you have a reasonable doubt whether the Crown has satisfied any one of the elements required to prove dangerous driving, as I have explained those elements to you, you will find the accused not guilty.

[64] It would helpful at this juncture to remind the jury of the elements of dangerous driving, stressing the modified objective nature of liability for this offence, as discussed in the passage from Beatty (at para. 43), reproduced at para. 28, above.

[65] We leave it to the trial judge conducting the new trial to adapt his or her instructions to the live issues that may arise during trial, the positions of the parties and the manner in which the substantive elements of dangerous driving are explained to the jury. Nevertheless, should the appellant testify again, the instructions should make it clear that his testimony, whether accepted as true or not, may be capable of raising a reasonable doubt on whether the elements of dangerous driving have been proved beyond a reasonable doubt.

[66] Accordingly, we would allow the appeal and direct a new trial on the charge of manslaughter.

C. Reasonable Apprehension of Bias

(1) Introduction

[67] The appellant argues that, throughout the trial, the trial judge demonstrated a reasonable apprehension of bias against him. Near the end of the Crown's case, defence counsel brought an application for a mistrial. After hearing some oral submissions, the trial judge adjourned the application to another day. Following further submissions, the trial judge dismissed the application orally with written reasons to follow. On the day that the appellant was sentenced, the trial judge released his reasons for refusing to declare a mistrial.

[68] Although we would not allow the appeal on this basis, we are concerned about the manner in which the trial was conducted, and how the trial judge handled the mistrial application.

(2) Background

(a) The Mistrial Application and Its Summary Dismissal

[69] On the 14th day of trial (October 6, 2015), defence counsel (not Mr. Murphy) made an application for a mistrial based on the following complaints, which he asserted gave rise to a reasonable apprehension of bias: (1) the trial judge complained three times about the defence not having a disclosure obligation; (2) the trial judge required defence counsel to vet his cross-examination of witnesses ahead of time with the Crown and the court; (3) the trial judge accused defence counsel of "trial by ambush" and expressed disappointment in the conduct of defence counsel; (4) the trial judge interfered with the cross-examination of a Crown witness; (5) the trial judge continually shook his head with disapproval in front of the jury while defence counsel questioned witnesses; (6) the trial judge suggested, in the presence of the jury, that defence counsel was wasting time by cross-examining witnesses on videotaped statements, rather than from prepared transcripts; (7) the trial judge interfered with the examination of witnesses on a voir dire; (8) the trial judge accused defence counsel of attempting to engender the sympathy of the jury through inadmissible evidence; (9) the trial judge yelled at defence counsel on numerous occasions; (10) the trial judge glared at defence counsel, both in front of and in the absence of the jury; and (11) the trial judge constantly interrupted defence counsel during submissions.

[70] When the motion was first brought, after briefly listening to oral submissions, the trial judge said he would give counsel an opportunity to make full submissions at a later juncture. However, of the complaints raised by defence counsel, the trial judge said at the time: "I disagree with virtually all of them, I think." He went on to explain how he runs a "tight ship" and insists on adherence to the rules of evidence. He expressed concern that, "counsel of late in my experience seem to have . . . the impression or the understanding that the rules of evidence just don't matter, and they matter in this court. When I'm presiding, they matter."

[71] The trial judge denied making facial expressions or physical gestures, but he said: "If I have, I am a human being." The trial judge said it did not matter in any event because, in his experience, jurors generally do not look at him; they look at the witnesses and the counsel asking questions. Further, he disagreed that he yelled at anybody, or demonstrated any particular bias. All of these observations and denials occurred before full submissions were heard.

[72] The mistrial application was re-addressed two days later, on October 8, 2015. By this time, defence counsel had filed an application record that contained two affidavits -- one from Richard Diniz (co-counsel at trial) and one from Amanda Goncalves (an employee at defence counsel's law firm, who had been in attendance on one day of the trial).

[73] In his affidavit, Mr. Diniz enlarged upon the complaints made by defence counsel a few days earlier, when the mistrial application was first brought. He further swore that the trial judge had undermined the appellant's relationship with his counsel, undermined his confidence in the fairness of the trial and "influenced and interfered with the [appellant's] decision whether or not to testify".

[74] In her affidavit, Ms. Goncalves described the conduct of the trial judge during the cross-examination of a Crown witness, Benjamin Elroy Yau. Ms. Goncalves said that the trial judge appeared to be "visibly upset". She further described the trial judge "shaking his head aggressively" and "star[ing] at defence counsel in what looked like an angry manner as defence counsel was asking questions".

[75] The trial judge heard further submissions from defence counsel. However, a review of the transcript shows that the trial judge spoke frequently at this stage, sometimes going on for pages at a time. The trial judge criticized defence counsel for his apparent lack of understanding or misunderstanding of the rules of evidence. Moreover, he said, "I categorically do not accept that I have yelled at you", claiming that, his "normal voice is a very loud and deep voice". Unfortunately, he accused defence counsel of "an ethical breach in terms of needlessly hectoring or abusing a witness when it's not relevant". Further, he accused defence counsel of professional misconduct and sharp practice.

[76] When the Crown was given an opportunity to respond, he was permitted to make his submissions virtually without interruption from the trial judge.

[77] In reply, defence counsel submitted that the trial judge's earlier remarks concerning unprofessionalism and sharp practice were unfair. He said that had these allegations been made against him by the Law Society, he would have been afforded a proper hearing before adverse findings were made against him. Counsel added this conduct to his list of reasons for requesting a mistrial.

[78] At the conclusion of submissions, the trial judge said that he had given considerable thought to the matter since it was raised two days earlier and, "having listened carefully to the submissions" and reading the affidavit material, the application should be dismissed. He said:

The application is, with respect, without merit and the materials accompanied by the argument that I've heard comes nowhere close to persuading me that I should mistry this matter based on my own alleged, quote, misbehaviour, closed quote.

[79] The trial judge said he would prepare written reasons, to be released at a later date. The Crown then called one further witness as part of its case. The appellant testified and other evidence was called on his behalf.

(b) The Charge to the Jury

[80] For the sake of maintaining a chronology, we refer to an event that happened between the trial judge's dismissal of the mistrial application and the release of his written reasons. On his own motion, the trial judge addressed his conduct in his final instructions to the jury in the following passage:

Further, speaking generally, part of the function of a trial judge is to ensure that counsel adhere strictly to the rules of evidence. To do that in any trial, a judge is required to intercede from time to time when it appears that counsel is infringing or about to infringe one of those rules. For the most part, the rules of evidence are well understood by the court and counsel in general terms, but disagreement frequently arises concerning the practical application of a rule in a given situation. When that happens, it is often the sort of thing about which reasonable people might disagree. I mention that to make the following point.

In this trial, I was obliged to deal with objections that were occasionally raised by counsel. At other times, even when there was no objection, I interrupted both Crown counsel and defence counsel when I felt that they had infringed or were about to infringe a rule of evidence. For the most part, the discussions that ensued took place in your absence. In some instances, however, they occurred with you present. In either case, the fact that I interrupted and/or corrected counsel on these occasions does not reflect badly on either counsel and, in coming to your decision in this case, you must give no consideration whatsoever to my having done so. To the extent that in the course of any such interruption I may have appeared to be critical of counsel that is something that you must disregard entirely in your deliberations.

I wish to make one further point. Like jurors, judges, too, must be impartial. Further, the interests of justice require not only that judges be impartial, but that they manifestly appear to be impartial. To that end, when presiding over a trial, judges make a concerted effort to appear impassive. But, being human, we are not always successful. Moreover, we are not always aware when we are doing something that might suggest to the independent observer a particular attitude on the part of the judge toward what is then taking place.

To the extent that you may have observed during the course of this trial any nonverbal behaviour on my part that, in turn, you may have perceived as reflecting impatience, irritation, annoyance or disapproval on my part toward a witness, or toward either counsel, you must disregard completely any such perceptions in your deliberations. You must not permit any nonverbal behaviour on my part that you may have observed, whether a facial expression or a movement of my head or body or the case may be, to have any influence whatsoever on either your consideration of the evidence or your final decision in this case.

(c) The Trial Judge's Reasons

[81] As already mentioned above, the trial judge released written reasons for his decision refusing to grant a mistrial. The reasons are as remarkable for their length (64 single-spaced pages, with 49 footnotes) as they are for their tone. The trial judge's displeasure with defence counsel is palpable throughout. The reasons are peppered with critical, and sometimes insulting, remarks.

[82] We see little purpose in reviewing the reasons, page-by-page. We refer to relevant details in the following section which addresses our concerns with the conduct of the trial and the trial judge's approach to the mistrial application.

(3) Analysis

(a) Introduction

[83] The test for establishing a reasonable apprehension of bias is well known -- would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly: Committee for Justice and Liberty v. Canada (National Energy Board), at p. 394 S.C.R., per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), at paras. 20-21.

[84] In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis, at para. 18: "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption." See, also, Wewaykum Indian Band v. Canada, at para. 59; R. v. S. (R.D.), at para. 117, per Cory J.; R. v. Ruthowsky, at para. 21.

[85] When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must be viewed in context. In R. v. Stewart, Doherty J.A. said, at p. 320 C.C.C.: "It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness." See, also, R. v. Hungwe, at para. 44; R. v. John, at paras. 50, 63; R. v. Stucky, at para. 72; and R. v. Murray, at paras. 96-97.

[86] In all of the circumstances, we are not persuaded that the conduct of the trial judge gave rise to a reasonable apprehension of bias. However, we are concerned with some aspects of how this trial was conducted, especially the manner in which the trial judge dealt with the mistrial application.

(b) Procedure on the Mistrial Application

[87] In his reasons, the trial judge is highly critical of defence counsel for the manner in which the mistrial application was brought -- without proper notice and without formally serving the materials on the Crown ahead of time, nor filing them with the court in advance of oral argument. He accused defence counsel of "giving evidence" during his oral submissions. The trial judge, at paras. 46-47 of the mistrial reasons, implicitly accused defence counsel of breaching the Canadian Bar Association's Code of Professional Conduct, which provides that a lawyer must not become an unsworn witness or put their own credibility in issue, and s. 5.2-1 of the Law Society of Ontario's Rules of Professional Conduct. We consider these allegations unfounded and, as discussed below, unfair.

[88] The trial judge was displeased with essentially everything about the affidavits subsequently filed in support of the application. We need not itemize the trial judge's entire litany of complaints about the affidavits, which span many pages of his written reasons. Mr. Diniz too was effectively accused of breaching s. 5.2-1 of the Law Society of Ontario's Rules of Professional Conduct, which prohibits a lawyer from being an advocate and a witness in the same cause. On its own, this might seem like a plausible complaint. However, missing from the trial judge's summary of the context are two things. First, although Mr. Diniz did not formally withdraw from the case after his affidavit was filed, he did not participate in the examination of any witness, nor did he make any submissions. This is consistent with the direction provided by the Law Society of Ontario in the commentary accompanying s. 5.2-1, which states: "The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer."

[89] Second, the trial judge, at para. 46, briefly referred to the need for some latitude to be given to counsel in the context of a mistrial application of this sort which involves the trial judge relying on his or her own observations of what occurred and counsel needing to do the same. However, it is not apparent that the trial judge provided any such latitude to counsel. He ruled the Diniz affidavit inadmissible as evidence given by counsel and treated it as "submissions", yet was also critical of evidence being given by way of submissions.

[90] The trial judge also criticized Ms. Goncalves' affidavit. According to the trial judge, it too suffered from the lack of notice complaints mentioned above. Moreover, based on the trial judge's comparison of Ms. Goncalves' affidavit with Mr. Diniz's affidavit, he ruled that it lacked independence.

[91] We make a number of observations. First, the Crown at trial (not Ms. Barrett) took no objection to the timing of the application, the service of the materials, nor the admissibility of the affidavits.

[92] Second, and more importantly, the trial judge raised none of these concerns with counsel at the time. Defence counsel was not afforded the opportunity to respond to the serious concerns raised by the trial judge in his written reasons, including the allegations of professional misconduct.

[93] This approach is resonant of the trial judge's allegations during oral submissions on the mistrial application that defence counsel had engaged in professional misconduct and sharp practice. Most unfortunately, the trial judge accused defence counsel of "petulance" when he complained of these characterizations. Counsel was perfectly entitled to respond to these allegations of potentially disciplinable conduct. In our view, they should not have been made in the first place. They were without foundation.

[94] In the end, it is apparent from the trial judge's reasons that in his view, nobody -- neither counsel nor witnesses -- was entitled to comment upon or characterize the manner in which the trial was conducted, except the trial judge himself.

[95] To conclude, we are of the view that the trial judge conducted the mistrial application in an injudicious manner. However, given that this portion of the proceedings occurred entirely in the absence of the jury, we are not persuaded that this aspect of the trial judge's conduct had any impact on the overall fairness of the proceedings.

(c) Interventions by the Trial Judge

[96] While we agree that some of the trial judge's comments and interventions during defence counsel's examination of some witnesses, and during defence counsel's submissions, were unwarranted, we are not satisfied that these interventions, either individually or in combination, gave rise to a reasonable apprehension of bias. The law affords trial judges wide latitude in discharging trial management responsibilities. As this court said in R. v. Hamilton, at para. 30: "When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial. This assessment is made from the perspective of a reasonable observer present throughout the trial" (citations omitted).

[97] This inquiry should be undertaken with a view to the duty of the trial judge to manage the trial, and a consideration of the purpose and context of the interventions. As this court has noted, "[t]here is a strong presumption that a trial judge has not unduly intervened" and there may be many proper reasons why a trial judge may find it necessary to intervene: Hamilton, at para. 29; John, at para. 48. For example, as noted in R. v. Ivall, at paras. 166-168, a trial judge is entitled to intervene to restrict an improper line of cross-examination, or to apply rules of procedure and evidence: see R. v. Assoun, at para. 265-266; R. v. Forrester, at para. 16. However, even where there is a proper basis to intervene, the right to intervene must be exercised with caution so as not to undermine the fairness of the trial. See R. v. Valley, at pp. 230-32 C.C.C.; see, also, Hungwe, at para. 40.

[98] We are not persuaded that the interventions in this case reflect bias in the eyes of a reasonably informed observer. The trial judge was permitted to insist that the rules of evidence be strictly observed. Most of the trial judge's interventions fall into this category. However, we would observe that this wide latitude afforded to trial judges is not a licence to be overbearing or aggressive. It is at times like these, when a trial judge feels compelled to intervene, that courtesy and constraint should be at a premium.

(d) The Trial Judge's Deportment

[99] We are concerned about the allegations regarding the trial judge's deportment during the trial -- his facial expressions, body language and vocal communications -- and about the manner in which he responded to these complaints in his written reasons. However, we are constrained in our ability to evaluate these claims.

[100] On the one hand, we have the allegations made by defence counsel in his submissions at trial, as well as the Diniz and Goncalves affidavits. They allege yelling and other non-verbal expressions of impatience and hostility directed towards defence counsel.

[101] On the other hand are the trial judge's broad denials of any such shortcomings in his conduct of the trial. In his mistrial reasons, at para. 57, the trial judge indicated that he listened to the digital recordings of the trial to refresh his memory about certain aspects of the evidence. However, these recordings are not referenced in response to the allegations of yelling at counsel. Neither counsel invited us to listen to the recordings. We do not know whether they would have assisted us or not in resolving this issue. Accordingly, our review of this aspect of the allegations is limited by the complaints as framed by defence counsel, and the trial judge's response to these complaints in his written reasons.

[102] The trial judge began his analysis of the complaints regarding his non-verbal conduct by acknowledging, at para. 80, that "I may have, on one or more occasions, exhibited some facial expressions or moved my head or body in such a way as to suggest impatience or annoyance. This is inevitable in the dynamics of a criminal trial." He denied that it occurred often.

[103] The trial judge repeated the same observations that he offered in court on October 6, 2015, when he said that, in his experience, when witnesses are being examined, he is "looking more or less directly at the jury". In his view, jurors are focused on the witness being examined, and examining counsel, not the judge. The trial judge concluded, at para. 81: "If, then, I exhibited, from time to time, any untoward facial expression or made any body movement(s) that may have betrayed some frustration with counsel or disapproval of his methods, it is highly unlikely, in my view, that this would have been evident to the jurors." With respect, this seems doubtful. Just as the trial judge is positioned in such a way as to be "looking more or less directly at the jury", the jury too would be "looking more or less directly at the [trial judge]". Common sense suggests that this type of behaviour would, at the very least, be distracting to a jury. Counsel and witnesses may also be thrown off course in the same way. Moreover, the trial judge's explanation minimizes the important position trial judges no doubt occupy in the minds of jurors. It is not implausible that jurors would consider the reactions of a trial judge to the examination of a witness, whether verbal or otherwise, to be important.

[104] The trial judge acknowledged, at para. 82, that "there might have been times when, in the course of legal argument" he "betrayed some degree of frustration of annoyance" however he followed this by stating that "the vast majority, if not all, of such occasions occurred when the jury was not present".

[105] In discussing these occasions, the trial judge squarely placed the blame for any decorum default at the feet of defence counsel who he characterized as "assertive", especially "when it is apparent to him that the court is not receptive to one of his arguments". The trial judge took the position that "[i]f the court responded, from time to time, in a way that conveyed impatience, annoyance or frustration, it was no more than [defence counsel] displayed in the course of repeatedly and forcefully pressing his arguments". He further observed that, more than once, this "generated a vigorous discussion". No examples were provided. As discussed below, the absence of the jury does not absolve trial judges of their duty to maintain composure. More to the point, if counsel exhibits behaviour that a trial judge considers to be too assertive or aggressive, the appropriate judicial response is not to match or better this behaviour; instead, it is to attempt to restore decorum. As noted by this court in R. v. Snow, at para. 23, regardless of the trial judge's perceptions of the conduct of counsel, "the trial judge at all times should control proceedings with judicious demeanour".

[106] The trial judge also addressed the allegation that he "glared" at counsel in the presence of the jury, and when defence counsel was making submissions. He consulted the Concise Oxford English Dictionary to define the word "glare" as being to "stare in an angry or fierce way". He denied ever glaring at counsel in the presence or absence of the jury. As he explained, at para. 104:

In fairness, I recognize that, when my face is in repose, I have what could fairly be described as a stern visage. But that is so irrespective of which counsel is on his feet and, surely, by the point in the trial at which counsel brought this application, the jury would have recognized that fact and attributed no particular significance to it. Further, as I have already explained, when counsel was examining a witness, the jury was not looking at me, but was, rather, focused intently on counsel and the witness.

This passage fails to address the substance of the allegation which related to the trial judge's responses or reactions to defence counsel. The complaint was not about a face "in repose" or a description of the "visage" of the trial judge, whether stern or kind.

[107] The trial judge took a similar approach to the allegation that he "yelled" at counsel on "numerous occasions". Again, the trial judge turned to dictionary definitions to explain the meaning of the common words, "yell" and "numerous". Parsing these definitions, the trial judge said, at paras. 101-102:

In normal speech, I have a stentorian voice. That said, at no time, in the presence of the jury, did I raise my voice when speaking to counsel and I did not yell, shout or scream at defence counsel at any point. If, in the absence of the jury, I raised my voice, it was certainly not to a level that would constitute yelling.

Further, to the extent that I may have raised my voice, I reject the affiant's assertion that I did so on "numerous occasions" . . . To the extent that I may have raised my voice on one or more occasions, I did not do so many times and certainly not very many times. Rather, measured against the entire length of the trial, those occasions were, to my recollection, relatively few.

[108] However many times the trial judge may have raised his voice -- and it is impossible to tell from the previous passage -- it is to be hoped that it did not in fact occur in the presence of the jury. But even in the absence of the jury, other participants in the process -- counsel, witnesses, court staff and the public at large -- should not expect to encounter this type of courtroom environment.

[109] While we are unable to conclude that the allegations pertaining to the trial judge's deportment gave rise to a reasonable apprehension of bias, allegations regarding a trial judge's verbal and non-verbal conduct during a trial are serious. As the foregoing discussion explains, the trial judge's manner of addressing these complaints in his reasons was inadequate and unresponsive to the issues raised by defence counsel. More broadly, the complaints raised in this case reflect the importance of the duty of the trial judge to maintain composure during the course of a trial, both in the presence and absence of the jury.

(e) The Jury Instruction

[110] As noted in para. 80, above, the trial judge provided an instruction addressing some of the complaints made by defence counsel. As the trial judge said in his mistrial reasons, he was not asked to give this instruction, nor did anyone object. It is surprising that the trial judge thought it was necessary to provide this instruction, especially given his insistence that any physical gestures or facial expressions he made would not have been noticed by the jury in the first place, and that the "vast majority, if not all" occasions where he conveyed frustration or annoyance toward defence counsel occurred in the absence of the jury.

[111] Instructions such as the one provided by the trial judge, while not unheard of (see, e.g., Snow, at paras. 48-49), do not appear to be commonly given. There is no "model" instruction for such an occasion in authoritative sources on jury instructions, such as Watt's Manual Criminal Jury Instructions, no doubt because judges should not generally find themselves in circumstances such as these. Had the jury noticed the conduct alluded to by the trial judge, the instruction may have been salutary; had they not, it would surely have been perplexing, and an unnecessary distraction from their most serious task. It would have signalled to them, as it does to us, that something was wrong with the manner in which the trial was conducted.

(f) Conclusion

[112] As indicated above, we are not persuaded that the trial judge's interventions were of such a nature or frequency so as to give rise to a reasonable apprehension of bias. Nor has it been established that the behavioural components of the trial judge's conduct tipped the balance. Nevertheless, we are led to conclude that the trial was not a model of "judicial decorum".

[113] We appreciate that a lengthy murder trial can be very stressful for all involved -- the jury, witnesses, counsel, court staff, the judge, spectators and, most especially, the accused person and his or her family, as well as the deceased's family, friends and supporters. There is so much at stake. Emotions may run high. Things may be said that should not have been, or words spoken in an ill-advised manner. In most cases these moments naturally pass, perhaps after a short break. Sometimes an apology may be warranted. Nevertheless, and notwithstanding where fault lies, it is the trial judge's responsibility to reduce the stress of conflict, not to exacerbate the situation through harsh words, a raised voice, or distracting and hostile non-verbal communications.

[114] As Lord Denning said in The Family Story (London: Butterworths & Co. (Publishers) Ltd., 1981), at p. 162: "When a judge sits to try a case with a jury, he is himself on trial -- before his fellow countrymen. It is on his behaviour that they will form their opinion of our system of justice." Notwithstanding the out-dated gendered language, this passage resonates with the same force today.

[115] We dismiss this ground of appeal.

D. Conclusion

[116] We would allow the appeal, set aside the conviction and order a new trial on the charge of manslaughter.

Appeal allowed.

Notes

1 Section 249(1)(a) has since been repealed and replaced with s. 320.13(1): see An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, ss. 14, 15.

2 During one mid-trial colloquy, the trial judge mused that dangerous driving might end up being "superfluous" and "not necessarily available" depending on the evidence adduced over the course of the trial. He opined that short of evidence that the appellant's conduct was the result of something "entirely inadvertent", the conduct would be captured under s. 265(1) (assault) thereby making dangerous driving "superfluous". He further noted that in these circumstances, dangerous driving may "not necessarily be available" if the conduct was a result of a momentary lapse.

3 The appellant did not ask the trial judge to instruct the jury on this basis of liability. The trial judge decided that, depending on what evidence the jury accepted, there was an air of reality to the partial defence of provocation. See R. v. Fougere, at para. 24.

4 The sentence appeal was abandoned in oral argument.

Her Majesty the Queen v. Ibrahim

Case Summary

Facts

Held

Authorities

Statutes Referred To

APPEAL

A. Introduction

B. The Trial Judge's Instructions to the Jury

(1) Introduction

(2) Factual Background

(a) Evidence Adduced by the Crown

(b) The Appellant's Account

(3) The Positions of Counsel at Trial

(4) Analysis

(a) The Elements of Dangerous Driving

(b) The Relevance of an Accused Person's Explanation

(c) The Application of the Principles in W. (D.)

(d) The Trial Judge's Instructions to the Jury

C. Reasonable Apprehension of Bias

(1) Introduction

(2) Background

(a) The Mistrial Application and Its Summary Dismissal

(b) The Charge to the Jury

(c) The Trial Judge's Reasons

(3) Analysis

(a) Introduction

(b) Procedure on the Mistrial Application

(c) Interventions by the Trial Judge

(d) The Trial Judge's Deportment

(e) The Jury Instruction

(f) Conclusion

D. Conclusion

Notes

Cited By (13 cases)

R. v. Walton, 2025 ONCA 368

R. v. Georgopoulos, 2024 ONSC 2962

R. v. B.C.M., 2024 ONCA 12

R. v. Marrone, 2023 ONCA 742

R. v. Chambers, 2023 ONCA 444

R. v. Donnelly, 2023 ONCA 243

R. v. Motayne, 2022 ONCA 562

R. v. Berto, 2021 ONCA 839

R. v. Ibrahim, 2021 ONSC 1112

R. v. Gager, 2020 ONCA 274

Judges

Counsel

Parties

Areas of Law