Her Majesty the Queen v. William Kevin Curran, 2004 ONCA 10434

DATE: 20040623

DOCKET: C36331

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SIMMONS and JURIANSZ JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

WILLIAM KEVIN CURRAN

Appellant

Rosella Cornaviera for the respondent

Carol Cahill and Joseph Wilkinson for the appellant

Heard: April 6, 2004

On appeal from the conviction by Justice John G. O’Driscoll of the Superior Court of Justice, sitting with a jury, on April 19, 2001.

MACPHERSON J.A.:

A. INTRODUCTION

[1] The appellant, William Kevin Curran, was tried by Justice John O’Driscoll, sitting with a jury, on a single count of first degree murder. The indictment alleged that on November 23, 1998 the appellant murdered James Myers. On April 19, 2001, after a trial lasting almost three months, the jury returned a verdict of guilty. The appellant was sentenced to the mandatory term of life imprisonment without parole for 25 years.

[2] The appellant appeals the conviction on several grounds. Most of the grounds relate to the trial judge’s charge to the jury. In addition, there are two grounds of appeal relating to evidentiary rulings made by the trial judge during the trial.

B. FACTS

[3] The deceased, James Myers, lived with his 16 year old son, Ashton, at 75 Meadowvale Avenue in Mississauga. The appellant and the deceased had known each other for several years prior to November 23, 1998. The appellant had visited the home on many occasions.

[4] On November 23, 1998, an intruder or intruders came to the Myers home around 7:15 p.m. Myers was shot dead and his body was set on fire inside the house. The Crown’s case against the appellant rested on two foundations, the identification evidence of Ashton Myers and the evidence of an alleged motive.

[5] Ashton testified that on the evening of the murder he and his father were at home watching television. There was sudden and loud noise and a person or persons tried to break into the home. Ashton and his father attempted to flee (even though the father kept several loaded guns in the house). The father was shot once in the chest. Ashton escaped towards a nearby ravine. He testified that from this vantage point he observed the appellant set the house ablaze and run down a street near the ravine with another man.

[6] The Crown contended that the motive for the crime was retribution by the appellant because the deceased had short‑changed him with respect to the proceeds from a jewellery store break and enter which they had jointly conducted in the summer of 1998. In support of this theory, Ashton testified about an incident several months prior to November 23, which he called the “Mexican stand-off”. The appellant came to 75 Meadowvale Avenue to retrieve his portion of the jewellery store caper. There was a heated argument between the appellant and the deceased, with each drawing a gun. The appellant left with some jewellery but, according to Ashton, as the appellant drove off, he pointed a gun at the deceased and said “I’ll be back”. The Crown theory was that the appellant was true to his word and returned on November 23 to exact his revenge.

[7] The appellant did not testify. The defence relied on evidence from the deceased’s neighbours, Kent and Geraldine Dickson, who witnessed the Mexican stand‑off and some of the events on November 23. In particular, the defence pointed to Kent Dickson’s evidence that the appellant was not the man at the stand‑off to undercut the Crown position on motive.

[8] The defence also contended that Ashton’s identification of the appellant as the person at the stand‑off and on November 23 was so fraught with frailties and contradictions as to be completely worthless. Indeed, the defence went so far as to submit to the jury that Ashton was lying about being present in the house on the evening of November 23 when his father was killed. The defence suggested that Ashton was scared of the real killer or killers and, by testifying against the appellant, was trying to send a message that they had nothing to fear from him.

[9] The defence called evidence from Scott Walters, a forensic engineer, who made a reconstruction video of the area between the house and the ravine where Ashton said he was hiding and saw the appellant. The video, its contextual measurements and light readings, and Walters’ testimony were designed to show that it would have been extremely difficult for Ashton to see and identify the appellant on the night in question.

[10] After hearing thirty‑five witnesses, the jury deliberated for about a day and a half before finding the appellant guilty of first degree murder. The appellant now seeks a new trial based on alleged improper evidentiary rulings and errors in the charge to the jury.

[11] There are other facts relevant to the disposition of the appeal. I find it convenient to introduce those facts in the context of the legal issues to which they specifically relate.

C. ISSUES

[12] The appellant raises issues relating to the admission and non‑admission of evidence and various aspects of the trial judge’s charge to the jury. I would frame the issues as follows:

Evidentiary issues

(1) Did the trial judge err by refusing to permit the appellant to conduct a courtroom demonstration regarding his voice and his speech impediment?

(2) Did the trial judge err by admitting evidence of the appellant’s post‑offence conduct?

Jury charge issues

(3) Did the trial judge adequately caution the jury about evidence relating to the appellant’s post‑offence conduct?

(4) Did the trial judge adequately caution the jury about Ashton Myers’ identification evidence and, in particular, the factors that could undermine that evidence?

(5) Did the trial judge err by failing to give a limiting charge about evidence that incidentally demonstrated the bad character of the appellant?

(6) Did the trial judge err by failing to instruct the jury in accordance with R. v. W.(D.)?

(7) Did the trial judge adequately explain to the jury the defence theory and the evidence in support of it?

(8) Did the trial judge err by expressing his opinion in stronger terms than the evidence permitted and thereby deprive the appellant of a fair presentation of his case to the jury?

D. ANALYSIS

Evidentiary issues

(1) Courtroom demonstration

[13] Kent Dickson was called as a Crown witness. He lived next door to the deceased. He witnessed the stand‑off incident in the summer of 1998. He testified that the appellant was not the man involved in the stand‑off.

[14] Dickson also testified that he heard the man make several statements during the argument with the deceased. During cross‑examination, defence counsel sought permission to have the appellant say those words in open court, with a view to eliciting from Dickson his opinion as to whether the appellant’s voice was the same as that of the man involved in the stand‑off several years before. The trial judge refused to permit this audio re‑enactment.

[15] The question of courtroom demonstrations is one that is largely subject to the discretion of the trial judge: see R. v. Howard and Trudel (1983), 3 C.C.C. (3d) 399 at 416 (Ont. C.A.). I cannot say that the trial judge improperly exercised his discretion in refusing to allow an audio re‑enactment almost three years after the event in question.

(2) Post‑offence conduct

[16] The deceased was killed on November 23, 1998. Because of what Ashton Myers told the police, the appellant almost immediately became a suspect. The police conducted surveillance of him. On November 25, Constable Robert Culkin followed the appellant to a bank of telephones in a shopping mall. The officer stood next to the appellant and overheard his side of the conversation. The Crown sought to elicit the officer’s testimony about the conversation under the rubric of relevant post‑offence conduct.

[17] The trial judge summarized the gist of the appellant’s overheard words in his ruling:

The accused was talking about appraisals, house prices; that he was going on Friday, Saturday or Sunday; that he was worrying about it and he was taking medication; he said he had a real argument with him, he was trying not to worry about it, that he will call. He was talking about prices of 115 to $150,000. Apparently, the officer heard the accused use the name “Pat”.

[18] The trial judge ruled that the officer could testify about the overheard conversation. He said:

The proposed evidence here does not show or imply that the accused is committing any criminal offence. It is post‑offence conduct that may amount to circumstantial evidence of the accused’s involvement in the November 23, 1998 homicide. The arguments put to me about admissibility were ill‑founded. What was being argued, in fact, was weight. That is a matter for the jury to decide.

In my view, the proposed evidence is relevant to the only issue in this case – identity.

[19] The appellant contends that the trial judge erred in making this ruling. He submits that, much like in R. v. Ferris, [1994] 3 S.C.R. 756, where the overheard statement “I killed David” was excluded because of an absence of context, the overheard conversation here should also have been excluded because Constable Culkin heard only one side of it.

[20] I disagree. The conversation overheard by Constable Culkin was much more detailed than the conversation in Ferris. Accordingly, it was open to the trial judge to admit evidence concerning the conversation and leave it to the jury to assess its weight. As expressed by Major J. in R. v. White (1998), 125 C.C.C. (3d) 385 at 400‑01 (S.C.C.):

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post‑offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s fact‑finding role.

Jury charge issues

(3) Post‑offence conduct

[21] The appellant contends that the trial judge erred by failing to instruct the jury that the evidence of post‑offence conduct could be used to support an inference of guilt only if the jury rejected any innocent explanation for the conduct: see R. v. Diu (2000), 144 C.C.C. (3d) 481 at 520 (Ont. C.A.)

[22] Defence counsel objected to the trial judge’s initial charge on this issue. The Crown supported the objection. The trial judge made an extensive recharge. There is nothing critical of the recharge in the appellant’s factum, and in oral argument counsel conceded that the trial judge did place the ‘possible innocent explanations for the conduct’ aspect of the post‑offence conduct analysis before the jury, specifically when he instructed:

Crown counsel asks you to consider as post‑offence conduct the telephone conversation and the conversation with Mr. Porter with regard to the garbage, and the moving of the garbage from place to place, and asking Mr. Porter about whether or not someone had collected the garbage. All of that, you heard it, and I am not going to repeat it.

Does it have any significance, or is it just a man who was about to move away from the jurisdiction who doesn’t have any garbage cans and wants to be tidy? The fact that the house is vacant when the police get there, does that have any significance, or is it simply a man who has made prior arrangements to move to the east coast because his wife had cancer and was dying, according to the evidence?

Evidence of alleged post‑offence conduct should not be considered in isolation. It should be considered with all the other evidence in deciding whether Mr. Curran’s guilt has been proved beyond a reasonable doubt.

In this respect, it does not differ from other items of circumstantial evidence.

In my view, this recharge complies with Diu and the other authorities relating to post‑offence conduct.

(4) Identification evidence

[23] The issue of identification, and in particular Ashton Myers’ identification of the appellant, was at the heart of the trial. The trial judge’s charge to the jury on this issue is a principal ground of appeal.

[24] The appellant concedes that the trial judge gave an appropriate general caution about the frailties of identification evidence and mentioned some of the factors the jury should consider when assessing the weight of the identification. However, the appellant contends that the trial judge erred in his charge to the jury concerning the identification evidence of Ashton Myers in three respects: (1) by failing to caution the jury that it must be careful before convicting because honest and convincing witnesses can be wrong even in cases of recognition; (2) by failing to adequately outline to the jury the factors that weakened Ashton Myers’ identification of the appellant; and (3) by leaving with the jury evidence of a photo line‑up as supportive of Ashton Myers’ identification of the appellant.

[25] With respect to the first submission, the starting point is that Ashton Myers knew the appellant who had been to the Myers home many times, especially in the year preceding the events of November 23, 1998. Accordingly, Ashton’s identification of the appellant was arguably a recognition of a person he knew, not an identification of a person he had never seen before the night in question.

[26] The appellant contends, correctly, that a jury must be warned of the frailties of eyewitness identification even in cases of recognition: see R. v. Miller (1998), 131 C.C.C. (3d) 141 at 150‑51 (Ont. C.A.).

[27] The trial judge gave the standard strong warning about the frailties of identification evidence. He then listed, and provided commentary about, the standard factors relevant to an identification case. With respect to the first factor – the circumstances in which the witness made his observation – he said:

1. Did the witness know the person before he saw him or her at that time?

Crown counsel submits that this is not really a case of “identification” but it is one of “recognition”, because Ashton Myers had known Kevin for several years before the night of the murder. Kevin Curran had visited 75 Meadowvale Drive some twenty to thirty times in the previous eleven months.

[28] The appellant contends that this instruction would have left the jury with the impression that there was an important difference between ‘recognition’ and ‘identification’ and that the strong caution he had just given about the frailties of identification evidence did not apply in this, a recognition, case.

[29] I disagree. The trial judge provided the jury with the standard jury instruction on the assessment of identification evidence. After cautioning the jury about reliance on eyewitness testimony because of the risk of miscarriages of justice and the fact that honest and convincing witnesses can be mistaken, the trial judge directed the jury to consider a number of factors, the first being whether Ashton knew the person he claimed to have seen on November 23, 1998. With respect to this factor, the trial judge stated that it was the Crown position that this was a case of ‘recognition’ rather than ‘identification’ because Ashton had known the appellant for several years. This was an accurate comment. The trial judge said nothing more and continued to instruct the jury on the remaining factors to consider in its assessment of the identification evidence. There is nothing in the trial judge’s instruction on the first factor, or in the subsequent portion of the charge relating to identification, that would have left the jury with the impression that it should disregard the complete instruction on the assessment of identification evidence.

[30] With respect to the appellant’s second submission on the identification issue – namely that the trial judge failed to adequately outline the factors which weakened Ashton’s identification of the appellant (see R. v. Olbey (1971), 4 C.C.C. (2d) 103 at 114 (Ont. C.A.)) – the trial judge provided the jury with all of the factors (set out as questions) in the standard jury charge relating to the assessment of identification evidence. He also provided specific information relating to some of those questions, for example:

How good or bad was the visibility?

Mr. Walters [the defence expert] said on November 23, 1998, if I have his evidence correctly, there was a quarter moon in the sky.

[31] It is true that the trial judge did not provide specific information in relation to some of the other factors. However, it is important to place this alleged error in context. Just before turning to the standard jury charge on identification evidence, the trial judge had canvassed the evidence of Ashton Myers and Scott Walters, the defence expert called to challenge Ashton’s identification. In this review, a good portion of the evidence relating to many of the relevant factors was placed before the jury. It is highly unlikely that the jury would have failed to connect the trial judge’s review of the Crown and defence evidence relating to identification with the questions the judge posed for the jury to consider immediately after that review. Further, viewed in the context of the closing addresses of counsel, and the evidence that was capable of supporting Ashton’s observations, the trial judge’s failure to review all of the evidence relevant to Ashton’s identification is not a fatal flaw.

[32] The appellant contends that, although the trial judge reviewed the evidence relating to identification of the defence witness Scott Walters, he said nothing about the identification evidence of the Crown witness Kent Dickson who testified, in direct contradiction to Ashton Myers, that the appellant was not the man involved in the stand‑off with James Myers in the summer of 1998. Defence counsel objected to this omission. Crown counsel agreed with this objection.

[33] The trial judge did review some of Kent Dickson’s testimony in his initial charge. However, he did not mention the direct conflict between Dickson and Ashton with respect to the identity of the man in the stand‑off. I agree with the appellant that the omission of such a reference on a point crucial to the defence was an error, one which I would label serious. However, it is important to examine what happened after this omission.

[34] When the trial judge completed his comprehensive jury charge (three hours and 40 minutes, 205 pages) it was 5:14 p.m. The jury retired to consider its verdict, there was a 30 minute recess, and counsel made their submissions about the jury charge. The submissions concluded at 8:00 p.m. The court adjourned for the day.

[35] When court reconvened the next morning, the trial judge said:

The jury was back deliberating this morning and I was preparing to come in, getting ready to recall the jury, and I now received the first question from the jury.

[36] The jury question asked for testimony to be read back in four domains, including:

2. Evidence in‑chief and cross‑examination of Mr. and Mrs. Dickson re description of the man in the stand‑off.

3. Evidence in‑chief and cross‑examination of Ashton Myers re description of Kevin on the porch of 75 Meadowvale, tossing something in the door.

It is clear from this question that the jury was focused on the identification issue.

[37] The trial judge, counsel and the court reporter worked together for almost four hours to identify the relevant portions of the testimony and to prepare them for a read‑back. Just before he recalled the jury, the trial judge said:

Some of the matters that I was going to instruct them and some of the things I was going to read to them I can eliminate as a result of the questions they asked.

Defence counsel submitted: “If you are going to recharge them … you ought to recharge them in full, notwithstanding any questions they have asked.”

[38] The jury was recalled and the testimony of Kent Dickson on the issue of identification was read back in its entirety – examination‑in‑chief and cross‑examination.

[39] Following the completion of the response to the jury’s question, the trial judge recharged the jury on certain matters, including post‑offence conduct, reasonable doubt and parties to an offence. It is also clear that he had intended to correct his omission of any reference to Kent Dickson’s identification testimony because in his recharge he said:

[A]fter you retired yesterday, I heard submissions from counsel, and overnight I thought I was going to bring you back this morning, and then I got question number 1 and it entailed read backs of some of the matters that I was going to read back to you myself this morning with regards to Mr. Dickson, and I have checked what has been read to you today and it covered all that I was going to read back to you, so that part of my recharge has been done by way of answering the question.

Although defence counsel then objected to the trial judge’s recharge relating to post‑offence conduct, he did not object to the recharge relating to Kent Dickson’s evidence.

[40] On appeal, the appellant contends that the trial judge’s treatment of Dickson’s evidence was unfair, and that he should have juxtaposed it more directly with Ashton Myers’ testimony about the identity of the person involved in the summer stand‑off.

[41] I disagree. It is clear from the jury’s question that the issue of identity was front and centre in its deliberations. The jury knew that Ashton identified the appellant as the participant in the stand‑off. Moreover, the jury had just heard in the read‑back Kent Dickson’s testimony that the appellant was not the man involved in the stand‑off. In these circumstances, further comment by the trial judge would have been superfluous.

[42] The appellant’s third submission on the identification issue is that the trial judge erred when, under the rubric “The circumstances of the witness identification of William Kevin Curran as the person [Ashton] saw”, he said:

1. How long was it between the observation and the identification?

You will recall that Ashton Myers went to 22 Division later that evening (November 23, 1998) and identified the person as “Kevin”, who lived in Barrie and drove a Jeep.

2. Did anyone show photographs to Ashton Myers?

You recall I read to you earlier a part of the transcript where he was shown photographs by Detective Mark Mendelson of the Toronto Homicide Squad. The twelve (12) pictures are before you as Exhibit 113. He picked out number 4 and signed the back of it. There was no cross‑examination of Detective Mark Mendelson.

[43] The appellant contends that this comment by the trial judge constitutes an error because evidence of a subsequent identification of a person in a photo line‑up is not capable of confirming a prior identification: see R. v. Spatola, [1970] 3 O.R. 74 at 84 (C.A.).

[44] I disagree. I do not read this passage as establishing that the trial judge emphasized, or even implied, that the jury could use the photo line‑up to bolster Ashton’s evidence. Rather the question and answer relating to the photo line‑up serve as part of the background or narrative relating to Ashton’s identification of the appellant. The overwhelming thrust and weight of Ashton’s identification evidence related to his observations on the night of the murder and, to a lesser extent, his observations about the summer stand‑off.

(5) Bad Character

[45] The appellant contends that the trial judge erred by failing to give the jury a limiting instruction regarding the evidence of the appellant’s involvement in the jewellery store break‑in, his relationship with the deceased (who, according to his son’s testimony, was a career criminal), and the Mexican stand‑off (which involved guns). The appellant submits that this evidence had a potentially prejudicial effect as it painted the appellant as a criminal and impugned his character.

[46] Defence counsel sought a limiting instruction. The Crown did not oppose such an instruction, provided it was coupled with an instruction about the permissible uses of the evidence, especially as corroborative of Ashton’s evidence about motive. The trial judge decided not to give such an instruction, probably because, as he stated during an exchange with defence counsel: “If it is bad character evidence, in my view, all I would be doing is underlining it, if I did; if it is; and I don’t think it is.”

[47] In my view, the trial judge did not err in exercising his discretion against giving a limiting instruction in this domain. Indeed, his ruling came comfortably within the decision of this court in R. v. Merz (1999), 140 C.C.C. (3d) 259 at 278, wherein Doherty J.A. said:

I agree with the view expressed in Jackson. The evidence of the threats made by the appellant was evidence of motive which, in turn, constituted circumstantial evidence of identity and intent. I see no reason to warn the jury against using the evidence to infer propensity and hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence is that the accused had a motive to kill Ms. Murray. The trial judge properly instructed the jury as to how they could use evidence of motive. The limiting instruction normally given when evidence of prior bad acts by the accused is placed before the jury would make no sense in the context of evidence of motive. An instruction like that called for by the appellant could only serve to confuse the jury.

[48] As in Merz, the evidence in the present case that might suggest that the appellant was a person of bad character was also directly and powerfully related to motive. This was especially true of the evidence relating to the jewellery store break‑in and the stand‑off incident. Moreover, as in Merz, the trial judge gave a proper instruction on motive.

(6) Reasonable doubt: W.(D.)

[49] The appellant contends that the trial judge erred by not providing a W.(D). instruction: see R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at 409 (S.C.C.). He submits that the evidence of Kent Dickson, Geraldine Dickson, Lynne Koverko (Crown witnesses) and Scott Walters (a defence witness) was capable of raising a reasonable doubt which the jury could act on even if it did not believe their evidence; hence the need for a W.(D.) instruction.

[50] I do not agree. The fundamental question is always whether the jury was properly instructed in relation to the burden and standard of proof and related issues like credibility. In my view, the trial judge’s instructions on these crucial issues were comprehensive and accurate. They complied with the requirements set out in a long line of post‑W.(D.) decisions: see R. v. Campbell (1995), 24 O.R. (3d) 537 (C.A.), R. v. Harriott (2002), 58 O.R. (3d) 1 (C.A.), aff’d 2003 SCC 5, [2003] 1 S.C.R. 39; R. v. Brown (2002), 169 C.C.C. (3d) 449 (Ont. C.A.); and R. v. Do (2003), 175 C.C.C. (3d) 176 (Ont. C.A.).

(7) The defence theory

[51] The appellant contends that the trial judge so completely failed to put the defence theory and evidence in support of it to the jury that it rendered the trial unfair.

[52] I disagree. Near the end of his charge, the trial judge set out the defence and Crown theories – the former in 13 propositions covering six pages, the latter in 15 propositions covering three pages.

[53] Importantly, the trial judge’s summary of the defence theory was a very faithful rendering of defence counsel’s closing address; indeed the 13 propositions set out by the trial judge were all argued by defence counsel, and in virtually the same order as the trial judge’s later coverage of them in his jury charge.

[54] Nor is it fair to say that the trial judge did not adequately deal with the evidence in support of the defence theory. The two main components of the defence case were Scott Walters’ expert evidence and the contention, flowing from a vigorous cross‑examination, that Ashton Myers was lying. The trial judge dealt with both of these matters in considerable detail. Indeed, with respect to the second point, the trial judge covered it more extensively than any other point in his summary of the defence theory. He dealt with it in four of the 13 propositions he set out, and included fairly extensive portions of defence counsel’s cross‑examination of Ashton to emphasize the defence position on the fabrication assertion:

1. He said that Ashton Myers is neither reliable nor credible.

2. Reading from the cross‑examination of Ashton Myers, volume 2, page 300 (March 9, 2001):

“QUESTION: Again, that’s another reason, I put it to you, you weren’t there at this time when your father was shot in the house at 75 Meadowvale on November 23^rd, 1998. Do you agree you weren’t there?

ANSWER: I was there.”

11. In the cross‑examination of Mr. Myers, transcript number 3, page 97, by Mr. Hicks, line 25:

“QUESTION: Okay, you agreed earlier, Mr. Myers, that the death of your father looked like an organized crime matter?

ANSWER: I said that it was organized.

QUESTION: Hm-hmm. And you agree that you shouldn’t have survived, if, indeed, you came out of the house first?

ANSWER: I should not.

QUESTION: And you said it was just incompetence on their part?

ANSWER: Correct.

QUESTION: You must have thought that whoever killed your father may wish to have harmed you as well?

ANSWER: Yes.

QUESTION: And you can send these people, whoever they are, or that person, whoever he is or she is, a clear message, by saying that Kevin Curran is the one who killed your father. You can send them a clear message that you are not going to say or tell them… or tell the authorities anything you know about those persons?

ANSWER: That’s a confusing question.

QUESTION: Okay. Let me try it again.

You agree that you should rightfully fear for your own safety in the circumstances?

ANSWER: Yes.

QUESTION: Whether you were there or you weren’t there?

ANSWER: I was there and I do fear.

QUESTION: Because of what you knew about your father, and who may have come to visit him that evening, November 23^rd, 1998? In other words, your knowledge of your father, you lived with him for two and a half years?

ANSWER: Yes.

QUESTION: You were the one he trusted?

ANSWER: Yes.

QUESTION: You were the one of whom he was the most fond?

ANSWER: Yes.

QUESTION: And it’s that relationship that put you in danger, correct, what you knew about your father and his activities?

ANSWER: Yes.

QUESTION: You know people who may have in mind to harm you?

ANSWER: Pardon me?

QUESTION: People may have it in mind to harm you on that basis?

ANSWER: Yes.

QUESTION: And you can send those people a message that they have nothing to fear from you by accusing somebody else of the crime, in other words, by accusing Kevin Curran of the crime?

ANSWER: I can’t send them a message because there is no one to send the message to.

QUESTION: By saying Kevin Curran did it, when you know he didn’t, you can send a clear message to the people that you are not going to do them any harm and, therefore, they should leave you alone?

ANSWER: No.

QUESTION: You didn’t see Kevin Curran that evening, did you?

ANSWER: I did see him.

QUESTION: In the circumstances that you have described?

ANSWER: Yes.

QUESTION: And sworn to under oath?

ANSWER: Yes.

QUESTION: November 23rd?

ANSWER: Yes.

QUESTION: 24th, 25th, and December 2nd, 1998?

ANSWER: yes.

QUESTION: Correct?

ANSWER: Correct.”

12. Mr. Hicks submits that Mr. Ashton Myers could not see and did not see what he has sworn to at this trial.

[55] I do not say that the trial judge’s charge was perfect. For example, the omission in his initial charge of any reference to Kent Dickson’s identification evidence, which conflicted with Ashton Myer’s evidence, was a serious defect in the charge. However, as explained in the previous section, this defect was cured by a subsequent read‑back of all of Dickson’s identification evidence in response to a question from the jury.

[56] In summary, the law in this area is clear. As expressed by Cory J. in R. v. G. (R.M.) (1996), 110 C.C.C. (3d) 26 at 32 (S.C.C.):

In the course of giving directions to a jury, it is essential that the trial judge outline for them the theory or position of the defence and refer the jury to the essential elements bearing on that defence in such a way that it will ensure the jury’s proper appreciation of the evidence.

In my view, the trial judge’s charge to the jury, supplemented by the recharge and read‑back, complied with this mandate.

(8) Judge’s opinion

[57] The appellant contends that the trial judge erred in expressing his opinion when he told the jury that the defence theory that Exhibit 79 (the jewellery tag found in the appellant’s back yard) was planted by the police was “without foundation”.

[58] I disagree. A trial judge is entitled to comment on the evidence, although he must be careful not to express an opinion far stronger than the facts warrant, or to express his opinion so strongly as to give rise to a likelihood that the jury would be overawed by it: see R. v. Garofoli (1988), 41 C.C.C. (3d) 97 at 133 (Ont. C.A.).

[59] The trial judge’s comment about the jewellery tag evidence did not cross these lines. Both at the start and at the conclusion of his charge, the trial judge instructed the jury that it was the sole judge of the facts and could disregard any of his comments, views, opinions or apparent views or opinions. Moreover, he emphasized this point when he made the “without foundation” comment. Immediately before making the comment, he told the jury: “Of course, it is open to you to find that Detective Johnson ‘planted’ the tag. I agree, it is interesting …. You are the sole judges of the evidence, of the facts, so it is for you to say.” In addition, the appellant concedes that the defence never explicitly put it to Officer Johnson that he planted the tag; nor did defence counsel use language stronger than “interesting” in his discussion of this evidence in his closing address. Finally, the jury asked several questions, most of which focused on the issue of identification. There were no questions about the jewellery tag evidence.

[60] For these reasons, the trial judge’s comment was not stronger than the evidence suggested, nor was there any risk that it would overawe the jury.

E. DISPOSITION

[61] I would dismiss the appeal.

RELEASED: June 23, 2004 (“JCM”)

“J. C. MacPherson J.A.”

“I agree Janet M. Simmons J.A.”

“I agree R. G. Juriansz J.A.”