Her Majesty the Queen v. Lawes

[Indexed as: R. v. Lawes]

80 O.R. (3d) 192

Court of Appeal for Ontario,

Moldaver, Feldman and Rouleau JJ.A.

February 27, 2006

Charter of Rights and Freedoms -- Trial by jury -- Common law rule which allows judges to express opinion on aspects of evidence not violating accused's right to trial by jury -- Canadian Charter of Rights and Freedoms, s. 11(f).

Criminal law -- Trial -- Charge to the jury -- Trial judge's opinion -- Accused arguing common law rule permitting trial judge to comment on facts during charge to jury infringed accused's right to trial by jury -- Common law rule promotes goals of s. 11(f) of Charter and does not infringe it -- Accused alternatively arguing that trial judge's comments overstepped common law limits on expression of opinion -- Some passages of charge indirectly communicating opinion about witness' credibility but overall did not overwhelm jury or erode jury's fact finding role -- Accused not deprived of a fair trial -- Appeal from conviction dismissed -- Canadian Charter of Rights and Freedoms, s. 11(f).

Criminal law -- Murder -- Sentence -- Accused taking part in violent robbery in course of which bank employee was shot by another robber -- Accused convicted of second degree murder -- Co-accused with lesser role in offence pleading guilty and receiving ten years' parole ineligibility -- Offence horrendous and accused having high moral blameworthiness -- Sentence not demonstrably unfit -- Seventeen-year parole ineligibility period affirmed on appeal.

The accused, R, and two other men took part in a violent bank robbery, in the course of which a bank employee was fatally shot by R. A senior employee was in the vault with the accused, attempting to open the compartments where the cash was stored, when she heard R shout, "you'd better hurry up or your friend out here is going to get it". She heard a gunshot, and R yelled, "tell them I've just shot their friend out here". She testified that the accused reinforced the shooter's message by saying "we've just shot your friend out there and you're all next if you don't hurry up" and "I'm going to kill you, bitch. I'm going to kill all of you if you [page193] don't hurry up." The Crown relied on the employee's evidence of what the accused said and did in the time before and after the victim was shot to establish that the accused knew that murder was a probable consequence of the robbery. At the end of the Crown's case, the accused moved successfully for a directed verdict on first degree murder. The only issue for the jury was whether the accused was guilty of manslaughter or second degree murder. The jury found the accused guilty of second degree murder. The accused was sentenced to life imprisonment without eligibility for parole for 17 years. He appealed the conviction and the sentence. His main argument on the conviction appeal was that the common law rule allowing judges to express an opinion on certain aspects of the evidence violates s. 11(f) of the Canadian Charter of Rights and Freedoms and that, if it does not, the opinions expressed by the trial judge in his charge to the jury exceeded the permissible common law limits.

Held, the appeal should be dismissed.

The accused was permitted to raise the Charter issue for the first time on appeal. The failure to raise the issue at trial was not a tactical decision, and the Crown was not prejudiced as no different or additional evidence would have been called had the matter been raised. The objections to the charge raised by the accused at trial addressed the expressions of opinion of the trial judge. This was, in essence, the same issue that underlay the Charter issue.

The common law rule allows the trial judge to comment on the evidence provided it is made clear to the jury that they are not bound by the judge's views, that the judge's opinions are not stronger than the facts warrant, and that the opinions are not overstated to the point where it is likely that the jury will be overawed by them. By setting the limit on judicial comment at the point where the comments might impermissibly erode or threaten the fact finding and ultimate arbiter role of the jury, the common law rule fosters rather than impedes the values underlying s. 11(f) of the Charter.

In his review of the relevant evidence, the trial judge did, on occasion, go quite far in characterizing or in expressing a view on the evidence. In the context, however, his comments would have been understood by the jury as comments or opinions of the trial judge; they would not have been taken as legal instructions which they were required to follow. Certain comments by the trial judge could be taken as unfairly denigrating the defence position. However, those comments, considered in the context of the charge as a whole, were not made in such a forceful way as to overwhelm the jury or usurp its fact finding function. The accused was not deprived of a fair trial.

The 17-year parole ineligibility period was not demonstrably unfit. There was a significant amount of moral blameworthiness on the part of the accused and the offence was horrendous. The ten-year parole ineligibility period received by one of the robbers was due in part to the fact that he plead guilty and to his lesser role in the offence.

APPEAL from conviction for second degree murder and from sentence imposed by Thomas J. of the Superior Court of Justice, dated June 5, 2002.

Cases referred to

R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 43 O.A.C. 1, 116 N.R. 241, 50 C.R.R. 206, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, revg [1988] O.J. No. 365, 27 O.A.C. 1, 43 C.R.R. 252, 41 C.C.C. (3d) 97, 64 C.R. (3d) 193 (C.A.), consd

Other cases referred to

R. v. Baltovich (2004), 73 O.R. (3d) 481, [2004] O.J. No. 4880, 192 O.A.C. 366, 191 C.C.C. (3d) 289, 26 C.R. (6th) 298, 65 W.C.B. (2d) 397 (C.A.); R. v. Cooper, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, 103 Nfld. & P.E.I.R. 209, 146 N.R. 367, 326 A.P.R. 209, 78 C.C.C. (3d) 289, 18 C.R. (4th) 1; [page194] R. v. Curran, [2004] O.J. No. 2632, 188 O.A.C. 1, 62 W.C.B. (2d) 283 (C.A.); R. v. Finta, [1994] 1 S.C.R. 701, [1994] S.C.J. No. 26, 112 D.L.R. (4th) 513, 165 N.R. 1, 20 C.R.R. (2d) 1, 88 C.C.C. (3d) 417, 28 C.R. (4th) 265, affg [1992] O.J. No. 823, 92 D.L.R. (4th) 1, 9 C.R.R. (2d) 91, 73 C.C.C. (3d) 65, 14 C.R. (4th) 1 (C.A.); R. v. Gunning, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 196 C.C.C. (3d) 123, 253 D.L.R. (4th) 76, 333 N.R. 286, 2005 SCC 27, 29 C.R. (6th) 17; R. v. Muchikekwanape, [2002] M.J. No. 253, 166 Man. R. (2d) 81, 278 W.A.C. 81, [2002] 9 W.W.R. 293, 166 C.C.C. (3d) 144, 2002 MBCA 78 (C.A.); R. v. Ruddick, [1980] O.J. No. 1534, 57 C.C.C. (2d) 421 (C.A.); R. v. Valentini (1999), 43 O.R. (3d) 178, [1999] O.J. No. 251, 132 C.C.C. (3d) 262 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11(f) Criminal Code, R.S.C. 1985, c. C-46, s. 21(2)

Renee Pomerance and Kimberley Crosbie, for respondent. David E. Harris, for appellant.

The judgment of the court was delivered by

ROULEAU J.A.: --

Overview

[1] The appellant was convicted by judge and jury of the second degree murder of Nancy Kidd. The victim was a bank clerk killed in the course of a robbery committed by the appellant and three other masked perpetrators at a Toronto-Dominion Bank branch in Brampton. The appellant was sentenced to life imprisonment without eligibility for parole for 17 years.

[2] The appeal is both against conviction and sentence. With respect to the conviction, the appellant maintains that the jury charge was unbalanced in favour of the Crown, and specifically, the appellant takes issue with the last portion of the jury charge arguing that, in that portion, the trial judge committed reversible error by expressing his view on substantial, contested factual issues. The appellant argues that judicial comments on such issues constitute a denial of the accused's right to a trial by jury as protected by s. 11(f) of the Canadian Charter of Rights and Freedoms. Alternatively, he submits that the comments were disparaging of the defence's theory and closing address and contravened the common law restrictions on judicial comment thereby depriving the accused of a fair presentation of his case to the jury. [page195] Regarding the sentence, the appellant argues that the sentence imposed was demonstrably unfit and based on errors of principle. For the reasons that follow, I would dismiss the appeal.

Factual Background

[3] On January 11, 1999, four masked men entered a Toronto- Dominion Bank branch in Brampton to commit an armed robbery. Approximately three minutes into the robbery Nancy Kidd, an employee of the bank, was shot in the vault area of the bank. The robbery continued for two and a half minutes after she was shot and lay bleeding on the floor. When paramedics arrived at the bank, Nancy Kidd's vital signs were absent. She was pronounced dead on arrival at the hospital.

[4] The appellant Dwain Lawes was one of the four robbers. Lawes was charged with first degree murder in the death of Nancy Kidd and was tried by judge and jury. The issues at trial were significantly narrowed by a number of agreed or uncontested facts. The appellant admitted that he was one of the robbers. There was no dispute that Marlon Rowe, another of the four robbers, fired the gun that caused the death of Nancy Kidd, that she was shot while in the vault area of the bank and that, when she was killed, Lawes and Rowe were the only two robbers in the vault area. The issues at trial were whether Nancy Kidd's death was murder, and whether pursuant to s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, Lawes knew that murder was a probable consequence of carrying out the common purpose of robbery.

[5] The evidence at trial consisted of surveillance videos of the robbery and the testimony of six witnesses called by the Crown. It was clear from the evidence that the robbery was violent. In addition to the shooting of Nancy Kidd, several of the bank employees were repeatedly struck, pushed and dragged in the course of the crime. Much of the violence, including the shooting of Nancy Kidd, occurred in areas of the branch not shown on the bank's video cameras. The appellant did not call any evidence although a statement he made to the police was put into evidence.

[6] Given that the appellant and Rowe were in the vault area at the time Nancy Kidd was shot and that this was an area not canvassed by the surveillance cameras, the evidence as to what the appellant was doing and saying right before and after Nancy Kidd was shot came principally from the bank employees. The Crown relied largely on what the appellant is reported to have said and done in the time before and after Nancy Kidd was shot to establish that the appellant knew that murder was a probable consequence of the robbery. The key witness on this point was Connie Lowry. [page196]

[7] As the most senior person at the branch that day, Lowry had identified herself to the robbers as the manager. As a consequence, one of the robbers grabbed her by her hair and pulled her towards the vault with the demand that she "spin the combinations". At one point, she could be seen on the video retrieving the combination from her office and being led back into the vault area by Lawes. Lowry testified that it was the same robber who stayed with her throughout the robbery. On the way back to the vault, Lowry saw Nancy Kidd face down behind her desk about four feet from the door of the vault.

[8] Lowry testified that she was dragged by the robber and hit as she attempted to open compartments in the vault where cash was stored. She told the robber behind her that he would have to stop hitting her long enough for her to spin the combination. As she got to the first number of a compartment's combination, she heard a robber other than the one behind her yell into the vault "they don't think we mean business; you'd better hurry up or your friend out here is going to get it". The robber behind her then tapped her on her neck to make his presence known. When she got to the last number of the combination, she heard the sound of a gunshot. Shortly after the shot, Lowry heard a voice from outside the vault yell into them "tell them I've just shot their friend out here". The robber behind her reinforced the shooter's message by saying "we've just shot your friend out there and you're all next if you don't hurry up". In addition to relaying this message, the robber standing behind her also said: "I'm going to kill you, bitch. I'm going to kill all of you if you don't hurry up." He then laid a "guilt trip" on her by telling her to "look at your friend, look at your poor friend out there".

[9] Other tellers testified regarding the robbery. Although each did not hear all of the threats testified to by Lowry, their testimony, as a whole, confirmed that threats were made after Nancy Kidd's shooting and the fact that there were exchanges between the two robbers who were in the vault area during the relevant time period.

Position of the Parties at Trial

[10] The Crown took the position that all of the circumstances surrounding the shooting of Nancy Kidd demonstrated beyond a reasonable doubt that the appellant and Marlon Rowe shared a common intention to commit robbery and, if necessary, commit murder to achieve their ultimate goal.

[11] The Crown focused on Lowry's testimony regarding the threats and statements made by the appellant while they were in [page197] the vault as well as his calm and callous demeanour as support for the conclusion that the appellant knew that murder was a probable consequence of the robbery. That is, that Rowe and Lawes were on the same wavelength, a plan existed and that plan included murder, if necessary. The Crown further submitted that the appellant was in command of the vault and pointed to the fact that he did nothing to stop the shooting nor did he call off the robbery after the shooting.

[12] It was the position of the defence that the appellant did not expect that a murder would occur as a consequence of the robbery and, as such, the appellant was only guilty of the lesser and included offence of manslaughter.

[13] While admitting that the appellant was in the vault at the time of the shooting, the defence position was that there had been no threat uttered by Marlon Rowe prior to the shooting of Nancy Kidd and that all of the threats made after the shooting were made by Marlon Rowe and not by the appellant. The appellant did not relay any threats, did not strike anyone and was merely a passive bystander. It was Marlon Rowe who struck Lowry and it was Marlon Rowe who, after shooting Nancy Kidd, entered the vault and repeated the threat to Lowry. In support of this position, the defence focused on certain inconsistencies in Lowry's testimony and the fact that various aspects of Lowry's testimony could not be confirmed by or were different from the evidence of other Crown witnesses. Lowry, for example, testified that the same robber accompanied her throughout the course of the robbery and that this robber was the tallest of the four. Because the appellant was the shortest of the four robbers and the appellant was seen on the video several times not in the company of Lowry, the appellant maintains that there was good reason to doubt the accuracy of Lowry's evidence respecting the appellant's role in the events surrounding Kidd's death.

[14] Additionally, the defence pointed to the appellant's statement to police wherein he denied making threats or hitting anyone.

[15] At the end of the Crown's case, the appellant brought a motion for a directed verdict on first degree murder. The trial judge granted that motion and accordingly, the only issue for the jury was whether the appellant was guilty of manslaughter or second degree murder. The jury found the appellant guilty of second degree murder.

Issues on Appeal

[16] The appellant argues that a 27-page section towards the end of the 150-page charge to the jury constituted a "mini charge" [page198] in which the trial judge impressed on the jury his view that the appellant was guilty of second degree murder. The appellant takes the position that judicial comment on substantial, contested factual issues constitutes denial of the accused's right to trial by jury as protected by s. 11(f) of the Charter. In the alternative, the appellant submits that the trial judge violated restrictions on judicial comment laid down at common law and referred to by this court in R. v. Valentini (1999), 43 O.R. (3d) 178, [1999] O.J. No. 251, 132 C.C.C. (3d) 262 (C.A.).

[17] Specifically, the appellant submits that in this portion of the charge the trial judge expressed opinions on aspects of the evidence and that these were forcefully worded and dominated the charge. This portion consisted almost exclusively of statements supporting the Crown's evidence and theory. Furthermore, when seen in the context of such an emotionally charged trial, the repeated focus by the trial judge on the violence of the robbery was inflammatory. The imbalance of the charge in this section was aggravated by the fact that at one point earlier in the charge the trial judge had disparaged the defence's position.

[18] The issues, therefore, are: (1) Is the common law rule allowing judges to express an opinion on certain aspects of the evidence contrary to s. 11(f) of the Charter?; and (2) If not, were the opinions expressed by the trial judge within permissible limits at common law?

Analysis

1. Is the common law rule allowing judges to express an opinion on certain aspects of the evidence contrary to [s. 11(f)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[19] In this section, I will initially summarize the common law rule and then deal with the constitutional issue raised. In dealing with the constitutional issue, I will also deal with the Crown's submission that, because it was not raised at trial, we should refuse to deal with the constitutional issue on this appeal.

(a) The common law rule

[20] Courts have long recognized that a trial judge is entitled to comment on the evidence while instructing the jury. The discretion to comment, however, is limited.

[21] The Supreme Court of Canada has recently confirmed the principle that a trial judge is "entitled to give an opinion on a question of fact and express it as strongly as the circumstances [page199] permit, so long as it is made clear to the jury that the opinion is given as advice and not direction". [^1]

[22] There have been various formulations of guidelines to be used by appellate courts in deciding whether a trial judge has gone too far in expressing an opinion. In R. v. Garofoli, this court stated that an appellate court may find that the trial judge has crossed the boundary even though the jury was told that they were not bound by his views on the evidence if:

(1) the opinion expressed is far stronger than the facts warrant; or

(2) the opinion is expressed so strongly that there is a likelihood that the jury would be overawed by it. [^2]

[23] Somewhat different formulations of these guidelines appear in other decisions such as R. v. Muchikekwanape [^3] and R. v. Valentini. What can be drawn from all of these cases is that, in this area, everything is a question of degree. The overarching principle is fairness. Within this principle of fairness is the recognition that the jury must remain the arbiter of the facts and that any comments made by the trial judge cannot amount to a rebuttal of the defence address to the jury or unfairly denigrate or undermine the position of the defence.

(b) [Section 11(f)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[24] The appellant argues that the common law rule permitting trial judges to express an opinion on the evidence is constitutionally deficient in that it violates s. 11(f) of the Charter. Section 11(f) reads as follows:

11. Any person charged with an offence has the right . . . . .

(f) . . . to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. [page200]

11. Tout inculpé a le droit : . . . . .

(f) . . . de bénéficier d'un procès avec jury lorsque la peine maximale prévue pour l'infraction dont il est accusé est un emprisonnement de cinq ans ou une peine plus grave.

[25] The Crown objects to the issue being raised on appeal as it was not raised before the trial judge. In the alternative, the Crown submits that the common law rule operates in a manner that is wholly consistent with s. 11(f) of the Charter.

(i) Can the issue be raised on appeal?

[26] The general rule is that, subject to certain exceptions, Charter issues should not be entertained for the first time on appeal. Appellate courts, however, retain a discretion to allow them in appropriate cases. The Crown concedes that the factual record is complete and that the sufficiency of evidence is not an issue. The Crown nonetheless submits that the principle of finality, the orderly administration of justice and the nature and purpose of appellate review militate against our hearing the Charter challenge.

[27] The appellant argues that because the factual record is complete, the s. 11(f) issue is simply an additional argument being advanced on appeal and there is no prejudice to the Crown by raising it now for the first time. At trial, the appellant objected to parts of the jury charge on the basis that the trial judge expressed opinions that affected the fairness of the trial. The trial judge responded by denying that he had expressed an opinion. In light of this response, it is obvious, says the appellant, that even if the Charter issue had been raised at trial, the result at trial would have been precisely the same.

[28] I am satisfied that the failure to raise the s. 11(f) issue at trial was not a tactical decision and that the Crown is not prejudiced in the sense that no different or additional evidence would have been called had the matter been raised. The objections to the charge raised by the appellant at trial addressed the expression of opinions by the trial judge. This, in essence, is the same issue that underlies the Charter issue raised in this court. In the result, I consider this to be a proper case for this court to exercise its discretion in favour of permitting the appellant to raise the application of s. 11(f) of the Charter on this appeal.

(ii) Does the common law rule contravene [s. 11(f)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[29] The appellant submits that considering the common law's limited "tolerance" of judicial comment in the context of [page201] the Charter guarantee leads to the conclusion that all judicial comment should be prohibited and, most certainly, that any comment that could influence the jury on a substantial contested factual issue would constitute a breach of the accused's right to a trial by jury.

[30] The right to a trial by jury enshrined in s. 11(f) of the Charter was described by this court in R. v. Finta as follows:

It is a basic tenet of our criminal law that in cases tried by a jury, it is the jury which must decide the guilt or innocence of the accused. Findings of facts which are germane to that task must be left to the jury . . . Any statutory or judge-made rule which transfers the fact-finding function as it relates to issues going to the culpability of the accused, from the jury to a judge is, at the very least, constitutionally suspect. [^4]

[31] The appellant submits that the proposed prohibition on the expression of opinion by trial judges is necessary because trial judges carry such authority and respect with the jury that juries will likely be swayed if a judge expresses any opinion on the facts. This would result in the trial judge usurping the fact finding role of the jury, thereby depriving the accused of the right to the "benefit of trial by jury".

[32] Although I agree that a trial judge cannot usurp the function of the jury, I do not accept the proposition that every expression of opinion on factual issues by a trial judge, even on substantial, contested issues, will invariably lead to this result.

[33] In view of their role, trial judges cannot avoid commenting on the evidence. These comments can be direct and either required or desirable at common law, such as Vetrovec warnings, advising a jury that certain previous convictions such as those involving dishonesty may be more important than others in deciding on credibility, or advising the jury of the risks of relying on eyewitness identification evidence. Comments can also be indirect in the sense that, in the charge, when trial judges deal with each element of the offence, they often select and summarize portions of the evidence that they consider relevant and of some significance. Trial judges will, however, take care to tell the jury that, despite any views or opinions on the evidence they may have expressed directly or indirectly and regardless of the cautions given, they, the jury, are the sole arbiters of the facts.

[34] Beyond comments that are required or desirable, it is well recognized that a trial judge has a discretion to comment [page202] on evidence during the charge to help the jury focus on the critical issues. The exercise of this discretion is often uncontroversial, for example when, in the present case, the judge told the jury that there was little doubt that Lawes and Rowe formed an intention in common to carry out the unlawful purpose namely, armed robbery. What trial judges cannot do is

. . . assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction.

(R. v. Gunning, supra, at para. 31)

[35] In my view, a prohibition on the expression of opinion by a trial judge is neither practical nor desirable and such a prohibition is neither explicitly nor implicitly provided for in the words of s. 11(f) of the Charter. To seek to limit the prohibition to substantial, contested factual issues is of little assistance. The concern at common law and as expressed in s. 11(f) of the Charter is that the trial judge not usurp the function of the jury. By allowing the trial judge to express views and opinions on the evidence "as strongly as the circumstances permit" provided that they do not have the effect of usurping the role of the jury by taking a contested issue away from them or by subverting their independence, the common law recognizes that comments are both a necessary and desirable part of the trial judge's role. The limit is set at the point where the comments interfere with the exercise of the jury's role. Although I firmly believe that judges should avoid unnecessary comments or opinions, the focus of the analysis on appeal is not whether an appellate court views the opinion given by the trial judge as having been necessary or even desirable, but rather whether it interfered with the jury's function or so undermined the defence position that it deprived the accused of a fair trial.

[36] When considering whether a trial judge has gone beyond the limits, the basic assumption is that jurors will abide by their oaths and will accept and follow the judicial instructions they are given. It is assumed, therefore, that when so instructed, jurors will disregard any opinion or statement of the evidence made by the trial judge where it does not accord with their own assessment. This same presumption of juror competence is at the root of the constitutionally protected right to a trial by jury in s. 11(f).

[37] In summary, therefore, the common law rule allows the trial judge to comment on the evidence provided it is made clear to the jury that they are not bound by the judge's views, that the [page203] judge's opinions are not stronger than the facts warrant and that the opinions are not overstated to the point where it is likely that the jury will be overawed by them. By setting the limit on judicial comment at the point where the comments might impermissibly erode or threaten the fact finding and ultimate arbiter role of the jury, the common law rule fosters rather than impedes the values underlying s. 11(f) of the Charter.

2. Were the opinions expressed by the trial judge within permissible limits at common law?

[38] The appellant took issue with a 27-page section of the charge which he characterized as a "mini charge" as well as comments made by the trial judge in the course of his charge, which, he says, denigrated the defence's position.

[39] The 27 pages in issue commenced at p. 114 of the charge. This came after the trial judge had given the general instructions on the function of the jury, a summary of the evidence, instructions on after-the-fact conduct and an outline of the elements of the offence as well as of the positions of the Crown and defence. According to the appellant, this 27-page segment constituted a "mini charge" and came at the point in the charge where one would normally expect the trial judge to be bringing the instructions to a close. Instead of this, the appellant says that, at this point, the trial judge relinquished the mantle of impartial arbiter, became an unapologetic advocate for the Crown and in those 27 pages elaborated on and reinforced the most important arguments and evidence of the Crown.

[40] I do not agree with the appellant's characterization of this portion of the charge. The 27-page section is the point in the charge where the trial judge set about relating the evidence to the key issues that the jury had to decide. It is both useful and usual for a trial judge to do so. The fact that it came after he had already gone through the evidence in some detail and had reviewed the positions of the Crown and defence is of no moment.

[41] Had the trial judge simply highlighted limited parts of the evidence relevant to each issue and referred back to his earlier detailed summary of the facts and outline of the positions of the parties, the trial judge might have avoided some of the repetition which is objected to. In my view, however, his failure to do so did not constitute reversible error. It did not make the charge so complex and confusing that the jury would have had difficulty understanding it nor did it unduly prejudice the appellant.

[42] The 27-page section reviews the three elements of the offence that had to be proven by the Crown: the joint venture to [page204] commit armed robbery, that Marlon Rowe committed murder and that the appellant knew that murder was a probable consequence of carrying out the common unlawful purpose of armed robbery. The joint venture element was summarized in about a page and is not seriously objected to. I will now deal with the two other elements.

(a) Did Rowe commit murder?

[43] The trial judge devoted about 13 pages of this portion of the charge to the issue of whether Marlon Rowe committed murder. This section summarized many of the acts of violence committed during the robbery and characterized the situation as a "reign of terror". By doing so, the appellant submits that the trial judge displayed anti-defence sentiment and was unnecessarily inflammatory in a trial that was already charged with a lot of emotion.

[44] In his closing address to the jury, the only reference made by the appellant to this issue was to say that the Crown had to prove beyond a reasonable doubt that Rowe's shooting of Nancy Kidd was murder and not an accident. Despite the appellant's limited submissions on this element of the offence, it had not been conceded by the defence and remained a live issue for the jury. Evidence had been led suggesting that Rowe's shooting of Nancy Kidd had been accidental. In view of this, it was appropriate that the trial judge review the relevant facts.

[45] The trial judge began by summarizing the defence position as follows:

Other than referring to the onus of proof upon the prosecution [defence counsel] in his closing address did not deal with the issue of whether Marlon Rowe murdered Nancy Kidd. However, this does not relieve the Crown of its responsibility of proving to your satisfaction beyond a reasonable doubt that Marlon Rowe did in fact murder Nancy Kidd.

[46] In the next page and a half of transcript, the trial judge summarized the evidence suggesting that the shooting may have been accidental. Little else could be said respecting the defence position and the evidence in support. In the subsequent ten pages, the trial judge referred to the evidence which was supportive of the Crown's position. Although the trial judge's summary of the facts relevant to this issue appears disproportionate, this is simply a reflection of the fact that the bulk of the evidence pointed away from it being accidental. This may be unfortunate from the appellant's perspective but, in light of the evidentiary record, it is not unfair. At the end of this section, the jury was told that the evidence just summarized was the evidence that the [page205] Crown relied on to prove that Rowe's shooting of Nancy Kidd was not an accident.

[47] The appellant also submits that the reference by the trial judge to several acts of violence committed in the course of the crime was unnecessary and inflammatory. While I appreciate the appellant's concern, the statements were factually correct and provided a backdrop for the key threats that the Crown alleges were made and on which it relied to prove that the shooting was deliberate.

[48] The appellant never denied that there had been violence in carrying out the offence. The defence position was simply that the appellant had taken no part in the violence. This position was made clear to the jury by the trial judge. In the circumstances, although the trial judge's characterization of the events as a "reign of terror" was unfortunate, it did not, in my view, reach the point of constituting "an opinion far stronger than the facts warrant" [^5] and the circumstances permit. [^6]

[49] The trial judge concluded this section of the charge by briefly summarizing the evidence in support of the suggestion that the shooting may have been accidental, repeating how the jury was to address the burden of proof on this issue and reminding the jury of their role as the finders of fact.

[50] I find no error in this portion of the charge.

(b) Did the appellant know that murder was a probable consequence of carrying out the robbery?

[51] The last part of the challenged portion of the charge covers 13 pages and deals with the last element of the offence: whether the appellant knew that murder was a probable consequence of carrying out the robbery.

[52] In this section, the trial judge initially set out the element of the offence to be addressed, then very briefly related the appellant's statement to police to the effect that the appellant had denied striking or threatening anyone. The trial judge then went on to set out the Crown's position.

[53] In his review of the relevant evidence and in canvassing the issues, the trial judge did, on occasion, go quite far in characterizing or in expressing a view on the evidence. This was most visible through his use of rhetorical questions that one could argue admitted to only one answer and signalled the judge's [page206] opinion that particular portions of the Crown's evidence ought to be believed. By way of example, when he referred to the testimony of the three bank employees concerning the threats they say they heard Rowe or the appellant make in the course of the robbery, the trial judge said:

Is it reasonable to believe that Marlon Rowe shot Nancy Kidd, dashed into the vault and made threats and even repeated threats to bank employees who were trying to open the compartments? . . . . .

Again, you are very familiar with the evidence of Connie Lowry, Joanne Wylie and Manjinder Sihota about the threats made before and after Nancy Kidd was shot. Did they hallucinate? Did they manufacture this evidence? Are they dreaming?

[54] In my view, passages such as this one support the appellant's submission that the trial judge did, in some instances, indirectly communicate to the jury his opinion on portions of the evidence and the credibility and reliability of certain witnesses. In the context, however, these comments would have been understood by the jury as comments or opinions of the trial judge; they would not have been taken as legal instructions which they were required to follow.

[55] Over and above the rhetorical questions of the kind noted above, this part of the charge, as well as an earlier part of the charge, contain comments by the trial judge that could be taken as denigrating aspects of the defence position. Again by way of example, the trial judge said:

If Dwain Lawes was not in the vault, what was he doing? He would have you believe he was a passive bystander who almost politely asked the women to open the vault. No gun, no threats, no violence.

[56] The issue, therefore, is whether, viewed as a whole, the trial judge went too far in expressing his opinion and whether he unfairly undermined the position of the defence.

[57] At the outset, it is useful to repeat what this court said in R. v. Baltovich [^7] regarding the importance of a fair and balanced jury charge:

We think it important to underscore the significance of the charge to the jury and the need for trial judges to be fair and balanced in their recitation of the evidence and their review of the position of the parties.

The charge to the jury is a central feature in any jury trial. In the context of our adversarial process, its strength lies in its objectivity. In an otherwise [page207] partisan atmosphere, the jury is entitled to look to the charge to guide it safely through its deliberations and assist it in arriving at a true verdict according to law.

Much has been said in recent years about the complexity of jury charges and the need to simplify them. Trial judges face a difficult task in this regard, especially when it comes to explaining complicated issues of law. In R. v. Jacquard, [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1, at para. 2, Chief Justice Lamer observed that while "accused individuals are entitled to properly instructed juries", there is "no requirement for perfectly instructed juries". Those words are as true today as they were then. No one expects perfection in a jury charge. Mistakes are bound to occur.

But not all mistakes are alike. Some can easily be avoided. Failing to provide the jury with a fair and balanced charge is one of them. There is no justification for jury charges that are not even-handed.

We cannot stress enough the importance of a fair and balanced charge. A charge that meets those requirements is much more likely to withstand appellate review than one that does not: See Jacquard, supra, at para. 56. In practical terms, this may mean the difference between dismissing the appeal, and ordering a new trial with all of its attendant costs and hardships. Our system of justice is already overburdened. We do not need to add to this problem with new trials that could have been avoided. Further, s. 11(d) of the Canadian Charter of Rights and Freedoms provides that every person charged with an offence has the right to a fair trial. This is a fundamental right. Unfair and unbalanced charges undermine this right.

[58] In Baltovich, this court also expressed disapproval of the use of rhetorical questions of the type used in the present case. Such rhetorical questions may "have a place in the Crown's closing address. They should be avoided in the jury charge, lest the trial judge be seen as taking up the Crown's cause and casting off the mantle of objectivity." [^8]

[59] The trial judge in this case ought not to have used rhetorical questions such as the one I have quoted and ought not to have made comments that could be taken as unfairly denigrating the defence position. This said, however, I need to assess whether the trial judge's unfortunate comments, considered in the context of the charge as a whole, were made in such a forceful way so as to overwhelm the jury or usurp its fact finding function, and whether they deprived the appellant of a fair presentation of his case to the jury [^9] such that the charge was unfair and unbalanced. Several factors militate against such findings.

[60] First, in the charge as a whole and in this section in particular, the trial judge did not take the defence off the table. Indeed, [page208] at the end of this 13-page section, the trial judge devoted more than a page to remind the jury of the defence position and of the evidence in support. This was the last thing the trial judge said before dealing with the standard closing instructions. It is also worth noting that earlier in the charge the trial judge had spent 12 pages outlining the defence position in considerable detail.

[61] Second, as part of the standard closing instruction as well as in several earlier parts of the charge, the trial judge made it clear to the jury that if he had consciously or unconsciously expressed any view or opinion and they disagreed with it, it was their duty to disregard it and follow their own view.

[62] Third, in fairness to the trial judge, the evidence showing that the appellant was a party far exceeded the evidence that he was not. A balanced charge does not require the trial judge to ignore evidence that is damaging to the accused and, in this case, the evidence against the appellant position was quite strong, if not overwhelming.

[63] Fourth, where the trial judge expressed an opinion, it was one that the jurors would almost certainly have reached themselves. The trial judge, however, never directed the jury to make any particular finding, nor did he express any opinion as to the guilt of the appellant.

[64] Clearly rhetorical questions and comments that might be taken to unfairly denigrate the defence position ought to be avoided. They make a trial judge's charge vulnerable and may result in the charge not being fair and balanced. Taking the factors I have outlined into account and bearing in mind that the charge must be read as a whole, I conclude, however, that in all of the circumstances the trial judge did not run afoul of the common law rule so as to usurp the fact finding function of the jury, nor did he unfairly denigrate the position of the defence. Further, the jurors "would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues". [^10] The appellant was not deprived of a fair trial.

Other Issues

(1) Did the trial judge's charge raise arguments not made by the Crown?

[65] The appellant argues that the trial judge overemphasized the violence of the robbery and in fact went on to link the degree [page209] of violence with murder being a probable consequence. This link between the violence of the robbery and murder being a probable consequence had not been made by the Crown. By raising it in the charge for the first time, the trial judge made it impossible for the defence to address it.

[66] As I have set out earlier, the trial judge did outline, at some length, the violence with which the robbery was carried out. This violence was certainly relevant to the issue of Rowe's intent to commit the murder of Nancy Kidd and there is nothing inappropriate in the trial judge making reference to it and to the evidence in support of it in his charge. The various acts of violence and threats of violence were also relevant to the assessment of the credibility and reliability of several of the bank witnesses and the weight to be given to the appellant's statement to the police. Although the structure of the charge resulted in a fair degree of repetition of many of the acts of violence, this does not, in the circumstances, constitute reversible error.

[67] Nor do I consider that the trial judge's charge raised new arguments on behalf of the Crown. The trial judge gave proper instructions on the elements of the offence and did not, as the appellant suggests, invite the jury to conclude that, in light of the general violence used in its commission, murder was a probable consequence of the robbery.

(2) The emotion exhibited by the Crown in his closing address to the jury

[68] This was a very emotional trial. It had received considerable media attention. The significant violence shown against the bank tellers was, in and of itself, shocking. It is in this context that what the appellant describes as audible sobbing by Crown counsel at the end of his closing address to the jury occurred. This display of emotion, coming at such a critical time, had a powerful impact on the jury and, the appellant submits, when combined with the problems with the charge, warrants ordering a new trial.

[69] The Crown concedes that, at trial, Crown counsel experienced a brief period of emotion but takes issue with the appellant's description of it. With the consent of the appellant, the Crown filed fresh evidence with this court wherein it was shown that Crown counsel's display of emotion at trial lasted approximately seven seconds and did not involve the shedding of any tears.

[70] In the circumstances, the Crown's moment of emotion is understandable. Crown counsel quickly composed himself and no [page210] unfairness resulted. The trial judge addressed the issue by supplementing the instructions regarding the jury's duty to approach their task dispassionately and fairly. In my view, the Crown's moment of emotion, while unfortunate, did not render the trial or the charge unfair. I would not give effect to this ground of appeal.

(3) The tone of voice used by the judge in the jury charge

[71] The appellant submits that the errors committed by the trial judge in the course of his charge were aggravated because, upon reaching the "mini charge" portion of the charge to the jury, the trial judge adopted what the appellant describes as a "stentorian" tone.

[72] The recording of the charge to the jury was filed as part of the appeal. There was not, as the appellant suggests, a noticeable change in tone when the trial judge reached the impugned portion of the charge that could have had an impact on the jury. I would not, therefore, give effect to this ground of appeal.

Sentence Appeal

[73] At trial, the appellant argued that the minimum sentence of life with a ten-year parole ineligibility period was appropriate. He argued that, on the evidence, a co-accused, Dwain Campbell, played a similar role in the robbery and received the minimum ten-year sentence from the same trial judge. According to the appellant, the finding of guilt against him was on the basis of the least culpable form of mental element sufficient to constitute the crime.

[74] At trial, the Crown had suggested 15 years of parole ineligibility but had added that this figure may be low.

[75] The trial judge determined that a 17-year period of parole ineligibility was appropriate. He did so in light of the horrendous nature of the crime and the role that the appellant played in it.

[76] In my view, the trial judge did not commit an error in principle and the parole ineligibility period is not demonstrably unfit. There was a significant amount of moral blameworthiness on the appellant in this offence. The lower parole ineligibility period received by Dwain Campbell was due in part to the fact that he pled guilty and to his lesser role in the offence. I see no reason to interfere.

Conclusion

[77] I would dismiss the conviction appeal, allow the application for leave to appeal sentence but dismiss the sentence appeal.

Appeal dismissed. [page211]

Notes

[^1]: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 196 C.C.C. 123, at para. 27.

[^2]: R. v. Garofoli, [1988] O.J. No. 365, 41 C.C.C. (3d) 97 (C.A.), at p. 133 C.C.C., reversed on other grounds [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115.

[^3]: R. v. Muchikekwanape, 2002 MBCA 78, [2002] M.J. No. 253, 166 C.C.C. (3d) 144 (C.A.), at p. 154 C.C.C.

[^4]: R. v. Finta, [1992] O.J. No. 823, 73 C.C.C. (3d) 65 (C.A.), at pp. 173-74 C.C.C., affirmed without reference to this point [1994] 1 S.C.R. 701, [1994] S.C.J. No. 26.

[^5]: R. v. Curran, [2004] O.J. 2632, 188 O.A.C. 1 (C.A.), at para. 58.

[^6]: See also R. v. Gunning, supra, at para. 27.

[^7]: R. v. Baltovich (2004), 73 O.R. (3d) 481, [2004] O.J. No. 4880 (C.A.), at paras. 114-18.

[^8]: R. v. Baltovich, at para. 146.

[^9]: See R. v. Ruddick, [1980] O.J. No. 1534, 57 C.C.C. (2d) 421 (C.A.), at p. 435 C.C.C.

[^10]: R. v. Cooper, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, at para. 43.