Her Majesty the Queen v. Hassanzada

[Indexed as: R. v. Hassanzada]

Ontario Reports

Court of Appeal for Ontario,

Watt, Hourigan and Huscroft JJ.A.

April 21, 2016

130 O.R. (3d) 81 | 2016 ONCA 284

Case Summary

Criminal law — Evidence — Accused convicted of second degree murder — Evidence against accused entirely circumstantial — Defence relying on absence of any forensic link between accused and killing despite brutality of killing — Trial judge not erring in directing defence counsel not to submit in closing address that absence of forensic connection made it impossible that accused was killer — Trial judge properly instructing jurors that they were entitled to take absence of forensic evidence into account in deciding whether they had reasonable doubt as to accused's guilt — Trial judge also instructing jury that forensic evidence is not as definitive as shown on television programs and that absence of evidence is not proof that person did not enter room or touch item — "CSI instruction" being unwarranted, and being unsupported by domestic or foreign pattern instructions however not affecting result when considered in context of entire charge.

Criminal law — Trial — Presence of accused — Section 650(1) of Criminal Code requiring that accused be present during pre-charge conferences — Appellate court raising issue of presence of accused — Trial judge distributing draft charge to jury, inviting and receiving submissions via e-mail — Not improper to deliver draft charge via e-mail — Section 650(1) violated by inviting and receiving submissions about draft charge as contents of jury charge affecting accused's vital interests and submissions ought to have been sought and received in court — Criminal Code, R.S.C. 1985, c. C-46, s. 650(1).

The accused was convicted of second degree murder. The victim was stabbed and bludgeoned, and his body was found in a pool of blood. The evidence against the accused was entirely circumstantial. The victim had arranged to meet the accused at the victim's place of business. Shortly after the victim entered the premises, a white van pulled up and the driver entered the warehouse and left after five minutes. No one identified the driver. The victim did not answer his cellphone after the driver left the building. Five people entered the building later, but did not stay long enough to kill the victim. The evidence at trial tended to establish that the victim was killed contemporaneously with the arrival and departure of the van, that the van was the same make, model and colour and had the same external markings as the accused's van, and that the accused tried to use the victim's bank card within hours of the victim's death. The defence relied on the absence of any forensic connection between the accused and the killing. The weapons used to kill the victim were never found. The police seized the accused's van six days after the victim's death, but investigators could find no indication of blood or evidence that the interior surfaces of the vehicle had been wiped clean. The trial judge directed defence counsel not to go so far in her closing address as to submit that the absence of a forensic connection made it impossible that the accused was the killer. The trial judge instructed the jury that it was entitled to take the absence of a forensic connection into account in deciding whether they had a reasonable doubt as to the accused's guilt. She also [page82 ]instructed the jury that real-life trials are not like television shows, that forensic evidence is not anything close to as definitive as it is portrayed in television shows such as CSI, that there is no inviolable rule that every time somebody enters a room or touches an item, a fingerprint, DNA or other trace evidence will be left behind, and that absence of evidence is not proof that the person did not enter the room or touch the item. The accused appealed.

Held, the appeal should be dismissed.

The trial judge did not err in limiting what the defence could say about the absence of forensic evidence and its significance to the Crown's burden to prove its case beyond a reasonable doubt.

The "CSI instruction" was unwarranted by the evidence adduced at trial, unsupported by authority, not a part of any domestic or foreign pattern jury instruction, and a superfluous reminder for a 21st-century Canadian jury. However, when considered in the context of the charge as a whole, it did not affect the result. The trial judge expressly instructed the jury that a reasonable doubt may arise from the absence adduced at trial or from the absence of evidence. The absence of evidence of a forensic link or connection between an accused and an offence or crime scene will vary in its significance from one case to the next. In this case, forensic examination of the van occurred six days after the victim was killed. The fact that the van did not furnish any evidence connecting the accused to the killing or where it occurred was of reduced significance than would be the case where the search was more contemporaneous with the killing.

Counsel did not raise the issue of the accused's presence during the pre-charge conference but the appellate court addressed the issue. Section 650(1) of the Criminal Code requires that an accused be present during a pre-charge conference. There was nothing improper about distributing the draft charge to counsel via e-mail. However, inviting and receiving submissions from counsel by e-mail or other electronic means about the content of her draft jury instructions violated s. 650(1). Discussions about the charge to the jury affect the accused's vital interests and should take place, on the record, in court.

Cases referred to

R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, 150 D.L.R. (4th) 733, 216 N.R. 215, [1997] 10 W.W.R. 570, J.E. 97-1809, 118 Man. R. (2d) 218, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1, 35 W.C.B. (2d) 512, apld

Other cases referred to

R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199, 137 O.A.C. 336, 151 C.C.C. (3d) 545, 39 C.R. (5th) 291, 79 C.R.R. (2d) 83, 12 M.V.R. (4th) 169, 49 W.C.B. (2d) 103 (C.A.); R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, 369 N.R. 225, [2008] 1 W.W.R. 1, J.E. 2008-30, 302 Sask. R. 4, 226 C.C.C. (3d) 1, 288 D.L.R. (4th) 1, 52 C.R. (6th) 221, EYB 2007-127250, 75 W.C.B. (2d) 727; R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 143 D.L.R. (4th) 433, 207 N.R. 246, J.E. 97-457, 157 N.S.R. (2d) 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280, 33 W.C.B. (2d) 348; R. v. Jolivet, [2000] 1 S.C.R. 751, [2000] S.C.J. No. 28, 2000 SCC 29, 185 D.L.R. (4th) 626, 254 N.R. 1, J.E. 2000-1059, 144 C.C.C. (3d) 97, 33 C.R. (5th) 1, 46 W.C.B. (2d) 97; R. v. Lewis, 1979 19 (SCC), [1979] 2 S.C.R. 821, [1979] S.C.J. No. 73, 98 D.L.R. (3d) 111, 27 N.R. 451, 47 C.C.C. (2d) 24, 10 C.R. (3d) 299, 12 C.R. (3d) 315, 3 W.C.B. 356; R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16, 273 O.A.C. 273, 95 W.C.B. (2d) 127; [page83 ]R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, [1999] O.J. No. 346, 117 O.A.C. 258, 132 C.C.C. (3d) 545, 41 W.C.B. (2d) 159 (C.A.); R. v. Pisani, 1970 30 (SCC), [1971] S.C.R. 738, [1970] S.C.J. No. 99, 15 D.L.R. (3d) 1, 1 C.C.C. (2d) 477; R. v. Stark, 2000 3503 (ON CA), [2000] O.J. No. 1406, 131 O.A.C. 184, 145 C.C.C. (3d) 129, 46 W.C.B. (2d) 213 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 326]; R. v. Tebo, 2003 43106 (ON CA), [2003] O.J. No. 1853, 172 O.A.C. 148, 175 C.C.C. (3d) 116, 13 C.R. (6th) 308, 57 W.C.B. (2d) 588 (C.A.); R. v. Vézina, 1986 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2, 25 D.L.R. (4th) 82, 64 N.R. 93, J.E. 86-197, 23 C.C.C. (3d) 481, 49 C.R. (3d) 351

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1) [as am.], 650.1

APPEAL by the accused from the conviction entered on December 1, 2011 by Molloy J. of the Superior Court of Justice, sitting with a jury.

James Lockyer and Lance Beechener, for appellant.

Tracy Kozlowski, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: — Rajeswaran Saravanamuthu had a business. A recycling business. Tiga Metals. He recycled things made of metal. Used auto parts. Like catalytic converters.

[2] One cold winter morning, a man drove up to the entrance of Tiga Metals in a white van. The man entered Tiga Metals. Five minutes later, he drove away.

[3] After the white van left, no one spoke to Rajeswaran Saravanamuthu again. Not by telephone. And not in person.

[4] About five hours later, two other men entered Tiga Metals. They found Rajeswaran Saravanamuthu lying dead on the floor. In a pool of blood. Stabbed. And bludgeoned.

[5] A jury concluded that Jawad Hassanzada killed Rajeswaran Saravanamuthu. The killing, the jury decided, was unlawful and amounted to second degree murder.

[6] Jawad Hassanzada appeals. The judge, he says, made some mistakes. In the way she restricted the defence address but not the Crown address to the jury about the absence of forensic evidence linking him to the killing. And in instructing the jury about the significance of this absence of forensic link in deciding whether the Crown had proven his guilt beyond a reasonable doubt.

[7] As I will explain, I would reject the claims of error advanced on behalf of Hassanzada and dismiss his appeal. [page84 ]

The Background Facts

[8] The evidence adduced at trial was entirely circumstantial. Jawad Hassanzada did not testify or call any witnesses.

[9] The grounds of appeal advanced do not require an elaborate recitation of the evidence admitted at trial. A brief summary provides a sufficient setting within which to understand the grounds of appeal and permit their determination.

1. Tiga Metals

[10] The primary business of Tiga Metals involved the purchase and sale of used car parts, mainly catalytic converters. The business had few employees. Rajeswaran Saravanamuthu worked there. And so did his brother-in-law. Others had worked there from time to time over the several months prior to Rajeswaran Saravanamuthu's death.

[11] Rajeswaran Saravanamuthu dealt in cash. He kept a large amount of cash on hand, often in a money pouch. He also carried a wallet but did not keep much cash in it.

[12] Tiga Metals was a preferred buyer of used car parts because it paid sellers more than many of its competitors. Regular customers would make appointments by calling Rajeswaran Saravanamuthu on his cellphone or on the landline associated with the business. Some customers would bring used parts to Tiga Metals several times a day.

2. The business premises

[13] The business premises of Tiga Metals were in a warehouse. There were four pedestrian entrances, one on each side of the building.

[14] The main entrance to Tiga Metals was on the south side of the building. On that side were two garage doors. One opened to a ramp leading to the south driveway. Customers often entered through that door, which was usually open during business hours. The other garage door opened to a loading dock occupied by a large dumpster.

[15] The east and west doors were used infrequently. And the north door used only rarely.

[16] Tiga Metals had a sophisticated security system. An alarm system monitored the pedestrian entrances and garage doors. A CCTV camera system monitored all but the east entrance. The cameras were motion-activated. Inside the warehouse was a security camera, but it did not capture the entirety of the interior. No evidence described the specifications, range or sensitivity of the cameras. [page85 ]

3. The relationship between Rajeswaran Saravanamuthu and Jawad Hassanzada

[17] Jawad Hassanzada was a customer of Tiga Metals, as was his brother. Hassanzada was known as "Jayy".

[18] For about six months prior to February 2009, Hassanzada attended university in Oshawa. He stopped frequenting Tiga Metals during this six-month period, but resumed his attendance thereafter.

[19] By all accounts, the relationship between Rajeswaran Saravanamuthu and Hassanzada was cordial.

4. The appointment

[20] On March 12, 2009, Rajeswaran Saravanamuthu agreed to drive his sister-in-law, who was pregnant, to her medical appointment at a local hospital. Shortly before leaving for the hospital, Rajeswaran Saravanamuthu returned a telephone call to Hassanzada. He was overheard to say that he would be "there" in half an hour. He made this call around 9:45 a.m.

[21] Rajeswaran Saravanamuthu dropped his sister-in-law and her friend off at the hospital shortly after 10:00 a.m. He explained to them that he was going to Tiga to take delivery of a catalytic converter and then to a garage to get the lock on his Jeep fixed. He told his passengers that he would be back to pick them up in half an hour, but asked them to call him if the medical appointment was delayed.

[22] Rajeswaran Saravanamuthu called Hassanzada's cell-phone at about 10:07 a.m. The call was transmitted by a tower near Tiga Metals' business premises.

5. The warehouse and the white van

[23] Rajeswaran Saravanamuthu returned to Tiga Metals at 10:09 a.m. He entered through the south door, disarmed the alarm system and began removing items from in front of the garage door leading to the loading ramp inside the warehouse. He unlocked and opened the garage door then headed east inside the warehouse.

[24] Rajeswaran Saravanamuthu never appeared on any surveillance video after he entered the warehouse.

[25] At about 10:14 a.m., a white van backed up the loading ramp to the open garage door. The back doors of the van remained closed. The driver of the van got out of the vehicle, closed the door behind him, walked up the ramp and entered the warehouse. [page86 ]

[26] No one identified the driver of the van. There was evidence, however, on which the jury could find on the basis of the colour, model, external features and incidental markings, including a damaged right headlight, a rust pattern on the body, the absence of a window in the rear doors, bug deflectors on the grille and bird droppings on the roof that the white van belonged to Jawad Hassanzada. Police surveillance over a period of days following the killing revealed that no one other than Hassanzada drove the van.

6. The departure of the white van

[27] Around 10:19 a.m., the driver of the white van walked out of the warehouse and down the ramp. He got into the van and drove away. The large garage door at the top of the ramp remained open. The air temperature, including wind chill, was minus 15 degrees Celsius.

7. Efforts to contact Rajeswaran Saravanamuthu

[28] Rajeswaran Saravanamuthu made extensive use of his cellphone to conduct his business. However, over the several hours that followed the white van's departure from Tiga Metals, no one spoke to or was called by Rajeswaran Saravanamuthu. All efforts to contact him on his cellphone failed. He did not call or pick up his sister-in-law at the hospital as he had agreed to do earlier.

8. The visitors at Tiga Metals

[29] From shortly after noon until about 3:00 p.m. on March 12, 2009, surveillance cameras showed five people arrive in different vehicles at Tiga Metals. All entered the business premises through the south door. Cameras inside the premises did not capture every move of these visitors but none remained for more than about ninety seconds. None of these men were identified.

9. Discovery of the body

[30] Shortly before 3:00 p.m. on March 12, 2009, two men got out of a dark-coloured van by the ramp at the south entrance to Tiga Metals. They walked up the ramp. Both carried a catalytic converter. They entered the unit, found the deceased's body and called 911.

10. The scene

[31] Police arrived within minutes of the 911 call. The only doors open on their arrival were the south pedestrian door and [page87 ]the garage door at the top of the ramp to the south entrance. The other doors were locked. The east door required a key to lock it from the outside. A shovel rested against the inside of that door. The area around this door was not covered by any surveillance camera.

[32] The sign outside Tiga Metals indicated that the business was closed on March 12, 2009, and directed enquiries to the deceased's cellphone. The door at the top of the landing ramp was usually closed in the winter, opened only when customers arrived. Despite the usual practice and a wind chill of minus 15 degrees Celsius, the door remained open after the deceased entered around 10:00 a.m.

[33] Police located the body of the deceased lying in a pool of blood near the east door to Tiga Metals. His keys to the business were found hanging on a door to the electrical room.

11. The cause of death

[34] The deceased suffered several stab wounds as well as blunt force injuries to his head. He had defensive wounds on his hands and arms. The fatal assault involved at least two weapons. One was a knife, the other a long and narrow blunt instrument. Neither was recovered.

[35] The examining pathologist could not determine with any degree of precision when the deceased died.

12. The forensic evidence

[36] Investigators catalogued more than 100 bloodstains throughout the Tiga Metals warehouse including some on top of a box on a forklift about 14.5 feet away from the body of the deceased and another ten feet away from the body. The bloodstain pattern did not reveal the relative positions of the deceased and his assailant when the fatal altercation occurred.

[37] A stab wound to the deceased's neck would not have produced any arterial spray of blood, only an oozing of blood from the wound site. The stab wound to the neck had cut a vein, not an artery. No evidence was adduced about the amount of blood likely to have been on the assailant or on any weapon used in the attack. Likewise, there was no evidence about the likelihood or the extent of blood being transferred from any weapons used in the attack to another surface.

[38] Six days after the death of the deceased, police seized Hassanzada's white Chevy van. Its interior was dirty, greasy and filled with garbage. Police found no weapon in the van that could be linked by size or shape to any used to kill the deceased. Despite protracted examination of the interior, [page88 ]investigators could not find any indication of blood or evidence that the interior surfaces of the vehicle had been wiped clean.

13. The money pouch and bank cards

[39] Police found the deceased's money pouch containing $4,500 in cash in his unlocked vehicle outside the premises of Tiga Metals. They also found his CIBC bank card on the floor near his body.

[40] At about 10:21 p.m. on March 12, 2009, someone tried twice to use the deceased's TD bank card to withdraw money from his account. Both attempts were at an automated teller machine at a TD Bank branch at 2061 Simcoe Street North in Oshawa. Both attempts failed because the person involved did not enter the correct PIN. This bank is about a two-minute walk from a residence where Hassanzada lived while attending university in Oshawa. In March 2009, Hassanzada had an account at that branch.

[41] One week earlier, someone using Hassanzada's debit card had made an empty envelope deposit of $1,000 into Hassanzada's account at the same Oshawa bank.

[42] Between March 7 and 9, 2009, another empty envelope deposit, this time of $1,500, was made to Hassanzada's account at another TD Bank branch. This "deposit" was made at 45 Overlea Boulevard, a branch located close to Hassanzada's residence in Toronto.

[43] The TD Bank cleared the "deposits" made in the empty envelopes on March 10, 2009.

14. The positions of the parties at trial

[44] The crucial issue at trial was the identity of the person who killed the deceased. To some extent, resolution of this issue involved determining when the deceased was killed. There was no dispute that the killing of the deceased was unlawful and amounted to second degree murder, the offence with which Hassanzada was charged.

[45] It was the position of the Crown that the deceased was killed shortly after 10:09 a.m. by the driver of the white Chevy van. The Crown pointed out that no one heard from or spoke to the deceased after the white van left Tiga Metals. The surveillance cameras did not show him inside the building. He did not go outside. He did not speak to or go to the hospital to pick up his sister-in-law as he had agreed to do. None of the other persons who entered Tiga Metals prior to the discovery of the body were there long enough to have killed the deceased. [page89 ]

[46] The Crown contended that the white Chevy van belonged to Hassanzada. It was the same make and model and had the same exterior features including damage to its exterior and bird droppings on its roof. Hassanzada, according to police surveillance, was its only driver. The white van arrived at Tiga Metals shortly after a cellphone conversation between the deceased and Hassanzada wherein they arranged a meeting at Tiga Metals even though the business was closed that day.

[47] The Crown asserted that the person who killed the deceased also stole his wallet, which contained his TD bank card. That bank card was then used at two TD Bank branches where, earlier that week, Hassanzada had made empty envelope deposits.

[48] The position of the defence was that Hassanzada did not kill the deceased. Somebody else did. Perhaps one of the persons who entered Tiga Metals between 10:00 a.m. and discovery of the deceased's body. Five men entered. None were identified. Perhaps someone entered the warehouse undetected. Through the east door. Or a window. What happened inside was not fully captured on the security system.

[49] The defence said that Hassanzada's guilt was not the only reasonable inference available from the circumstantial evidence considered as a whole. No motive was established. The suggestion that the killing was motivated by robbery was unsustainable. The deceased's money pouch containing $4,500 was left in plain view in his unlocked vehicle. A CIBC bank card was left on the floor near the body.

[50] The defence emphasized the absence of any forensic link between Hassanzada and the killing. No blood in his van or on his clothes. No weapons. No clean up. No case.

The Grounds of Appeal

[51] The complaints Hassanzada advanced on appeal focused on the absence of forensic evidence linking him to the death of the deceased. More specifically, he complained that the trial judge erred in law

(i) in limiting what the defence could say about the absence of forensic evidence and its significance to the Crown's burden to prove its case beyond a reasonable doubt and, as a result, "emboldening" the Crown to overstep the permissible limits in her closing address; and [page90 ]

(ii) in giving the jury a "CSI[^1] instruction", as the trial judge termed it, that essentially neutered the "absence of evidence" direction required under R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77.

Ground #1: The closing addresses of counsel

[52] The absence of forensic evidence linking Hassanzada (the appellant) to the killing of the deceased was an important feature of the closing addresses by both counsel at trial. How counsel would handle this issue in their closings was the subject of considerable discussion. The trial judge initiated and persisted in those discussions, attempting to ensure that the addresses remained within what she considered acceptable bounds.

The pre-closing discussions

[53] Experienced defence counsel (not counsel on appeal) made it clear to the trial judge that the absence of forensic evidence linking the appellant to the scene and killing was an important part of the defence case. Defence counsel pointed out the violent nature of the killing and the involvement of two or more weapons. Yet police never found the murder weapons, let alone any link between those weapons and the appellant. The deceased's blood was not found on the appellant's clothing or in his van despite protracted forensic examination of the interior of the vehicle. The van disclosed no evidence of wiping. This absence of evidence could raise a reasonable doubt about the appellant's guilt.

[54] Prior to closing addresses, the trial judge engaged counsel in lengthy discussions about the necessity for and content of a "CSI instruction". The discussions occurred in the courtroom and by e-mail during hours when the court was not sitting. The trial judge provided drafts of her proposed instructions. She invited and received comments on their correctness and adequacy in court and by e-mail.

[55] The trial judge made it clear that she felt it necessary to include a "CSI instruction" in her charge. She noted that the defence always made "a huge fuss" about the lack of forensic evidence. In her view, its absence "doesn't prove much". [page91 ]

[56] Defence counsel agreed that the trial judge was required to instruct the jury that the absence of evidence, including the absence of forensic evidence linking the appellant to the killing, could raise a reasonable doubt about Hassanzada's guilt. But counsel objected to the proposed "CSI instruction" because embedded in it was an assumption of which there was no evidence -- that the absence of forensic evidence linking a person to a crime scene was common and did not mean that the person was not there. This took away from the "absence of evidence" component of the Lifchus instruction on reasonable doubt and mischaracterized its significance in a circumstantial case.

The closing addresses

[57] In the absence of any defence evidence, the Crown addressed the jury first.

[58] The trial Crown sought to diminish the importance of the absence of any forensic link between Hassanzada and the killing of the deceased. She pointed out that there was no evidence that blood gushed or sprayed all over the murder scene, only that it oozed out of the deceased's body from severance of a vein. The blood at the scene was minimal. Thus, the likelihood of its presence on the killer's weapons and clothing and, as a consequence, its transfer to the van was also minimal. The trial Crown acknowledged that the forensic identification officer found no evidence that the interior of the van had been wiped. She submitted, however, that it was only common sense that Hassanzada had done so.

[59] Defence counsel emphasized the absence of forensic evidence linking Hassanzada to the killing of the deceased. Police found no weapons, let alone weapons in Hassanzada's possession. They found no blood in the van or on anything connected to Hassanzada. Admittedly, there was not a lot of blood at the scene, but blood was found a considerable distance away from the deceased's body, making it likely that the killer or the weapons used would have blood on them. The van had not been wiped. A fine-tooth comb examination of its interior yielded nothing.

[60] Defence counsel argued that the absence of forensic evidence, on its own, was sufficient to raise a reasonable doubt about Hassanzada's guilt and explained why, in the circumstances of this case, jurors should reach such a conclusion.

The arguments on appeal

[61] The appellant says that the absence of forensic evidence created a significant conundrum for the Crown in a prosecution [page92 ]in which its case consisted entirely of circumstantial evidence. The closing address of the trial Crown contributed to or caused an unfair trial in at least three respects.

[62] First, the trial Crown asserted as facts matters of which there was no evidence. Implicit in the Crown's submissions that there was no evidence of a large gushing or spraying of blood or a scene bathed in blood was the contention that a large volume of blood was required before transference could occur and provide a forensic link to the killer.

[63] Second, the trial Crown improperly characterized the defence position in her closing address. She engaged in "rank hyperbole" about the scene being coated in blood. The defence position was not dependant on there being a high volume of blood at the scene. The defence position was that a miniscule amount of blood was all that was required for DNA analysis and yet nothing was found that linked the appellant to the scene.

[64] Third, the trial Crown denied the actual evidence adduced during the Crown's case. She overreached by saying that, despite the forensic evidence that there was no indication that the interior of the van had been wiped, common sense would suggest a clean up. This was contrary to the evidence. And the trial judge's admonitions left defence counsel without the ability to respond.

[65] The respondent offers a compendious rebuttal: the closing address by the trial Crown fairly addressed the anticipated defence submissions that the absence of forensic evidence linking Hassanzada to the killing was enough to raise a reasonable doubt about his guilt.

[66] The respondent says that it was open to the Crown at trial to argue that there was not so much blood at the scene that it would necessarily adhere to the weapons or project onto Hassanzada's clothing and thus have been transferred to the van. The pathologist made it clear that the outpouring of blood from the deceased was by oozing, not by arterial spray, thereby reducing the likelihood of its landing on the assailant's clothing. The respondent adds that there was no evidence of the relative positions of the deceased and his assailant. Finally, the van was not searched until six days after the killing. There was sufficient time to remove and dispose of the clothing and weapons.

[67] The closing of the Crown, anticipating what defence counsel would say about the absence of evidence, simply invited the jury to reach common sense conclusions about the significance of the absence of evidence to the satisfaction of the standard of proof imposed upon the Crown. [page93 ]

The governing principles

[68] Sometimes, for example, in prosecutions in which the case for the Crown consists entirely or substantially of circumstantial evidence, the absence of evidence may raise a reasonable doubt about the guilt of an accused or contribute to a conclusion by the trier of fact that the case for the Crown falls short of the standard of proof the law demands: R. v. Tebo, 2003 43106 (ON CA), [2003] O.J. No. 1853, 175 C.C.C. (3d) 116 (C.A.), at para. 8.

[69] The absence of evidence may be of especial importance to the defence where no defence evidence is called: R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199, 151 C.C.C. (3d) 545 (C.A.), at para. 57. It follows that it is open to defence counsel to demonstrate inadequacies or failures in an investigation through cross-examination of the witnesses for the Crown and, in counsel's closing address, to link those failures to the Crown's obligation to prove its case beyond a reasonable doubt: Bero, at para. 58.

[70] In accordance with Lifchus, trial judges instruct juries that a reasonable doubt may arise from the evidence or an absence of evidence: Lifchus, at para. 39.

[71] The absence of evidence, for example, the absence of evidence of a forensic connection between an accused and a crime scene, may vary in importance from one case to the next. In some, a place of prominence. In others, a matter of no great importance: R. v. Stark, 2000 3503 (ON CA), [2000] O.J. No. 1406, 145 C.C.C. (3d) 129 (C.A.), at paras. 29-31, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 326. In other words, the importance of an absence of evidence to the adequacy of the Crown's proof is a variable, not a constant or a fixed relation.

[72] In closing addresses, counsel, both prosecuting and defending, are entitled to make submissions about the effect of absence of evidence of a forensic connection between an accused and the scene of a crime. What they can say is bounded by the evidence given at trial and subject to the prohibition against counsel, especially Crown counsel, putting before the jury, as facts for their consideration, matters of which there is no evidence: R. v. Pisani, 1970 30 (SCC), [1971] S.C.R. 738, [1970] S.C.J. No. 99, at p. 740 S.C.R.

[73] A trial judge has the authority, in some cases the duty, to define the extent to which counsel may discuss a subject in their final addresses and to balance what is said there with an instruction to the jury on the same subject matter: see R. v. Jolivet, [2000] 1 S.C.R. 751, [2000] S.C.J. No. 28, 2000 SCC 29, at paras. 10 and 34-35. [page94 ]

The principles applied

[74] As I will explain, I would not give effect to this ground of appeal.

[75] The evidence at trial, taken as a whole, tended to establish the following:

(i) the deceased was killed contemporaneously with the arrival and departure of the white Chevy van at the south entrance to Tiga Metals shortly after 10:00 a.m. on March 12, 2009;

(ii) the white van was the same make, model and colour and had the same external markings as the appellant's van;

(iii) the appellant was the person who arranged the meeting with the deceased at Tiga Metals; and

(iv) the appellant was the person who tried to use the deceased's TD bank card within hours of the deceased's death at a branch where he (the appellant) had an account.

[76] The trial Crown's characterization of the amount and distribution of the bloodstaining at the scene did not depart significantly from the evidence adduced. The largest pool of blood was under and around the deceased's body. The pooling was caused by the oozing of blood, not by an arterial spray. There was no evidence about the relative positions of the assailant and the deceased.

[77] The jury had available to it photographs and a video of the murder scene. The Crown invited them to review this evidence in the jury room. And to draw their own conclusions from it. The trial judge did likewise. These fixed records go much of the way to minimize the effect of any misstatement or exaggeration by counsel in their closing addresses. Counsel and the trial judge also made it clear that jurors were not bound by any references to the evidence made by counsel or by the trial judge; rather, jurors were obliged to rely on their own recollections and assessment of the evidence and what it established or failed to prove.

[78] Further, in her reference to the absence of forensic evidence in the appellant's van, the trial Crown acknowledged that the forensic identification officer found no evidence that the interior had been wiped down. Her further suggestion inviting jurors to use their common sense that the killer would remove any forensic links from the van did not misstate evidence, invite impermissible speculation or furnish information that was not before the jury. [page95 ]

[79] Finally, although not fatal, trial counsel for the appellant offered no objection to the closing address of the Crown. It is a reasonable inference, in the circumstances of this case, that neither counsel who appeared for the appellant at trial, both experienced criminal lawyers, did not consider that the trial Crown's address exceeded permissible limits or created any unfair prejudice to the appellant.

Ground #2: The "CSI instruction"

[80] The second ground of appeal was the principal focus of oral argument. The complaint extends beyond the fact and substance of the instruction to its impact on the addresses of counsel and the overall fairness of the trial.

[81] The genesis and evolution of the "CSI instruction" are important in an assessment of its correctness and its impact on the overall fairness of the appellant's trial.

The issue is raised

[82] Prior to the close of the case of the Crown, the trial judge, on her own initiative, raised the issue of including a "CSI instruction" in her charge to the jury. She told counsel that it was "not unusual now to include a CSI instruction".

[83] The initial response of defence counsel was that "CSI" was beside the point. In counsel's view, it was simply a matter of the absence of any forensic evidence linking Hassanzada to the killing of the deceased, a point that counsel proposed to advance in her closing address to the jury.

[84] The trial judge warned counsel not to suggest to the jury that it was impossible that blood would not have been transferred from the scene to the van if Hassanzada had been the killer. Counsel responded that the defence had not yet settled on a precise word formula that would be advanced in the closing address.

The formulation of the instruction

[85] The trial judge drafted a proposed "CSI instruction". She sent a copy by e-mail to counsel and invited their response. What followed were several revised drafts, each sent by e-mail, and the responses of counsel, also communicated by the same medium. For the most part, the relevant e-mails were filed in open court in the presence of the appellant and became the subject of further in-court discussions in the absence of the jury. Some e-mails filed at trial could not be retrieved and thus are not before us on appeal. [page96 ]

[86] During the discussions about the instruction, by e-mail and in the courtroom, the trial judge acknowledged that the jury could consider the absence of forensic evidence linking the appellant to the killing -- the absence of blood in the van -- in assessing whether the Crown had proven the appellant's guilt beyond a reasonable doubt. What concerned the trial judge, however, and what she intended to tell the jury in her "CSI instruction" was that the absence of evidence of a forensic connection between the appellant and the killing was not "proof" that Hassanzada was not there.

The closing address of defence counsel

[87] In her closing address, defence counsel included several references to the absence of forensic evidence linking the appellant to the killing. She pointed out the following:

(i) there was no evidence that any of the weapons used to kill the deceased were found in the appellant's van;

(ii) there was no forensic evidence found in the van despite a lengthy and thorough examination of it by a forensic identification officer;

(iii) there was no evidence that the interior of the van had been wiped;

(iv) there was no evidence of the time of the deceased's death and there was evidence that at least five others had entered the premises before anyone reported finding the deceased in a pool of blood on the floor; and

(v) the lack of evidence of blood, murder weapons and any attempt to clean up the van, each on their own and together, raised a reasonable doubt about the appellant's guilt.

The charge to the jury

[88] In her charge to the jury, the trial judge instructed the jurors that they were entitled to draw reasonable inferences from the evidence but were not permitted to speculate. By commonplace example, she explained the inference-drawing process. In her instructions about the meaning of proof beyond a reasonable doubt, the trial judge told the jury that a reasonable doubt could arise from the evidence or an absence of evidence. She explained that proof beyond a reasonable doubt fell much closer to absolute certainty than to probable or likely guilt.

[89] On at least two occasions, the trial judge focused the jury's attention on the application of the standard of proof to [page97 ]proof by circumstantial evidence. In her final reference to proof by circumstantial evidence, the trial judge said as follows:

You must consider the whole of the evidence in reaching your verdict. The burden is on the Crown to satisfy you beyond a reasonable doubt as to Mr. Hassanzada's guilt. I have instructed you on the particular application of that standard in a case based entirely on circumstantial evidence. You may draw reasonable inferences from the evidence, but you can only reach a verdict of guilty if you are satisfied beyond a reasonable doubt that guilt is the only reasonable inference based on the whole of the evidence. That does not mean that you must be satisfied beyond a reasonable doubt with respect to each and every piece of individual evidence you consider or the inferences to be drawn from various pieces of evidence. It is the evidence as a whole to which the reasonable doubt standard applies. If you find, based on the whole of the evidence or the absence of evidence, that there is another possible reasonable inference as to who killed Mr. Saravanamuthu, apart from Mr. Hassanzada being the killer, then you must find Mr. Hassanzada not guilty.

(Emphasis added)

[90] The trial judge summarized the defence position repeating language of defence counsel's choosing. In connection with the significance of the absence of forensic evidence linking the appellant to the killing, the trial judge said the following:

Notwithstanding the brutality of the murder and the fact that at least two weapons were involved, no physical or forensic evidence was ever found at Mr. Hassanzada's residences or in his van linking him to the scene of the crime. The Crown has established nothing more than a business connection between Mr. Hassanzada and Mr. Saravanamuthu. Mr. Hassanzada is entitled to an acquittal.

[91] The trial judge included her "CSI instruction" in a portion of her charge entitled "Forensic Evidence". She said as follows:

I am sure you will have realized from your experience over the past few weeks that real-life trials are not what you have seen in dramatized television shows. The same is true of forensic evidence, which is not anything close to as definitive or exotic as what you often see on TV shows such as CSI. Often forensic examination of an item will not reveal anything of relevance. A classic example is that a handgun may have no usable fingerprints on it, even though it was handled by a person not wearing gloves. It is certainly not the case that every time somebody enters a room or touches an item, he or she will leave behind a fingerprint, or DNA, or some other kind of trace evidence. In such cases, the absence of evidence is not proof of the opposite proposition: i.e. it is not proof that the person did not enter the room or did not handle the gun; it is merely an absence of proof that he did.

As I have already instructed you, a reasonable doubt may arise from the evidence, or the absence of evidence, but must not be based on speculation or conjecture. The forensic examination of Mr. Hassanzada's van did not disclose any evidence of blood or other DNA from Mr. Saravanamuthu. There is therefore an absence of any forensic evidence connecting Mr. Saravanamuthu to the van. You are entitled to take into account the absence of such evidence in deciding whether, on the whole of the evidence, you have a reasonable doubt as to Mr. Hassanzada's guilt. The killer may or may not [page98 ]have entered the van or placed items in the van without leaving trace evidence behind. That is for you to determine. The absence of such forensic evidence is merely one factor to be taken into account, along with all of the other evidence, in determining your verdict.

(Emphasis added)

The arguments on appeal

[92] The appellant acknowledges that the weight to be assigned to the absence of evidence, which he characterizes as an item of circumstantial evidence, varies with and depends upon the facts or context of each case. But the absence of evidence is always a factor for the trier of fact to consider and a warning not to give it its due weight, as was provided here, is entirely inappropriate.

[93] The appellant finds fault with the substance of the instruction in several respects.

[94] The instruction failed to remind the jury that the absence of a forensic connection between the appellant and deceased is itself an item of circumstantial evidence, one that supported a reasonable doubt about the appellant's guilt. It was a violent murder, involving more than one weapon. Yet nothing was recovered. No weapon. No blood on the appellant. None on anything associated with him. And evidence that no wiping of the interior of the van had occurred.

[95] In this case, the appellant argues, the absence of evidence of a forensic connection goes even further: rather than amounting to simply an absence of proof, it is an item of evidence that establishes the contrary -- that the person charged did not kill the deceased.

[96] In addition, the appellant says, the instruction is unsupportable on the evidence adduced at trial. There was no evidence one way or the other about the likelihood of blood transfer to the assailant or to any vehicle used by the assailant to flee the scene. A forensic identification officer testified that her examination of the van revealed that it had not been recently cleaned. There was no evidence to explain how or whether it could have been cleaned without detection.

[97] The appellant contends that the trial judge's underlying concern, even if appropriate in some cases, was misplaced here. The instruction was premised on a distrust of the jury's intelligence, a distrust that has been repeatedly gainsaid.

[98] According to the appellant, the errors in giving the "CSI instruction" and in the substance of what was said were aggravated by the restrictions placed on defence counsel in her closing address and the failure of the trial judge to correct the [page99 ]improprieties in Crown counsel's closing address. The result was an unfair trial.

[99] The respondent also begins her submissions with an acknowledgment that the absence of evidence, including the absence of evidence of a forensic connection between a crime and an accused, may raise a reasonable doubt about an accused's guilt. In cases like this, in which jurors have heard no evidence as to the probative value of to be attributed to the absence of a forensic connection, the significance of it should properly be left to their determination.

[100] The respondent says that what animated the trial judge's concerns about the closing address of defence counsel and the need for a "CSI instruction" was justifiable disquiet about the absence of evidence being converted to positive evidence or proof of the contrary. This was a valid concern because past judicial experience indicates that the jury might expect forensic evidence to be left behind and, thus, could conclude that the absence of evidence here definitively ruled out the appellant's guilt. The trial judge's instruction successfully guarded against this flawed reasoning.

[101] The respondent says that the "CSI instruction" did not cause or contribute to an unfair trial or a miscarriage of justice. A trial judge has a wide discretion about what to say and how to say it in her charge to the jury. In her jury instructions, the trial judge repeatedly told the jury that the absence of evidence could raise a reasonable doubt about the adequacy of the Crown's proof. But it was equally important that the jurors understood the limits of the absence of evidence. The charge made it clear that the absence of evidence was a factor to consider but did not amount to positive evidence that the appellant was not the killer.

[102] In the end, the respondent maintains, nothing said or left unsaid in the charge about the significance of the absence of evidence to the jury's decision caused the appellant any substantial wrong or resulted in a miscarriage of justice. The evidence that the deceased was killed by the man in the white van, who was the appellant, was overwhelming. Any imperfections in the final instructions worked no great mischief in the ultimate result.

The governing principles

[103] The principles that control our decision on this ground of appeal are many and varied. Some are of general importance, as for example those that define the scope of appellate review of jury charges. Others are more limited in their focus, exerting [page100] their influence on specific features of final instructions such as evidence of opportunity.

[104] First, appellate courts are to take a functional approach in their assessment of the adequacy of jury instructions. We consider the charge as a whole, attentive to the context in which it is given, including the positions of counsel at trial: R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, at para. 28; and R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 69 and 71.

[105] We ask whether the jury charge properly equipped the jurors to decide the case assigned to them, not whether it conformed to or departed from some prefabricated idyllic formula or structure: Daley, at para. 30; Luciano, at para. 69; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at para. 32; and R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, [1999] O.J. No. 346 (C.A.), at para. 27. Among other things, the charge must leave a jury with an understanding of how the evidence admitted at trial relates to the issues that are left to the jury for their decision.

[106] Second, in Lifchus, the Supreme Court of Canada made it clear, at para. 39, that an instruction on reasonable doubt should point out that a reasonable doubt is a doubt that is "logically derived from the evidence or absence of evidence" (emphasis added). The instruction also makes it clear that a reasonable doubt cannot be founded on speculation: Lifchus, at para. 39. The instruction is not a magic incantation that requires verbatim repetition; rather, it is a suggested formula that would not be faulted if used: Lifchus, at para. 40.

[107] Third, the absence of evidence of a forensic link or connection between an accused and an offence (or crime scene) will vary in its significance from one case to the next. Its impact is a variable, not a constant. Sometimes, of critical importance. Other times, not so much: Stark, at paras. 29-31.

[108] No exhaustive list of factors will or can predetermine the degree of significance an absence of evidence of a forensic connection will have in a given case. Relevant considerations might include the nature of the absent evidence, the time elapsed between the offence and the scientific analysis, and the balance of the evidence adduced at trial.

[109] Fourth, the authorities have drawn a distinction between absence of evidence of proof of motive, on the one hand, and evidence of a proven absence of motive, on the other: R. v. Lewis, 1979 19 (SCC), [1979] 2 S.C.R. 821, [1979] S.C.J. No. 73, at p. 835 S.C.R. Absence of proven motive does not constitute evidence of proven absence of motive, an important fact in favour of an accused: Lewis, at p. 835 S.C.R. [page101]

[110] A final point concerns what the trial judge characterized as a "CSI instruction". Neither the industry of counsel nor my own canvass of compilations of pattern instructions, domestic and foreign, has uncovered any equivalent, near equivalent or similar instruction.

The principles applied

[111] I would not give effect to this ground of appeal. I have reached this conclusion notwithstanding that I consider the instruction given unwarranted by the evidence adduced at trial, unsupported by authority, and a superfluous reminder for a 21st-century Canadian jury.

[112] A logical point of departure for the discussion is the instruction itself. Reduced to its essentials, it is this:

I am sure you will have realized from your experience over the past few weeks that real-life trials are not what you have seen in dramatized television shows. The same is true of forensic evidence, which is not anything close to as definitive or exotic as what you often see on TV shows such as CSI. Often forensic examination of an item will not reveal anything of relevance. A classic example is that a handgun may have no usable fingerprints on it, even though it was handled by a person not wearing gloves. It is certainly not the case that every time somebody enters a room or touches an item, he or she will leave behind a fingerprint, or DNA, or some other kind of trace evidence. In such cases, the absence of evidence is not proof of the opposite proposition: i.e. it is not proof that the person did not enter the room or did not handle the gun; it is merely an absence of proof that he did.

[113] The contents of the instruction may be reduced to the following:

(i) real-life trials are not like television shows;

(ii) forensic evidence in real-life trials is not like forensic evidence in television shows;

(iii) often, forensic examination of a crime scene will not reveal anything of relevance, for example, fingerprints on a handgun;

(iv) there is no inviolable rule that every time somebody enters a room or touches an item, a fingerprint, DNA or other trace evidence will be left behind; and

(v) absence of evidence is not proof of the opposite, that is, that the person did not enter the room or touch the item.

[114] The first two propositions are self-evident and work no mischief. The third, as a general statement, is equally unassailable [page102] although unsupported by any evidence adduced at trial (assuming such evidence could be obtained and would be admissible).

[115] The fourth proposition suffers again from a lack of evidentiary support at trial but can scarcely be gainsaid. And the final proposition finds some support as a matter of logic.

[116] Any assessment of an allegation of error in instructions to a jury must consider not only what is impugned as error but the charge as a whole.

[117] First, in an early part of the charge, the trial judge reminded jurors that they were to decide the case based on the evidence adduced at trial. They were to ignore outside information. Evidence was defined. Testimony. Exhibits. Admissions. Nothing else. And some things were not evidence. Like what counsel and the judge said in the courtroom. There could be no misunderstanding about the evidentiary value of television shows.

[118] Second, the charge on reasonable doubt was compliant with Lifchus and included an express instruction that a reasonable doubt may arise from the evidence adduced at trial or an absence of evidence. The trial judge also included an express instruction about the link between the absence of forensic evidence and reasonable doubt in the paragraph immediately following the impugned passage. She instructed the jury:

As I have already instructed you, a reasonable doubt may arise from the evidence, or the absence of evidence, but must not be based on speculation or conjecture. The forensic examination of Mr. Hassanzada's van did not disclose any evidence of blood or other DNA from Mr. Saravanamuthu. There is therefore an absence of any forensic evidence connecting Mr. Saravanamuthu to the van. You are entitled to take into account the absence of such evidence in deciding whether, on the whole of the evidence, you have a reasonable doubt as to Mr. Hassanzada's guilt. The killer may or may not have entered the van or placed items in the van without leaving trace evidence behind. That is for you to determine. The absence of such forensic evidence is merely one factor to be taken into account, along with all of the other evidence, in determining your verdict.

(Emphasis added)

[119] In addition to the Lifchus-compliant instructions on reasonable doubt, the trial judge repeatedly used Hodges-equivalent language at various points in her charge. What follows is typical:

You must consider the whole of the evidence in reaching your verdict. The burden is on the Crown to satisfy you beyond a reasonable doubt as to Mr. Hassanzada's guilt. I have instructed you on the particular application of that standard in a case based entirely on circumstantial evidence. You may draw reasonable inferences from the evidence, but you can only reach a verdict of guilty if you are satisfied beyond a reasonable doubt that guilt is the only reasonable inference based on the whole of the evidence. That does [page103] not mean that you must be satisfied beyond a reasonable doubt with respect to each and every piece of individual evidence you consider or the inferences to be drawn from various pieces of evidence. It is the evidence as a whole to which the reasonable doubt standard applies. If you find, based on the whole of the evidence or the absence of evidence, that there is another possible reasonable inference as to who killed Mr. Saravanamuthu, apart from Mr. Hassanzada being the killer, then you must find Mr. Hassanzada not guilty.

(Emphasis added)

[120] The absence of evidence is a variable in its significance to the burden of proof settled on the Crown and the satisfaction of that standard of proof. In this case, forensic examination of the van occurred six days after the deceased was killed. In these circumstances, the fact that the van did not furnish any evidence connecting the appellant to the killing or where it occurred is of reduced significance than would be the case where the search was more contemporaneous with the killing.

[121] The complaint that the trial judge failed to expressly instruct the jury that an absence of evidence is itself an item of circumstantial evidence caused no prejudice. It may well be true, as a matter of logic, that one can characterize an absence of evidence as an item of circumstantial evidence. But it seems unlikely that such a characterization would improve a jury's understanding that an absence of evidence may raise a reasonable doubt about an accused's guilt. Nothing said in Lifchus or in any authorities relied upon by the appellant supports the necessity for or advisability of such an instruction. Indeed, as it seems to me, such an unnecessary, if accurate, refinement would risk confusion more than education.

[122] Further, I am not persuaded that the trial judge erred in directing defence counsel that she was not to submit that the absence of a forensic connection between the appellant and the killing made it impossible that he was the killer. Just as having no proof of an accused's motive is not the same as proving that the accused has no motive, having no evidence of a forensic connection between an accused and a deceased is not proof that such a connection is impossible.

[123] To permit defence counsel to argue to the jury that the absence of evidence of a forensic connection made it impossible for the appellant to have been the deceased's killer would have been unwarranted in this case without evidence of the following:

(i) the relative positions of the deceased and his assailant;

(ii) the amount and distribution of blood at the scene; and

(iii) the likelihood of blood adhering to and being transferred from the murder weapons. [page104]

[124] The sole issue at trial was the identity of the deceased's killer. The evidence adduced linked the appellant to the meeting at Tiga Metals and to the white van that arrived shortly after the deceased opened the premises. The deceased was never seen or heard from again after the van left. He never appeared on the surveillance video and failed to pick up his sister-in-law at the hospital as planned. The deceased's bank card was used at a bank branch where the appellant had an account later that same day.

[125] In the result, I am satisfied that even if it could be said that a portion of the impugned instruction, considered in isolation, was in error, the result would necessarily have been the same when the charge is considered as a whole and the evidence assessed objectively.

[126] Before concluding, something should be said about one feature of the procedure followed in settling on the inclusion and content of the "CSI instruction". That aspect involves the several e-mail exchanges between the trial judge and counsel in which the trial judge provided draft instructions and counsel responded with comments about the contents of those drafts.[^2]

[127] Section 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 requires that, apart from some exceptions that have no place here, an accused must be "present in court during the whole of his or her trial".

[128] To determine whether something that happened during the course of a trial is part of the "trial" for the purposes of s. 650(1), we ask whether what occurred involved or affected the vital interests of the accused or whether any decision made bore on "the substantive conduct of the trial": R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 529 C.C.C.; R. v. Vézina, 1986 93 (SCC), [1986] 1 S.C.R. 2, [1986] S.C.J. No. 2, at pp. 10-11 S.C.R.; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 707-708 S.C.R.

[129] Pre-charge conferences authorized by s. 650.1 of the Criminal Code are held to discuss "the matters that should be explained to the jury and with respect to the choice of instructions to the jury". That the content of final instructions affects the vital interests of an accused is self-evident. As a result, s. 650(1) of the Criminal Code requires that the accused be "present in court" during these discussions. [page105]

[130] Electronic communication of proposed draft jury instructions to counsel is one thing. Without more, this method of communication would not seem to offend s. 650(1) any more than leaving a hard copy of the proposed instructions for counsel to pick up from a court office would do so. But inviting and receiving submissions from counsel by e-mail or other electronic means about the necessity for or content of jury instructions are as incompatible with the command of s. 650(1) as are in-chambers discussions on the same subject.

[131] Discussions about "the matters that should be explained to the jury and with respect to the choice of instructions to the jury" affect the vital interests of an accused. Section 650(1) of the Criminal Code tells us where they are to take place: "in court". Section 650(1) also tells us who is to be there: "an accused . . . shall be present". In court. On the record. In the presence of the accused.

Conclusion

[132] I would dismiss the appeal.

Appeal dismissed.

[^1]: CSI, an acronym for "Crime Scene Investigation", is a media franchise of American television programs. The "CSI effect" refers to any of several ways in which the exaggerated portrayal of forensic evidence on these shows is thought by some to influence public, perhaps jurors' perception.

[^2]: The appellant did not advance this as a ground of appeal. Neither counsel made submissions on the issue in oral argument.