Her Majesty the Queen v. Moore

[Indexed as: R. v. Moore]

Ontario Reports

Court of Appeal of Ontario

Fairburn A.C.J.O., Watt and Thorburn JJ.A.

December 21, 2020

153 O.R. (3d) 698 | 2020 ONCA 827

Case Summary

Criminal law — Procedure — Severance of counts — Circumstantial evidence linking accused to two handguns used to kill four victims — Accused wishing to testify on counts relating to three victims, but not to the fourth — Trial judge refusing accused's application to sever trial of fourth count — Trial judge accounted for accused's proposed admission of possession, accused's reasons for wanting to testify and overlap involved in separate trials — No error in trial judge's exercise of discretion in refusing to grant severance.

Criminal law — Trial — Charge to jury — Trial judge commenting on evidence — Circumstantial evidence linking accused to two handguns used to kill four victims — During charge to jury, judge commenting on several factual issues — Charge was not unbalanced or unfair and majority of comments only directing jury's attention to aspects of evidence relevant to contested facts — Trial judge had discretion as to what to say about the evidence and did not cross the line from permissible expression of opinion to a direction to jury to decide a factual issue a particular way.

Criminal law — Trial — Charge to the jury — Circumstantial evidence — Evidence of motive for murders — Crown alleging that motive for killing two victims related to need for reputation for violence as an aspiring rap artist — Suggested motive for another killing was vengeance for assault on accused's brother — Suggested motives were unusual but were grounded in evidence — No error in charge on motive.

Formidable circumstantial evidence linked the accused to two handguns used to kill four victims over 75 days. He faced four counts of murder. Regarding one of the victims, S, he did not wish to testify. He did wish to testify on the three other counts and applied to sever the trial of the counts charging the murder of S. The defence proposed to file an agreed statement of fact at the trial of the other counts, stating that the accused had physical possession of the fatal handgun on the day of S's murder. Defence counsel conceding that evidence of his possession of the murder weapons was admissible across all counts. The trial judge refused the application. The Crown alleged at trial that the accused's motive to kill two of the victims involved the accused's view that, as an aspiring rap artist, it was critical for him to have a reputation for violence. The suggested motive for killing S was that S was found walking in an area where the accused's younger brother had been assaulted. During the jury charge, the trial judge repeatedly instructed the jury that they were the triers of fact, but he also commented on several factual issues. The jury convicted. The accused appealed.

Held, the appeal should be dismissed.

The trial judge did not err in refusing to exercise his discretion to grant the application to sever. The accused argued that the judge erred by rejecting his proposed admission as a complete answer to the question of severance. In support of that argument, the accused relied on a case dealing with the admissibility of evidence of after-the-fact conduct extraneous to the offences charged. However, the exclusion of the evidence in that case was rooted in its singular facts and did not create a per se rule that a proposed admission of subsequent possession of a murder weapon mandated exclusion of evidence of the circumstances of that possession in another trial. The accused further submitted that the trial judge erred in failing to accord sufficient weight to the accused's stated intention to testify in relation to the three counts not involving S. Read as a whole, the reasons of the trial judge exemplified a clear understanding of why the accused wanted to testify on those three counts, being a product of the nature and strength of the evidence against him. The stated intention of the accused to testify on some counts and not others was a factor to be given significant weight, but was not dispositive. The accused also contended that the trial judge erred when he concluded that severance would result in two trials of essentially the same length. Even if the trials would not be of equal length, there was likely to be significant overlap. In any event, the judge did not assign any real importance to that factor in the severance analysis and no error was shown.

The charge to the jury was not unbalanced and unfair. The law accorded to the trial judge a wide latitude on how to charge the jury and what to say to them about the evidence. When examined in situ, many of the impugned aspects of the charge amounted to no more than the trial judge directing the jury's attention to aspects of the evidence that bore upon contested issues. The trial judge did not cross the line between the permissible expression of an opinion and a direction to the jury to decide a factual issue in a particular way.

There was ample evidentiary support for each motive advanced by the Crown. Although such motives were acknowledged to be out of the ordinary, they were well grounded in the evidence adduced at trial. The jury instructions on motive were free of error.

R. v. Backhouse, [2005] O.J. No. 754, 195 O.A.C. 80, 194 C.C.C. (3d) 1, 28 C.R. (6th) 31, 127 C.R.R. (2d) 1, 64 W.C.B. (2d) 398 (C.A.), distd

Other cases referred to

R. v. Arp, [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, J.E. 98-2397, 114 B.C.A.C. 1, 58 B.C.L.R. (3d) 18, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1, 40 W.C.B. (2d) 196, 1998 CCAN para. 10,061; R. v. Castellani, [1970] S.C.R. 310, [1969] S.C.J. No. 85, 12 D.L.R. (3d) 92, 71 W.W.R. 147, [1970] 4 C.C.C. 287, 9 C.R.N.S. 111; R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 288 D.L.R. (4th) 1, 369 N.R. 225, [2008] 1 W.W.R. 1, J.E. 2008-30, 302 Sask. R. 4, 226 C.C.C. (3d) 1, 52 C.R. (6th) 221, 75 W.C.B. (2d) 727, EYB 2007-127250, 2007 CCAN para. 10,081; R. v. Durant (2019), 144 O.R. (3d) 465, [2019] O.J. No. 556, 429 C.R.R. (2d) 306, 372 C.C.C. (3d) 66; R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342, 1990 CCAN para. 10,058, revg [1988] O.J. No. 365, 27 O.A.C. 1, 41 C.C.C. (3d) 97, 64 C.R. (3d) 193, 43 C.R.R. 252, 4 W.C.B. (2d) 302 (C.A.); R. v. Gunning, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 253 D.L.R. (4th) 76, 333 N.R. 286, J.E. 2005-988, 211 B.C.A.C. 51, 196 C.C.C. (3d) 123, 29 C.R. (6th) 17, 65 W.C.B. (2d) 97, EYB 2005-90540, JCPQ 2005-106; R. v. Jacquard, [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, 1997 CCAN para. 10,020; R. v. Jeanvenne, [2010] O.J. No. 4537, 270 O.A.C. 22, 91 W.C.B. (2d) 209, 261 C.C.C. (3d) 462, 99 R.P.R. (4th) 1, 80 C.R. (6th) 182; R. v. John, [2017] O.J. No. 3866, 140 W.C.B. (2d) 337, 350 C.C.C. (3d) 397; R. v. Last, [2009] 3 S.C.R. 146, [2009] S.C.J. No. 45, 311 D.L.R. (4th) 193, 394 N.R. 78, J.E. 2009-1893, 255 O.A.C. 334, 247 C.C.C. (3d) 449, 69 C.R. (6th) 1, EYB 2009-164847; R. v. Lawes (2006), 80 O.R. (3d) 192, [2006] O.J. No. 720, 207 O.A.C. 354, 206 C.C.C. (3d) 15, 37 C.R. (6th) 301, 138 C.R.R. (2d) 146, 68 W.C.B. (2d) 559 [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 175, 228 O.A.C. 399]; R. v. Rodgerson, [2015] 2 S.C.R. 760, [2015] S.C.J. No. 38, 390 D.L.R. (4th) 1, J.E. 2015-1202, 334 O.A.C. 1, 327 C.C.C. (3d) 287, 21 C.R. (7th) 1, 125 W.C.B. (2d) 456, EYB 2015-254488, 2015 CCAN para. 10,034, 2015 CCAN para. 10,087, 2015EXP-2158; R. v. Salah, [2015] O.J. No. 237, 120 W.C.B. (2d) 131, 319 C.C.C. (3d) 373, 328 O.A.C. 333; R. v. Steele, [2007] 3 S.C.R. 3, [2007] S.C.J. No. 36, 281 D.L.R. (4th) 193, 365 N.R. 141, J.E. 2007-1464, 244 B.C.A.C. 89, 221 C.C.C. (3d) 14, 48 C.R. (6th) 1, 72 W.C.B. (2d) 823, affg [2006] B.C.J. No. 492, 2006 BCCA 114, 223 B.C.A.C. 154, 206 C.C.C. (3d) 327, 69 W.C.B. (2d) 126

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 589 [as am.], 591(1), (3)(a), 655

Authorities referred to

Wigmore, John Henry, Chadbourn, James, H., Wigmore: on Evidence (Toronto: Little, Brown Book Group Ltd. (Chadbourn Rev.) 1979)

Wigmore, John Henry, Tillers, Peter, Wigmore: on Evidence (Toronto: Little, Brown Book Group Ltd. (Tillers Rev.) 1983)

On APPEAL from the conviction entered on May 30, 2015 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.

Richard Posner and Lance Beechener, for appellant.

Roger Pinnock and Katie Doherty, for respondent.

BY THE COURT: --

Overview

[1] In 75 days, four men died violently in Toronto. Each was shot to death. Jahmeel Spence on his way to a variety store in Scarborough. Michael James and Courthney Facey as they listened to music in a back alley in Etobicoke. And Carl Cole in the parking lot of an apartment building not far from where Jahmeel Spence had been killed. In every case, the shooter used the same 9 mm handgun. He also shot Cole with a .45 calibre handgun. Circumstantial evidence, including evidence about other shootings, linked the appellant to both handguns.

[2] The case for the Crown was formidable on all four counts. Among the components were these:

-- incriminating text messages sent from the appellant's phone to others, among them, a text message within 40 minutes of the Spence shooting where the appellant wrote "busy terrorizeing [sic] the borrows watch cp";

-- eyewitness identification evidence from a passenger in the appellant's black BMW who saw the appellant shoot and kill James and Facey by firing at them from the driver's side window;

-- other eyewitness evidence about a black BMW at the location of the James and Facey killings, with sparks flying from the driver's side window;

-- an incriminating text message after the Cole shooting in which the appellant suggested that he had "got him in the cedar.", an apparent reference to the Greenbrae area of Scarborough where the shooting occurred;

-- a further incriminating statement after the Cole killing in which the appellant said he had shot someone in the "melon", a description consistent with the 29 gunshot wounds suffered by Cole, including to the head;

-- several calls between the phones of the appellant and Cole on the day Cole was killed;

-- a substantial body of circumstantial evidence connecting the appellant to the 9 mm handgun common to all four killings, including evidence that an apartment of an acquaintance of the appellant, whom the appellant had threatened over a dispute about money and warned that he would "fly shots", was riddled with bullets fired by the same 9 mm handgun;

-- cell phone records connecting the appellant to the areas in which each killing occurred contemporaneously with the killings;

-- a newspaper article about the killing of Spence found in a storage locker connected to the appellant; and

-- after-the-fact conduct of the appellant, including his efforts to have his girlfriend's Honda re-painted and a 9 mm handgun sold.

The Grounds of Appeal

[3] The appellant advances three grounds of appeal. He says that the trial judge erred:

(i) in failing to sever the Spence murder count from the James, Facey and Cole murder counts;

(ii) in delivering an unbalanced or unfair charge to the jury; and

(iii) in permitting the Crown to adduce evidence of the appellant's motive to kill James and Facey.

[4] In our view, whether considered individually or cumulatively, the grounds of appeal are unavailing.

Ground #1: Severance of counts

[5] The principal ground of appeal advanced by the appellant is that the trial judge erred in refusing to grant his application to sever the trial of the count charging the murder of Spence from the trial of the counts charging the other murders. In large measure, the claim for severance was anchored in the appellant's claim that he wished to testify on the James, Facey and Cole counts, but not on the Spence count.

[6] This argument has three branches. The appellant contends that the trial judge erred:

(i) in concluding that an admission of fact proposed by counsel at trial was not sufficient to address any harm that would result from severance;

(ii) in attaching too little weight to the appellant's stated testimonial intentions; and

(iii) in overestimating the length of time that would be required for two separate trials had severance been granted.

Introduction

[7] Several basic principles inform our decision on this ground of appeal.

[8] The general rule for joinder of counts in s. 591(1) of the Criminal Code, R.S.C. 1985, c. C-46 is that any number of counts for any number of offences may be joined in the same indictment, provided they are distinguished in the manner shown in Form 4. Section 589 governs those situations where counts other than murder can be joined on an indictment containing a murder count. Although s. 591(1) is subservient to s. 589, the combination of those provisions permits the joinder of multiple murder counts on a single indictment: R. v. Durant (2019), 144 O.R. (3d) 465, [2019] O.J. No. 556, at paras. 67-69.

[9] Section 591(3)(a) of the Criminal Code also permits a trial judge to sever the trial of some counts in an indictment from other counts in the same indictment. Once again, like the rule permitting joinder, the authority to sever does not distinguish between indictments containing only counts charging murder and those charging only offences other than murder: Durant, at para. 70.

[10] Decisions on applications for severance, whether of counts or accused, involve the exercise of discretion. Orders for severance do not issue as of right. To engage the discretion, the trial judge must be satisfied that the "interests of justice" require severance. Beyond that, s. 591(3)(a) does not reveal the factors or considerations of which the trial judge must take account: Durant, at para. 71.

[11] The phrase "the interests of justice" acknowledges and seeks to balance an accused person's interest in being tried on the evidence properly admissible against them on the one hand, and society's interest that justice be done in a reasonably efficient and cost effective manner on the other: Durant, at para. 72, citing R. v. Last, [2009] 3 S.C.R. 146, [2009] S.C.J. No. 45, at para. 16; and R. v. Jeanvenne, [2010] O.J. No. 4537, 261 C.C.C. (3d) 462, at para. 28. The "interests of justice" are not commensurate with the "interests of the accused", or the accused's perception of the fairest trial possible.

[12] Over time, the authorities have poured content into the phrase "the interests of justice". They have done so by designating several factors as worthy of cognizance in deciding where "the interests of justice" settle in the factual intricacies of individual cases. But those same authorities have underscored that no single factor is dispositive of the severance decision: Durant, at para. 73.

[13] Among the factors the authorities have identified as relevant to determination of the severance issue, two are invoked here as of importance. Each warrants brief consideration.

[14] First, the desire to testify on some but not all counts.

[15] As a general rule, the asserted desire of an accused to testify on one or more of several counts, but not on others, is accorded substantial weight. But it must be more than a barren assertion. There must be some objective reality to it grounded in the evidence reasonably anticipated at trial. This factor is not dispositive. Others may overpower it, such as whether there is any significant disproportion in the strength of the Crown's case as between or among the various counts: Durant, at para. 75, citing R. v. Steele, [2006] B.C.J. No. 492, 206 C.C.C. (3d) 327, at paras. 15-16, affd on other grounds [2007] 3 S.C.R. 3, [2007] S.C.J. No. 36, 2007 SCC 36.

[16] Second, across counts use of evidence.

[17] Severance and the admissibility of evidence across counts are different issues with different burdens of proof. One is a rule of pleading, the other a rule of evidence. Severance has to do with the propriety of joinder of counts for different offences in the same charging document. Severance requires that the accused demonstrate, on a balance of probabilities, that it is required by the interests of justice. In contrast, the admissibility of evidence across counts requires the Crown to show, on a balance of probabilities, that the evidence should be admitted by exception to the rule excluding evidence of misconduct extrinsic to that charged in the individual count. Severance is often denied in cases in which evidence on each count is admissible across other counts. But it does not follow that severance is guaranteed absent across counts application of the evidence: Durant, at para. 77, citing R. v. Arp, [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, at para. 52.

[18] The discretionary nature of severance decisions has implications for appellate review of those decisions. Exercises of discretion attract significant deference on appellate review. Decisions on severance may be set aside on appeal only when the appellate court is satisfied that the decision:

(i) is unjudicial; or

(ii) has resulted in an injustice.

See, Last, at para. 21; Jeanvenne, at paras. 26-27. These grounds involve different inquiries.

[19] To determine whether a severance decision was "unjudicial", we examine the circumstances that existed at the time the ruling was made. We ascertain whether those circumstances reveal an error of law or principle, or a decision that is plainly unreasonable. To determine whether the severance ruling resulted in an injustice, we look at the entirety of how the trial and verdicts unfolded: Jeanvenne, at para. 27.

The proposed admission of fact

[20] In support of his application to sever the trial of the Spence count from the trial of the other counts, defence counsel proposed that an agreed statement of fact could be filed at the trial of the other counts. It would provide that the appellant "had physical possession of the [fatal] 9 mm handgun on September 10, 2010, the day of Mr. Spence's murder". This admission was "only for the purposes of a trial, where following a ruling that the Spence homicide is severed from the current [four count] indictment, the Crown proceeds on the remaining two homicide occurrences Facey/James and Cole first and jointly" (emphasis in original).

[21] The appellant contends that the trial judge erred in rejecting the proposed admission as a complete answer to the question of severance. This admission would render unnecessary any introduction of evidence about the Spence murder at the trial of the remaining counts and the duplication of the evidence about the other counts on the later Spence trial.

[22] In support of his submission that the trial judge was wrong in not giving effect to this proposal and ordering severance of the Spence count, the appellant summons the decision in R. v. Backhouse, [2005] O.J. No. 754, 194 C.C.C. (3d) 1 (C.A.).

[23] In our view, the decision in Backhouse does not control the result in this case.

[24] In Backhouse, the appellant was charged with two counts of murder and one count of attempted murder as a result of three shootings that had taken place during a home invasion. The issue at trial was the identity of the shooter. Despite defence objections, the Crown was allowed to adduce evidence that, about nine months after the shootings on which he was being tried, the appellant was involved in another shooting. Forensic evidence identified the weapon used in the shootings in both cases as the same gun.

[25] Unlike this case, Backhouse had to do with the admissibility of evidence relating to the appellant's possession and use of a handgun nine months after the offences charged. This evidence of after-the-fact conduct was extraneous to the offences charged. That is not this case.

[26] The Backhouse court concluded that the evidence about the later possession and use of the firearm should not have been admitted at trial. Not as circumstantial evidence connecting the appellant to the handgun used in the shootings charged, and not as evidence of similar acts to assist in proof of the identity of the shooter in the offences charged: Backhouse, at paras. 164, 166 and 172.

[27] The exclusion in Backhouse is rooted in its singular facts. The manner in which Backhouse used the gun on the later occasion did not increase the probative value of the evidence that he had possession of the gun months after the shootings charged. But the manner in which Backhouse used the gun significantly increased the prejudicial effect of the evidence. The "use evidence" included the circumstances of the shooting, the motive for the shooting, and the fact that he had previously attacked the victim of the later shooting. Thus, the reasoning and moral prejudice associated with the "use evidence" tilted the balance in favour of exclusion. Against this factual backdrop, Rosenberg J.A. concluded that the trial Crown in Backhouse ought to have accepted the defence counsel's offer to admit that Backhouse had possession of the murder weapon on the later occasion.

[28] In our view, Backhouse creates no per se rule that a proposed admission of subsequent possession of a murder weapon mandates exclusion of evidence of the circumstances of that possession in another trial. So to hold would be to replace the careful balancing of probative value and prejudicial effect, a case-specific exercise exemplified by Backhouse itself, with a rule of presumptive inadmissibility.

[29] In this case, the trial judge considered the defence position that Backhouse was dispositive. He concluded otherwise based on distinctions between the circumstances of the cases.

[30] As the trial judge explained, the evidence in this case strongly supported the inference that the appellant had and used the same gun to kill four people on three occasions within a period of 75 days. Each use involved a killing, and each killing was charged as a count in the indictment. Proof of possession was inextricably linked to use. The appellant does not dispute that evidence of his possession of the murder weapon on each charged count was admissible across the remaining counts. And the evidence that established that possession was evidence of use.

[31] Unlike Backhouse, this case does not involve evidence of misconduct extrinsic to that charged. Nor does this case involve the retrospectant use of evidence of extrinsic misconduct with its inherent moral prejudice, and arguably, lessened probative value due to its lack of contemporaneity with the offences charged.

[32] In this case, the trial judge concluded that unlike Backhouse, the evidence surrounding use of the gun appreciably enhanced the probative value of the evidence:

The inference of continuous or even exclusive possession is stronger where the possession of the gun on the various occasions is exclusive and enduring, and is stronger still if the possessor made use of it. The extent of a person's association with a gun is obviously greater when they make repeated use of it, rather than simply hold it, but both ordinarily amount to possession.

[33] The manner in which a discretion is exercised in the circumstances of one case does not create a bright-line rule that requires its exercise in the same way in another. Each case is different. Probative value is a variable. So too is prejudicial effect. Neither is a constant. To erect from the result of an exercise of discretion in one case a bright-line rule that the same result must follow in different circumstances is to abandon discretion, not to exercise it.

[34] For these reasons, we see no error in the trial judge's rejection of the proposed admission of possession as a basis on which to grant severance.

The intention to testify

[35] The appellant submits that the trial judge erred in failing to accord sufficient weight to the appellant's stated intention to testify in relation to the counts charging the murders of James, Facey and Cole, but not on the count alleging the murder of Spence.

[36] The appellant says that the disparity in the nature and extent of the evidence implicating him in the murders of James, Facey and Cole, on the one hand, and of Spence, on the other, required him to testify in the former cases, but not in the latter. On the counts relating to James and Facey, eyewitnesses pointed to him as the shooter. And if he testified on those counts, the appellant accepted that he would also have to testify on the count charging the murder of Cole. But not so on the count relating to Spence. There was nothing to answer, hence no need to testify. Unless the Spence count was severed, the appellant said that he would be unable to testify on any of the counts.

[37] Another factor made it essential that the appellant testify in the counts charging the murders of James and Facey. One of the eyewitnesses, a passenger in the vehicle from which the fatal shots were fired, was Kevin Williams. The appellant alleged that Kevin Williams, not he, was the shooter. The only source of that evidence was the appellant himself. Williams would also testify about the appellant's involvement in the Cole murder, but not as an eyewitness. Williams' evidence of the Cole murder was that the appellant had texted him about shooting someone "in the melon". This is consistent with the wounds suffered by Cole and contemporaneous with his shooting.

[38] The situation was different, the appellant contended, in connection with the Spence murder count. True, the appellant had sent some incriminating texts to Williams about the killing, however, Williams' testimony involved only his interpretation of them. Additionally, Williams was a Vetrovec witness with his own purpose to serve. He could give no direct evidence of the appellant's participation, unlike in the counts charging the murders of James and Facey.

[39] The error of the trial judge on this issue is said to be that he failed to afford the "significant weight" that was due to the appellant's announced testimonial intention. Indeed, the appellant says, the trial judge substituted his own view of the assertion for that of the appellant:

I do not doubt the sense of Moore's consideration of testifying in relation to the James and Facey homicides, where he is faced with the incriminating eyewitness evidence from a Vetrovec witness, and given his own intention to make a third party suspect allegation. What I do have difficulty with is his rationale for not testifying on the other counts. To put it simply, the Crown's evidence in relation to each of the Spence and the Cole homicide draws a fairly tight noose. Of course, testifying is risky. But leaving the allegations unanswered is also risky. In saying this, I have not forgotten the force of the presumption of innocence.

[40] In our view, the trial judge did not err in the manner in which he approached the issue or in the conclusion he reached.

[41] Read as a whole, the reasons of the trial judge exemplify a clear understanding of why the appellant wanted to testify on the counts relating to the murders of James and Facey: eyewitness testimony pointing to the appellant as the shooter; the shots fired from the vehicle consistent with that of the appellant; and a desire to point to Williams as the actual shooter.

[42] The appellant's testimonial intention was a product of the nature and strength of the evidence against him on the counts on which he wished to testify. The trial judge expressed wonderment about why the appellant would not also want to testify on the other counts in light of the apparent strength of the case for the Crown. This observation, whether a misspeak or otherwise, was not without some force on an objective view of the strength of the Crown's case across all counts.

[43] Considered in their entirety in the circumstances of this case, we are satisfied that the trial judge's decision on severance was firmly grounded in a measured consideration of the interests of justice and informed by those factors identified as relevant by the authorities, in particular the decision in Last.

[44] The trial judge took into account the legal and factual nexus between the counts. He considered that, although the evidence in a joint trial of all counts would be voluminous, it lacked overall complexity and thus would not unduly tax the abilities of the trier of fact. He noted that even with severance, the determination about across-count admissibility (a ruling not challenged here) would result in the same evidence being repeated at each trial with no diminution of any prejudice arising from the joint trial of multiple counts. And that prejudice would be diminished by careful jury instructions. The trial judge might have added that, to the extent the appellant proposed an admission of fact under s. 655 of the Criminal Code, the proposal would come to naught without the agreement of the Crown: R. v. Castellani, [1970] S.C.R. 310, [1969] S.C.J. No. 85, at pp. 315-16 S.C.R.

[45] The stated intention of an accused to testify on some counts but not others in a multicount indictment is a factor that is "given significant weight, it is but one factor to be balanced with all the others": Last, at para. 27. It is not dispositive. It is not a "get a separate trial card" which, when played, wins the hand.

[46] The nub of the appellant's complaint is the weight the trial judge assigned to one of several factors that informed the exercise of the judicial discretion to sever counts in the interests of justice. This decision, like others involving the exercise of discretion, is subject to deference in this court. So too, is the weight assigned to the factors relevant to the exercise of that discretion.

Trial length considerations

[47] The appellant also contends that the trial judge erred when he concluded that, if he acceded to the proposed severance of counts, there would be two trials of essentially the same length. As the trial judge characterized it, "while one trial of all counts would be quite long, two trials might well each be equally long if I granted severance".

[48] We are not persuaded that the trial judge erred in this assessment. Perhaps the trials would not be of equivalent length if severance were granted on the basis the appellant proposed. At the very least, however, there was likely to be significant overlap between the two trials.

[49] The proposed admission was about possession of a firearm at the time Spence was killed. It was designed to eliminate the introduction of evidence to prove the appellant's complicity in the murder of Spence at the trial of the other three counts. But only if those counts were tried together and before the trial on the count alleging the murder of Spence. To be effectual as an admission of fact under s. 655 of the Criminal Code, the appellant required the consent of the Crown. That consent would seem unlikely when the Crown sought across-counts use of the evidence of each shooting. And the proposed admission would have no effect on the introduction of evidence on the trial of the severed count relating to Spence.

[50] In any event, the trial judge did not assign any real importance to this factor in his severance analysis and decision. We are satisfied that it does not reflect error.

[51] This ground of appeal fails.

Ground #2: The unbalanced and unfair charge allegation

[52] The appellant contends that the charge to the jury was at once unbalanced and unfair. The appellant extracts passages from the charge that, he says, reveal a heavy judicial hand on the scales disturbing their balance and demonstrating where the trial judge's sympathies resided. This was all the more so, the argument continues, in a case such as this where the defence called no evidence and closed to the jury last. In these circumstances, the trial judge's expressions of opinion, invariably adverse to the position advanced by the defence, acted as a rebuttal of the defence position.

[53] The parties agree on the governing principles.

[54] A trial judge is entitled to express opinions on issues of fact in the charge to the jury. Those opinions may be expressed as strongly as the circumstances permit, provided that what is said amounts to advice, not direction, and the judge makes it clear that the jury is not bound to follow, indeed free to disregard, the judge's views on these issues: R. v. John, [2017] O.J. No. 3866, 350 C.C.C. (3d) 397, at para. 108, citing R. v. Lawes (2006), 80 O.R. (3d) 192, [2006] O.J. No. 720, 206 C.C.C. (3d) 15 (C.A.), at paras. 20-21, 34, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 175, 228 O.A.C. 399; and R. v. Gunning, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, at para. 27.

[55] However, from time to time, even where a trial judge has instructed the jury that it is not bound by the judge's views on these issues, a judge may exceed permissible limits. This happens when the judge expresses an opinion that is far stronger than the facts warrant, expresses an opinion so strongly that the jury is likely to be overawed by it, or expresses an opinion that deprives an accused of a fair presentation of the defence: John, at paras. 109-110; Lawes, at paras. 22-23; and R. v. Garofoli, [1988] O.J. No. 365, 41 C.C.C. (3d) 97 (C.A.), at p. 133 C.C.C., revd on other grounds [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115.

[56] In our view, this ground of appeal fails.

[57] We begin our assessment of the trial judge's charge mindful of our obligation to adopt a functional approach; our purpose is to determine whether the jury was properly, not perfectly, instructed: R. v. Jacquard, [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at paras. 2, 62. Among the duties of a trial judge is the obligation to inform the jury of the relevant evidence and to assist them in linking that evidence to the issues they are to consider in reaching their verdict: R. v. Rodgerson, [2015] 2 S.C.R. 760, [2015] S.C.J. No. 38, at para. 34. Our assessment of the adequacy of the charge requires a consideration of the charge as a whole, not a microscopic post-mortem of extracted parts: R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, at para. 31.

[58] Throughout the charge, the trial judge repeatedly instructed the jury that they were the triers of fact, not he nor counsel. And he frequently reminded them that they were not bound to follow, rather obliged to disregard, any opinion he may express about the factual issues which were their exclusive domain. On several occasions, the trial judge instructed the jury that:

(i) the role of the trial judge was to be the "judge of the law" and the jury's role was to be the "judges of the facts";

(ii) it was the jury's duty to determine the facts based on the evidence adduced at trial;

(iii) the trial judge's view of the evidence was not binding upon them;

(iv) the jury had to make their own decisions about what evidence was important in the case;

(v) it was not the trial judge's job to determine the facts;

(vi) if the trial judge expressed a comment or opinion upon facts, the jury was "in no way bound to follow" those comments or opinions;

(vii) it was for the jury, not the trial judge, to decide "what happened in this case"; and

(viii) if any references by counsel or the trial judge to evidence did not coincide with the jury's view of the evidence, the jury should rely on their own view and not those of the judge or counsel.

[59] In this case, the trial judge chose to comment on several factual issues which were for the jury to decide. The law permitted him to do so. Indeed, it accorded to him, as with every judge presiding in a criminal jury trial, a wide latitude on how to charge the jury and what to say to them about the evidence. We hasten to add, though, that the existence of a discretion does not compel its use. Wading into the domain of the jury, as the trier of fact, is often fraught with unnecessary risk that sometimes jeopardizes the hard work and dedicated service of the jury in reaching a verdict. We are satisfied that this did not happen here.

[60] In our view, when examined insitu, many of the impugned aspects of the charge amount to no more than the trial judge directing the jury's attention to aspects of the evidence that bore upon contested issues. We do not intend to address each objection, only to highlight a few as illustration.

[61] For instance, the Crown sought to connect the appellant to the murder weapon for each homicide through a number of means. One of the means was a shooting close to the apartment of an acquaintance of the appellant. That acquaintance owed the appellant money. The appellant had threatened her prior to the shooting, specifically mentioning that he would "fly shots". Following the murders of Facey and James, but before the Cole murder, someone shot at the acquaintances' upstairs neighbour's apartment with the same 9 mm gun used in each of the murders.

[62] During closing submissions, defence counsel suggested that it was not the appellant who had shot at the apartment. After all, he knew where his acquaintance lived. If the appellant had been the shooter, he would not have fired at the apartment above that of his acquaintance.

[63] The appellant argues that the trial judge stepped over the line when he suggested to the jury that, given the set-up of the apartment, as disclosed by the evidence, one might have thought that the appellant's acquaintance lived upstairs, not downstairs. The trial judge was careful in his observations. He expressly told the jury that he was not expressing a "personal view on this issue", but only alerting the jury to another point of view. He concluded "the matter is entirely up to you". Read contextually, we see nothing unbalanced or unfair about the trial judge's observation.

[64] The appellant points to another passage in the charge where, he says, the trial judge undermined the defence. Kevin Williams testified that street guns are often borrowed and/or held in common by a number of people, whether within Williams' circle or an organization. The appellant objects to the fact that the trial judge reviewed that evidence and pointed out that he had seen no evidence, and heard no suggestion, that the appellant was part of an organized gang in 2010. He was right on this point. There was no such evidence. The observation counselled the jury about speculation. Once again, the trial judge specifically told the jury that it was "a matter for them to determine".

[65] At trial, defence counsel argued that it was a notorious fact that after you kill someone with a gun, you don't keep that gun: "you don't keep a gun that has a body on it". The trial judge commented that he did not know whether this was such a notorious fact. However, he acknowledged that it was a common-sense proposition. He then suggested that it was "equally unwise to continue to rent, borrow or share a gun after it has been involved in a serious crime". He added that the logical thing to do with the gun was to get rid of it, permanently. However, that "obviously did not happen with the 9mm in this case". This was an observation on the obvious: the gun was used four times to kill people. With that said, the trial judge went on to say that the question of whether the appellant would "hold onto a gun after it was involved in the serious crime, wise or not, is entirely up to you".

[66] In our view, these instructions merely focused the jury's attention on controverted issues of fact. They did not invite, rather enjoined, speculation. Neither their number nor nature rendered the charge, taken as a whole as it must be, unbalanced or unfair.

[67] In addition, the appellant submits that some of the opinions expressed by the trial judge were improper. For instance, the appellant says that the trial judge improperly commented upon the text sent by the appellant to Williams in the wake of the Spence homicide. The appellant wrote that he was "terrorizeing [sic] the borrows". The trial judge pointed out what he considered "obvious": that the "borrows might . . . mean the suburbs, and might include Scarborough". As a further example, the trial judge is said to have waded too deeply into the fray when he described a witness' reluctance to testify about something: "in examination-in-chief, after much resistance and protestation, she finally acknowledged, after watching the video of her own interview, that Mr. Moore had something against the Weston Road area as a result of being shot there".

[68] In our view, none of the examples relied upon by the appellant demonstrate that the trial judge crossed the line between the permissible expression of an opinion and a direction to the jury to decide a factual issue in a particular way.

[69] In this case, we have decided that the trial judge's evidentiary comments did not render the charge unbalanced or unfair. They were not stronger than the circumstances warranted, nor were they such that individually or cumulatively they were likely to overawe the jury or impede a fair presentation of the defence. The trial judge's instructions on the positions of the defence in relation to each count were clear and attracted no objection from very experienced trial counsel. But our rejection of this ground of appeal should not be considered a licence to test the limits of the discretion to which we have referred. Sometimes the best comment is no comment.

Ground #3: The evidence of motive

[70] The trial Crown alleged that the motive to kill Facey and James involved the appellant's view that, as an aspiring rap artist, it was critical for him to have a reputation for violence. In pursuit of that reputation, the appellant killed Facey and James so as to impress Williams, who was the appellant's rap mentor.

[71] In addition, the appellant had been shot in the face at 1765 Weston Road in 2001. The trial Crown argued that the appellant remained resentful of the area where the shooting had taken place. This provided another motive for murdering Facey and James, who were standing in almost the exact location where the appellant had been shot years earlier.

[72] Finally, the appellant was said to have a motive to murder Spence because he was found walking in an area of Toronto where the appellant's younger brother had been assaulted. Mr. Williams testified that the appellant had told him that some guys had "jumped" his brother, and so anyone he saw in that location was going to get killed or shot at. As the trial judge put it in the charge, it was the "perfect location for him to shake the streets by an act of violence".

[73] To begin, we acknowledge that the motives relied upon by the Crown were out of the ordinary. However unusual they may have been, they were well grounded in the evidence adduced at trial.

[74] Evidence of motive is among the items of circumstantial evidence most often received in a criminal trial. It is commonly used in a prospectant sense. Evidence of the existence of a motive to do an act is offered to prove the subsequent doing of that act and the state of mind with which that act was done: R. v. Salah, [2015] O.J. No. 237, 319 C.C.C. (3d) 373, at para. 64, citing Wigmore on Evidence (Tillers Rev., 1983), at § 43, pp. 1138-42.

[75] The evidence relied upon to establish motive is usually circumstantial. Sometimes it is evidence of a person's conduct. At other times, it is evidence of events about the person tending to excite the emotion likely to lead to the conduct in issue: Wigmore, at § 117, pp. 1696-97.

[76] The circumstances which tend to excite a given emotion, thus a motive to act, involve the entire range of human affairs and conduct. There is no closed list. No circumstances can be said, a priori, to be without the power to excite a given emotion. In general, any fact may be offered which can be conceived as tending with others to excite the emotion in issue: Wigmore on Evidence (Chadbourn Rev., 1979) at § 389, pp. 416-17. A motive need not be objectively reasonable, nor even rational.

[77] In our view, there was ample evidentiary support for each motive advanced by the Crown. The jury instructions on motive were free of error.

[78] This ground of appeal fails.

Conclusion

[79] The appeal is dismissed.

Appeal dismissed.