Court File and Parties

Court: Court of Appeal for Ontario Date: 2022-01-07 Docket: C67251

Before: Watt, Roberts and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent And: Miguel Chacon-Perez, Appellant

Counsel: James Lockyer and Jack Gemmell, for the appellant Roger A. Pinnock, for the respondent

Heard: April 20, 2021 by video conference

On appeal from: The conviction entered by Justice Michael D. McArthur of the Superior Court of Justice, sitting with a jury, on December 14, 2018.

Watt J.A.:

[1] Chad Robinson (“the deceased”) went to a Christmas party. The party was held for employees and subcontractors of a building company. The deceased worked for the company. He was an apprentice plumber.

[2] The appellant also went to the Christmas party. He worked as a flooring subcontractor for the company.

[3] The appellant and deceased had met at a job site earlier in the same year. The meeting was friendly.

[4] Alexis Aparicio-Chicas (“Chicas”) also went to the party. He had worked for a few months as a painter for the building company. He and the appellant had been friends since high school. Chicas only met the deceased the night of the party.

[5] The deceased died at the Christmas party. He died from a single stab wound to the heart.

[6] The Crown alleged that the appellant stabbed the deceased to death. The appellant denied the stabbing. He pointed to his friend, Chicas, as the assailant.

[7] The appellant was charged with second degree murder arising out of the death of the deceased. At his trial, the jury found him guilty of the offence with which he was charged.

[8] The appellant appeals his conviction on several grounds. These reasons explain my conclusion that his appeal should be allowed, his conviction set aside, and a new trial ordered.

The Background Facts

[9] The grounds of appeal the appellant invokes include a submission that the jury’s verdict was unreasonable and unsupportable on the evidence adduced at trial. And so it becomes necessary to set out in some detail those portions of the evidence tending to show the identity of the person who stabbed the deceased, the single controverted issue at trial.

The Christmas Party

[10] The Christmas party was hosted by Mike Persaud, the owner of the building company, at a banquet hall in London. The invited guests included employees and subcontractors of the company.

[11] Among the invited guests were Bhannita Panday, the host’s sister-in-law, as well as her husband, Jaimini, and sons, Ajay and Jayson. The deceased attended with another plumber, Nathan Smith. The appellant arrived with his mother, fiancée, and a friend who was also related to Mike Persaud. Danielle Fountain‑Smith, Mike Persaud’s “right hand”, was at the party with her mother, Kathy Adams, Garth Adams, and Kathy’s friend, Brenda Thompson. Chicas came to the party with his younger brother, Samuel, and a friend, Octavio Merino.

[12] As the evening progressed, several guests became intoxicated, among them, the appellant, Chicas, the deceased and their friends. When he died, the deceased’s blood alcohol concentration was 196 mg of alcohol in 100 ml of blood. Traces of THC were also detected.

The “Kijiji” Man

[13] Shortly before midnight, the appellant was at the bar. Nathan Smith, a friend of the deceased with whom he had come to the party, called to the appellant “What’s up Kijiji Man”. The appellant took offence. He confronted both Smith and the deceased. He considered that Smith’s remark was racially motivated. The deceased put down his drink. He moved towards the appellant to whom it appeared that the deceased was getting ready to fight. Another guest separated them. The appellant’s mother and fiancée took him out of the banquet hall. Outside, the appellant, admittedly “acting like an idiot”, threw his coat on the ground and said angrily “fucking white boys”.

[14] Nathan Smith testified that his “Kijiji Man” comment was not racially motivated or intended as an insult. The deceased had told him about a conversation he (the deceased) had had with the appellant earlier in the Fall of that same year. The appellant had described for the deceased his intention to sell things on Kijiji. Smith recalled that the deceased tried to shake the appellant’s hand after his (Smith’s) “Kijiji Man” remark. The appellant angrily declined. Smith walked away. The appellant and the deceased stayed at the bar.

The Appellant’s Departure and Return

[15] Chicas, his brother, and their friend, Octavio Merino, decided to leave the party and drive downtown to a bar. Chicas invited the appellant to join them. The appellant, who had been escorted outside by his mother and fiancée after the “Kijiji Man” remark, was admittedly drunk. On an inebriety scale of one to ten, he rated himself as a six or an eight. His mother told him to go home because he was drunk. Chicas invited the appellant to join the group heading downtown. After assuring his mother that he will not return to the party, the appellant jumped into Chicas’ van.

[16] The appellant had no intention of going downtown. He was mortified about having been removed from the party by his mother. He wanted to leave “on [his] own terms” and to correct any negative impression he had left on his work colleagues by his conduct. He asked Chicas to turn around and drive back to the party, but did not say why he wanted to do so. Chicas turned around. All four men returned to the party.

The Fight Starts

[17] When the four men in the van returned to the parking lot by the banquet hall, the deceased was inside the hall talking to Ms. Fountain-Smith and Ms. Thompson. Several others, including Nathan Smith and the Panday brothers, were outside smoking. As the four men got out of the van in the parking lot, Chicas dropped a knife on the ground. It was the appellant’s Ranger work knife. The appellant picked it up. The men argued.

[18] One of the Panday brothers who was watching the events as they unfolded, testified that the appellant may have returned the knife to Chicas or put it in his own pocket. The appellant said that Chicas grabbed the knife out of his (the appellant’s) hands.

[19] Nathan Smith was smoking in the parking lot. He saw the appellant talking with his friends. Smith walked towards him. The appellant told Nathan Smith to go back inside the banquet hall. But Smith continued to walk towards the appellant’s group. The appellant took a swing at Nathan Smith who retaliated by punching the appellant in the face. Both fell to the ground. Smith, a much larger man, told the appellant “you don’t want to do this with me”. The appellant agreed that their fight was over.

[20] Chicas denied having or seeing a knife at any time that night. He and the appellant argued in the parking lot. The appellant accused Chicas of “[backing] up the white boys”. Chicas hit Nathan Smith several times after Smith punched the appellant in the face. Chicas also hit Jayson Panday in the face when the Panday brothers tried to break up the fight between Chicas and Nathan Smith.

The Deceased Returns to the Parking Lot

[21] At about the same time as the parking lot altercation between Nathan Smith and Chicas, the deceased, Ms. Fountain-Smith and Ms. Thompson decided to leave the banquet hall for a smoke outside. The deceased approached Nathan Smith and asked him what had happened. Smith said “it’s the Miami boys”. He then left for the washroom to wash the blood from his face. He wiped his face with his shirt, threw the shirt away, and stayed in the washroom until police arrived. They arrested him on a charge of assault and causing a disturbance.

[22] Ms. Fountain-Smith returned to the banquet hall to tell Mike Persaud about the fight in the parking lot. Persaud rushed outside with several others, including Jaimini Panday and Kathy and Garth Adams. Each provided an account of the altercation that led to the deceased’s death. Their accounts differed. Only Jaimini Panday claimed to have seen the fatal stabbing.

The Fatal Altercation

[23] Mike Persaud was drunk. He saw people screaming and running outside the banquet hall. Chicas was shirtless, wild and out of control. Persaud enlisted the appellant, who was somewhat agitated, to help restore order. The appellant tried to convince his friends to return to their van. Chicas did not cooperate. Persaud was outside when the fatal altercation occurred. He said that he didn’t see any weapons nor did he see the deceased get stabbed.

[24] Brenda Thompson was also intoxicated. She moved the appellant to the opposite end of the parking lot to separate him from the deceased who was shouting, extremely angry, and seemed ready to fight. She tried to calm the appellant down by telling him that the fight was over. Chicas rushed towards her and the deceased. As she tried to keep Chicas away from the deceased, she saw the deceased fall hard on the icy driveway. Chicas skirted her and kicked the deceased in the head. She and Chicas grappled. Both fell. Chicas’ shirt came off. He kicked the deceased in the head again. Ms. Thompson did not see the appellant near the deceased at any time. As she went to assist the deceased, Ms. Thompson noticed the appellant and Chicas talking behind Kathy Adams’ car.

[25] The trial judge included a Vetrovec caution about Chicas’ testimony in his final instructions to the jury. In addition, he characterized Chicas as an alternate suspect whose potential involvement in the stabbing could raise a reasonable doubt about the appellant’s guilt.

[26] Chicas admitted that he was intoxicated when he became embroiled in a confrontation with the deceased who was also drunk. They squared up opposite each other. The deceased fell down. He acknowledged that he may have kicked the deceased in the head. Somehow, he lost his shirt during this confrontation. He denied fighting with Nathan Smith. He conceded that when he gets drunk and angry, he “sees red” and tends to “black out”.

[27] Chicas testified that he heard Ms. Fountain-Smith say “I saw you, you have a knife”, but he had no idea to whom she was referring because he was involved in a fight at that time. The only knife he saw that night was one in Garth Adams’ hand as he attacked Chicas’ younger brother. Chicas knew nothing about any Ranger knife. He asked the appellant to help his brother whom Garth Adams was attacking with a knife. He was unable to do it himself. When police arrived, Chicas, still shirtless, was sitting on the steps of the banquet hall wearing his coat and apparently weeping.

[28] As Garth Adams came out of the banquet hall, he noticed the appellant trying to defuse the situation in the parking lot. Chicas was angry and out of control. Adams attempted to calm the deceased, but the deceased would have none of it. In a menacing tone, the deceased responded “get the fuck away from me. Do I know you?”. Mr. Adams began to walk towards his wife’s car so that they could leave the party.

[29] The owner of the banquet hall reached into Chicas’ van, removed the keys from the ignition, and headed back towards the banquet hall. Chicas’ younger brother, who was in the driver’s seat in the van, got out and chased the owner. Mr. Adams tried to stop the pursuit. The two men fought. Danielle Fountain-Smith said that the appellant had a knife. Mr. Adams saw something in the appellant’s waistband area but couldn’t say whether it was a knife or his belt. He did not report this observation to the police when interviewed the night of the killing.

[30] For much of the evening, Kathy Adams stayed outside the banquet hall smoking cigarettes with Brenda Thompson. But she was inside the hall when her daughter, Ms. Fountain-Smith, reported that there was a fight in the parking lot. When Ms. Adams went outside, the scene she observed was chaotic. Chicas was running around, out of control like a “pinball machine”. As she, her husband, and daughter readied to leave, the appellant took her by the arm and told her to get out of the way so as not to get hurt.

[31] Ms. Adams saw the deceased go after Chicas. The men circled each other, their fists up. Chicas did something. The deceased went after him, then fell. She did not see any stabbing. After the deceased fell, Ms. Adams recalled having seen the appellant standing in the driveway, a knife held like a torch in his left hand. A blade of the knife was five or six inches long and was silver in colour. Chicas took a running kick at the deceased’s head. Ms. Adams made no mention of seeing the appellant holding the knife when she spoke to the police at the scene.

[32] Danielle Fountain-Smith acknowledged that she was intoxicated at the Christmas party. She remembered that Chicas was running around shirtless. He was aggressive and out of control. At one point she told both the appellant and Chicas that they were both fired. Sometime before the deceased collapsed, she saw a black-handled knife about ten inches in length, in the waistband of the appellant’s pants. She heard the deceased’s head hit the ground, but did not see him fall.

[33] Ms. Fountain-Smith called 911. She told the operator that “the Spanish guys have a knife”. The man with the knife was wearing jeans, but no shirt. A white guy was on the ground and may have been stabbed. Then she described the man with the knife as wearing clothes consistent with the way in which the appellant was dressed. She testified that she had no memory of seeing Chicas with a knife. She could not explain why she had first told the 911 operator otherwise.

[34] When police arrived, Garth and Kathy Adams told them that they had seen the appellant standing at the end of the parking lot with some of his friends. They saw him make a throwing motion towards the fence. They directed police to the area. The officers found a Ranger knife covered in snow a few feet from the fence. The knife was black and had a three-inch blade.

The Defence Case

[35] The appellant testified. He said that when they got out of Chicas’ van after returning to the party, Chicas dropped a knife on the ground. The appellant recognized it as his Ranger work knife. The men argued about Chicas’ habit of taking the appellant’s work tools. Chicas grabbed the knife.

[36] Nathan Smith approached the group who had come back in Chicas’ van. He ignored the appellant’s “colourful” request to go back inside. The appellant pushed Smith who responded with a headbutt. Both men fell down. Smith punched the appellant repeatedly causing him to bleed and become disoriented. The deceased yelled “where is your fucking girlfriend now”. Ms. Fountain-Smith told the appellant he was fired. Mike Persaud screamed at him to collect his friends and leave. The appellant shouted at Chicas and the others to get into their van.

[37] The appellant saw and heard Chicas and the deceased screaming at one another. Chicas shouted at the appellant to help his (Chicas’) brother who was fighting with Garth Adams. The appellant went over to help Samuel. The appellant did not see the stabbing. Chicas, who was not wearing a shirt and had a “psycho face”, approached the appellant, the Ranger knife in his hand. Chicas said that Ms. Fountain-Smith had called the police. He told the appellant to get rid of the knife. Unaware that anyone had been stabbed, the appellant took the knife, walked with Chicas’ brother and Merino to the end of the parking lot, and threw the knife over the fence.

[38] Jaimini Panday, the general manager of the company that supplies uniforms to law enforcement and the military police, testified as a defence witness. He has never met the appellant, deceased, or Chicas. He was undergoing medical treatment at the time of the party and only drank one beer there. He attended with his wife and two sons.

[39] When told about the fight in the parking lot, Mr. Panday asked his wife to check on their two sons. He then went outside himself. One of his sons was fighting. He ordered his wife and sons to return inside. He stayed outside. He had a good view of the area which was well lit, the lighting enhanced by the reflection from the snow. He saw the deceased run to the van and pull someone out with whom the deceased began to “interact”. He heard someone say “a knife” and saw Garth Adams brandish a knife with a two inch long silver blade. Chicas was holding a larger knife with a bigger black blade, about three and one half or four inches long in his hand.

[40] Jaimini Panday gave evidence that “everybody” was fighting. This included Chicas and the deceased. Both Chicas and the deceased fell on the icy surface. They kicked and punched each other as they regained their footing. Then they fell and got up again. Mike Persaud held the deceased from behind and told him to stop fighting. Then Chicas, who was not wearing any shirt, punched the deceased in the chest. Persaud released his grip on the deceased who fell really hard on his face. The deceased never got up. Chicas also kicked the deceased in the head.

[41] After the deceased fell, Jaimini Panday spoke to Mike Persaud briefly. He told Persaud “I think that guy get [sic] stabbed”. Persaud responded “don’t say anything; that I saw anything; that I was out here”. The Panday family stayed at Persaud’s house that evening.

[42] Mr. Panday gave two statements to the police. The first, about an hour after the stabbing, the second, the following afternoon at the police station. He was not entirely truthful with investigators for several reasons. His sons, who had been in legal trouble previously, had been fighting with sticks in the parking lot and remained in custody the following afternoon when Mr. Panday spoke to police for the second time. Mike Persaud pressured him to leave out any account about the fatal stabbing. He did not come forward when the appellant was charged because he thought it was the shirtless man (Chicas) who had been charged.

[43] According to Mr. Panday, he first found out that the appellant, not Chicas, had been charged when defence counsel (not counsel on appeal) visited at his home. Counsel urged Mr. Panday to give a further statement to police. He declined to do so because he feared that he too would be charged.

The Police Response

[44] Police responded to the 911 call. They found Nathan Smith, the Panday brothers and their mother in the women’s washroom. They arrested all three men on assault and caused disturbance charges, but released them the next day. The charges did not proceed. Police also arrested Chicas, his brother, and Octavio Merino on the same charges. Prior to trial, Chicas pleaded guilty to assault causing bodily harm to the deceased and assault on Nathan Smith. He was sentenced to 12 months in jail. The charges against the other two were withdrawn by the Crown.

[45] The appellant approached the police during their response to the 911 call. He admitted that he had been involved in a fight. When an officer asked whether he had a knife with him, the appellant said “man, I don’t know what you’re talking about. My head is killing me. When can I leave?”. The appellant also indicated that the deceased had made some kind of utterance about his wife, but he offered no details of what was said. He did not appreciate the deceased’s remark. Police arrested the appellant on charges of assault and causing a disturbance. Later, the police upgraded the charge to second degree murder.

The Forensic Evidence

[46] Police found the appellant’s Ranger knife where he had thrown it. The handle was bloodstained with a combination of blood from the deceased, the appellant, and an unknown source. Blood from the deceased was found on the blade. The appellant’s blood was also detected on the bottoms of Chicas’ shoes.

[47] Chicas’ DNA was not located on any sample from the Ranger Knife police examined. An expert gave evidence that if Chicas had handled the knife, he may not have left sufficient DNA to generate a profile or any profile he generated may have been masked by the appellant’s DNA.

The Cause of Death

[48] The deceased died from a single stab wound to his chest which penetrated his heart. The wound travelled downward and to the right. It was twelve centimetres long and two centimetres wide. He had also suffered abrasions to his forehead, temple, cheek, and arm as well as a bruise to his right elbow.

The Grounds of Appeal

[49] The appellant urges four grounds of appeal. He submits that:

i. the verdict is unreasonable and unsupported by the evidence adduced at trial; ii. the closing address of the trial Crown caused a miscarriage of justice; iii. the trial judge erred in failing to instruct the jury of the included offence of manslaughter; and iv. the trial judge erred in denying the jury’s request for the testimony of four witnesses.

Ground #1: Unreasonable Verdict

[50] The appellant claims that the verdict of the jury is unreasonable. It was a verdict, according to the appellant, that no properly instructed jury acting judicially could reasonably have rendered.

[51] To evaluate the merits of this ground of appeal requires no rehearsal of the evidence adduced at trial beyond what has already been done. A brief summary of the position of the parties as they were developed at trial will provide the essential background.

The Positions of the Parties at Trial

[52] The controverted issue at trial was the identity of the person who stabbed the deceased to death. Reduced to its essence, the Crown alleged that the killer was the appellant. Defence counsel submitted that Chicas killed the deceased, or at least that the appellant did not do so.

The Position of the Crown

[53] The Crown alleged that the appellant returned to the banquet hall because the deceased and Nathan Smith had disrespected him earlier. He sought revenge because Smith had referred to him as “Kijiji Man” and the deceased had said something about the appellant’s girlfriend.

[54] In support of their submission that the appellant killed the deceased, the Crown relied on the combined effect of several items of circumstantial evidence. Ajay Panday saw the appellant pick up the knife that Chicas dropped when the appellant, Chicas, his brother, and Octavio Merino got out of the van when they came back to the banquet hall. Ms. Fountain-Smith saw a knife in the waistband of the appellant’s pants. Ms. Thompson saw the deceased collapse to the ground before Chicas came into contact with him. Kathy Adams saw the appellant holding the knife in his hand like a torch after the deceased was on the ground. The appellant’s DNA was on the handle of the knife – his knife – that he admitted throwing away. And that knife, his knife, was the murder weapon.

The Position of the Defence

[55] The defence position focused on Chicas as the person who killed the deceased. The evidence about Chicas showed that he did kill the deceased or was at least sufficient to raise a reasonable doubt that the appellant was responsible for the deceased’s death.

[56] The appellant pointed to the evidence of Kathy Adams who saw the deceased and Chicas facing each other with their fists raised. Chicas did something to the deceased who went after Chicas. Then the deceased fell down and did not get up. No witness saw the appellant within close proximity to the deceased at any time. In her 911 call, Ms. Fountain-Smith told the operator that the Spanish guys had a knife, in particular, a man who was not wearing a shirt. That man was Chicas. The only time the appellant had the knife was after the deceased had been stabbed and was on the ground.

[57] The appellant placed significant reliance on the testimony of Jaimini Panday who they stressed was not only an independent witness unconnected to any of the participants, but also the only witness who had an unobstructed view of the actual stabbing. He had no motive to falsely accuse Chicas whom he identified as the killer. He accurately described the two knives that were involved in the melee. He said that Chicas had the bigger knife with a blade between three and four inches in length. The murder weapon, the appellant’s Ranger knife, has a blade of 3.54 inches in length.

[58] Defence counsel also relied upon the appellant’s testimony in which he denied causing the deceased’s death.

The Arguments on Appeal

[59] The appellant says that the case for the Crown depended entirely on inferences drawn from testimony that the appellant was seen in possession of a knife both before and after the stabbing. No witness upon whose testimony the Crown relied claimed to have seen the appellant actually stab the deceased.

[60] The inculpatory inferences upon which the Crown relies to establish guilt are explained by the appellant’s own testimony which was not diminished in any way by cross-examination. The appellant picked up the knife when Chicas dropped it after they got out of the van on their return to the parking lot. They argued. Chicas grabbed the knife and only gave it back after the stabbing when he (Chicas) told the appellant to get rid of it. The appellant threw the knife over the fence. This explains why the appellant’s DNA was found on the knife handle.

[61] The test applicable on appellate review of a verdict resting on circumstantial evidence for unreasonableness is whether a trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion on the evidence taken as a whole. Here, the evidence, in particular that of the only independent witness, Jaimini Panday, supported a strong contrary conclusion – that Chicas was the killer.

[62] In assessing the reasonableness of the verdict, the appellant invites us to consider several factors. Witnesses saw Chicas drop the knife in the parking lot. This meant that he was in possession of the knife up until he dropped it, despite his evidence to the contrary. The same witnesses saw Chicas and the appellant argue when the appellant picked up the knife. The witnesses acknowledge that Chicas could have got the knife back. The appellant was calmer than Chicas who was violent, out of control, and enraged. The appellant tried to defuse the situation.

[63] In addition, the appellant continues, no one saw the appellant in close proximity to or in an altercation with the deceased. Chicas had a propensity for violence. Kathy Adams saw Chicas do “something” to the deceased before he collapsed, but could not recall what the “something” was that she had seen. Ms. Adams had said nothing about seeing the appellant holding the knife in his hand like a torch when she spoke to the police. She also acknowledged a longstanding neurological condition which diminishes the reliability of her evidence.

[64] The appellant submits that Ms. Fountain-Smith saw Chicas with a knife before the stabbing. She saw the appellant with it only after the deceased had been stabbed. However, the most important evidence in the analysis of the unreasonableness of the verdict is that of the independent witness, Jaimini Panday. He saw Chicas strike the deceased in the chest. The deceased fell to the ground. He did not get up. The appellant’s testimony explains how his DNA was found on the knife handle. This occurred after Chicas handed the appellant the knife after the stabbing. The appellant handled the knife and threw it over the fence.

[65] The respondent rejects the submission that the verdict rendered was unreasonable. The fundamental issue for the jury was whether the Crown had proven beyond a reasonable doubt that the appellant stabbed the deceased to death. The jury found that the Crown had met that standard of proof. When tested for unreasonableness, the verdict rendered is measured against a well-established standard. The verdict must be one that a properly instructed jury, acting judicially, could reasonably have rendered. The verdict here meets that standard.

[66] To survive appellate review for unreasonableness, the case for the Crown need not be compelling, let alone overwhelming. What is required is that on the record as a whole, there is evidence the jury could reasonably accept that established the essential elements of the offence. In combination, the testimony of those who witnessed the events and the forensic evidence established the essential elements of the offence with the necessary degree of certainty.

[67] What set the entire train of events in motion was the “Kijiji Man” remark by Nathan Smith. Whether intended to be so or not, the appellant considered the remark to be racist and humiliating. Likewise, the deceased’s comment about the appellant’s girlfriend. This prompted a verbal contretemps with the deceased which almost led to a physical altercation. The appellant’s anger persisted. His mother took the appellant outside. She encouraged him to leave. He got into Chicas’ van. They headed downtown. But the appellant wanted to return. He convinced Chicas to turn around and drive back to the party. Chicas did so.

[68] The respondent argues that when Nathan Smith came outside to apologize for his earlier remark, he and the appellant got into an altercation. The appellant shoved Smith, then punched him in the face. Chicas dropped a knife as he and the appellant argued. The appellant picked it up. Witnesses saw a knife or something stuck in the waistband of the appellant’s pants.

[69] When Brenda Thompson pushed Chicas away from the appellant, she heard something. She turned around and saw the deceased fall to the ground. Chicas moved around her and kicked the deceased in the head. The appellant was standing nearby holding a knife upward like a torch. Shortly thereafter, the appellant was at the back of the parking lot where he made a throwing motion over the fence.

[70] The respondent invites us to consider the expert evidence as well. The appellant and the deceased could not be excluded as sources of the blood found on the knife with which the deceased was stabbed. However, the analysis excluded Chicas as a contributor. In addition, there was evidence of after-the-fact conduct by the appellant. He lied to the police when he denied knowing about any knife.

[71] In addition, the respondent continues, the jury was given clear and correct instructions about how they should approach the exculpatory evidence of Jaimini Panday. This testimony was the subject of a W.(D.) instruction. It required careful consideration by the jury. Their decision to reject it does not render their verdict unreasonable.

The Governing Principles

[72] The resolution of this ground of appeal is controlled by well established precedent about which no serious dispute arises. The parties differ about the result of the application of those principles in this case.

[73] Section 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, permits a court of appeal to allow an appeal from conviction on the basis that the conviction is unreasonable or cannot be supported by the evidence adduced at trial. The question framed by s. 686(1)(a)(i) is whether the verdict is unreasonable on the evidence received at trial, not whether the verdict is unjustified: R. v. Corbett, [1975] 2 S.C.R. 275, at p. 282. See also, R. v. Yebes, [1987] 2 S.C.R. 168, at p. 184.

[74] The test for an appellate court to apply in responding to a claim that a trial verdict is unreasonable or unsupported by the evidence is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. It requires the appellate court to determine what verdict a reasonable jury, properly instructed, could judicially have rendered. In this exercise, the court must review, analyze, and, within the limits of appellate disadvantage, weigh the evidence. Both objective and subjective assessments are involved: Biniaris, at para. 36.

[75] A verdict is unreasonable or cannot be supported by the evidence if it is a verdict that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26, citing Yebes, at p. 185 and Biniaris, at para. 36.

[76] Appellate review of a jury’s verdict of guilt for unreasonableness is conducted within two well-established boundaries. The appellate court must give due weight to the advantage of the jury as the trier of fact, eye and ear witnesses to the unfolding of the evidence and narrative at trial. But the review is not limited to a mere assessment of the sufficiency of the evidence. The role of the reviewing court is not spent by its conclusion that there was some evidence which, it believed, supports the verdict and conviction. The court must also consider whether the jury’s conclusion conflicts with the bulk of judicial experience: H.(W.), at para. 28, citing Biniaris, at para. 40.

[77] The traditional test for unreasonable verdict applies to cases in which the verdict is based, as are many, on the trier of fact’s assessment of the credibility of witnesses and the reliability of their evidence. In its application of the test in such cases, we must show great deference to the trier of fact’s assessment at first hand of the credibility of the witnesses and the reliability of their evidence. This is especially so when the trier of fact is a jury: H.(W.), at paras. 30-32.

[78] In a jury trial, it is for the jury to decide, despite any difficulties that may appear in any witness’ testimony, how much, if any, of that testimony the jury accepts. And an assessment of credibility is not a one-dimensional exercise dependent only on an appraisal of objective considerations, such as inconsistencies, motives for concoction, and the like, susceptible of reasoned review by an appellate court. The demeanour of the witness and the common sense of the jury are of vital importance and elusive of appellate review: H.(W)., at para. 32, citing R. v. François, [1994] 2 S.C.R. 827, at pp. 836-837.

[79] To succeed on a claim of unreasonable verdict under s. 686(1)(a)(i), an appellant must persuade the appellate court that no properly instructed jury, acting judicially, could reasonably have found the appellant’s guilt established: R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2.

[80] When the evidence adduced at trial is wholly or substantially circumstantial, the question to be decided when the verdict is challenged as unreasonable is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, citing Yebes, at p. 186. The circumstantial evidence does not have to totally exclude other “conceivable inferences”. Nor is a verdict unreasonable simply because the alternatives did not cause a doubt in the jury’s mind. It remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case was reasonable enough to raise a doubt: Villaroman, at para. 56.

The Principles Applied

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

[82] Several basic principles inform my approach to this claim of unreasonableness.

[83] First. The issue that requires determination is whether the jury’s verdict was unreasonable. The issue is not whether the verdict is unjustified: Corbett, at p. 282; François, at pp. 835-836. Our function is not to substitute ourselves for the jury, rather to decide whether the verdict rendered is one that a properly instructed jury, acting judicially, could reasonably have rendered: Corbett, at p. 279.

[84] Second, we cannot infer from the mere presence of contradictory evidence that the verdict of the jury not giving effect to that evidence is unreasonable. As with any evidence and in accordance with instructions repeatedly given, a jury may accept none, some, or all of the evidence of any witness. How that evidence appears on the printed page at one remove is no talisman of how it appeared when given. Assessing credibility of witnesses and the reliability of their evidence is a difficult business. Determining where the truth lies, equally so. A jury may bring special qualities to these tasks, qualities not shared by appellate courts: François, at p. 837.

[85] The argument advanced here, pared to its core, proceeds along the following lines. The evidence adduced by the Crown was circumstantial, the inferences supporting the conclusion advanced – that the appellant stabbed the deceased – were tenuous. On the other hand, the case for the defence, in particular the testimony of the “independent” witness, Jaimini Panday, identified Chicas as the killer. The jury’s conclusion that the tenuous inferences met the standard of proof required, when juxtaposed with cogent exculpatory evidence, renders the verdict unreasonable and unsupported by the evidence.

[86] In my respectful view this argument fails as a matter of general principle and in the circumstances of this case.

[87] It is commonplace that, as the trier of fact, it is for the jury to assess the credibility of witnesses and the reliability of their evidence. As they are repeatedly instructed at various stages of the criminal trial process, the jury is entitled to believe some, none, or all of the evidence of any witness who testifies. It is of no moment to the exercise of this exclusive authority whether, viewed objectively, the evidence is, by nature, inculpatory or exculpatory. The credibility of witnesses is not determined by fixed or immutable rules, rather left to the common sense of the jury. That there was, or that the jury did not have, a reasonable doubt on the basis of exculpatory evidence received at trial does not render their verdict finding guilt established unreasonable.

[88] In this case, several items of circumstantial evidence tended to point to the appellant as the person who killed the deceased. Evidence of motive. And of opportunity. And of possession of the means – the knife – used to carry out the killing. Forensic evidence linked him to the blood stained knife. After-the-fact conduct, including lies about knowledge of the knife and disposing of the knife after the stabbing. It was open to the jury to reject the appellant’s explanations, equally the testimony of Jaimini Panday.

[89] Nor does the nature of the evidence introduced at trial support a conclusion that the verdict is unreasonable. In a prosecution based on circumstantial evidence it is fundamentally for the trier of fact to determine whether the cumulative effect of the evidence taken as a whole, often greater than the sum of its individual parts considered in isolation, excludes inferences other than guilt. But the circumstantial evidence does not have to exclude other conceivable inferences. Nor is the verdict unreasonable simply because the alternative, in this case that Chicas was the killer, did not cause the jury to have a reasonable doubt about the appellant’s guilt.

[90] In this case, I am satisfied that the jury, acting judicially, could reasonably have been satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence. The claim that the verdict was unreasonable fails.

Ground #2: The Crown’s Closing

[91] The second ground of appeal alleges that in several respects the closing address of the trial Crown (not counsel on appeal) was improper. In combination, these improprieties rendered the trial unfair and caused a miscarriage of justice.

[92] As a result of the introduction of defence evidence, Crown counsel addressed the jury last. Defence counsel objected to several aspects of Crown counsel’s closing. The trial judge gave corrective instructions to the jury about improprieties in the Crown’s closing and repeated them in his charge the following day.

[93] To evaluate the merits of this ground of appeal, it is not necessary to repeat the precise language used by Crown counsel in his closing address. It is sufficient to identify the components by their subject matter, describe the remedies sought at trial, and the response of the trial judge before turning to the governing principles and applying them to determine the consequences of any improprieties on the verdict rendered at trial.

The Essential Background

[94] At trial and in this court, the appellant alleged four improprieties in the Crown’s closing. A brief description of each follows.

Tailoring the Evidence

[95] As part of his closing address, the trial Crown referred to what he labelled “Forced Honesty, Confusion and an Inability to Explain”. He submitted that, in giving evidence, the appellant was honest about some things because he had no real option to be otherwise as a result of the testimony of other witnesses. Those included his acknowledgment that he was upset about his altercation with the deceased in the banquet hall after the “Kijiji Man” remark by Nathan Smith. He also admitted that he picked up the knife after Chicas dropped it and that he threw it away. He had little choice because others had seen the incidents and his DNA was found on the bloody knife. These references did not include anything about access to pre‑trial disclosure, only to evidence given at trial.

Self-Interest in an Acquittal

[96] Invoking common-sense reasoning, the trial Crown pointed to a witness’ bias, self-interest, and motive as reasons for the jury to be skeptical about believing and relying upon the witness’ testimony. He singled out two witnesses: the appellant and Jaimini Panday as those with a clear motive to lie. Later, he added Chicas to the list of witnesses in this category.

Testimonial Demeanour

[97] In his closing address, defence counsel invoked the appellant’s testimonial demeanour as supportive of his credibility as a witness at trial. In his response, Crown counsel characterized the appellant’s demeanour at the scene and in the witness box as “oddly calm”, the antithesis of what would be expected of a person who, on his own evidence, had been wrongly accused of murder. The evidence seemed “rehearsed”.

Panday’s Motive

[98] Jaimini Panday did not know any of the principals: the appellant, the deceased, or Chicas. Crown counsel challenged his credibility and suggested that he was lying. In his closing address, the Crown acknowledged that what Mr. Panday had to gain from testifying was pure speculation. He then invited the jury to reject Mr. Panday’s evidence because “he had a motive to lie”.

The Defence Objection

[99] Defence counsel objected to the closing address of the Crown. He raised the spectre of a mistrial and contended that the closing address created an extreme risk of a miscarriage of justice. However, defence counsel never asked the trial judge to declare a mistrial. Counsel believed that the prejudice could be overcome by immediate corrective instructions and advocated in favour of their timely delivery.

The Corrective Instruction

[100] Shortly after hearing argument about the need for instructions to the jury to dispel the prejudice said to arise from the closing address of the Crown, the trial judge recalled the jury. In instructions of which defence counsel expressly approved, the trial judge:

i. identified the impropriety; ii. explained why it was improper; iii. corrected any misstatements of the evidence; and iv. cautioned the jury against prohibited chains of reasoning.

[101] The corrective instructions did not include reference to Crown counsel’s remarks about “forced honesty”. Defence counsel had said nothing about that aspect of the closing when seeking corrective instructions. He raised it the following day before the trial judge began his charge to the jury. The trial judge repeated his previous corrective instructions in the charge and added a reference to the “forced honesty” portion of the closing.

The Arguments on Appeal

[102] The appellant contends that the impugned aspects of the closing address of Crown counsel caused a miscarriage of justice. These remarks rendered the trial unfair, or, at the very least, created an appearance of unfairness. In either event, a miscarriage of justice occurred and can only be remedied by ordering a new trial.

[103] Alleging that an accused has tailored their evidence because they have received disclosure and had the benefit of hearing the evidence against them at their trial is impermissible. To invite a jury to reason in this way exacts an evidentiary price from an accused’s constitutional right to disclosure, to know the case he has to meet, and to be present at his trial, as well as the statutory requirement that he be present. To invite a jury to reason in this way to reject the appellant’s evidence is especially dangerous and prejudicial to a fair trial because of the common-sense appeal of these inferences.

[104] The appellant accepts the common-sense proposition that a witness’ interest in the proceedings may have an impact on their credibility also applies to an accused who testifies in their own defence. But in most cases, this factor is simply unhelpful as a credibility determinant. Nothing in this case justified Crown counsel’s repeated urgings that jurors be extremely skeptical of the appellant’s testimony because of his self-interest and bias. Nor how Crown counsel in turn played this off against the absence of any such contaminant affecting the testimony of prosecution witnesses.

[105] Crown counsel also focused on the appellant’s calm demeanour as a factor the jury should consider in rejecting his testimony. The appellant accepts that, like any other witness, the demeanour of the accused is a relevant factor for the jury to consider in assessing his credibility. But, on its own, a witness’ demeanour is a notoriously unreliable predictor of the accuracy of a witness’ evidence. Admittedly, trial counsel relied upon the appellant’s testimonial demeanour as supportive of his credibility. But the Crown’s response – that the appellant’s calm demeanour was the antithesis of what would be expected of a person falsely accused of murder and betrayed a rehearsed response at odds with the truth – went a step too far.

[106] In connection with the testimony of Jaimini Panday, the Crown was entitled to challenge his credibility and suggest he was not being truthful. But to suggest that the witness had an agenda or a nefarious motive for giving exculpatory evidence was entirely barren of evidentiary support and invited the jury to speculate.

[107] Taken together, these impermissible references rendered the appellant’s trial unfair in both substance and appearance. The comments related to a central point in the trial, the identity of the person who killed the deceased. The Crown’s urgings were directed at the juror’s natural instincts and invited paths of reasoning that the law forbids. There was good reason to believe that the jury would acquit the appellant. The closing address of the Crown deprived the appellant of the only true verdict the evidence supported.

[108] The respondent acknowledges that some aspects of the trial Crown’s closing address may have encouraged the jury to draw impermissible inferences or engage in prohibited reasoning to reach their verdict. The trial Crown conceded as much during the discussions that followed his address. However, experienced defence counsel did not ask the trial judge to declare a mistrial. When asked directly by the trial judge whether he sought a mistrial, defence counsel rejected a mistrial as the appropriate remedy. Corrective instructions were defence counsel’s remedy of choice. They were delivered within hours of the closing address, as defence counsel asked, and repeated in greater detail in the charge the following day. Nowhere did defence counsel take issue with their efficacy as a remedy. They were sufficient to advert any miscarriage of justice.

[109] A critical factor in our assessment of whether the improprieties in the trial Crown’s closing rendered the trial unfair and caused a miscarriage of justice, the respondent says, is the position of defence counsel at trial. An experienced criminal lawyer with the interest of his client foremost in his mind, defence counsel considered, but rejected a mistrial as the remedy required to eradicate the prejudice. The remedy he advanced and the trial judge provided was detailed corrective instructions that identified the error, explained why it was an error, and directed the jury not the follow the path of inference or reasoning the comments suggested but the law prohibited. The language used in the corrective instructions both in response to the address and the charge the following day, were discussed with and approved by defence counsel.

[110] The respondent says that the choice of remedy in these circumstances rested within the sound discretion of the trial judge. As an ear and eye witness to the entirety of the trial, including the impugned address, his remedial selection is entitled to significant deference here. The decision should be set aside only where it is grounded in some erroneous principle or is clearly wrong. And neither has been established here. The appellant got what he wanted at trial. That the jury found guilt established does not mean that the remedy selected was clearly wrong or that the judge erred in principle in failing to grant a remedy – a mistrial – that was expressly rejected by defence counsel as necessary or appropriate.

[111] In the vast majority of cases in which Crown counsel’s closing address is alleged to have caused unfairness, timely and focused curative instructions are a sufficient and appropriate remedy. In part, this is because we place confidence in the ability of juries to understand and follow judicial instructions. This includes instructions about permissible and impermissible uses of evidence, the inferences to be drawn or not drawn from that evidence, and the permitted and prohibited paths of reasoning to be applied to that evidence. Declaration of a mistrial, essentially what the appellant confronted with an adverse verdict now says should have been done, is a remedy of last resort, reserved for the clearest of cases. What occurred here, the respondent argues, fell well short of what is required to invoke such a drastic remedy.

The Governing Principles

[112] The principal point of divergence between the parties concerns the adequacy of the remedy selected – timely and repeated corrective instructions – to preserve the actual and apparent fairness of the appellant’s trial.

[113] Although the parties occupy common ground about the impropriety of some aspects of the trial Crown’s closing address to the jury, the nature and extent of the impropriety is an important factor in assessing whether the remedy of timely and repeated corrective instructions was adequate to the task of ensuring and maintaining the appearance of a fair trial.

Tailored Evidence

[114] Lines of questioning and submissions that characterized the testimony of an accused as suspect or unworthy of belief because they have received disclosure of the case for the Crown, or have been present throughout their trial as the case for the Crown unfolded, are problematic. They are problematic because an accused is constitutionally entitled to receive disclosure of the case for the Crown, to know the case to meet, to be present at their trial, and to make full answer and defence to the allegations made against them. They are statutorily required to be present at their trial and to see and hear the case for the Crown before they are permitted to respond.

[115] The problems with the lines of questioning, argument, or reasoning in issue is that each turns fundamental constitutional rights, statutory obligations, or trial procedures into a trap for the accused exacting an evidentiary toll in the process: R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.), at para. 20; R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.), at para. 14; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at paras. 21-24; R. v. M.(D.), 2020 ONCA 290, 392 C.C.C. (3d) 29, at para. 30. Inherent in these suggestions is an element of prejudice since many coincide with the common sense that jurors are invited to exercise in reaching their decision: White, at para. 20.

Self-Interest

[116] A witness’ interest in the outcome of proceedings is an issue that counsel may explore in cross-examination of the witness. This is because a witness’ interest in the result may have an impact on their credibility. This principle applies to an accused who chooses to testify at their trial: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 11-12. However, the fact that the witness is an accused raises a specific concern. This is because not only an innocent, but also a guilty accused has an interest in not being convicted. Thus, an assumption that an accused will lie to secure their acquittal offends the presumption of innocence: Laboucan, at para. 12.

[117] In most cases the interest of an accused in the outcome of proceedings is unhelpful as a factor in assessing their credibility as a witness. It follows that, as a general rule, triers of fact should avoid this path of reasoning and counsel should not invite them to follow it. Otherwise, the trier of fact may err by making the impermissible assumption that the accused will lie to achieve an acquittal: Laboucan, at para. 14.

[118] In each case, the defining question will be whether the comments of Crown counsel (or of the trial judge) undermine the presumption of innocence: Laboucan, at para. 18.

Demeanour Evidence

[119] Testimonial demeanour is a relevant consideration in evaluating the credibility of any witness, including an accused: R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 34. But as a predictor of testimonial accuracy, a witness’ demeanour is fallible. Its fallibility is a function of many and disparate factors. The culture of the witness. Stereotypical attitudes. The artificiality of and pressures associated with a courtroom: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at para. 44.

[120] The fallibility of a witness’ demeanour as a measuring stick of testimonial accuracy signals caution in its role. It is but one of many factors. Not exclusive. And not predominant: Hemsworth, at para. 45.

The Panday Motive

[121] Any witness, including an accused, may be cross-examined on issues of bias, interest, or corruption. Their denials may be contradicted as an exception to the collateral facts rule. When this occurs, for example in cross-examination of a defence witness, Crown counsel may invite the trier of fact to reject the evidence of the witness. But Crown counsel must not invite the jury to speculate about a motive of which there is no evidence or follow a path of impermissible reasoning to infer a motive: R. v. Pisani, [1971] S.C.R. 738, at p. 741-742.

The Available Remedies

[122] An improper closing address by Crown counsel is one of many trial irregularities that can affect the actual or apparent fairness of a criminal jury trial. The gravity of trial irregularities, including improper closings, is a variable, not a constant. Each requires individual evaluation according to its unique circumstances: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 74.

[123] The remedies available to a trial judge when an irregularity occurs in a jury trial vary depending on the nature and gravity of the error or combination of errors. The trial judge is in a privileged position in choosing the appropriate remedy. The discretion about remedial choice is not absolute. However, the judge’s decision is subject to considerable deference and should not be routinely second-guessed on appeal: Khan, at para. 83; R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583, at para. 64, leave to appeal refused, [2014] S.C.C.A. No. 405; R. v. R.(A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.), at p. 174.

[124] If a trial judge concludes that an irregularity has occurred in the closing address of the Crown and that irregularity has jeopardized the fairness of the trial, the trial judge must consider all the circumstances. This requires a balancing of the interests of the accused against other considerations, including the public interest: Al-Enzi, at para. 63. In most situations, the irregularity may be rectified by specific corrective instructions: R. v. Rose, [1998] 3 S.C.R. 262, at para. 125.

[125] Declaration of a mistrial is a remedy of last resort, reserved for cases in which the irregularity fatally compromised the fairness of the entire trial and that no remedy other than a new trial is available: R. v. Pires, 2004 BCCA 33, 183 C.C.C. (3d) 232, at paras. 53-59, aff’d on other grounds, 2005 SCC 66, [2005] 3 S.C.R. 343.

[126] When a trial judge realizes that an error has occurred in the conduct of a jury trial, but decides not to declare a mistrial, a reviewing court should consider the remedial selection as one of the elements in its assessment of whether the trial has been or has appeared unfair. Where the remedy chosen is a corrective instruction on what they may or must not consider in reaching their verdict, we must acknowledge the ability of jurors to understand and follow these instructions: Khan, at para. 81-82, citing Corbett, at pp. 692-694. We should intervene only if the trial judge exercised this well-established remedial discretion unreasonably or acted on a wrong principle: Al-Enzi, at para. 64.

[127] A relevant factor in our assessment is the position of defence counsel when confronted with the irregularities now said to have fatally wounded the actual and apparent fairness of the trial: Khan, at para. 85. Where the remedy sought on appeal, viewed through the lens of an unfavourable verdict, eclipses that sought at trial, and was itself expressly disavowed at trial, this affords some indication that the remedy chosen was adequate to ensure the trial was not unfair. Not in reality. And not in appearance: Khan, at paras. 85-86.

The Principles Applied

[128] Several reasons persuade me that this ground of appeal fails.

[129] Our response to this complaint involves two steps. At first, we must decide whether the Crown’s closing was improper. Then, if so, whether, considered in the context of the trial as a whole, including the evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address caused a substantial wrong or miscarriage of justice by compromising the appellant’s right to a fair trial: R. v. Clyke, 2021 ONCA 810, at para. 33.

[130] In this court, the respondent accepts, as did Crown counsel at trial, that some aspects of the trial Crown’s closing address may have encouraged the jury to draw impermissible inferences or engage in impermissible reasoning.

[131] In his “tailored evidence” submissions, the trial Crown made no direct reference to access to pre-trial disclosure as a source of information to shape the appellant’s testimony at trial. Rather, the trial Crown’s focus was the evidence given at trial. This, according to the trial Crown, essentially forced the appellant to concede certain events had occurred. While the submission made no direct reference to the appellant’s presence at trial as the source of or reason for the tailored evidence, the inference was unavoidable since his presence enabled him to hear the evidence that facilitated his account.

[132] The bias, self-interest, and motive claims as a basis to reject the testimony of the appellant and Jaimini Panday extended beyond what is permissible comment on the interest of a witness and the outcome of proceedings as a factor to consider in assessing the witness’ credibility. Although we do not impose an absolute prohibition on prosecutorial or judicial comment on an accused’s interest in the outcome as a factor to consider in assessing their credibility as a witness, the weight of authority holds that this factor is simply unhelpful in most cases and that triers of fact are well advised to abjure that path of reasoning. Relatedly, the jury should not be invited to follow a similar path of reasoning in connection with another witness whose alleged motive is grounded in speculation, unhinged from the evidence adduced at trial.

[133] We permit a trier of fact to consider a witness’ demeanour in assessing their credibility. In a jury trial, we allow trial judges to instruct jurors that a witness’ demeanour is a factor, one of many, that they may consider in assessing the witness’ credibility. Although we concede the relevance of demeanour as a credibility determinant, we also recognize that, on its own, demeanour is a notoriously unreliable predictor of the accuracy of a witness’ evidence. And so we eschew assigning it a place of prominence in the credibility analysis.

[134] In this case, the trial Crown’s closing address assigned undue prominence to the appellant’s testimonial demeanour as a factor for the jury to consider in assessing his credibility as a witness. The closing also invited the jury to follow a path of stereotypical reasoning from calm demeanour to rehearsed evidence and guilt.

[135] Improper closing submissions by Crown counsel do not always require a new trial. Each case is different. Each is decided according to its unique circumstances. Several factors exert an influence on the result. The seriousness of the improper comments. The context in which the comments were made. The position of defence counsel at trial. Remedial steps taken by the trial judge in the aftermath of the address or in the charge to the jury: Clyke, at para. 37, citing R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128.

[136] As I have said, my conclusion that this ground of appeal fails rests on the combined effect of several factors.

[137] First, the discretionary nature of the decision and deference.

[138] We owe substantial deference to the trial judge’s remedial selection in response to a claim of improprieties in the closing address of Crown counsel. The trial judge was there. Appellate counsel was not there. Nor were we. The trial judge could and did assess the impact and significance of the impugned remarks. He considered the nature and extent of remedial action required. He settled on corrective instructions. Shortly after the completion of the address. And again in the charge. We accord substantial deference to his conclusion. And so we should. His determination was not cumbered by any error in principle. Nor was it an unreasonable exercise of his remedial discretion.

[139] Second, the remedy applied.

[140] The trial judge considered a timely and repeated corrective instruction would eradicate any prejudice caused by the improprieties in Crown counsel’s closing address. This is the remedy applied in most cases of an improper Crown closing according to the prevailing authorities canvassed earlier. This remedy coincides with the confidence we repose in juries. Their understanding of the substance of corrective and limiting instructions. And the willingness and their ability to follow those instructions, especially those which direct them about permissible and impermissible uses of evidence, the inferences available from that evidence, and permitted and prohibited paths of reasoning based on that evidence.

[141] In effect, the appellant now says that the trial judge should have declared a mistrial rather than providing corrective instructions to the jury. Twice. Yet he points to no error in principle that flawed the trial judge’s remedial selection. Nor does he say that the choice was unreasonable. He says that the verdict was a surprise. To trial counsel and the trial judge. Neither affords any ground for reversal. Declaration of a mistrial is a remedy of last resort reserved for the clearest of cases. This is not one of them.

[142] Third, the corrective instructions provided.

[143] As we have seen, timely and focused corrective instructions are usually sufficient to eradicate or alleviate any prejudice to an accused’s fair trial rights caused by an improper closing by Crown counsel. Specificity is preferable to a general admonition to dispassion.

[144] In this case, the trial judge identified the improprieties, explained why they were improper, and provided an unambiguous instruction that enjoined impermissible use. The instructions were, as they should be, clear, specific, and forceful. They were given shortly after the impugned address and repeated the following day in the charge to the jury. They were composed of language of which defence counsel approved both before and after delivery. Any evidentiary misstatements were corrected.

[145] Fourth, the position of trial counsel.

[146] Trial counsel objected to Crown counsel’s closing. He made it clear that the improprieties could be corrected by instructions from the trial judge. He entreated the trial judge to provide the instructions after the closing and before the charge. The trial judge did so in language of which counsel approved. He then repeated the instructions in the charge. Trial counsel specifically declined to request a mistrial as a remedy. Appellate counsel, with the infallible wisdom of an unfavourable verdict, reverses field and asserts error in failing to declare a mistrial. An adverse verdict affords no evidence that the remedy afforded was wrong or inadequate, much less that it caused a miscarriage of justice.

Ground #3: Failure to Instruct on Manslaughter

[147] Like its immediate predecessor, this ground of the appeal puts forward a claim of error contrary to the position advanced at trial. There, defence counsel rejected any suggestion that the included offence of manslaughter should be left for the jury to consider. Appellate counsel now says that the trial judge erred in failing to instruct the jury on manslaughter.

[148] Brief reference to two aspects of the evidence received at trial and to the charge to the jury will provide a suitable framework in which to assess this ground of appeal.

The Relevant Evidence

[149] The deceased died of a single stab wound to his chest. The wound penetrated his heart. It travelled downward and to the right, a distance of 12 cm and was 2 cm wide. The blade of the knife that inflicted the fatal wound was only 3.5 inches long. The death of the deceased likely followed within seconds of the stabbing.

[150] An expert witness testified that, at the time of his death, the deceased’s blood alcohol concentration was 196 mg of alcohol in 100 ml of blood. Traces of THC were also found. The appellant testified that on an inebriety scale of zero to ten, he was in the range of six to eight. No expert evidence was elicited of the appellant’s blood alcohol concentration.

The Charge to the Jury

[151] The appellant’s position at trial was that he was not the person who stabbed the deceased and caused his death. Trial counsel made it clear in pre-charge discussions that he did not dispute that the stabbing was unlawful or that it amounted to murder in view of the nature and location of the fatal wound and the common-sense inference of intention. When asked directly by the trial judge about the included offence of manslaughter, trial counsel responded that he did not want manslaughter left to the jury.

[152] Crown counsel agreed that the trial judge should not instruct the jury on manslaughter.

[153] In his charge to the jury, the trial judge summarized the essential elements of murder. This included the requirements that the act causing death must be unlawful and accompanied by either of two specific fault elements. However, the trial judge did not explain either the unlawful act or fault requirements, or how they were to be established, as for example, through the use of the common-sense inference of intention, as affected by evidence of intoxication or other factors. The jury received no instruction about the verdict consequences of a reasonable doubt about proof of the fault element required for murder.

[154] The trial judge instructed the jury that two verdicts were available. They were to find the appellant not guilty if they were not satisfied beyond a reasonable doubt that the appellant was the person who stabbed the deceased to death. And they were to find the appellant guilty of second degree murder if they concluded that he was the person who inflicted the fatal wound. The verdict sheet displayed only these same two available verdicts and the decision tree contained a single question the answer to which indicated which of the two verdicts the jury should render. As is the practice, neither the verdict sheet nor the decision tree contained legal instructions.

The Arguments on Appeal

[155] The appellant begins by acknowledging that at trial, counsel on both sides agreed that the trial judge should not instruct the jury on the included offence of manslaughter or leave manslaughter as an available verdict. Counsel were wrong in their assessment, likewise the trial judge in his conclusion not to leave the included offence. Despite the position of counsel, a manslaughter instruction should have been provided and manslaughter left as an available verdict.

[156] In this case, the appellant points out, the deceased died of a single stab wound. The location and nature of the wound were relevant factors for the jury to consider in assessing the state of mind of the person who inflicted it, likewise the common-sense inference of intention. But neither alone nor in combination were these factors dispositive of the fault element the Crown was bound to establish to prove the unlawful killing was murder. The scene was chaotic. The parking lot was icy. The principals were intoxicated. Passions were inflamed. This afforded a basis for a conclusion that the killing, while unlawful, may not have been murder.

[157] What engages the obligation of a trial judge to instruct a jury on an issue is that the evidence at trial gives rise to an air of reality on that issue. It is beside the point whether defence counsel expressly advances it as a defence or disavows reliance upon it. In this case, the evidence adduced provided an air of reality for manslaughter. Failure to instruct on the included offence of manslaughter was a legal error requiring a new trial.

[158] The respondent accepts that the obligation of a trial judge to instruct a jury on an included offence depends on two factors. The offence must be an included offence as a matter of law. And the evidence adduced at trial must be such that it permits a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been proven beyond a reasonable doubt, but not those of the principal offence charged.

[159] On the other hand, the respondent contends, some cases exist in which the entirety of the evidence, the issues raised by the evidence, and the positions taken by the parties make it appropriate that only two possible verdicts be left of the jury – guilty or not guilty. This occurs when no reasonable view of the evidence, considered as a whole, could cause the jury to acquit on the principal offence charged but convict on the included offence. In these cases, an instruction on an included offence engenders confusion and invites a compromise verdict.

[160] Here, the respondent submits, two principal factors support the trial judge’s conclusion not to instruct the jury on the included offence of manslaughter. Experienced trial counsel turned his mind to the issue of the included offence of manslaughter. At the pre-charge conference, he made it clear that manslaughter should not be left to the jury as a potential verdict. More to the point, the evidence adduced fell short of the air of reality standard required to trigger the obligation to instruct. The deceased died almost immediately after a deep penetrating stab wound to the heart. The inescapable inference from the nature, location, and extent of the wound is that the person who inflicted it intended its natural and probable consequences – death. No evidence suggested that the wound was accidental. The deceased suffered no other significant injuries.

The Governing Principles

[161] The principles governing a trial judge’s obligation to instruct a jury on included offences are uncontroversial.

[162] The duty to instruct on included offences is not absolute. Nor is it coextensive with all offences that are included as a matter of law. The obligation to instruct on included offences depends upon the evidence received at trial, the issues raised by that evidence, and the positions taken by the parties: R. v. Wong (2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 11. The evidence adduced at trial must be such that it permits a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established, but not those of the principal offence: Wong, at para. 12; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75. See also, R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 50-55; R. v. Aalders, [1993] 2 S.C.R. 482, at p. 504-505.

[163] Where, according to the legal principles that govern the principal and included offences, no reasonable view of the evidence taken as a whole could cause the jury to acquit on the principal charge, but convict on the included offence, an instruction on the included offence would achieve no purpose beyond confusion and compromise, the antithesis of a true verdict according to the evidence: Wong, at para. 12.

[164] The air of reality test imposes a basic requirement, that of an evidentiary foundation. It applies to a variety of issues. Modes of participation. Essential elements of an offence. Defences. Justifications. Excuses. And included offences, which are often linked to defences. The test invokes two well-established principles. The obligation to put to the jury all defences and included offences that arise on the evidence, irrespective of reliance upon them by an accused. And a positive duty to keep from the jury defences, and included offences, for which there is no foundation in the evidence: Cinous, at para. 51.

[165] The air of reality test has to do only with whether a defence, or included offence, should be left for the jury to consider. This determination requires the judge to consider the totality of the evidence and assume the evidence relied upon by the accused is true. This threshold determination does not decide the merits of the defence, or the basis for the included offence. The judge makes no findings of fact, does not weigh the evidence or draw determinate factual inferences. The air of reality test is not meant to assess and does not consider whether a defence or the basis for an included offence is likely, unlikely, somewhat likely, or very likely to succeed, or be the verdict returned at the end of the trial: Cinous, at paras. 53‑54.

[166] Where no reasonable view of the evidence taken as a whole could cause the jury, on the basis of the legal principles applicable to the principal and included offence, to acquit on the main or principal charge, yet convict on the included offence, then the included offence should not be left for consideration: Wong, at para. 12.

[167] When an appellant asserts error because of a failure to instruct on an included offence, a factor of importance for the reviewing court is the position of counsel at trial, especially defence counsel. This is because, among other considerations, an accused has a constitutional right, within limits, to control their defence: Luciano, at para. 77. The assessment also considers the strength of the evidence relied upon in connection with the included offence as well as the concessions made and position taken by trial counsel: R. v. Chalmers, 2009 ONCA 268, 243 C.C.C. (3d) 338, at para. 52. Sometimes, it may be necessary to instruct the jury on the included offence of manslaughter despite the objections of defence counsel: Chalmers, at para. 51, citing R. v. Murray (1995), 93 C.C.C. (3d) 70 (Ont. C.A.), at pp. 84-86.

The Principles Applied

[168] I would not give effect to this ground of appeal. In my respectful view, the failure of the trial judge to instruct the jury on the included offence of manslaughter did not amount to prejudicial error.

[169] The obligation of a trial judge to instruct a jury on an included offence becomes engaged when two circumstances coalesce. The first has to do with the offence which is the subject of complaint. And the second relates to the evidence adduced at trial.

[170] The offence omitted from the instructions must be what the law regards as an included offence. One offence may be included in another in different ways. In this case, it is common ground that manslaughter is, in law, an included offence in a count charging murder.

[171] A trial judge is not required to instruct a jury on every offence that, as a matter of law, is an included offence. The obligation to instruct on the included offence also depends on the evidence adduced, the issues raised, and the positions taken by the parties on that evidence. In particular, the evidence adduced at trial must meet the air of reality standard on some basis that could result in return of a verdict for the included offence. This means that the evidence adduced must permit a reasonable jury, properly instructed and acting judicially, to conclude that the essential elements of the included offence, but not those of the principal offence have been established beyond a reasonable doubt.

[172] Manslaughter may be voluntary or involuntary. Voluntary manslaughter is mitigated murder. The fault element in murder is proven, but the crime is reduced to manslaughter because a reasonable doubt arises about some defined mitigated circumstance such as provocation within s. 232(1) of the Criminal Code. Involuntary manslaughter is culpable homicide that lacks the fault element required for it to amount to murder.

[173] A context-specific assessment of the appellant’s claim of prejudicial error requires an evaluation of the strength of the supportive evidence and the concessions made and position taken at trial on the basis of that evidence.

[174] The defence advanced at trial focused exclusively on the identity of the killer. The evidence marshalled in support was principally that of Jaimini Panday and the appellant. Simply put, the defence was “not me, it was Chicas”. Nowhere did experienced defence counsel suggest that there was an air of reality to the statutory partial defence of provocation, or to intoxication or accident. As this court pointed out in Peavoy, defences incompatible with that advanced may be left with the jury in a way that does not compromise the position of counsel or the defence advanced: Peavoy, at para. 37. No such request was made here.

[175] The appellant conceded the issue of intent at trial. Experienced trial counsel approved the specific instructions of the trial judge. Those instructions contained no directions on the unlawful nature of the killing or the fault element required for murder. That was as the appellant wished it with the focus on the adequacy of the Crown’s proof that the appellant stabbed the deceased. The conclusion that the position advanced was a sound tactical decision undertaken with the benefit of advice of experienced counsel. That it turned out adversely to the appellant changes nothing.

[176] It passes strange that the trial judge is now said to have erred by putting the appellant’s case to the jury in precisely the way in which the appellant sought to have it put. Yet this is the argument now advanced with the benefit of the clairvoyance provided by an adverse verdict.

[177] As in Chalmers, the argument advanced does not extend beyond the air of reality relating to any defences that could find a verdict a manslaughter.

[178] First, voluntary manslaughter. There was no evidence of a sudden loss of control following the “Kijiji Man” remark during which the stabbing occurred.

[179] Second, involuntary manslaughter. If the jury accepted that it was the appellant who caused death, it is difficult on the record to conceive of a scenario where he did so without the requisite intent for murder: see Chalmers, at para. 49. The appellant never asserted that he stabbed the deceased without realizing or foreseeing that he would kill him. This is to be expected: the appellant’s entire evidence was that he did not cause the deceased’s death. While the appellant testified he was intoxicated, this evidence lacked persuasive force without expert support. Nor was there any evidence as to how the appellant’s intoxication affected, if at all, his ability to appreciate his actions.

[180] In any event, the deceased was killed by a single and nearly immediately fatal stab wound to the heart. After the stabbing, the appellant carried out purposeful actions, throwing away the knife used to stab the deceased. His explanation at trial – that he did so at Chicas’ request – would no longer apply once the jury found that he caused the death. The evidence is thus consistent with a clear and determined intent to kill or, at the least, a reckless disregard for life.

[181] Finally, perhaps the most telling indication of the defence view of the air of reality for manslaughter is counsel’s failure to advance it as an issue arising on the evidence that required a determination by the jury if it found the appellant had caused the deceased’s death.

[182] In this case, the trial judge’s instructions about the possible verdicts tracked the appellant’s position throughout the trial. The trial judge vetted the proposed instructions and the potential verdicts with counsel. The instructions given were tailored and responsive to the position of the defence throughout. In these circumstances, including the paucity of evidentiary support for such a verdict, the instructions preclusive of a verdict of manslaughter do not reflect error. They also are consistent with the appellant’s right to control his own defence.

Ground #4: The Jury Question

[183] The final ground of appeal was raised in a supplementary factum and advanced in oral argument. Brief reference to the question, the positions of counsel, and the trial judge’s response will provide the background necessary to evaluate its merits.

The Charge to the Jury

[184] The trial judge completed his charge to the jury at about 2:00 p.m. on December 13, 2016. After a brief colloquy with counsel, he recalled the jury for further instructions.

The Jury Question

[185] Within two hours of completion of the main charge, and an hour after the brief further instruction, the jury asked a question:

Could we have the court witnesses’ testimony of Danielle, Nicole, Jimini [sic] and Kathy?

The Positions of Counsel at Trial

[186] Defence counsel advised the trial judge that jury questions required accurate and comprehensive responses. He noted the general nature of the question and suggested that the jury could be asked to particularize their request. In the alternative, defence counsel suggested the jury could be told that no transcripts of the evidence were available, nor would they be, and that replaying the recordings of the evidence would take several days of court time.

[187] The trial Crown largely agreed with the position of defence counsel.

The Response of the Trial Judge

[188] When the jury returned to the courtroom, the trial judge read out their question. He responded to it in this way:

We do not have transcripts of the evidence, nor are they capable of being provided. If it is a matter of focusing on specific issues in this regard, I’m going to ask you to consider the testimony of the witnesses as you recall, as assisted by Counsel’s submissions and the charge that I have provided to you which outlines some areas of that evidence.

Practically speaking, to listen to the evidence of these witnesses in their entirety will involve likely a number of days to do so, of hearing the recording if that happened. So what I’m going to direct you to do at this time is to consider the evidence along with the issues that you’re facing as well in this matter, assisted by those submissions and the charge in that regard and we will leave matters at that point, at this time.

So what we are going to do, the best answer then that I can give is that a) we don’t have transcripts available to us, and with respect to providing the audio recording of the evidence we can do so but that will require us to play the evidence of those witnesses, which occupies probably some hours and maybe some days of evidence as well.

So what we want you to do is first to deal with that in view of the instructions that have been provided and some of the outlines of the issues and the facts that have been discussed in the course of that, at this point in time, all right?

[189] The jury asked no further questions. They returned their verdict the following afternoon almost twenty-four hours after they had asked their only question.

The Arguments on Appeal

[190] The appellant begins, as did trial counsel, with a fundamental principle. When a jury asks a question during their deliberations they are entitled to a timely, correct, and comprehensive answer. This is because, by their question, the jury has identified an area or subject about which they require assistance. Where a jury question requests a read back or replaying of evidence, they are entitled to receive it.

[191] In this case, the appellant submits, the trial judge’s complete rejection of the jury’s request is a legal error that requires a new trial. This is so irrespective of the position counsel took at trial. Because of the unqualified nature of the initial request, the trial judge should have invited the jury to be more specific about the portions of the evidence they wished to have read out or replayed. The trial judge’s failure to seek a more specific description of what was required meant that the jury got no assistance at all. To make matters worse, the nature of the response eliminated the prospect of any further questions from the jury.

[192] The appellant says that the substance of the information required by the jury’s question aggravated the prejudice inherent in the trial judge’s failure to answer it. The witnesses whose evidence the jury sought were those whose testimony related to the identity of the person who stabbed the deceased. This included Jaimini Panday, the defence witness who identified Chicas, not the appellant, as the killer. Identity was the only contested issue at trial. As a result, a new trial is required.

[193] The respondent submits that in any assessment of an alleged error in responding to a jury question, a relevant consideration is the position of counsel at trial. This is especially so when counsel expressly agree on the approach that the trial judge should take. That occurred here. And we should be slow to reach an opposite conclusion in the face of unanimity at first instance.

[194] The preferable course for the trial judge to have followed in this case, the respondent acknowledges, would have been to invite the jury to identify those aspects of the testimony that they wished to rehear. But the trial judge’s failure to do so does not warrant appellate reversal. No miscarriage occurred in the result. This is so because experienced trial counsel, the person most proximately charged with advocating the best interests of the appellant, concluded that it was not essential in the interests of justice that the evidence of these witnesses be repeated for the jury. Their evidence had been fairly summarized in the charge in connection with the issues requiring resolution and the jury had its individual and collective memories of the testimony.

The Governing Principles

[195] The principles governing how in-deliberation jury questions should be answered are uncontroversial. Some specific points emerge that are important in the circumstances of this case.

[196] First, a jury question provides a clear indication of the specific problem that the jury is confronting and on which it seeks the judge’s assistance. The nature of the problems vary. But the nature of the response does not. What is required, after careful consideration of the question and the submissions of counsel, is a clear, correct, and comprehensive answer to the question asked or request made: R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, at p. 759-750; R. v. S.(W.D.), 1994 SCC 76, [1994] 3 S.C.R. 521, at p. 528.

[197] Second, when the jury’s request relates to evidence admitted at trial, the jury is entitled to have the evidence of a witness or witnesses on a particular subject, and the entire evidence of a witness or witnesses if requested, read back or replayed: R. v. Andrade (1985), 18 C.C.C. (3d) 41 (Ont. C.A.), at p. 70.

[198] Third, where the jury’s question is ambiguous or unclear, the trial judge is entitled to seek clarification and should do so before responding to the question: R. v. B.(N.J.) (2004), 183 C.C.C. (3d) 180 (N.S.C.A.), at para. 14; R. v. Fleiner (1985), 23 C.C.C. (3d) 415 (Ont. C.A.), at pp. 420-421; R. v. H.(L.I.), 2003 MBCA 97, 176 C.C.C. (3d) 526, at para. 72; R. v. Shannon, 2011 BCCA 270, 273 C.C.C. (3d) 80, at para. 51.

[199] Fourth, among the in-deliberation jury questions upon which a trial judge may seek clarification before responding is a request for a rereading or replaying of the testimony of a witness or witnesses: Andrade, at p. 72. Relatedly, a trial judge might ask whether a summary of the witness’ testimony from the judge’s notes of it might suffice: Andrade, at p. 72.

[200] In some instances, failure to clarify questions that are unclear or ambiguous may amount to reversible error. This is so not only because of the nature of the response to which the jury is entitled to their in-deliberation questions, but also because the answer they are given, or in some cases refused, is the final word they hear on a problem they have identified in their deliberations: R. v. Kahnapace, 2010 BCCA 227, 255 C.C.C. (3d) 342, at paras. 50, 53.

[201] Finally, nothing the judge says in responding to the jury’s in-deliberation question should discourage the jury from asking further questions on that or any other subject: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 97, citing R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 33.

The Principles Applied

[202] Several factors, considered together, persuade me that we should give effect to this ground of appeal.

[203] First, the subject matter of the jury’s question.

[204] The jury’s in-deliberation question related to the central, indeed only contested issue at trial: the identity of the person who stabbed the deceased. The evidence at trial, perhaps unsurprisingly in light of the scene observed and the conditions of the observers, lacked consistency. As among the witnesses. And in the evidence of individual witnesses. It resembled a crazyquilt of snapshots of individual events taken from myriad points of vantage by witnesses whose recollections lacked consistency and were tainted in some cases by self-interest and bias.

[205] The jury’s task required them to recall these disparate renditions, assess the credibility of their authors, determine the reliability of their observations, and apply the burden and standard of proof. By their question, they sought help about the substance of the evidence, including that of Jaimini Panday who identified Chicas as the assailant. The answer of the trial judge gave them no assistance. They had a copy of the charge, including the evidentiary references. This was apparently not enough. But they got no more.

[206] Second, the failure to seek clarification.

[207] The omnibus nature of the jury’s request was a clarion call for a response that asked the jury whether they could be more specific about the aspects or subjects of the evidence which they wished to have repeated. The failure to make that request or even ask the jury to consider it in these circumstances was an error.

[208] Third, the consequences of the failure. In the result, the jury, promised in the charge that their questions would be answered, received no assistance when they said they needed it about a subject on which they were the sole arbiter – whether the appellant killed the deceased.

[209] Finally, both the substance of the trial judge’s response and his failure to remind the jury of its right to ask further questions and to receive answers to them essentially discouraged any further questions during deliberations. This too was an error.

[210] In these circumstances, I do not consider this a case in which we are entitled to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.

Disposition

[211] In the result, I would allow the appeal, set aside the conviction, and order a new trial on the indictment.

Released: January 7, 2022 “D.W.” “David Watt J.A.” “I agree. L.B. Roberts J.A.” “I agree. B. Zarnett J.A.”