Court File and Parties

Court of Appeal for Ontario Date: 2023-03-14 Docket: C66587

Between: His Majesty the King, Respondent and Michael Davani, Appellant

Before: Paciocco, Sossin and Favreau JJ.A.

Counsel: Gerald Chan and Spencer Bass, for the appellant Elise Nakelsky, for the respondent

Heard: January 25, 2023

On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, dated June 12, 2017, sitting with a jury.

Sossin J.A.:

Overview

[1] On June 12, 2017, after a trial taking place over seven weeks, the appellant Michael Davani was convicted of the murder of Andrea White. On April 12, 2014, Ms. White was socializing with friends in the open garage of her home in a Scarborough co-op. Around 11 p.m., a Range Rover drove by her garage twice. On the second drive-by, the Range Rover slowed in front of the open garage, and multiple shots were fired from the front passenger window. One of the bullets struck Ms. White and she died from a single gunshot wound to her abdomen.

[2] Following the shooting, the police located the Range Rover on Highway 401 and a high-speed chase ensued. The chase ended when the Ranger Rover hit a curb in a residential neighbourhood. Police arrested the appellant, who was in the front passenger seat. Alwayne Bigby, the co-accused, fled, but later turned himself in to the police and identified himself as the driver of the Range Rover.

[3] The appellant and Mr. Bigby were charged and tried together. The Crown alleged that they planned and executed the murder together as revenge for their friend’s murder in the same neighbourhood approximately one year earlier. At trial, their accounts of the night in question differed significantly. The appellant said that a third person by the nickname, “Star”, had been in the car and was the shooter, and that Star jumped out of the moving vehicle during the police chase. The appellant testified that he was sitting in the back seat during the shooting, and that after the shooting, Star jumped into the back seat and told the appellant to get into the front seat. Mr. Bigby testified that the appellant was the shooter and it was just the two of them in the car.

[4] The appellant was convicted by the jury, while Mr. Bigby was acquitted. The appellant argues that his trial was unfair and raises several grounds of appeal, including that the trial judge should not have permitted counsel for the co-accused, Mr. Bigby, to cross-examine him on the facts underlying an earlier conviction on his criminal record, that the trial judge showed unfairness in criticism of the appellant’s trial counsel, and that the jury charge was unfair to the appellant.

[5] For the reasons that follow, I would dismiss the appeal.

Analysis

[6] The appellant’s three grounds of appeal may be summarized as follows.

[7] First, the appellant argues that the trial judge improperly allowed Mr. Bigby’s counsel to cross-examine the appellant on the facts underlying his prior, unrelated discreditable conduct. The conduct in question included a 2014 conviction for robbery. According to the appellant, the questioning about facts underlying this conviction was highly prejudicial and should not have been allowed. This cross-examination was not necessary for Mr. Bigby’s right to make full answer and defence, as the appellant and Mr. Bigby were not advancing “cuttthroat” defences. According to the appellant’s testimony, Mr. Bigby was completely innocent. In such circumstances, Mr. Bigby should not have been permitted to conduct such a prejudicial cross-examination of the appellant.

[8] Second, the appellant argues that the trial judge’s conduct, considered as a whole, undermined the fairness of the appellant’s trial. The appellant claims that the judge continuously and repeatedly interjected during the appellant’s counsel’s cross-examinations of crucial witnesses, in the absence of any objections from experienced counsel for the Crown and co-accused. According to the appellant, these interventions interfered with his ability to run his defence as he saw fit, and also conveyed to the jury that the appellant’s counsel was acting improperly or incompetently (or both). Further, the trial judge made numerous comments in front of the jury that disparaged the appellant’s defence and counsel. The appellant contends that as a result of this conduct, the trial judge ceased to appear impartial to the jury.

[9] Third, the appellant asserts that the trial judge’s lack of impartiality extended to his jury charge, and that his instructions were unbalanced and unfair. The appellant contends that the charge impugned evidence and witnesses that were crucial to his defence, while underscoring evidence that was helpful to Mr. Bigby. The last directions the jury received, in particular, did not represent an even-handed discussion of the case.

[10] I discuss each ground of appeal below.

(1) The trial judge did not err by permitting limited cross-examination on the appellant’s involvement in a prior robbery

[11] The appellant’s first ground of appeal relates to a decision of the trial judge to permit the cross-examination of the appellant following a mid-trial application by counsel for Mr. Bigby based on the principles from R. v. Pollock (2004), 2004 ONCA 16082, 187 C.C.C. (3d) 213 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 405 (the “Pollock application”).

The evidence giving rise to the Pollock application

[12] The Crown’s theory was that the appellant was the shooter and that Mr. Bigby aided the murder by driving the appellant to the scene and providing him with the opportunity to discharge the firearm out the window of his vehicle. The Crown argued that the appellant and Mr. Bigby left Mr. Bigby’s apartment earlier that evening with a firearm and a plan to kill someone to memorialize their late friend’s murder. According to the Crown, Mr. Bigby willingly participated in this plan.

[13] Mr. Bigby testified in his own defence and took the position that the appellant acted alone in killing Ms. White. Mr. Bigby testified that, after the shooting, he attempted to surrender when the police pulled him over. However, he said that the appellant pointed a gun at him and told him to drive, which resulted in the subsequent high-speed chase and crash, after which Mr. Bigby fled. Finally, Mr. Bigby recounted an alleged conversation that he had with the appellant in the courthouse the day after their arrests, during which Mr. Bigby stated that the appellant told him to “stick to the plan” and say that there was a third person who jumped out of the car.

[14] The appellant testified in his defence that he left for the vigil of their mutual friend in Mr. Bigby’s car, with Mr. Bigby driving. On the way to the vigil, the appellant ran into another acquaintance, Star, who asked to accompany the appellant and Mr. Bigby to the vigil. As the three men set out for the vigil in Mr. Bigby’s car, according to the appellant’s evidence, Star took the front passenger seat and the appellant sat in the backseat.

[15] The appellant testified that, as they entered the co-op in Scarborough, Star unexpectedly began firing shots out of the window of the vehicle. In the appellant’s evidence, neither he nor Mr. Bigby were aware that Star had a gun or was intending to fire shots out of the vehicle.

[16] Given the divergent testimony of the two co-accused, credibility was clearly a key issue in the trial. If the appellant was being truthful, then Mr. Bigby was not being truthful in his account of the shooting, which could undermine the jury’s confidence in Mr. Bigby’s claim of innocence, namely, that he was unaware before it happened that a shooting would occur. On that basis, toward the end of the appellant’s examination-in-chief, counsel for Mr. Bigby brought the Pollock application for leave to cross-examine the appellant on an earlier robbery for which the appellant was convicted, in order to discredit the appellant by showing his discreditable character.

The issues in the Pollock application

[17] The previous convictions at issue included a 2014 conviction for robbery, for which the appellant received an effective sentence of time served. The appellant did not dispute that he could be cross-examined on his criminal record, and that the fact of his prior convictions themselves could be used to attack his credibility. The appellant objected, however, to the scope of the proposed cross-examination by Mr. Bigby’s counsel. The dispute over the scope of the cross-examination turned on the application of principles developed by this court in Pollock.

[18] In Pollock, this court held that, in a joint trial, co-accused parties may, in their own defence, introduce evidence that could not be tendered as part of the crown’s case, including relevant evidence that demonstrates the disposition or propensity of a co-accused to commit the offence charged. Before such evidence is admissible, “[t]here must be some evidentiary foundation to support this assertion” of relevance: Pollock, at para. 106. There is discretion to exclude relevant defence evidence, even where an evidentiary foundation exists, but given the necessity of permitting accused persons to present full answer and defence, unlike Crown evidence that can be excluded where its probative value is outweighed by its prejudicial effect, evidence relevant to a defence is admissible unless its prejudicial effect substantially outweighs its probative value: Pollock, at para. 110. I will elaborate.

[19] In R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 52, Watt J.A., writing for this court, identified the different ways in which the “inherent prejudicial effect of evidence of bad character can infect a jury’s deliberative process”: 1) the jury may assume the accused is a bad person who is therefore more likely to have committed the offences; 2) the jury may tend to punish the accused for his prior misconduct through a guilty verdict; and 3) the jury may have their attention deflected from the main purposes of the trial through litigation of the facts of the prior misconduct.

[20] In Pollock, Rosenberg J.A. explained that this risk of prejudice leads to the need for trial judges to consider the probative value of such evidence, the purposes for which it is sought, and the requirement that there be some evidentiary foundation to justify the need for the evidence sought, at para. 106:

Accordingly, since evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. That foundation may come during the Crown’s case through evidence of Crown witnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so, the prejudicial character evidence would only be admissible, if at all, at that time. The need for this evidentiary foundation is not simply to avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The need for the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of the defence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence. [Emphasis added.]

[21] In R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at paras. 65-66, leave to appeal refused, [2016] S.C.C.A. No. 299, this court elaborated on the analysis to be undertaken by a trial judge, in light of Pollock, where one co-accused seeks to elicit evidence from another that could not have been elicited by the Crown:

The risk of prejudice to the accused against whom bad character evidence is adduced is not attenuated because the evidence is elicited by a co-accused rather than by the Crown: Pollock, at para. 105. The trial judge must therefore still examine closely the probative value of the proposed evidence and the purposes for which it is adduced. A sound evidentiary foundation is essential: Pollock, at para. 106; Earhart, at para. 75. Likewise, a careful balancing of the fair trial rights of the two (or more) accused: Suzack, at para. 111; Pollock, at paras. 106-107; Diu, at para. 137.

[22] To repeat, consistent with general principles applicable to the discretionary exclusion of defence evidence developed in R. v. Seaboyer, [1991] 2 S.C.R. 577, at paras. 41-43, the standard in conducting this careful balancing of fair trial rights requires that relevant defence evidence offered by an accused relating to the character of a co-accused will be admissible unless its probative value is substantially outweighed by its prejudicial effect.

[23] The key issues in deciding whether the trial judge committed any errors on the Pollock application, therefore, are how the trial judge assessed the evidentiary foundation for the proposed cross-examination, the probative value and prejudicial effect of the cross-examination evidence sought by counsel for Mr. Bigby, and in light of this assessment, how he balanced the fair trial rights of Mr. Bigby and the appellant.

The trial judge’s Pollock application ruling

[24] The trial judge instructed himself on the principles set out in Pollock and Sheriffe in the course of his ruling on the application. He also referred to the principle set out in R. v. Crawford, [1995] 1 S.C.R. 858, at para. 36, “that an accused who testifies against a co-accused must accept that his credibility can be fully attacked by the latter" (emphasis in original). In Crawford, the Supreme Court held that while an accused could lead evidence of the co-accused’s silence upon arrest, the trial judge was required to instruct the jury that the evidence was relevant only to the accused’s credibility, which responded to testimony from the co-accused implicating the accused, and was not evidence of the co-accused’s guilt.

[25] After describing these principles, the trial judge allowed the Pollock application, in part, with some restrictions. In his ruling, the trial judge recognized that the proposed use of the evidence was “unusual”, given that the co-accused were not incriminating each other, and thus Mr. Bigby did not seek to rely on the evidence to demonstrate that, of the two of them, the appellant was more likely to have committed the offence. Nor was Mr. Bigby seeking to use the appellant’s prior discreditable conduct to dispel evidence that implicated Bigby in the crime charged.

[26] The trial judge accepted that it was a valid purpose − albeit an “attenuated” one − to use the underlying facts of the convictions to attack the appellant’s credibility. He explained that, while the appellant’s statements “do not implicate Bigby in the crime, they may undermine his credibility generally, and, in turn, undermine his claim of innocence.” Based on this reasoning, the trial judge permitted Mr. Bigby’s counsel to cross-examine the appellant on the underlying facts of his prior convictions. However, given the attenuated purpose, the trial judge precluded cross-examination on aspects of the facts underlying the prior convictions that were highly prejudicial or insufficiently connected to the appellant. The trial judge elaborated on those limits as follows:

I will permit Bigby to cross-examine Davani about the underlying facts of the robbery, but subject to certain restraints, bearing in mind the following.

First, in my view, a detailed cross-examination of the actions of the robbers when Davani was not present minimally undermines his credibility, accordingly lacks a sound evidentiary foundation for admissibility and is highly prejudicial.

Second, in my view, the finding of the robbery kit is insufficiently connected to Davani to give it a sound evidentiary foundation for admissibility and is prejudicial.

Third, the finding of a replica assault shotgun in the kit is particularly prejudicial.

Fourth, Davani leaving his young sister alone while he committed the robbery was highly irresponsible, but minimally undermines Davani's credibility, and is highly prejudicial.

As a result of these considerations, I will limit cross-examination to the actions of the robbers outside of Davani’s presence, and preclude cross-examination on the kit and the circumstances of Davani leaving his sister alone.

[27] The trial judge also prohibited cross-examination on the appellant’s in-custody assault convictions.

[28] The trial judge did permit, however, questioning which covered the extent to which the appellant was part of planning and carrying out the earlier robbery, including limited questions regarding actions during the robbery in the store which took place while the appellant was in the getaway car.

The positions of the parties

[29] The appellant argues that the trial judge’s Pollock ruling, and specifically permitting cross-examination on his accomplices’ actions in his absence during the prior robbery, was in error and inconsistent with the law governing when an accused can raise the prior discreditable conduct of a co-accused. The appellant also argues that the trial judge did not abide by his own ruling, set out above, that “in my view, a detailed cross-examination of the actions of the robbers when Davani was not present minimally undermines his credibility, accordingly lacks a sound evidentiary foundation for admissibility and is highly prejudicial” (emphasis added). Rather, he permitted Mr. Bigby’s counsel to cross-examine the appellant extensively on the facts underlying the previous robbery, including events which took place inside the store being robbed by others while the appellant was waiting in the getaway car.

[30] According to the appellant, such questioning was highly prejudicial and should not have been allowed because it was not necessary for Mr. Bigby’s right to make full answer and defence, as the appellant and Mr. Bigby were not advancing “cuttthroat” defences. The appellant reiterates that he argued that Mr. Bigby was completely innocent. In such circumstances, Mr. Bigby should not have been permitted to use such prejudicial questioning to attack the appellant.

[31] The appellant argues that the exception to the presumption on inadmissibility of bad character evidence is limited to settings of cutthroat defences between co-accuseds, relying on R. v. Earhart, 2010 ONCA 874, 272 C.C.C. (3d) 475, leave to appeal refused, [2011] S.C.C.A. No. 397, where Epstein J.A. stated (in concurring reasons), at paras. 72-73:

Because of this high and inherent prejudice, evidence of the bad character of the accused is presumptively inadmissible when led by the Crown. In Handy, at para. 36, Binnie J., citing several recent cases, summarized the position of the Supreme Court with respect to this evidence, saying: “[t]he exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial.”

The situation is different, however, when one accused seeks to lead evidence of the bad character of a co-accused, in cases where what is known as a “cut-throat” defence is raised by one of the accused against the other. This is where two accused are jointly tried, each with equal opportunity to commit the crime and each alleging that the other committed it: see R. v. Suzack (2000), 2000 ONCA 5630, 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 72. In this scenario, one accused may be permitted to lead propensity evidence against the other accused on the basis of his or her right to make full answer and defence, even though the Crown would not be permitted to lead such evidence: see Suzack at para. 111. [Underlining added.]

[32] The appellant contends that Mr. Bigby failed to establish the evidentiary foundation to justify the cross-examination of the appellant on the facts underlying the earlier robbery. The appellant submits that the trial judge did not consider the balancing of the fair trial rights of the two accused, nor did he directly consider whether the proposed cross-examination was necessary for Mr. Bigby to make full answer and defence (as required by Pollock). Instead, the appellant argues that the trial judge erred when he jumped from accepting that Mr. Bigby had a “valid purpose” in seeking to use the discreditable conduct to undermine the appellant’s credibility, to allowing extensive cross-examination on the facts underlying the earlier robbery.

[33] In the alternative, assuming that the trial judge was properly satisfied that Mr. Bigby established an adequate evidentiary foundation for the proposed cross-examination, the appellant argues the cross-examination nonetheless should not have been permitted because of the prejudice resulting from such evidence.

[34] According to the appellant, this risk was heightened by the sensational details of the offences that Mr. Bigby introduced, such as the robbers tying up the 18 year old female clerk and stealing money intended for employees’ payroll. The appellant contends that, as in J.A.T., the jury in this case may well have used these details to conclude that the appellant was a particularly bad person who was therefore more likely to have committed the offence or needed to be further punished for his prior misconduct.

[35] The Crown argues that the Pollock criteria do not require a cutthroat defence as a precondition to admissibility. The decisive criterion is whether the evidence’s probative value outweighs its prejudicial effect. The bad character evidence in this case met the necessity requirement, as it was necessary to Mr. Bigby’s right to make full answer and defence. Mr. Bigby had to rebut the appellant’s version of events, given that he impugned Mr. Bigby’s credibility by advancing an account of events that differed in all fundamental respects from Mr. Bigby’s account. The bad character evidence was relevant to Mr. Bigby’s ability to raise a reasonable doubt as to whether he had prior knowledge of the plan and aided the appellant in the shooting.

[36] According to the Crown, the probative value of the evidence clearly outweighed its prejudicial value. There was a legitimate nexus between the evidence and the inferences sought to be drawn from it. The trial judge further limited the prejudicial effect by placing strict limits on the scope of cross-examination and by limiting the use jurors could make of the impugned evidence.

The trial judge did not err in his application of the Pollock principles to this case

[37] Neither party was able to point to a case where Pollock has been applied where one accused argues a co-accused was solely responsible for the crime, while the co-accused argues a third party not on trial was solely responsible.

[38] I do not accept the appellant’s contention that the circumstances where a co-accused may elicit evidence of a co-accused’s discreditable conduct or bad character are limited to situations of a cutthroat defence by the co-accuseds. While a cutthroat defence was referred to by Epstein J.A. in her concurring reasons in Earhart as illustrating where bad character evidence may be adduced to show propensity, that decision did not limit the application of the principles of Pollock. In a joint trial, co-accused parties generally may introduce evidence that could not be tendered as part of the Crown’s case, including evidence that demonstrates the disposition or propensity of a co-accused to commit the offence charged, whether or not they are pursuing a cutthroat defence, as long as the principles from Pollock are respected. There is no reason why the principles set out in Pollock would not apply to joint trials such as this one.

[39] In my view, the trial judge correctly instructed himself on the process for considering bad character evidence, as elaborated in Pollock, and properly applied it to the context of the application before him.

[40] First, the trial judge closely considered the probative value of the proposed cross-examination. He recognized the requirement of an evidentiary foundation for such evidence. In this case, that foundation was the conflict in the testimonies of Mr. Bigby and the appellant on the identity of the shooter. He described the foundation in terms of the centrality of credibility to this case:

At first blush, his evidence does not seem to engage the rationale for the proposed cross-examination at all, but Bigby explains that cross-examination on the details of Davani’s prior misconduct still has an important purpose for him. Bigby's whole defence turns on his credibility. He has put his character in issue and adduced evidence of his impeccable past to support his credibility. When Davani testifies contrary to Bigby's evidence that there was no third person in the car, and that he, Davani, was not the shooter, he is directly challenging Bigby's credibility. Although those specific assertions do not implicate Bigby in the crime, they may undermine his credibility generally, and, in turn, undermine his claim of innocence. [Emphasis added.]

[41] Second, the trial judge further recognized that he retained a discretion to exclude such evidence, even where an evidentiary foundation was shown, where its prejudicial effect substantially outweighs its probative value. The trial judge properly turned his mind both to the probative value of the evidence with respect to credibility and its prejudicial potential. Specifically, the trial judge protected the appellant’s right to a fair trial by ensuring that the evidence counsel for Mr. Bigby sought to elicit was probative of the issue of credibility, and by ensuring that the prejudicial effect of that evidence did not substantially outweigh its probative value. The trial judge struck a balance by carefully circumscribing the areas in which questions would be permitted and those where questions could not stray.

[42] Returning to the trial judge’s ruling that a detailed cross-examination on the facts underlying the earlier robbery outside the presence of the appellant had minimal probative value and was highly prejudicial, the trial judge did not ignore that ruling in describing the areas on which counsel for Mr. Bigby could cross-examine. Rather, it was because of that ruling that he prescribed the narrow parameters of permitted questioning, including the following:

To be clear, Bigby may suggest to Davani the following in cross-examination: That he participated in the planning of a robbery at PAC Employment Incorporated, an employment agency, on July 26th, 2011; that he did not directly participate in the robbery, but drove the getaway car; that the actual robbers were masked, secured the hands of the receptionist, who was the lone employee present, with a plastic zip tie, entered the accountant's offers and stole $13,500 in cash, and an undetermined amount of cheques from his desk; that Davani drove the robbers back to his home where they divided the loot; and, that when Davani and several of the men later left his home in his mother's SUV, the police arrested them and found $2,045 of the loot on Davani’s person.

[43] This careful tailoring of the scope of cross-examination shows how the trial judge balanced the fair trial rights of both co-accused and properly applied the principles from Pollock. It is not for this court to reweigh the balance that the trial judge struck in this regard.

[44] Further, the trial judge returned to the limited nature of this permitted questioning in his charge to the jury, cautioning the jury not to consider this evidence for purposes of propensity:

You must not use the fact that Mr. Davani has committed offences in the past, or the number or nature of the offences he has committed as evidence that he committed the offence charged, or that he is the sort of person who would commit the offence charged.

Once again, it is very important that you understand that you must not use the fact, number or nature of the prior convictions to decide, or help you decide, that Mr. Davani is the sort of person who would commit the offence charged, or that he is a person of bad character and thus likely to have committed the offence charged.

[45] For these reasons, I see no error in the trial judge’s decision to admit the evidence resulting from the cross-examination of the appellant by counsel for Mr. Bigby. I would dismiss this ground of appeal.

(2) The trial judge did not err in his treatment of the appellant’s trial counsel or in his interjections or responses to the appellant’s counsel’s objections

[46] The appellant argues that a reasonable person who had been present throughout the trial would conclude that, as a result of the trial judge’s conduct − including his repeated interventions during questioning by the appellant’s trial counsel and his comments in front of the jury − the appellant did not have a fair trial. Further, the judge’s actions gave the jury the impression that they should not believe the appellant’s defence or trust his counsel.

[47] The appellant provides a number of examples, the most serious of which involved the following exchange:

[Appellant’s counsel]: And you testified that you saw him pull it out of the glove compartment, correct?

[Mr. Bigby’s counsel]: Well, Your Honour, I’m, I’m not sure that was the evidence. We really should check.

[Appellant’s counsel]: I’m sure.

[Mr. Bigby’s counsel]: Well, I don’t trust [appellant counsel’s] memory.

THE COURT: You did forget you had those documents.

[Appellant’s counsel]: He could drop – it sounded like you wanted to drop the “memory” word. Let’s – we could play it back, if we want.

THE COURT: Well, maybe people have notes. Does someone have notes of that?

[Appellant’s counsel]: I do.

THE COURT: Someone other than you.

[Emphasis added.]

[48] After it became clear that appellant’s trial counsel had accurately recounted Mr. Bigby’s previous testimony that he had seen the appellant pull the gun from the glove compartment, Mr. Bigby’s counsel took responsibility, in the presence of the jury, for erroneously suggesting that the appellant’s counsel was mistaken.

[49] The appellant concedes that this exchange and the other interjections and comments that form the basis for this ground of appeal, in isolation, would not compromise the fairness of the trial. Rather, the appellant contends that the cumulative effect of these interventions was to undermine trial fairness.

[50] Indeed, outside the presence of the jury, the appellant’s trial counsel raised this exact concern with the trial judge. The trial judge responded: “I did [intervene] because I thought that the questions appeared irrelevant and that you made editorial comments and matters of that sort, and I am entitled, if not obliged to raise those matters.”

[51] The Crown argues that these interjections, whether viewed individually or cumulatively, were not errors and did not adversely affect the fairness of the trial. The Crown also highlights the interventions by the trial judge involving both Crown counsel and counsel for Mr. Bigby. For example, the Crown submits that the trial judge intervened four times for clarification during the Crown counsel’s examination of a key witness (Officer Darkov) and intervened twice when the Crown counsel improperly asked Mr. Bigby whether there was a “good chance” that he was at a certain location or if it was “possible” that he was there, as opposed to asking Mr. Bigby if he recalled where he was at the time. The trial judge also intervened when the Crown counsel asked Mr. Bigby an overly complex question and directed the Crown counsel to “move on” rather than further question Mr. Bigby about disclosure.

[52] While both the number and nature of the interventions by the trial judge arguably resulted in more criticism of appellant’s counsel than the other two counsel, I do not accept that these comments were either inappropriate or excessive in the context of the seven-week trial, or that they affected the fairness of the trial. As Rosenberg J.A. observed in R. v. Felderhof (2003), 2003 ONCA 37346, 68 O.R. (3d) 481 (C.A.), at para. 40, “Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please.” The trial judge did not overstep his role by actively engaging with counsel to give directions, seek clarification, and avoid irrelevant and repetitive evidence.

[53] I see no basis to conclude the trial judge erred by his conduct. I would reject this ground of appeal.

(3) The trial judge did not err in his charge to the jury

[54] The appellant argues that the trial judge’s charge to the jury was unfair. The parties agree on the standard to be applied – a jury charge must be fair, balanced, and “even-handed”: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 69, leave to appeal refused, [2014] S.C.C.A. No. 13; R. v. Jeanvenne, 2016 ONCA 101, 334 C.C.C. (3d) 505, at para. 31; and R. v. Baltovich (2003), 2004 ONCA 45031, 73 O.R. (3d) 481, at para. 118. Fairness requires, among other things, that the charge explain the theories of each side and review the salient facts in support of those theories: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 29. Specifically, the trial judge must give the jury a fair picture of the defence and provide sufficient references so that the jury can appreciate its value and effect. However, the trial judge need not review every piece of evidence: Huard, at para. 73.

[55] The appellant argues that the jury charge in this case privileged the case for Mr. Bigby over the case for the appellant, and promoted the case for the Crown over the appellant’s evidence. First, the appellant submits that the trial judge engaged in a detailed discussion encouraging the jury to find an absence of motive in relation to Mr. Bigby, while suggesting that the appellant had a motive to commit the offence, minimizing the evidence of a lack of motive. Second, the trial judge treated the evidence of witnesses who were supportive to the appellant negatively, including witnesses who corroborated various aspects of the appellant’s testimony. Third, when recounting the arresting officer’s evidence, the trial judge emphasized parts of his testimony where he claimed no one else could have exited the Range Rover without him seeing, and did not mention places where the officer admitted he missed things that occurred at the crash scene. According to the appellant, this aspect of the charge undermined the defence theory that a third shooter escaped.

[56] After the charge, the appellant’s counsel raised objections to particular pieces of evidence that were left out, including one eyewitness who was certain he saw three people in the car, and one eyewitness testifying that the front seat passenger was Black (as the appellant is not Black). The trial judge recalled the jury and added that the witness stated the passenger was Black, and read the portion of the officer’s cross-examination where he conceded that he missed some things at the crash site. He did not re-instruct them about the eyewitness who saw three people in the car.

[57] The Crown submits that the trial judge instructed the jury that his recollection is not evidence and that they were not bound to follow his opinions. Counsel were provided with drafts of the charge and they made thorough submissions on the proposed instructions. The discussion of motive was not skewed in favour of Mr. Bigby. The trial judge’s review of the evidence of witnesses who were supportive of the appellant’s position was fairly based on the entirety of the evidence called at trial. He was entitled to express his skepticism as to specific aspects of the witness accounts, remind the jury of credibility issues, and draw attention to inconsistencies. According to the Crown, the trial judge sufficiently reviewed the evidence related to the number of occupants of the Range Rover, and conveyed his evidence in a manner consistent with the evidentiary record.

[58] While there were aspects of the evidence that were not included in the charge, as the appellant argues, I would not accept the appellant’s characterization that the charge was skewed in favour of Mr. Bigby and against the appellant. For example, the trial judge reminded the jury that the appellant’s position was “supported in many respects by significant evidence”, that his “testimony was not contradicted in any material way by any of the witnesses” except Mr. Bigby, and that Mr. Bigby’s testimony was “littered with internal inconsistencies.” The trial judge was entitled to express his skepticism as to specific aspects of the witness accounts, remind the jury of credibility issues with the witnesses, and draw attention to inconsistencies.

[59] As Watt J.A. emphasized in Huard, at para. 68: “Perfection is not the standard against which we are to evaluate the adequacy of jury instructions. The participants in a jury trial are entitled to a properly instructed jury, not a perfectly instructed jury”.

[60] In my view, reading the charge in this case as a whole, and in the context of the record, the charge was fair and balanced. The charge was provided in advance to counsel and the trial judge responded, in part, to the specific objections raised by the appellant.

[61] I would dismiss this ground of appeal.

Disposition

[62] For these reasons, I would dismiss the appeal.

Released: March 14, 2023 “David M. Paciocco J.A.” “L. Sossin J.A.” “I agree. David M. Paciocco J.A.” “I agree. L. Favreau J.A.“