COURT OF APPEAL FOR ONTARIO

DATE: 20230512 DOCKET: C67527

Nordheimer, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Simeon Harty Appellant

Counsel: Carter Martell and Jessica Zita, for the appellant Michael Bernstein, for the respondent

Heard: March 29, 2023

On appeal from the convictions entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury, on February 6, 2019.

Sossin J.A.:

Overview

[1] This appeal involves a murder following a chance encounter between the occupants of two cars at a gas station. Following this encounter, the participants went back to their cars and left the station. One car, however, quickly followed the other. Once alongside each other, a passenger in one of the cars, Nicholas Gidden, was shot and killed by an occupant of the other car. The trial concerned whether the passenger, Walid Zakaria or the driver (Simeon Harty, the appellant) of that other car, fired the shot that killed Gidden. The jury convicted the appellant of second-degree murder and discharge of a firearm with intent. The appellant was sentenced to life imprisonment without the possibility of parole for 14 years.

[2] The appellant now seeks to quash the convictions on the basis of alleged errors in the trial judge’s charge to the jury.

[3] I am not persuaded that the trial judge erred and would dismiss the appeal for the reasons that follow.

Background of the events leading up to the murder

[4] On the evening of October 26, 2016, Kemar McFarlane and the deceased, Gidden, drove to a convenience kiosk of a gas station on the corner of Lawrence Avenue East and Orton Park Road, in the east end of Toronto. McFarlane went inside by himself to buy snacks, while Gidden waited in the car in the parking lot. McFarlane’s evidence was that, prior to arriving at the kiosk, he and Gidden were with a group of friends who had been smoking marijuana. McFarlane denied that he himself had been smoking, a position that was eventually questioned by the appellant’s trial counsel.

[5] The appellant and Zakaria happened to be in the same kiosk, buying cigarettes. McFarlane and Gidden did not know the appellant or Zakaria.

[6] The Crown’s position was that when the appellant saw McFarlane, he tapped Zakaria’s leg to get his attention. McFarlane noticed that the appellant and Zakaria were staring at him. Based on video evidence, the Crown argued that the appellant’s mood changed when he was staring at McFarlane. At trial, the defence argued that McFarlane was paranoid that the two men were staring at him because he had consumed marijuana earlier that night. After a while, McFarlane left the kiosk. The appellant and Zakaria left as well. At this time, the two groups were both heading to their cars – McFarlane and Gidden were driving in McFarlane’s white Honda (McFarlane in the driver’s seat and Gidden in the front passenger seat), while the appellant and Zakaria were driving in the appellant’s grey Mazda (the appellant in the driver’s seat and Zakaria in the front passenger seat).

[7] McFarlane started to drive his car toward the Lawrence Park exit but stopped in the lot. Surveillance cameras showed McFarlane and Gidden bending down to pick up something on the driver’s side. The defence theory was that they stopped to look under the seat for a firearm. McFarlane testified that he and Gidden stopped to pick some change off the floor of the car that McFarlane dropped on the driver’s side. The appellant began to drive his Mazda towards the Orton Park exit of the gas station, but stopped near McFarlane and Gidden’s car. The two cars remained stopped, in sight of each other, for several seconds. According to the appellant, McFarlane and Gidden were yelling derogatory comments at him, which McFarlane repeatedly denied at trial. McFarlane drove off towards the Lawrence Avenue exit and headed east on Lawrence. Surveillance camera footage shows the appellant’s Mazda immediately sped up and followed the Honda.

[8] McFarlane’s Honda stopped at a red light in the middle lane at the intersection of Lawrence and Overture Road. The appellant’s Mazda pulled up beside the Honda in the curb lane, on the passenger side of McFarlane’s Honda. McFarlane testified that the Mazda’s front driver-side window was down and he saw the appellant holding a gun in his right hand. A moment later, Gidden was shot in the head and the arm. He eventually died as a result of those injuries.

[9] McFarlane testified at trial that he drove on Lawrence Avenue directly to the police station. The defence posited that McFarlane made a detour on Galloway Road to dispose of a gun that either he or Gidden had.

[10] At trial, it was the Crown’s position that the appellant had mistaken McFarlane for someone he wanted to hurt, and it was this mistaken animosity which prompted the shooting.

[11] The defence theory was that Zakaria, not the appellant, fired into the Honda, and he did so because someone in the Honda had a gun. Zakaria’s testimony supported this theory.

Issues on Appeal

[12] The appellant argues that the trial judge’s jury charge was unfair and unbalanced on the basis of two different types of error:

1. First, that the trial judge presented various aspects of the evidence in a way that diminished the defence theory of the case while enhancing the Crown’s theory.
2. Second, that the trial judge erred by failing to relate evidence to the defence theory of the case and explain how it could raise a reasonable doubt.

[13] I address each in turn, mindful that trial judges are not held to a standard of perfection in crafting jury instructions: R. v. Daley, 2007 SCC 53, 226 C.C.C. (3d) 1, at para. 31. The Supreme Court has repeatedly reinforced that the appellate review of jury charges must recognize that “an accused is entitled to a jury that is properly — and not necessarily perfectly — instructed”: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at para. 20. An appellate court must take “a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole”. It is the substance of the charge that is determinative: Goforth, at para. 21. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate: Daley, at para. 57.

1) The trial judge’s presentation of the evidence in the charge to the jury was not unfair or unbalanced

[14] The appellant argues that the trial judge commented on contentious matters, notwithstanding telling the jury at the outset of the charge that he would not express his opinions on the facts “except to tell [the jury] that an issue does not appear to [him] to be truly in contention.” Further, the appellant contends that each time he expressed a view it was to endorse the position of the Crown or diminish the position of the defence.

[15] The appellant asserts that the trial judge erred in the presentation of evidence in the following passages of the jury charge:

a) the trial judge told the jury that they could not fail to sympathize with what McFarlane “went through”; b) the trial judge instructed the jury that there was no reliable evidence of the time taken by McFarlane to reach 43 Division; c) the trial judge made the speculative comment that McFarlane may have mistakenly said he drove on Galloway Road because he had to cross Galloway Road while driving along Lawrence Avenue; d) the trial judge suggested to the jury that Zakaria’s testimony afforded weak support for the proposition that McFarlane had a gun; e) the trial judge told the jury that ambiguous expert evidence contradicted Zakaria’s testimony about how the shooting occurred; f) the trial judge told the jury that the inconsistencies in McFarlane’s testimony emphasized by the defence had “little if anything to do with the issues in this case”; and g) generally, the trial judge’s different tone and characterizations with respect to the evidence supporting the defence and evidence supporting the Crown in the jury charge amounted to errors.

[16] I address each of these alleged errors in the charge to the jury in turn.

a) The trial judge did not err in expressing sympathy for McFarlane

[17] At the outset of his charge, the trial judge stated:

In approaching your deliberations, you must do so fairly and dispassionately, remove any and all prejudice or partiality. No one could fail to be troubled by Kevin Gidden’s death. No one could fail to sympathize with its - with his family and friends for their loss. Nor could anyone fail to sympathize with Kemar McFarlane for what he went through the night of the shooting, but as jurors, you must approach your task without sympathy or favour for one side or another, or the other. Your deliberations must be based on the evidence and should be carried out in calm - in a calm, rational and objective fashion, bringing to bear your individual and collective common sense and good judgment. Your function is not to express forgiveness or condemnation, but rather is to deliberate with intelligence and integrity. In that way, you’ll be assured of arriving at a fair and just verdict in this case. [Emphasis added.]

[18] The appellant accepts that the reference to sympathy for the victim’s family was appropriate but takes issue with the judge highlighting McFarlane and not referring to what the appellant or Zakaria went through that night at all.

[19] This reference in the trial judge’s charge was made in the course of properly instructing the jury not to allow such sympathy to interfere with their duty to be impartial. Read in context, this part of the charge is clearly not an endorsement of the Crown’s theory of the case, or signal that the evidence of one witness should be preferred over another. In my view, while it would have been preferable for the trial judge not to discuss the jury’s potential sympathy for particular witnesses, especially when the evidence of those witnesses conflicted with the evidence of other witnesses, doing so in the context of emphasizing the importance of remaining impartial did not constitute a reversible error.

b) The trial judge did not err in instructing the jury on the time taken for McFarlane to drive to the police station

[20] Zakaria’s testimony that the occupants of the other car (McFarlane and Gidden) had a gun was essential to the defence theory of the case. The defence posited that, after the shooting, McFarlane took a detour on Galloway Road to dispose of the gun instead of driving directly to the police station at 43 Division. The defence theory relied upon evidence that the drive took longer than it should have, that McFarlane had blood on his left hand (while Gidden was sitting on his right side), and McFarlane’s prior inconsistent statements about the route he took. The defence pointed to this as circumstantial evidence that supported Zakaria’s account of seeing a gun in McFarlane’s car. According to the appellant, the trial judge made comments in the charge that undermined the defence position on this point and “unequivocally endorsed” the position of the Crown.

[21] In this section of the charge, trial judge summarized the evidence of video recordings and other digital records. Eight videos from the gas station surveillance cameras were in evidence. Six out of the eight videos displayed the same time but were not consistent with the other two. The time of McFarlane’s arrival at the police station was not in dispute, but the time when the two cars left the gas station was unknown. The defence urged the jury to find that the six cameras which were consistent with each other showed the correct time. The Crown argued that there was no evidence any of the times shown on the surveillance cameras were reliable. In his charge, the trial judge stated:

We know that six of the surveillance cameras at the gas station had the same times, but two of them differed from those six by about two minutes. And we simply do not know which of them is accurate, if any. To state the obvious, just because a larger number of the cameras show one time and a smaller number of them show another time does not mean that the larger group is more accurate. We simply don’t know. There is no evidence of anyone checking them for accuracy. [Emphasis added.]

[22] The appellant argues that the trial judge’s language that he is stating the “obvious” suggested to the jury that there was nothing serious about the defence theory about the timing of the drive to the police station. The appellant argues the trial judge’s earlier remarks that he would only offer his opinions on issues that were beyond contention bolsters this interpretation of the charge. The appellant contends that by telling the jury that “we simply don’t know” if any of the cameras showed the correct time, the trial judge confirmed to the jury in certain terms that the surveillance cameras could not be relied upon and that it would be impossible to form a reasonable doubt based on this evidence.

[23] I disagree. The trial judge merely stated a fact, which is that the evidence of the surveillance cameras could not conclusively determine the time at which McFarlane left the gas station, and therefore the precise time it took him to drive to the police station once the shooting had occurred. It was still open to the jury to consider whether the video evidence supported the defence theory that McFarlane stopped on Galloway instead of driving directly to the police station. It was not inappropriate for the trial judge to point out that there had not been any evidence adduced as to the accuracy of the times on any of the cameras.

[24] This accurate summary of the absence of evidence does not constitute an error.

c) The trial judge did not err in describing the route McFarlane would have taken to the police station

[25] The appellant argues that the trial judge’s treatment of McFarlane’s prior inconsistent statement on the route he took to the police station further undermined the defence theory that McFarlane disposed of his gun. The appellant argues that during his summary of McFarlane’s evidence, the trial judge injected his own explanation for why McFarlane may have mistakenly stated at the preliminary inquiry that he drove on Lawrence and Galloway.

[26] At trial, the defence theory relied in large part on the route that McFarlane took to the police station. The defence posited that the evidence of timing from the gas station surveillance cameras, combined with McFarlane’s testimony at the preliminary inquiry, suggested that McFarlane did not drive directly to the police station.

[27] In cross-examination, trial counsel for the appellant suggested to McFarlane that he turned on Galloway, drove down the street, stopped, exited the driver’s door, walked around the car to the passenger door, opened it, took the gun from Gidden and disposed of it. This would explain why McFarlane had blood on his left hand, rather than his right hand (the side Gidden was sitting on).

[28] At the preliminary inquiry, McFarlane testified that he drove to 43 Division on “Lawrence and Galloway”. When cross-examined at trial on this portion of his preliminary inquiry testimony, McFarlane agreed that he had said this at the preliminary inquiry but did not adopt it. On the contrary, he denied it, noting that “Galloway’s a big street”.

[29] The defence argued at trial that McFarlane’s comments at the preliminary inquiry were a significant admission that he drove to the police station via Galloway (i.e., took a detour to dispose of the gun).

[30] With particular reference to the suggestion that McFarlane stopped at Galloway along the way to get rid of the gun from Gidden and that’s why he had blood on his left hand, the trial judge said the following to the jury:

It was suggested to Mr. McFarlane in cross-examination that he stopped at Galloway along the way to get rid of his gun. He denied it. He agreed that in his evidence at the preliminary inquiry, he said that he drove Lawrence and Galloway to get to 43 Division. He replied that Galloway is a big street. In any event, he had to cross Galloway in order to get from Overture to 43 Division.

Counsel for the accused argues that it took Mr. McFarlane longer than it should have because he took the time along the way to discard the gun that Mr. Zakaria testified that Mr. Gidden had in his hand. The defence says that the observation of blood on Mr. McFarlane’s left hand rather than his right hand and that there was no blood on the left side of the interior of the car further supports this inference. I leave all of this to you, members of the jury. [Emphasis added.]

[31] According to the appellant, the trial judge’s comment offered a speculative explanation for the discrepancy between McFarlane’s comment at the preliminary inquiry and his testimony. Again here, the appellant asserts that the trial judge unfairly conveyed to the jury that the defence theory rested on an insecure foundation.

[32] The Crown argues on appeal that the trial judge’s comment was more than fair to the position of the defence. The Crown notes that the trial judge could have given a clearer instruction that the testimony from the preliminary inquiry could not be used for its truth. Instead, the trial judge summarized the positions of both parties and left the inferences suggested by defence counsel with the jury.

[33] As reflected in a street map of the area of Toronto in issue (which was an exhibit at trial), the trial judge’s crossing Galloway comment appears accurate. Galloway runs north and south and Lawrence runs east and west, and the two intersect. The trial judge was not giving an opinion, he was properly outlining a piece of evidence which was material to the jury’s assessment of McFarlane’s credibility and one that would have been available to the jury if, and when, they looked at the map.

[34] The charge, when read as a whole, does not engage in impermissible speculation, or adopt one witnesses account over another. It fairly set out the position of the defence.

d) The trial judge did not err in instructing the jury on the nature of the evidence given by Zakaria on whether he saw McFarlane holding a gun

[35] Recall that, according to the defence, when McFarlane and Gidden stopped as they were leaving the gas station, McFarlane’s evidence was that the reason for the stop was to collect some change that had dropped onto the floor of the car. The defence argued that the dropped change story was fabricated by McFarlane once he realized that the police had access to the surveillance cameras at the gas station. The defence argued that the admission that they were looking under the seats, and their implausible explanation of picking up change, suggested that they were instead retrieving a firearm. The defence relied upon this to support Zakaria’s testimony that he saw Gidden holding a gun. The appellant argues that instead of instructing the jury that this evidence could support Zakaria’s account, the trial judge implied to the jury that Zakaria’s testimony alone was incapable of sustaining the proposition that McFarlane had a gun:

Counsel for Mr. Harty submitted to you that it is unlikely that a passenger would, would bend down and help a driver find lost change. I leave that to you, but I would point out that whatever Mr. McFarlane and Mr. Gidden were doing, the only direct evidence that there was ever a gun in Mr. McFarlane’s car is the evidence of Mr. Zakaria that he saw Mr. Gidden holding a gun at Overture.

[36] The appellant argues that this aspect of the charge unfairly attacked the defence theory by emphasizing that Zakaria’s testimony is the only direct evidence that McFarlane and Gidden had a gun. The appellant points out that this criticism could have applied to the Crown’s theory as well: McFarlane’s testimony that he saw the appellant holding a gun at the Lawrence and Overture intersection was the only direct evidence that the appellant was the shooter. Yet, the trial judge did not offer a similar criticism of the Crown’s theory.

[37] The appellant also contends that this comment stripped the dropped change story of its value as independent evidence distinct from Zakaria’s testimony. The appellant argues that the trial judge’s instruction implied to the jury that believing Zakaria’s testimony was a prerequisite to using the dropped change story as circumstantial evidence. In doing so, the trial judge erred by suggesting that Zakaria’s account could not raise a reasonable doubt unless the jury accepted his testimony, contrary to the proper methodology for resolving credibility disputes set out in R. v. W.(D.), [1991] 1 S.C.R. 742.

[38] The Crown submits that the defence’s suggested inference – that McFarlane and Gidden were picking up a gun and not dropped change – was speculation. McFarlane’s testimony that they were picking up change was direct evidence and his denial of the defence counsel’s questions on the subject did not convert this evidence into circumstantial evidence capable of supporting Zakaria’s testimony or a reasonable inference that McFarlane and Gidden were retrieving a gun.

[39] I do not accept the appellant’s argument that the trial judge unfairly denigrated the defence theory or stripped the dropped change evidence of its potential value. The trial judge did not invite scepticism and suggest to the jury that Zakaria’s evidence was not capable of raising a reasonable doubt that McFarlane had a gun. The trial judge did not obscure the value of the dropped change evidence. He did not imply that the jury could only find the dropped change evidence to be circumstantial evidence that McFarlane and Gidden had retrieved the gun, if they accepted Zakaria’s testimony. Rather, the trial judge left it to the jury to determine what weight to place on the appellant’s suggestion that McFarlane and Gidden were retrieving a gun.

[40] In my view, this aspect of the jury charge does not constitute an error.

e) The trial judge did not err in referring to expert evidence as contradicting Zakaria’s testimony about how the shooting occurred

[41] The appellant argues that the trial judge erred in instructing the jury that the expert evidence of the firearms examiner and the pathologist contradicted Zakaria’s testimony that he was the shooter, not the appellant. The appellant submits that the trial judge failed to refer to any of the evidence (from expert witnesses or otherwise) that supported Zakaria’s testimony.

[42] The firearms examiner, Mr. McGimpsey, testified that the cartridge cases would typically be ejected to the right-hand side of the firearm. At trial, the Crown argued that if Zakaria, who was sitting on the front passenger seat, fired the shots, then the cases would have been found in the car, not on the roadway. The fact that two of the cases were on the ground suggested that the driver was the shooter. In response, the defence pointed to Mr. McGimpsey’s testimony that the cases would be ejected violently and that they were very light so they could travel some distance. The defence also emphasized unknowns: only two of the four cases were recovered, and Zakaria could have moved closer to the driver’s window when he shot Gidden.

[43] The pathologist, Dr. Lal, testified that a bullet entered Gidden’s right temple and exited to the left side of his head near the ear, and a second bullet entered his right forearm just below the elbow and lodged near his wrist. Dr. Lal testified that she could not comment on the position of the body at the time of the shooting or infer the trajectory of the bullets from Gidden’s injuries.

[44] The trial judge referred to the expert evidence twice in the charge, first during his summary of McFarlane’s testimony and again during his summary of Zakaria’s testimony. The appellant does not impugn the first reference. However, in the appellant’s view, the second reference was unbalanced because the trial judge signalled to the jury that the evidence of the two experts contradicted Zakaria’s account:

When you consider the credibility and reliability of Mr. Zakaria’s evidence, and this part of it in particular, you may wish to compare this account to the evidence about the spent cartridge cases recovered by the police, and the evidence of the pathologist.

[The location of the spent cartridge cases] may assist you in deciding whether or not you accept Mr. Zakaria’s evidence that the shots were fired from the passenger seat and in turn they were shot by him. Certainly, if the driver were the shooter, then it would not be surprising to find cartridge cases on the road.

You may also wish to conclude – sorry, to consider the evidence of the pathologist, Dr. Lal. Dr. Lal testified that the fatal wound was a gunshot wound to the right side of Mr. Gidden’s head. This suggests he was looking forward in the car when he was shot. You might not expect that a man holding a gun in the air in the passenger seat of a car as a second car pulls up to his right would be looking forward. That’s for you to say.

Dr. Lal also testified that Mr. Gidden had a second, non-fatal gunshot wound. This bullet entered his arm just below his elbow and ended up at his wrist. You might not think this bullet track would be possible if he were shot by a passenger in a car to his right while he was holding his arm erect with a gun pointed in the air. You might think that is more like – that it is more likely that his arm was parallel to the ground with his elbow to the window. Of course, if Mr. Gidden did have his hand in the air when Mr. Zakaria looked over at him, there is always a possibility that he dropped it down with his elbow to the right before he was struck in the arm by a bullet. Again, this is for you to say. [Emphasis added.]

[45] Counsel for the defence objected to the underlined sentence in the charge, which he submitted was a mischaracterization of Mr. McGimpsey’s evidence, since the expert was never asked whether he would expect to see casings on the road if the shots were fired from the passenger seat. The appellant argues that this mischaracterization prejudiced the defence theory. Regarding the forensic expert’s evidence, the appellant argues that the trial judge’s comment that there was “always a possibility” that Gidden moved his arm conveyed to the jury that there was only a “possibility” this evidence could be reconciled with the defence theory.

[46] The appellant argues that the trial judge’s comment conveyed to the jury that McFarlane’s testimony was more compatible with the expert evidence than was Zakaria’s testimony. The trial judge did not refer to the submissions of the defence or to the ambiguities in the expert evidence. The appellant submits that this aspect of the charge relegates many inferences that the defence suggested to the jury to mere possibilities, severely undercutting the defence theory.

[47] The Crown submits that the trial judge’s comment that if the driver was the shooter, then it would not be surprising to find cartridge cases on the road, was appropriate and did not mischaracterize the evidence. The Crown emphasizes that a fair charge does not require the trial judge to refrain from judicial commentary on the evidence, and that it cannot reasonably be said that the trial judge’s comment usurped the function of the jury as the trier of fact.

[48] In my view, the trial judge’s reference to the expert evidence conveyed to the jury the defence’s position on this evidence, and that it was for them to make the relevant findings. That said, the reference to the location where the cartridges were found and the position of Gidden’s arm when he was shot did not necessarily flow directly from the expert evidence. While his statements fall within permissible judicial commentary, the trial judge could have described the expert evidence in relation to the cartridges more clearly. He might also have repeated the expert’s evidence that the cases would be ejected violently and that they were very light so they could travel some distance.

[49] That said, I am not persuaded this portion of the charge reveals any error. The trial judge’s references were not of the kind that could overwhelm the jury’s fact-finding role (indeed, they were included in support of the instruction that it was for the jury to decide how the expert evidence could assist the jury in determining what occurred). I also would reject the argument that the trial judge mischaracterized the evidence.

f) The trial judge did not err in telling the jury that the inconsistencies in McFarlane’s testimony emphasized by the defence had “little if anything to do with the issues in this case”

[50] McFarlane’s testimony was essential to the Crown’s case about the identity of the shooter. The defence position at trial was that McFarlane was an unreliable witness who had a propensity to lie under oath. For this assertion, the defence relied on inconsistencies between McFarlane’s testimony at trial and his answers at the preliminary inquiry.

[51] The appellant argues that the trial judge erred in his review of McFarlane’s evidence, and in particular, his cross-examination on whether he was watching a movie earlier in the day with Gidden and whether they had been smoking marijuana. The appellant argues that the trial judge erroneously minimized these inconsistencies, and as a result, undermined an important aspect of the defence theory.

[52] The first inconsistency concerned what McFarlane and Gidden were doing before the gas station encounter. In his examination-in-chief, McFarlane testified that he and Gidden had been at home watching a movie. At the preliminary inquiry, he stated that they did not watch a movie that night because he does not have a TV. When confronted with this discrepancy at trial, McFarlane suggested that they could have watched a movie on their cell phones. Pressed to explain why he had been so sure at the preliminary inquiry that they did not watch a movie, he said: “I don’t recall.” In closing submissions, defence counsel described this as “a stupid thing to lie about, but very revealing,” because it was evidence that McFarlane was willing to lie under oath.

[53] The second inconsistency concerned whether McFarlane and Gidden consumed marijuana. McFarlane testified at the preliminary inquiry and under cross-examination that he and Gidden were not alone in the apartment and were relaxing with several friends. Under cross-examination, McFarlane admitted that others (including Gidden) were smoking marijuana, though he maintained that he did not indulge. Defence counsel argued that McFarlane was evasive about whether people had been smoking marijuana because he too was smoking that night, and that the effects of marijuana could have led him to believe the appellant and Zakaria were staring at him in the gas station kiosk.

[54] In the charge, the trial judge told the jury that these inconsistencies between McFarlane’s answers at the preliminary inquiry and his testimony had little relevance to the issues they had to decide:

Although this evidence has little if anything to do with the issues in this case, counsel for Mr. Harty says that Mr. McFarlane was lying about these details and that you should take these lies into consideration when you assess his credibility. I leave the significance of this to you, members of the jury. [Emphasis added.]

[55] The trial judge’s comment that this evidence had “little if anything to do with the issues in this case” was not unfair, although it could have been more clearly expressed. While the jury could consider any inconsistencies in assessing McFarlane’s credibility, the evidence was, in the context of all the evidence and the central issues related to the shooting, not a major detail. The trial judge had earlier in his charge properly instructed the jury on the use of inconsistencies generally and prior inconsistent statements and outlined the standard considerations the jury should take into account in assessing what weight to place on the inconsistencies.

[56] In the impugned portion of the charge, the trial judge advised the jury that notwithstanding the minor nature of the evidence in relation to the shooting incident, the jury should consider these “lies” in assessing his credibility generally. The trial judge’s instruction did not close the door on these inconsistencies contributing to the jury’s assessment of McFarlane’s credibility.

[57] It is also relevant that defence counsel did not take issue with this portion of the charge during the pre-charge conference: R. v. J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 137.

[58] I see no reversible error in this aspect of the charge.

g) The trial judge’s tone and characterizations in the jury charge do not amount to errors

[59] Generally, the appellant expresses concern with comments made by the trial judge throughout the jury charge which the appellant submits were critical of aspects of the defence theory of the case. The appellant submits that the majority of the trial judge’s comments on the evidence in the charge favoured a conclusion that the appellant was the shooter and that the shooting was unprovoked. It is the appellant’s view that the judge’s tone and characterizations had an unfair impact on the jury’s verdict.

[60] The appellant points to several sections of the charge where the trial judge instructed the jury on inferences they could draw from the Crown’s evidence, but characterized evidence in support of the defence theory as mere suggestions by defence counsel. For example, the appellant refers to the following references:

It was suggested to [McFarlane] in cross-examination that when they were stopped at Overture, Mr. Gidden pointed a gun at the Mazda first, but the passenger – that the passenger in the Mazda shot first and killed Mr. Gidden. Mr. McFarlane denied this as well.

Counsel for Mr. Harty submitted to you that it is unlikely that a passenger would, would bend down and help a driver find lost change. I leave that to you, but I would point out that whatever Mr. McFarlane and Mr. Gidden were doing, the only direct evidence that there was ever a gun in Mr. McFarlane’s car is the evidence of Mr. Zakaria that he saw Mr. Gidden holding a gun at Overture.

It was suggested to Mr. McFarlane in cross-examination that he stopped at Galloway along the way to get rid of his gun. He denied it. [Emphasis added.]

[61] The appellant highlights two comments that, in his view, influenced the jury’s verdict. First, during his instruction on the state of mind for murder, the trial judge told the jury that it is “hard to imagine” how someone could shoot towards another person four times at close range without having one of the states of mind for second-degree murder. Second, during his instruction on planning and deliberation, the trial judge told the jury: “Certainly, there was little time to plan a murder and deliberate about it in the short drive to Overture.”

[62] While the appellant does not suggest these comments in themselves were errors, he refers to the similarity between the second-degree murder verdict and these comments to show how the trial judge’s comments may have cumulatively swayed the jury.

[63] I do not accept that the trial judge’s use of the words “suggested” or “submitted” implies a weakness in the available inference. However, even if it does, as this court noted in R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 59, leave to appeal refused, [2006] S.C.C.A. No. 175, a fair and balanced charge does not require the trial judge to refrain from judicial commentary, even if that commentary is damaging to the accused. As Rouleau J.A. explained in Lawes, at para. 59, the question is whether the trial judge's comments, considered in the context of the charge as a whole, “were made in such a forceful way so as to overwhelm the jury or usurp its fact-finding function, and whether they deprived the appellant of a fair presentation of his case to the jury … such that the charge was unfair and unbalanced.”

[64] Here, the trial judge’s comments on the defence theory were rooted in the evidence. In addition, the trial judge was careful to alert the jury, whenever a comment was made, that it was for them to decide the relevance, if any, that the commentary had. The comments did not deprive the appellant of a fair presentation of his case to the jury so as to render the charge unfair or unbalanced.

[65] I would find no unfairness or error arising from the tone taken by the trial judge or the characterization of the evidence in the charge.

[66] For these reasons, I would dismiss the first ground of appeal relating to the fairness of the trial judge’s charge to the jury. I turn now to the second ground of appeal.

2) The trial judge did not fail to relate the evidence to the defence theory of the case

[67] The appellant’s second ground of appeal is that the trial judge’s treatment of the evidence supporting the defence theory was deficient and rendered the charge unfair to the appellant.

[68] Trial judges are obligated to review the substantial parts of the evidence and relate it to the issues raised by the defence. Watt J.A. described this obligation in J.B., at para. 127 in the following terms:

The appellant accepts that we are to take a functional approach when asked to assess the adequacy of final instructions to a jury, testing those instructions against the purpose for which they are given. Among their purposes is to ensure that the jury appreciates the value and effect of the evidence given on the position the defence advances at trial. To achieve that purpose requires the trial judge to review the substantial parts of the evidence adduced at trial and relate it to the issues raised by the defence to ensure that the jury understands the value and effect of that evidence in relation to the position of the defence. [Emphasis added.]

[69] The Crown highlights that the closing address of defence counsel had reviewed the evidence in relation to the defence theory of the case prior to the trial judge’s charge. However, the appellant argues that it is insufficient for the trial judge to rely upon the closing address of defence counsel for this purpose, or to include a summary of the defence position in the charge that has been provided by counsel. As this court held in R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 23: “[A] summary from a partisan advocate is not a substitute for a review by an independent and neutral arbiter.”

[70] In this case, defence counsel specifically requested that the trial judge identify the key pieces of evidence relied upon by the defence and relate that evidence to the concept of reasonable doubt. The trial judge resisted the suggestion that he had to provide the jury with “a list” of the evidence that could raise a reasonable doubt. He told defence counsel that he would refer, in the course of the charge, to “the things that are of pertinence to the elements of the offence”.

[71] Although the appellant concedes that the trial judge “referred to most of the evidence relied upon by the defence at different points in the charge,” the appellant argues that, in some instances, he did so only to discount it. According to the appellant, at no time did the trial judge explain how that evidence could support the credibility of the appellant and Zakaria or undermine the credibility of McFarlane, or otherwise raise a reasonable doubt on the critical issues of the identity and intent of the shooter. The appellant submits that this rendered the charge unfair, and requires a new trial.

[72] I disagree that the trial judge’s instructions, read as a whole, failed to review the substantial parts of the evidence and relate them to the issues raised by the defence. While the trial judge declined to provide the jury with a “list” of evidence that could raise a reasonable doubt, as requested by the defence, trial judges are “vested with considerable latitude to determine how much or little of the evidence is to be reviewed in relation to the various elements of the charge”: J.B., at para. 134.

[73] The Crown submits that the trial judge’s review of the evidence was thorough, accurate, and in accordance with the jurisprudence.

[74] In my view, the instructions as a whole adequately relayed to the jury how the defence evidence, if believed, could support the defence’s overall theory of the case. The standard for review of a charge to the jury is adequacy, not perfection. I am not persuaded that the trial judge’s review of the defence evidence was inadequate.

[75] I would dismiss this ground of appeal.

Disposition

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

Released: May 12, 2023 “I.N.” “L. Sossin J.A.” “I agree. I.V.B. Nordheimer J.A.” ‘I agree. J. Copeland J.A.”