COURT FILE NO.: 13325/13

DATE: 20151113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA

Defendants

Counsel: Ronald Davidson and Lucas O’Neill, for the Crown Michael Strathman for Tin Wai Hong Stephen T. Lyon for Mason Gillard-Gatza Anthony G. Bryant and Karen E. Symes for Nathaniel Cain David G. Bayliss for Raphael Guerra

HEARD: November 10 and 12, 2015

RULING ON objections to closings

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

BOSWELL J.

CONTEXT

[1] A seven month long murder trial is nearing its end. Counsel have completed their addresses to the jury. They did so over a period of seven days. The Crown addressed the jury last, which is customary in Canadian jury trials when a defendant presents evidence, as was the case here. Following the completion of closings, the court heard numerous objections, most of which were raised by defence counsel in relation to the Crown’s closing. This ruling addresses those objections and the relief sought by counsel.

[2] It is necessary to put the trial into context, as that context informs certain parts of this ruling.

[3] This trial centres on a home invasion/robbery that took place in Minden, Ontario on October 19, 2011. The defendants, Messrs. Hong, Gillard-Gatza and Cain travelled from Scarborough to Minden for the purpose of robbing Justin McKelvey, a local dope peddler. Based on some “inside information” they understood he was an easy mark, sitting on a large stash of money and marijuana. Mr. Guerra was their wheelman. He says he was oblivious to what was going on around him. He was duped, he says; told he was driving to Montreal. He says he was unaware of where he was or what he was doing as he unwittingly conveyed his three co-accused to the scene of the crime.

[4] Mr. McKelvey had a friend over at the time the home invasion began. That friend, a young man named Ryan Kennedy, was beaten to death almost immediately after the intruders entered the McKelvey home. The invasion was interrupted when another one of Mr. McKelvey’s friends pulled into the driveway, surprising the intruders, who fled.

[5] The Crown asserts that the killing of Ryan Kennedy was a planned and deliberate murder; the plan being to steal drugs and money and leave no witnesses alive. They further assert that irrespective of whether the killing was planned and deliberate, it was constructive first degree murder – a murder committed while the defendants also committed the offence of forcible confinement. The three intruders assert that this was a robbery gone horribly wrong and that they are guilty of manslaughter, but nothing more. Mr. Guerra denies guilt altogether.

[6] The trial began with pre-trial motions in March, 2015. This is, in fact, a re-trial. The first iteration commenced in early 2014 but was aborted after several weeks due to the serious illness of one counsel. Jury selection on this trial began March 30, 2015 and evidence was first presented on April 14, 2015. The jurors were told during the selection process that the trial would likely last approximately three months, concluding sometime around the end of June.

[7] The duration of the trial was revised repeatedly over the course of the next seven months. The three month estimate proved to be woefully inadequate. The jurors have been asked repeatedly to accommodate further extensions and they have bent over backwards to do so. One juror was pregnant at the time of jury selection, but her due date was October 7, 2015 and so it was thought that there was no reasonable prospect that her pregnancy would compromise her ability to sit. I am told that her baby arrived on the date predicted. That was over a month ago. She was discharged in August when it appeared clear that this case would not make it to the deliberations stage until after her due date. The case has proceeded with eleven jurors since her discharge. We have been truly fortunate to have a committed and engaged group of jurors.

[8] There are, however, limits to how far the jury can be stretched out. Several weeks ago they were asked to accommodate a revised schedule for the pre-charge conference, closing submissions, charge and deliberations. Two jurors wrote notes to the court that have been marked as lettered exhibits and which clearly expressed frustration with the length of the trial and the repeated changes to the schedule. Taking juror availability into account, a revised schedule was settled on. Word was conveyed to the court from the jury, via the jury deputy, that “this had better be the last change”.

[9] Jurors have indicated that after November 22, 2015 they have obligations so numerous that it will essentially be impossible to find time for them to deliberate uninterrupted until the New Year.

[10] The revised schedule anticipated that counsel’s submissions would commence on Monday November 2 and conclude Thursday November 5. The charge would commence Thursday November 12 and be concluded in the first part of the morning on Monday November 16. Deliberations would then commence.

[11] Counsel’s submissions were not completed within the time allotted. The schedule had allowed a three day buffer for overruns, objections to the closings and final revisions to the charge. Those days were all but consumed by counsel’s closings, which did not wrap up until 3:00 p.m. on November 10, 2015.

[12] I advised counsel that it would be necessary for us to deal with objections immediately and indicated that we would sit late into the evening on November 10 if necessary, so that I could make any rulings necessary, revise and copy the charge and be in a position to start the charge on November 12 as scheduled. I had, in fact, signalled this likelihood to counsel on November 9.

[13] Mr. Bayliss objected to sitting late on November 10. He argued that it was unfair to counsel and that to properly address objections to the Crown’s closing we should set aside November 12 and 13 for argument, with the charge to begin on November 16. If only we had the luxury. No one else protested and I began to hear counsel’s objections. Court sat until 8:45 p.m. and then adjourned to November 12. It became apparent that the objections were so numerous that they could not all be addressed in one night. I advised counsel that I would postpone the jury one day, but that it was imperative that the charge commence first thing in the morning on Friday November 13.

[14] Further objections were heard on November 12. Indeed, they consumed a very full sitting day. By my tally there are over fifty objections, the overwhelming majority relating to the Crown’s closing. Messrs. Hong, Gillard-Gatza and Guerra all request a mistrial. As an alternative, Mr. Hong’s counsel asks the court to exercise its inherent jurisdiction to permit defence reply submissions.

[15] In my view, the most efficient means of addressing counsel’s objections is to briefly state the governing legal principles, then enumerate the objections, with my rulings set out immediately after each enumerated objection.

THE LEGAL FRAMEWORK

The Content of Closing Addresses

[16] The common law has long endorsed a policy permitting counsel, both Crown and defence, wide latitude in the content of their closing addresses. This policy was recently reaffirmed by the Court of Appeal in R. v. Boudreau, 2012 ONCA 830 where the court cited the following excerpt from R. v. Daly (1952), 57 O.A.C. 70, at p. 76:

A closing address is an exercise in advocacy. It is a culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.

[17] The law’s permissive approach does not, however, endorse entirely unrestrained advocacy. Limits on the Crown’s submissions include:

(a) Inflammatory rhetoric;

(b) Demeaning commentary and/or sarcasm;

(c) Misstatement of the facts or law;

(d) Inviting the jury to speculate; and,

(e) Expressing personal opinions about the veracity of a witness.

[18] The defence objections, for the most part, fall within these categories of offences. While R. v. Boudreau was a defence appeal and focussed on objectionable conduct on the part of the Crown, the advocacy limits I enumerated above, from Boudreau, would in my view apply equally to defence counsel. The Crown’s objections all fall within these categories.

The Test for a Mistrial

[19] Three of the defendants seek a mistrial.

[20] The law is well settled that a mistrial should only be declared in the clearest of cases. The reasons supporting such a rule are obvious and need not be repeated here, at the end of the seven month trial of a case previously mistried.

[21] A “clearest case” rule dictates that a mistrial should only be declared where an extinction level event has occurred; something so injurious to the process and to fundament trial fairness that it is simply incapable of being cured by any remedial measures: see for instance R. v. Pires; R. v. Lising, 2004 BCCA 33, [2004] B.C.J. No. 83 (B.C.C.A.), affirmed (2005), 2005 SCC 66, 201 C.C.C.(3d) 449, 259 D.L.R. (4th) 441 (S.C.C.).

The Opportunity to Reply

[22] Mr. Strathman argued that if a mistrial is not declared, defence counsel should have an opportunity to reply to portions of the Crown’s closing, in order to restore fairness to the trial.

[23] In R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, Cory J. held that where an irregularity in counsel’s closing address has jeopardized trial fairness, most cases can be addressed through a corrective instruction in the final charge. In relatively rare situations – where the trial judge does not believe the curative instruction(s) will suffice – a limited opportunity of reply may be granted. In terms of the circumstances in which a right of reply might be granted, Cory J. said:

…Where the Crown is entitled to address the jury last…the trial judge may grant defence counsel an opportunity to reply in those limited circumstances where the accused’s ability to make a full answer and defence and his or her right to a fair trial have been prejudiced…Such prejudice might arise where the substantive legal theory of liability which the Crown has added or substituted in its closing has so dramatically changed that the accused could not reasonably have been expected to answer such an argument. It may also be appropriate to grant a reply where the accused is actually misled by the Crown as to the theory intended to be advanced. It is only in the clearest of cases of unfairness that the trial judge should grant an opportunity to reply as an exercise of inherent jurisdiction. (Emphasis mine).

THE OBJECTIONS:

[24] As a general observation, many of counsel’s objections, as I will enumerate below, relate to alleged misstatements of the evidence. Even the most rudimentary of jury charges should have a core instruction, as mine does here, making it clear to the jury that their very first function is to determine what the facts of the case are. To do so, they are to go by their own recollections of the evidence and not on the basis of what counsel may have said, or even what I say to them in terms of the evidence. There are numerous instances in the charge where I have made it clear that factual determinations are the exclusive domain of the jury.

[25] That said, misstatements by counsel do have the potential to distort the fact-finding process.

[26] I have included fairly extensive references to the facts in the final charge. Counsel have had an opportunity, over a twelve day pre-charge conference, to vet the entire charge, including my factual references. I think it fair to say that they are accurate. And they cure at least some of the errors made by counsel in terms of the evidence referred to in their final submissions.

[27] In the result, I view it as unnecessary to correct every single instance where counsel - Crown or defence - may have misspoken or misstated a fact. That is not to say I don’t intend to correct some of the errors; just not all of them.

[28] Having made that general observation, I will address, one by one, the objections raised by counsel.

Objections of the Crown

[29] Crown counsel made relatively brief objections. None involved the closings of Mr. Strathman or Mr. Lyon.

[30] In respect of Mr. Bryant’s closing, the Crown expressed a concern that he had misconstrued some evidence about the evolution of Justin McKelvey’s evidence, which Mr. Bryant had detailed on a PowerPoint slide displayed for the jury. More significantly, however, Crown counsel expressed concern with what he perceived to be a sustained personal attack on him at the outset of Mr. Bryant’s submissions.

[31] He submitted that Mr. Bryant had, amongst other things, blamed the length of the trial on the Crown; had mocked the Crown’s cross-examinations suggesting they were mindless and continued until one’s eyes glazed over; had suggested that the Crown’s case lacked focus; had predicted the Crown’s closing would be a “mind-bending experience”; and had asserted that the Crown and/or the officer in charge had improperly influenced Justin McKelvey’s evidence.

[32] I do not think it necessary for me to give a corrective instruction about anything in Mr. Bryant’s PowerPoint summary slide. I intend to instruct the jury that counsel’s slides and/or summaries are not evidence and may, in fact, contain mistakes. The jury will be directed to make their own careful assessment of the evidence.

[33] I agree that some of Mr. Bryant’s commentary on the Crown’s case was overzealous. Counsel of course is entitled to some flourish in their closing addresses. I am not particularly concerned with suggestions that the Crown’s case lacks focus, or is fanciful, or that lengthy cross-examinations failed to achieve anything significant. Moreover, the assertion that Justin McKelvey’s testimony evolved after meetings with Crown counsel and the lead investigator was a theme developed at trial and one which I have already addressed in my charge. The Crown was, in fact, permitted to introduce a prior consistent statement of Justin McKelvey to address the assertion.

[34] On the other hand, I do think it was unfair to refer to the Crown’s cross-examinations as “mindless”. That remark, in my view, is a personal comment about the skillset of the Crown attorney. I will have to address this in the final charge. I am mindful of the fact that Mr. Bryant’s submissions proceeded more than a week ago. They were followed by two days of submissions by Mr. Bayliss, a weekend, two days of submissions by the Crown, Remembrance Day, and a day of objections to the charge. The jury is sufficiently distanced from those comments that the sting will largely have gone out of them in my view. Moreover, the Crown had an opportunity to address the jury following Mr. Bryant and could, at least to some extent, defend himself. In the circumstances, I am reluctant to highlight Mr. Bryant’s comments in a corrective instruction because I think to do so will serve only to bring them back into focus, which is undesirable. After anxious consideration, I have determined that I will instruct the jury more generally that the length of the trial is the result of a constellation of factors and is nobody’s fault; that counsel have conducted themselves professionally throughout; and that the jury should not take anything said in counsel’s forceful closings as a derogatory indictment of another counsel.

[35] In respect of Mr. Bayliss’s closing, the Crown expressed the following concerns:

(a) He mischaracterized the basis of liability in terms of the Crown’s case against Mr. Guerra, suggesting that Mr. Guerra could only be found liable if he was a part of a plan to kill people;

(b) He gave an incorrect summary of some of the applicable law;

(c) He incorrectly suggested to the jury that they needed to be satisfied beyond a reasonable doubt with respect to certain individual facts;

(d) He misdescribed direct vs. indirect evidence; and,

(e) He blatantly attempted to mislead the jury into an impermissible line of reasoning by suggesting that they compare this case to far worse cases of first degree murder and conclude that this is not properly a case of first degree murder.

[36] In my view, the draft charge already addresses all but the last of the issues raised. For instance, I am very clear about the basis of liability in terms of the Crown’s case against Mr. Guerra. I am clear about the fact that the jury need not decide individual facts beyond a reasonable doubt. And I give quite an extensive instruction on direct and circumstantial evidence, followed immediately by an instruction about distinguishing proper inference from improper speculation. All counsel were clear in their closings that the jury is to take the law from the court.

[37] The last of the Crown’s expressed concerns is more significant. The impugned submissions included the following:

…One can think of many scenarios where a death can be more brutal, more deliberate, more cruel, more disgusting and more deserving of denunciation. All you have to do is listen to and watch the news every day to know that.

And yet in this case the crown seeks convictions for first degree murder. The absolute, the most serious finding of guilt for a killing in the Criminal Code of Canada.

If this case deserves that label, then how do we punish the child killer? The rapist-murderer? The contract killer? The police killer?

My submission to you is that the Crown’s attempt to have this case classified as first degree murder is flagrant over-reaching.

[38] The Crown submits that the submission was improper in that it invites the jury to reason improperly by comparing the facts of this case to other cases they have heard of and to assess their relative seriousness. Mr. Bayliss argued that his submissions have, essentially, been misinterpreted and that all he was suggesting was that, with reference to the Criminal Code definitions of what constitutes first degree murder, this case does not pass mustard.

[39] I agree with the Crown. I drafted a correcting instruction and provided it to counsel. It read as follows:

Mr. Bayliss, in his closing submissions, described a number of different scenarios which might lead to a conviction for first degree murder. He asked you to consider the circumstances of this case, which he said are not the sort of facts the law normally associates with first degree murder. He asked rhetorically, if we call this case first degree murder, how do we punish those who murder and rape children, or do other more despicable acts? I want to be clear about this. At no time in your deliberations are you to consider whether Crown counsel has proven the guilt of a defendant for first degree murder, or any other offence, by comparing the facts of this case to some other case that you may have heard about from another source. Your duties are to (1) determine the facts of this case from the evidence introduced in the courtroom during the trial; (2) accept the rules of law as I describe them to you; and (3) apply those rules of law to the facts as you find them.

[40] Mr. Bayliss expressed grave concerns about the wording of my instruction and advised that he would be compelled to seek a mistrial (which is seeking in any event) if the court were to proceed with the proposed instruction. After some further debate on the issue, I settled on a revised instruction which provides:

During his closing submissions, Mr. Bayliss made reference to certain other kinds of cases that constitute planned and deliberate first degree murder under our laws. I want to make sure that you understand that his submission was that the facts of this case do not support a finding of planned and deliberate first degree murder. He was not suggesting that you make any decisions based on a comparison between the facts of this case and the facts of other cases that you may have heard or read about. It would be wrong of you to do that. Your duties are to (1) determine the facts of this case from the evidence introduced in the courtroom during the trial; (2) accept the rules of law as I describe them to you; and (3) apply those rules of law to the facts as you find them.

[41] For obvious reasons, I will not be granting a mistrial on the basis of having given a correcting instruction I consider appropriate in the circumstances.

[42] I will turn to Mr. Strathman’s objections.

Objections of Mr. Strathman

[43] I note that none of the defence counsel raised objections to each other’s closings. All raised concerns with respect to the closing of the Crown.

[44] Mr. Strathman expressed overarching concerns that the Crown failed to remain dispassionate, distorted the facts and changed its case at the last minute. In his view, the trial is now so fundamentally unfair to Mr. Hong that nothing the court might do by way of remediation will save the trial. Nothing short of a mistrial will suffice. Mr. Lyon and Mr. Bayliss joined him in the request for a mistrial.

[45] Mr. Strathman’s more specific objections to Mr. Davidson’s work are:

(a) He opened with a scenario that was not supported in the evidentiary record.

[46] Crown counsel’s submissions indeed began with a somewhat dramatic overview of what the Crown asserts happened in this case. I am not persuaded that the Crown’s “scenario” was not without support in the evidentiary record. One aspect of the scenario that is particularly contested is the assertion that when the three intruders entered Mr. McKelvey’s home, Mr. Hong and Mr. Cain both approached Justin McKelvey and engaged him. There is arguably some support in the police statement of Mr. Cain for this assertion, but it’s debatable. Having said that, the Crown is not bound to limit its submissions to circumstances where there is direct evidence. Looking at the circumstances as a whole, my view is that it is reasonably possible to infer that both Mr. Hong and Mr. Cain engaged first with Justin McKelvey when they entered the living room of Mr. McKelvey’s house. They were the first two through the door and Mr. McKelvey was the first of the two occupants whom they would have encountered coming into the living room. The inference may not be a strong one, but it’s there. This is an instance where I am content to say only that the facts of the case are entirely up to the jury to decide.

(b) He made the preposterous suggestion that Ryan Kennedy was attacked where he sat and had time only to just stand up before he was struck.

[47] The issue of where Ryan Kennedy was seated when the intruders entered the McKelvey residence is a matter of great contention and some significance. The Crown’s theory of planned and deliberate first degree murder depends largely on the purported speed, precision and efficiency of the attack, including the summary way in which Ryan Kennedy was killed almost immediately after the intruders entered the residence. A significant part of that theory is that Ryan Kennedy was killed essentially where he was seated. There were droplets of Ryan Kennedy’s blood on the floor near a love seat on the south side of the living room. It is suggested by the Crown that Ryan Kennedy was seated in the love seat as the intruders entered. It appears well-settled that Justin McKelvey was seated in a three-seater couch on the north side of the room.

[48] Mr. Strathman strenuously asserts that Ryan Kennedy was seated in a green rocker chair located at the west end of the living room. Indeed Justin McKelvey testified as much. This is significant from Mr. Strathman’s point of view because it supports the assertion that Ryan Kennedy wasn’t struck where he was sitting; that in fact he had risen from the green chair and engaged the intruders as they came into the living room. This tends to undermine the Crown’s theory of a planned and deliberate murder as well as the assertion that Ryan Kennedy was forcibly confined as soon as the intruders entered the living room.

[49] I do not agree that it is preposterous to suggest that Ryan Kennedy was seated in the love seat and that he had just enough time to stand up before he was struck. That is a finding available to the jury on the evidentiary record in this case. I do, whoever, believe it worthwhile to carefully review in the final charge the evidence about where Ryan Kennedy was seated when the home invasion began, and I will do so.

(c) He constantly referred to evidence in the out-of-court statements of Mr. Cain and Mr. Gillard-Gatza as though it were admissible against all four defendants.

[50] This objection is one of a number made by Mr. Strathman that repeat a common theme: that the Crown’s submissions suggest to the jury that they may use the out-of-court statements of a defendant for an impermissible purpose – to support the Crown’s case against defendants other than the statement maker.

[51] This objection is echoed by all other defence counsel.

[52] In my view, Mr. Davidson made a clear effort to remind the jury, when speaking of an out-of-court statement of a defendant, that it is only admissible evidence against the statement-maker. Ultimately, however, that is not where the problem arises. Rather, the problem is with a more general interweaving of references to the out-of-court statements of Mr. Gillard-Gatza and Mr. Cain when the Crown was making submissions on the case against each of the defendants.

[53] As I indicated, Mr. Davidson started his submissions with a broad overview of the Crown’s theory of what happened on the night of October 19, 2011. He then essentially presented the Crown’s case against each accused individually, incorporating, where appropriate, broader discussions about planning and deliberation and the elements of constructive murder.

[54] Mr. Davidson had a tendency, during submissions about one particular defendant, to make references to the out-of-court statements of other defendants. So for instance, when he was addressing the Crown’s case against Mr. Guerra, he made references to the out-of-court statements of Mr. Cain or Mr. Gillard-Gatza. He consistently reminded the jury that the out-of-court statements are admissible against only the statement-maker, but at times it was arguably not entirely clear why evidence not admissible against a particular defendant was being referred to in the context of evidence that was admissible against that particular defendant.

[55] Having said that, it must be remembered that this is a joint trial of four co-accused, all of whom are alleged to have participated in a joint venture. There is obviously overlap in the live issues. Crown counsel could not be expected to compartmentalize his submissions so that he talked exclusively about one accused at a time. The jury was given very clear mid-trial instructions about the limited use of the out-of-court statements of the defendants. Those instructions were repeated several times. They are repeated numerous times again throughout the charge and the jury will be cautioned to be careful about where a portion of an out-of-court statement has been adopted and where it has not been adopted.

[56] There are always issues present in a joint trial that would not be present in a trial of an individual defendant. Front and centre here is the concern that the jury may improperly use evidence admissible against one defendant to determine the guilt of another defendant. The assertion is that the Crown’s closing submissions heighten that concern to a point where it is no longer possible for any of the defendants to receive a fundamentally fair trial. I do not accept that assertion.

[57] The following comments of Watt J.A. in R. v Largie, 2010 ONCA 548, Watt J.A. at paras. 88-89 are apropos:

Each accused who participates in a joint trial is entitled to the constitutional protections inherent in the right to a fair trial. Among those protections is the right to be shielded from evidence that unfairly prejudices that accused: R v. Suzack, 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 111. But joint trials are different than trials involving a single accused. And the right of every accused to a fair trial does not mean that those tried jointly are entitled to an exact copy of the trial they would receive if they were to be tried alone: Suzack, at para. 111.

To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance: Suzack at para. 114. Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions: Suzack, at para. 128; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-93.

[58] I proceed on the basis that the jury will follow my clear and unequivocal limiting instructions about the permitted use of the out-of-court statements of the defendants.

(d) He failed to give separate consideration to each defendant.

[59] This is part of the same theme as objection (c) and I refer to my discussion of that objection.

(e) He suggested that Mr. Gillard-Gatza struck Ryan Kennedy with a sideways swing of a baseball bat, when Mr. Gillard-Gatza’s testimony was the swing was to the top of Mr. Kennedy’s head.

[60] I believe there is a proper evidentiary basis for this assertion. Mr. Gillard-Gatza gestured as such in his videotaped police statement, though he said it was the “black guy” who swung the bat. Moreover the shelved nature of the lacerations on Ryan Kennedy’s head suggest that he was struck on an angle, from front to back, according to Dr. Pollanen. Mr. Strathman is concerned, of course, with the case from Mr. Hong’s perspective. Reading between the lines, I gather his concern is that a sidearmed swing may make it more likely that Mr. Gillard-Gatza struck a blow that broke Mr. Kennedy’s jaw. Mr. Hong obviously submits that the jury should have a reasonable doubt about whether he struck any blow to Ryan Kennedy’s head. As a fall back, if the jury were to conclude that Mr. Hong swung the stock end of a pellet rifle into the side of Ryan Kennedy’s head using a golf swing, as other witnesses have said, Mr. Strathman wants the jury to connect this blow to the fracture of Ryan Kennedy’s jaw, because Dr. Pollanen said it was unlikely that the blow that caused the jaw fracture contributed to Ryan Kennedy’s death.

[61] I am prepared to make a revision to the draft charge, in the section on causation, to take care to delineate for the jury the evidence relating to the angle of the bat when swung by Mr. Gillard-Gatza and, in particular, to distinguish what evidence is admissible against Mr. Gillard-Gatza in that regard, as compared to what is admissible against Mr. Hong and/or Mr. Cain.

(f) He suggested that Mr. Kennedy dropped when hit over the head by Mr. Gillard-Gatza with the baseball bat and was then struck again by Mr. Gillard-Gatza with the bat as he lay on the floor. There is no admissible evidence against Mr. Hong relating to this additional strike on the floor.

[62] Mr. Gillard-Gatza said the following on page 41 of his edited police statement:

…and then buddy the other guy stood up and as he was going to jump on Tin the black guy went boom smacked him in the back of the head and he dropped instantly and then buddy went boom hit him again and then his head there was blood everywhere he threw he threw the bat I seen the bat I like the way it was right here.

[63] Mr. Strathman’s objection is that this is not admissible evidence against Mr. Hong. I agree. And, as I indicated, I will be clear in instructing the jury that they are not to use the unadopted, out-of-court statements of one defendant against any other defendant. Otherwise, the Crown’s submission is supported in the evidence.

(g) He knowingly and deliberately misstated the evidence about Mr. McKelvey’s grandmother’s call to 911, saying it connected at 11:39 p.m., when in fact it was not even placed until 11:39:54 and didn’t connect until 11:41:23. This evidence was subject to an admission at trial between the Crown and all counsel.

[64] I agree that the Crown misstated the evidence about the time the 911 call connected. I am prepared to correct that factual misstatement in my charge. I need not determine, nor am I equipped to determine, whether this misstatement was deliberate.

(h) He asserted that Carla Robbins, one of the first EMS personnel on scene, and a witness called by Mr. Strathman to testify as to utterances made to her by Mr. McKelvey, had a poor recollection of events, when in fact she had refreshed her memory with her notes and was quite clear in her testimony.

[65] The jurors will make their own determinations about whether Carla Robbins had a poor recollection. I need not say anything about this issue.

(i) In addressing the suggestion that the Crown and/or D/C Ginn have influenced Mr. McKelvey’s testimony, Crown counsel suggested, improperly, that if the Crown or police wanted to do so, they would have told him that Mr. Hong was wearing a red bandana and not a black one, as testified to by Mr. McKelvey.

[66] The real thrust of this objection is that the Crown said something to the effect that “we knew early on that the bandana worn by Mr. Hong was red”, thereby invoking the credibility of the Crown’s office. Mr. Strathman, joined by other defence counsel, ask that Mr. Davidson be strongly rebuked in the charge.

[67] There is little doubt that Mr. McKelvey’s eyewitness account has evolved over time in terms of the level of detail provided, as well as the sequencing of events. One defence assertion is that his evidence changed to better fit the Crown’s theory of the case after he met with Crown counsel and one of the lead investigators in May and July 2012 to prepare for the Preliminary Hearing. There is DNA evidence connecting Mr. Hong to a red bandana found near the crime scene, but that evidence was apparently not obtained from the CFS until after the July 2012 meeting. There is no other evidence in the record as to when the police connected Mr. Hong to the red bandana. I am prepared to go so far as to advise the jury of the absence of evidence to support when the police first connected the red bandana to Mr. Hong. I am not persuaded that Mr. Davidson’s comments otherwise import the credibility of the Crown’s office into the equation. Frankly, the defence assertion that the Crown essentially obstructed justice is a remarkable one and based on pretty thin evidence. It is one thing to point out the evolution of Mr. McKelvey’s evidence, but quite another to suggest that the Crown attorney has improperly influenced him. I do not intend to impugn Mr. Davidson in this corrective instruction, as defence counsel have sought.

(j) He suggested that the use by other counsel of PowerPoint slides to organize or emphasize evidence does not make it accurate. This, Mr. Strathman suggests, is an idea plucked by the Crown from the court’s final draft charge.

[68] The substance of this objection is that the court has given an unfair advantage to the Crown by delivering a final draft of the charge before the Crown’s closing, which was not in the hands of the defence before their closings. To understand this submission it is necessary to appreciate the manner in which the pre-charge conference proceeded.

[69] It is my practice – and I advised counsel of such – to give the jury a copy of my full charge, including all references to the evidence. It is also my practice to vet the full charge with counsel. To that end, immediately after the completion of the evidence I produced to counsel a comprehensive draft charge, as the basis for discussions. Counsel were given a fulsome opportunity to make submissions on the draft, as well as a second draft version which incorporated a number of their suggested changes. As I noted above, counsel’s submissions were to have been completed on Thursday November 5, 2015. They weren’t. Time is now very much of the essence. A further refined version of the draft charge, taking into account all of the submissions made by counsel over 12 days of discussion, was delivered to all counsel on Sunday November 8. The Crown had yet to make submissions. That said, the revised charge could not have given the Crown any real advantage. I suspect that Crown counsel would not have had time to even review it before beginning his submissions. But in any event, it does not include any material changes in terms of the overall structure of the charge, or the routes to liability. To the extent that it includes changes, those changes were almost invariably the subject of discussion with counsel during the pre-charge conference, which was completed before any counsel commenced submissions.

[70] In my view all parties have been treated impeccably fairly throughout. No remedial action is required in relation to this objection.

(k) When discussing the issue of causation in relation to the Crown’s case against Mr. Gillard-Gatza, he repeatedly referred to the statement of Mr. Cain, which is inadmissible against Mr. Gillard-Gatza.

[71] See the discussion under para. (c).

(l) He suggested that Mr. Gillard-Gatza tailored his evidence to match something Mr. Cain had said in his statement to the police. In other words, to accord with Crown disclosure. This is improper and had never been suggested to Mr. Gillard-Gatza.

[72] I am not persuaded that this objection has been substantiated.

(m) He directly offended the rules of evidence by asking the jury to consider inadmissible evidence.

[73] See the discussion under para. (c).

(n) He suggested to the jury that they could infer that a blood-spattered Kleenex box found on the floor near the couch where Mr. McKelvey had been sitting when the intruders arrived had fallen from the kitchen counter above the couch when one of the intruders struck Mr. McKelvey through a cut-out window between the kitchen and living room. This invites speculation. Moreover, Justin McKelvey testified that the Kleenex box would have been on the coffee table before the home invasion.

[74] I agree. I will advise and instruct the jury accordingly.

(o) He suggested that the defendants who testified lied to avoid “M1”, thereby undermining the presumption of innocence.

[75] There is nothing wrong, of course, with the Crown urging the jury to conclude that the defendants lied, in whole or in part, in their statements or their trial testimony. The Crown may even raise the common sense proposition that an interest in the outcome of the proceedings is a factor to consider when assessing the credibility of a witness, including a defendant. Jurors are entitled, should they determine that a defendant has lied, that the most plausible explanation for the lie is the desire to avoid conviction. What is not proper is any submission that suggests an assumption that a defendant is likely to lie to avoid liability. Such a submission would offend the presumption of innocence.

[76] Mr. Davidson urged the jury to conclude that all four defendants lied and that, like Mr. Cain, they lied because they weren’t going to go down for “M1”. Defence counsel submit that this statement and others like it, urged the jury to conclude that the defendants are likely to have lied to avoid culpability, which decimates the presumption of innocence. Mr. Davidson submits that Mr. Cain and Mr. Gillard-Gatza admitted that they lied in their police statements to minimize their culpability. He says he was essentially extrapolating on that evidence, urging the jury to find that the defendants who testified have all lied, and that the explanation for their lies is the desire to minimize their culpability.

[77] I am not entirely convinced that Mr. Davidson invited the jury to assume that the defendants lied because they have a motivation to avoid conviction. I do think there is enough of a risk that his comments could be interpreted that way, that a clear instruction is necessary. The following language will be included in the charge as part of my instruction on the assessment of evidence:

The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongst others, to take into account when assessing the credibility of a witness’s testimony. You should not, however, place undue weight on the status of a person in the proceedings as a factor going to credibility.

This common sense proposition applies to a defendant who chooses to testify in his own defence. But a special concern arises in the case of a defendant who testified. It arises from the fact that both innocent and guilty persons have a strong interest in not being convicted. Indeed, an innocent person has a greater interest in securing an acquittal. You must not assume that a defendant will lie to secure his acquittal. Such an assumption flies in the face of the presumption of innocence. Assuming that a defendant must lie in order to be acquitted is tantamount to finding that his guilt is no longer an open question.

Crown counsel, in his closing submissions, urged you to find that the defendants who testified lied in many aspects of their testimony. He suggested that they were motivated to lie to avoid “M1”, meaning first degree murder. He said specifically, “the goal of Mr. Cain became the goal of everyone…They were not going down for M1”. There is nothing improper about the Crown urging you to conclude that a defendant lied in his testimony, or in his statement to the police. But you must not assume that a defendant is more likely to lie because he is motivated to secure an acquittal. To do so would trample on the presumption of innocence.

(p) He purported to give expert evidence by suggesting that a golf-swing like strike of the stock of a pellet rifle by Mr. Hong into the side of Ryan Kennedy’s head could cause not only Ryan Kennedy’s broken jaw, but also additional injuries to his head. This mechanism of injury was not put to the forensic pathologist who testified about Mr. Kennedy’s injuries.

[78] Mr. Davidson pointed out to the jury the size of the stock of the pellet rifle and suggested that one strike of that stock could cause Mr. Kennedy’s broken jaw plus other damage to his head. Mr. Strathman and other counsel object to the fact that this proposition was not put to Dr. Pollanen or otherwise floated earlier in the trial.

[79] In my view, the Crown had no obligation to put that proposition to Dr. Pollanen. This isn’t a Browne and Dunn issue – in other words no unfairness arises as a result of any failure to put the proposition to Dr. Pollanen. In any event, Dr. Pollanen was clear that the mechanism of injury is ultimately a matter for the jury to determine.

[80] The real issue here, in my view, is that defence counsel do not have a right of reply and did not anticipate that the Crown would make this particular suggestion. That said, I am not persuaded that it creates any unfairness. It’s for the jury to determine what blows inflicted what injuries. The defendants had a full opportunity to make their submissions on that central issue.

(q) He suggested that the plan to rob and kill was made commencing on October 5, 2011 without a reasonable basis in the evidence to support such an assertion.

[81] In my view, the Crown’s submission was more broad than reflected in Mr. Strathman’s objection. I think the Crown fairly asserted that it is unlikely that this plan – even if it was just to rob – came together at the 11th hour as asserted by Mr. Cain. No corrective instruction is required.

(r) He suggested that there is evidence that each of the intruders had specific jobs, when in fact there is no admissible evidence against Mr. Hong that the intruders had specific jobs. This assertion comes only from the out-of-court statements of Mr. Gillard-Gatza and Mr. Cain and was not adopted by them at trial. The Crown was not alive to the nuances in the evidence and used broad strokes in his evidentiary references.

[82] I do not agree with the suggestion that the only evidence that each of the three intruders had specific jobs to do came from the police statements of Mr. Cain and Mr. Gillard-Gatza; in other words, only evidence inadmissible against Mr. Hong. Mr. McKelvey testified that it appeared to him that each of the defendants had a specific job to do. Moreover, he said it appeared to him that the Asian-eyed male was in charge. No corrective instruction is required.

(s) He engaged in a habit of little laughs, belittling the evidence of Mr. Guerra in particular.

[83] While ours is a court of record, it is not videotaped. There is no visual record of the Crown’s submissions and the audio record and/or transcript will not assist in demonstrating facial expressions or demeanour.

[84] I did not notice Crown counsel to be laughing at any time. I would describe his countenance, while addressing Mr. Guerra’s defence, as one of incredulity. Counsel, even Crown counsel, is entitled to advocate forcefully and with some flourish. In my view the Crown did not cross the line between forceful advocacy and sarcasm or belittlement.

(t) He suggested to the jury that they could find that Ryan Kennedy was reacting to things happening around him on the basis of Justin McKelvey’s evidence that he began to moan louder when hit by the water cooler. This was not suggested to Dr. Pollanen.

[85] Again, I do not see why it was necessary for the Crown to put this suggestion to Dr. Pollanen as a prerequisite to making this submission. Moreover, I fail to see why any of it matters. The evidence, consistent across eyewitnesses, is that Mr. Kennedy was making moaning, gurgling and/or snoring sounds while lying on the floor. He was still alive for some time while on the floor before the intruders fled. The fact that he may have moaned louder doesn’t make him more or less alive.

[86] I will move on to a discussion of Mr. Lyon’s objections.

Objections of Mr. Lyon

[87] Mr. Lyon adopted the submissions of Mr. Strathman and also seeks a mistrial.

[88] He added the following five objections on top of those already expressed by Mr. Strathman, all of which involve purported misstatements of the facts:

(a) The Crown indicated to the jury that Mr. Gillard-Gatza never spoke in his statement about the struggle between Mr. Cain and Ryan Kennedy, when in fact he did allude to such a struggle.

[89] This is another example of a factual issue that I do not need to enter the fray on. There are arguably some references in Mr. Gillard-Gatza’s statement that allude to a struggle. But in his statement he said Mr. Cain swung the bat and struck Ryan Kennedy. His position in the statement is, in my view, at odds with the notion that Mr. Cain and Mr. Kennedy were engaged in a “hockey style” struggle.

(b) The Crown said Mr. Gillard-Gatza struck Ryan Kennedy in the head after he fell to the ground, which is not supported in the evidence.

[90] I have reviewed the evidence from Mr. Gillard-Gatza’s statement and it appears he said that Mr. Cain was wielding the bat and struck Ryan Kennedy as he was on the ground. It is not clear that the strike was to the head, nor is it clear that Mr. Gillard-Gatza agreed that he had simply juxtaposed Mr. Cain for himself when describing this action in his statement.

[91] I will correct this fact in the charge.

(c) The Crown said that Mr. Gillard-Gatza held a knife to the throat of Justin McKelvey, when Justin McKelvey said only that the knife had been held out in front of his face.

[92] This is an obvious misstatement. I will correct it.

(d) The Crown mischaracterized the evidence in terms of where Ryan Kennedy was sitting when the three intruders entered the living room.

[93] I have addressed this issue in connection with Mr. Strathman’s objections.

(e) The Crown suggested that Gillard-Gatza had kicked Ryan Kennedy. He denied doing so in his trial testimony. In his police statement he said he kicked someone, but it wasn’t the guy who died…it was the other guy.

[94] This is a matter I have addressed already in the charge as vetted with counsel and I am not persuaded I need to say anything more than I already have about Mr. Gillard-Gatza’s evidence regarding kicking.

Objections of Mr. Bryant and Ms. Symes

[95] Mr. Cain’s counsel added the following objections to the ones already advanced by their co-counsel about the Crown’s closing:

(a) During Mr. Cain’s interview with Detective Miller, the officer left the interview room presumably to talk to the monitor. Mr. Cain is observed engaged in a brief soliloquy. He has his head in his hands and says the following:

I don’t care man. I’m not goin down man, fuck that man. Especially for M1. Yo, no, no one’s going for M1 yo.

No one meant to kill anybody anyway is right. I just didn’t…I don’t know man. I don’t think they understood what the fuck they’re doing man. Everybody has their first time doing shit like that. I should have shut it up man.

Mr. Bayliss attempted to play this full clip as an indication of the states of mind that the jury should attribute to each of the three intruders. Unfortunately the audio on the playback equipment in the courtroom malfunctioned. Later, the Crown played the same clip, but stopped it at “no one’s going for M1 yo”.

Mr. Bryant argued that there is a brace of unfairness here. First, the full soliloquy should be shown for proper context, particularly in light of the fact that Mr. Bayliss had attempted to show the full clip. Second, the portion of the clip dovetails with the assertion by the Crown that the jury should find that Mr. Cain lied because he is motived to void going down for “M1”, which is an infringement on the presumption of innocence.

[96] I have already addressed the issue of the asserted motive to avoid M1 and have nothing more to add about that here. In terms of playing the soliloquy in full, I offered to counsel to play it in full in the course of my charge, but Ms. Symes expressed concern about prejudice to Mr. Cain in doing so. In the end I have elected, I believe with the consensus of counsel, to simply refer to the fact that Mr. Bayliss attempted to play the full clip, but was stymied by technical issues. The jury will be reminded that the full interview will be available to them on DVD in their jury room to watch and listen to as they see fit.

(b) There were implied suggestions by the Crown that the defendants had coloured their testimony to jive with Crown disclosure.

[97] As I mentioned above, I am not satisfied that this objection has been made out.

(c) The Crown improperly invited the jury to consider that Beverley Fomenko – a Crown witness – easily concluded that Mr. Gillard-Gatza and Mr. Hong had lied to her, when assessing the credibility of the defendants’ testimony.

[98] I agree that an instruction is necessary to alert the jury to the fact that it is not proper for one witness to opine about the credibility or reliability of another witness. They will be reminded that the assessment of credibility and reliability is their exclusive function.

(d) The Crown attempted to correlate the way the butt end of the pellet rifle appears to the appearance of the lacerations on the dome of Ryan Kennedy’s head. The court addressed this issue in the draft charge, but in light of the Crown’s submissions, the reference should be refined somewhat.

[99] Mr. Bryant has provided me with some draft language to address his concerns in this regard and I am prepared to amend the draft charge accordingly.

(e) The Crown submitted to the jury that Ryan Kennedy was sitting in the love seat across from Justin McKelvey when the intruders entered the living room. In support of that submission they played a portion of Mr. Cain’s video statement to the police, none of which could reasonably be interpreted as Mr. Cain saying that Ryan Kennedy was in that love seat. In other words, the Crown mischaracterized the evidence. Moreover, the assertion that Ryan Kennedy was in the love seat was unfairly never put to Mr. Cain in cross-examination by the Crown.

[100] Again, I will address the evidence about where Ryan Kennedy was sitting when the home invasion began, as I have discussed above. I will also add a specific Browne and Dunn instruction to the charge. Frankly, I am not one to require slavish adherence to the so-called rule in Browne and Dunn. Its purpose is to enhance trial fairness. An instruction is required only where trial fairness is impacted. Mr. Cain was on the witness stand for a very long time. Many suggestions were made to him. His memory was extremely poor of the events in question, to say the least. The notion that it was not fair to not put the suggestion to Mr. Cain that Ryan Kennedy was sitting in the love seat is a stretch.

[101] That said, I will include a Browne and Dunn instruction and I will give a couple of examples of where submissions were made in closings on issues or topics not specifically put to a witness. I do not intend to list every occasion where that might have occurred because I am not, by and large, satisfied that any of them really affect either trial fairness or fairness to a particular witness.

(f) Echoing a submission by Mr. Strathman, the Crown essentially gave expert evidence about what injuries the purported golf swing by Mr. Hong might have caused to Ryan Kennedy’s head, without having put that proposition to the forensic pathologist who testified for the Crown.

[102] I have addressed this issue above, in relation to Mr. Strathman’s objections.

(g) The Crown used, on two occasions, the phrase “we know”, improperly importing the opinions of the Crown’s office.

[103] This objection relates to the red bandana issue, which I have canvassed above.

(h) The Crown mischaracterized Dr. Colman’s evidence in three respects. First, by incorrectly reflecting what he’d said about aerobic vs. anaerobic exercise. Second, by misstating his evidence about Mr. Cain’s self-reports about marijuana use. Third, by misstating Dr. Colman’s evidence about how marijuana use might inform Mr. Cain’s self-reported hypoxemia symptoms from high school.

[104] This is another example where I am not prepared to enter the fray in terms of factual references. It is enough that the jury be reminded that they are the exclusive judges of the facts and that they are to go by their own recollections of the evidence. I have referred extensively in the charge to Dr. Colman’s evidence. Moreover, he was, in my view, a very clear witness. I am confident the jury will be clear on the substance of his testimony.

(i) The Crown inaccurately suggested that Mr. Cain’s first reference to hypoxemic symptoms on the night of October 19, 2011 was in his letter to the family and friends of Ryan Kennedy, post-marked November 25, 2011, when in fact there are references in his police statement of November 1, 2011 to such symptoms.

[105] Again, I have referred extensively in the charge to Mr. Cain’s evidence regarding his defence. I am prepared to tweak those references minimally to refer to a passage in his police statement where he mentioned feeling like he was going to pass out. I do not believe anything more is necessary.

[106] I will move on to Mr. Bayliss’s objections.

Objections of Mr. Bayliss

[107] Mr. Bayliss’s submissions picked up on the same themes as those of other counsel. He submitted that the Crown:

(a) Decimated the presumption of innocence in suggesting that the defendants lied to avoid culpability.

[108] I have already addressed this issue above.

(b) Laughed while making submissions about Mr. Guerra’s defence, thereby mocking and demeaning it.

[109] Again, I have already addressed this issue above.

(c) Used a flawed and confusing example when discussing circumstantial evidence.

[110] Given the importance of circumstantial evidence in this case, I will be providing an extensive instruction on the different between direct and circumstantial evidence, as well as the difference between proper inference and improper speculation. I think it will more than make up for any flawed examples that may have been made by any counsel in closing submissions.

(d) Referenced the out-of-court statements of accused persons in an overlapping fashion with other evidence, such that the jury will inevitably be confused about where and how that evidence applies and is relevant.

[111] Again, this is another matter I have already addressed above.

(e) Misstated Mr. Gillard-Gatza’s evidence about what conversations were going on in the car on the ride up to Minden.

[112] This is yet another example of a factual issue I do not want to address any further than I already have in the charge. I have specifically referenced the evidence about what, if any, conversations were purportedly happening on the drive up to Minden.

(f) Suggested that Mr. Bayliss “cherry picked” a portion of Mr. Cain’s soliloquy, which I referred to above, when in fact Mr. Bayliss played the whole clip.

[113] I have addressed this above, in relation to the objections of Ms. Symes and Mr. Bryant.

(g) Misstated Mr. Guerra’s evidence about Mr. Cain’s use of the phrase “man dem”.

[114] If there was any misstatement here, I do not believe that it was material. Moreover, this was an unusual enough aspect of the evidence that I think it will stick out in the minds of the jury without any further comment from the court.

(h) After conceding that there was no way to distinguish between a planned robbery and a planned robbery/murder, the Crown went on to say that the only way to distinguish between the two is to look at what happened inside the McKelvey residence. This sets up an objective standard by which Mr. Guerra’s foresight of death is established, which is of course wrong.

[115] I do not agree with this assertion. In any event, I am very clear in the jury charge to explain the findings the jury must make in terms of Mr. Guerra’s culpability and what is necessary to establish a subjective foresight of death on his part. I am confident the jury will understand and follow my instructions.

(i) Juxtaposed the fact that the defendants drove for 2 ½ hours from Scarborough to Minden, with the things that happened after the three intruders left the car, which confuses the evidence that is relevant in terms of Mr. Guerra’s state of mind.

[116] Again, I am very clear in the charge about the fact that anything that happened after the three intruders left Mr. Guerra’s car that might have changed the states of mind of the three intruders cannot be imputed to Mr. Guerra. For Mr. Guerra to know that there was a planned and deliberate murder in play, he would have to have come by that knowledge before the three intruders left his car. I am crystal clear about that in the charge.

(j) Failed to put a number of assertions he made against Mr. Guerra to Mr. Guerra in cross-examination, for instance the notion of what would have happened to the three intruders had Mr. Guerra told Mr. Cain he wasn’t prepared to wait for them in Minden.

[117] This is another Browne and Dunn objection, which I have already addressed above.

(k) Suggested that Mr. Guerra would have seen signs for Hwy. 35/115 over and over, when in fact there are only two: one just before the off-ramp and one at the off-ramp.

[118] This is another example of a factual issue that I am simply leave alone. Again, I will advise the jury that they are to go by their own recollections of the evidence. An admission regarding signage was filed, along with photographs of the signs in place on the night of October 19, 2011. I am content that the record is sufficiently clear that nothing further needs to be done here.

(l) Errantly suggested that Mr. Guerra gave inconsistent evidence about when he came to Toronto from London in the days prior to October 19, 2011, relative to when he drove his friend “X” back from London.

[119] I am not persuaded that any correction is required in this instance.

The Applications for a Mistrial or Reply Submissions

[120] As will be evident from my rulings and reasons in relation to all of the foregoing objections, I am satisfied that those that are meritorious can be reasonably addressed through corrective instructions and/or minor alterations to the final charge.

[121] I am not persuaded, in the result, that this is one of those clearest of cases that requires a mistrial. Nor is it one of those clearest of cases where trial fairness concerns justify granting the right to make even limited reply submissions.

[122] Finally, Mr. Bryant sent me a number of submissions by email on November 11, 2011 that involved requests for amendments to some of the language used in the charge. These requests dovetail with a number of the objections made to the Crown’s closing. The email has been marked as a lettered exhibit. I have given the content of the email careful consideration. I have made many of the suggested amendments. There are also a number that I have not made. My decisions, beyond what are expressly set out in this ruling, are manifest in the final charge.

Boswell J.

Released: November 13, 2015