



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2020 ONCA 827

DATE:20201221

DOCKET: C61571

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

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Moore

Appellant/Applicant

Richard Posner and Lance Beechener, for
    the appellant

Roger Pinnock and Katie Doherty, for
    the respondent

Heard: October 13, 2020 by
    video conference

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

By the Court:

Overview

[1]

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

[2]

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

·

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

The Grounds of
    Appeal

[3]

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

i.

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

ii.

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

iii.

in permitting the Crown to adduce evidence of the appellants motive
    to kill James and Facey.

[4]

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

Ground #1: Severance of Counts

[5]

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

[6]

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

i.

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

ii.

in attaching too little weight to the appellants stated testimonial
    intentions; and

iii.

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

Introduction

[7]

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

[8]

The general rule for joinder of counts in s.
    591(1) of the
Criminal Code of Canada
is that any number of counts for any number of offences may be joined in the
    same indictment, provided they are distinguished in the manner shown in Form 4.
    Section 589 governs those situations where counts other than murder can be
    joined on an indictment containing a murder count. Although s. 591(1) is
    subservient to s. 589, the combination of those provisions permits the joinder
    of multiple murder counts on a single indictment:
R. v. Durant
, 2019 ONCA 74,
144 O.R. (3d) 465
at paras. 67-69.

[9]

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

[10]

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

[11]

The phrase
the interests of justice acknowledges and seeks to balance an
    accused persons interest in being tried on the evidence properly admissible
    against them on the one hand, and societys interest that justice be done in a
    reasonably efficient and cost effective manner on the other:
Durant
, at para. 72, citing
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16; and
R.
    v. Jeanvenne
, 2010 ONCA 706, 261
    C.C.C. (3d) 462, at para. 28. The
interests of justice are not
    commensurate with the interests of the accused, or the accuseds perception
    of the fairest trial possible.

[12]

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

[13]

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

[14]

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

[15]

As a general
    rule, the asserted desire of an accused to testify on one or more of several
    counts, but not on others, is accorded substantial weight. But it must be more
    than a barren assertion. There must be some objective reality to it grounded in
    the evidence reasonably anticipated at trial. This factor is not dispositive.
    Others may overpower it, such as whether there is any significant disproportion
    in the strength of the Crowns case as between or among the various counts:
Durant
,
    at para. 75, citing
R. v. Steele
, 2006 BCCA 114, 206 C.C.C. (3d) 327 at
    paras. 15-16, affirmed on other grounds, 2007 SCC 36, [2007] 3 S.C.R. 3.

[16]

Second,
    across counts use of evidence.

[17]

Severance and
    the admissibility of evidence across counts are different issues with different
    burdens of proof. One is a rule of pleading, the other a rule of evidence.
    Severance has to do with the propriety of joinder of counts for different
    offences in the same charging document. Severance requires that the accused demonstrate,
    on a balance of probabilities, that it is required by the interests of justice.
    In contrast, the admissibility of evidence across counts requires the Crown to
    show, on a balance of probabilities, that the evidence should be admitted by
    exception to the rule excluding evidence of misconduct extrinsic to that
    charged in the individual count. Severance is often denied in cases in which
    evidence on each count is admissible across other counts. But it does not
    follow that severance is guaranteed absent across counts application of the
    evidence:
Durant
, at para. 77, citing
R. v. Arp
,
    [1998] 3 S.C.R. 339 at para. 52.

[18]

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

i.

is
    unjudicial; or

ii.

has resulted
    in an injustice.

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

[19]

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

The Proposed Admission of Fact

[20]

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

[21]

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

[22]

In support of his submission that the trial
    judge was wrong in not giving effect to this proposal and ordering severance of
    the Spence count, the appellant summons the decision in
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont. C.A.).

[23]

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

[24]

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

[25]

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

[26]

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

[27]

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

[28]

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

[29]

In this case, the trial judge considered the
    defence position that
Backhouse

was
    dispositive
. He concluded otherwise based
    on distinctions between the circumstances of the cases.

[30]

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

[31]

Unlike
Backhouse
,

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

[32]

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

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

[33]

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

[34]

For these reasons, we see no error in the trial
    judges rejection of the proposed admission of possession as a basis on which
    to grant severance.

The Intention to Testify

[35]

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

[36]

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

[37]

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

[38]

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

[39]

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

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

[40]

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

[41]

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

[42]

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

[43]

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

[44]

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

[45]

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

[46]

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

Trial Length Considerations

[47]

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

[48]

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

[49]

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

[50]

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

[51]

This ground of appeal fails.

Ground #2: The Unbalanced and Unfair Charge Allegation

[52]

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

[53]

The parties agree on the governing principles.

[54]

A trial judge is entitled to express opinions on
    issues of fact in the charge to the jury. Those opinions may be expressed as
    strongly as the circumstances permit, provided that what is said amounts to
    advice, not direction, and the judge makes it clear that the jury is not bound
    to follow, indeed free to disregard, the judges views on these issues:
R.
    v. John
, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 108, citing
R.
    v. Lawes
(2006), 206 C.C.C. (3d) 15 (Ont. C.A.), at paras. 20-21, 34,
    leave to appeal refused, [2006] S.C.C.A. No. 175; and
R. v. Gunning
,
    2005 SCC 27, [2005] 1 S.C.R. 627 at para. 27.

[55]

However, from time to time, even where a trial
    judge has instructed the jury that it is not bound by the judges views on
    these issues, a judge may exceed permissible limits. This happens when the
    judge expresses an opinion that is far stronger than the facts warrant, expresses
    an opinion so strongly that the jury is likely to be overawed by it, or expresses
    an opinion that deprives an accused of a fair presentation of the defence:
John
,
    at paras. 109-10;
Lawes
, at paras. 22-23; and
R. v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 133, reversed on other grounds,
    [1990] 2 S.C.R. 1421.

[56]

In our view, this ground of appeal fails.

[57]

We begin our assessment of the trial judges
    charge mindful of our obligation to adopt a functional approach; our purpose is
    to determine whether the jury was properly, not perfectly, instructed:
R.
    v. Jacquard,
[1997] 1 S.C.R. 314, at paras. 2, 62. Among the duties of a
    trial judge is the obligation to inform the jury of the relevant evidence and
    to assist them in linking that evidence to the issues they are to consider in
    reaching their verdict:
R. v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R.
    760 at para. 34. Our assessment of the adequacy of the charge requires a
    consideration of the charge as a whole, not a microscopic post-mortem of
    extracted parts:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 at
    para. 31.

[58]

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


i.

the role of the trial judge was to be the judge
    of the law and the jurys role was to be the judges of the facts;


ii.

it was the jurys duty to determine the facts
    based on the evidence adduced at trial;


iii.

the trial judges view of the evidence was not
    binding upon them;


iv.

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


v.

it was not the trial judges job to determine
    the facts;


vi.

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


vii.

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

viii.

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

[59]

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

[60]

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

[61]

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

[62]

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

[63]

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

[64]

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

[65]

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

[66]

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

[67]

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

[68]

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

[69]

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

Ground #3: The Evidence of Motive

[70]

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

[71]

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

[72]

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

[73]

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

[74]

Evidence of motive is among the items of
    circumstantial evidence most often received in a criminal trial. It is commonly
    used in a prospectant sense. Evidence of the existence of a motive to do an act
    is offered to prove the subsequent doing of that act and the state of mind with
    which that act was done:
R. v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d)
    373, at para. 64, citing
Wigmore on Evidence,
(Tillers Rev., 1983), at
§
43, pp. 1138-42.

[75]

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

[76]

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

[77]

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

[78]

This ground of appeal fails.

Conclusion

[79]

The appeal is dismissed.

Released: JMF December 21, 2020

Fairburn A.C.J.O.

David Watt J.A.

J.A. Thorburn J.A.


