



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stubbs, 2013 ONCA 514

DATE: 20130812

DOCKET: C51351

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Stubbs

Appellant

John Norris, for the appellant

Megan Stephens, for the respondent

Heard: April 11, 2013

On appeal from the convictions entered by Justice J. F.
    Hamilton of the Superior Court of Justice, sitting with a jury, on March 24,
    2009, and from the sentences imposed by Justice Hamilton on April 28, 2009.

Watt
    J.A.:

[1]

Marshalea Steele had plans for a quiet evening at home on New Year s
    Day, 2007. She and her friend, Ian Green, listened to some music and smoked
    some weed. The quiet was shattered when Sheldon Stubbs broke down the door to
    Ms. Steeles apartment.

[2]

Ms. Steele ran out to the balcony. She called 911 on her cell phone. As
    she cowered in the corner of the balcony, and spoke to the 911 operator, Ms.
    Steele was shot in the head from close range. She survived.

[3]

About two months later, police arrested Sheldon Stubbs, Ms. Steeles ex-boyfriend,
    and charged him with several offences, chief among them attempted murder.

[4]

A jury convicted Sheldon Stubbs of the offences with which he was
    charged. He appeals his convictions and applies for leave to appeal the
    sentences imposed at trial.

[5]

Sheldon Stubbs (the appellant) says that his convictions should be set
    aside because the trial judge admitted evidence of his prior discreditable
    conduct that should have been excluded, charged the jury in an unfair and
    unbalanced way, and answered a jury question improperly. He also says that the
    sentences imposed were too long, outside the range of sentence appropriate in
    such cases, and reflected errors in principle.

[6]

These reasons explain why I would dismiss the appeals from conviction
    and sentence.

the background facts

[7]

A brief overview of the relevant events is sufficient to place the
    claims of error in their appropriate setting. Further detail can await the
    individual grounds of appeal. The narrative is less detailed than it might
    otherwise have been because of the three principals, Ms. Steele, the appellant,
    and Ian Green, only Ms. Steele testified at trial. The nature of the injuries
    she suffered left her with little memory of many of the events of January 1,
    2007.

The Principals

[8]

The appellant and Ms. Steele began dating when Ms. Steele was a
    14-year-old grade ten student. Shortly after their relationship began, Ms.
    Steele ran away from home and began living with the appellant. The couple moved
    around together a lot over the next couple of years.

[9]

In the beginning, the relationship was satisfactory to Ms. Steele. Soon
    thereafter, however, the relationship became volatile. The couple began to
    argue frequently. Physical altercations took place. Each punched or hit the
    other. The appellant never used a gun or knife, but often hit Ms. Steele with a
    cell phone or a plate. The appellant was very jealous of Ms. Steeles contacts
    with other people, whether male or female.

[10]

The
    relationship of Ian Green and Ms. Steele was of recent origin: Ms. Steele had
    met Mr. Green through her cousin and known him for less than a year. According
    to Ms. Steele, their relationship was platonic.

The End of the Stubbs-Steele
    Relationship

[11]

During
    the early fall of 2006, Ms. Steele and the appellant resumed their relationship
    intermittently until she packed her bags and left in October of that year. By
    chance, Ms. Steele ran into a former school friend, Natalie Williams, who had
    an extra room in her 20
th
floor apartment at 2240 Weston Road. 
    Ms. Steele joined Ms. Williams in the apartment.

[12]

From
    time to time, despite the hiatus in their relationship when Ms. Steele moved in
    with Ms. Williams, the appellant and Ms. Steele resumed their romantic relationship
    and likewise their confrontations and violence. During one argument, the
    building superintendent intervened and told both of them that, if they did not
    stop their argument, they would be removed from the building.

[13]

The
    appellant did not live in the apartment Ms. Steele shared with Ms. Williams
    although some of his clothes remained in the apartment. The appellant had no
    key to the apartment.

New Years Day, 2007

[14]

Ms.
    Steele spent New Years Day at her parents home until after supper when her
    father drove her to the subway. At the end of her subway ride, she waited for
    an hour for a bus before she called Ian Green to ask him to drive her home. He
    agreed to drive her back to her apartment.

The Return Home

[15]

Ms.
    Steele and Ian Green arrived back at her apartment sometime after 11:00 pm on
    New Years Day, 2007.  Green accompanied her into the apartment.  The couple
    listened to some music and smoked some weed together.

The Knock on the Door

[16]

While
    she was alone with Ian Green in the apartment, Ms. Steele heard a knock on the
    door. She looked through the security peep hole and saw the appellant standing
    there, visibly angry. His knocks became increasingly loud. He repeatedly said
    that he wanted to get his stuff. He made it clear from the hallway that he
    knew Ms. Steele was in the apartment.

The Visit by the Superintendents

[17]

Around
    11:30 p.m., a tenant called the superintendents to complain about a loud ruckus
    that had been going on for several minutes in the hallway on the 20
th
floor. The superintendents took the elevator upstairs. They saw a man standing
    outside the door to Ms. Steeles apartment. The man cursed, swore, and yelled
    inside the mail slot: I want my clothes. I know youre in there.

[18]

The
    male superintendent asked the man to leave, but the man refused to go until he
    got his clothes from the apartment. The superintendent called Ms. Steeles
    apartment but got no response. He told the man that no one was home in the
    apartment and that the man should leave. The superintendent identified the man as
    the appellant because both had been involved in a similar incident about a
    month earlier.

[19]

Several
    residents of the apartment building identified the appellant from a surveillance
    video that showed a man wearing a distinctive athletic jacket entering the
    building at 11:07 p.m. and leaving at 11:48 p.m. on New Years Day. No evidence
    was adduced at trial about the accuracy of the times disclosed on the
    surveillance video.

The Forced Entry

[20]

A
    neighbour across the hall from Ms. Steeles apartment saw the same man kick
    down the door and enter the apartment. She then heard two mens voices, one
    angry and the other calm, followed by another man leaving the apartment.

[21]

The
    superintendent returned to the 20
th
floor, noticed the door to
    Ms. Steeles apartment had been broken down, and called 911 before he
    returned to the lobby to await the arrival of the police.

[22]

When
    the door was broken down, Ian Green ran out of the apartment.  He provided a
    statement to police later that evening but did not testify at trial because he
    had been deported to Jamaica several months earlier.

[23]

Ms.
    Steele fled to the balcony of her apartment as the door was broken down. She
    took her cell phone with her.

The 911 Call

[24]

At
    12:03 a.m. on January 2, 2007 Ms. Steele called 911 from the corner of her
    apartment balcony. She told the operator that her boyfriend or ex-boyfriend had
    come into her house and that he was trying to hurt her and her friend. She
    explained that the boyfriend/ex-boyfriend was looking for her and told the
    operator that she was on the balcony of the apartment.

[25]

The
    911 operator put Ms. Steele on hold while she (the operator) dispatched the
    police. When the operator came back on the line to speak with Ms. Steele, only
    a gurgling sound could be heard, and there was no reply from her.

Finding Ms. Steele

[26]

Police
    officers were dispatched at 12:04 a.m. and arrived at Ms. Steeles apartment
    about five minutes later. The first responders saw no one in the apartment.
    Music was playing. The smell of marijuana was evident. One officer walked out
    to the balcony. She found Ms. Steele slouched down in the corner furthest from
    the door to the balcony, a cell phone open in her hand. Blood and vomit were
    visible on her body.

The Injuries to Ms. Steele

[27]

Ms.
    Steele had been shot in the right temple. The bullet had passed through the ear
    flap of the hat she was wearing. She was not expected to survive. The bullet
    remains lodged in the right side of her head. The hat was not tested for
    gunshot residue, but an identification officer noticed blackening around the
    hole on the outside of the hat, a finding normally associated with the
    discharge of a gun close to the point of entry. No shell casings were found.

[28]

When
    Ms. Steele awakened in hospital, she could not walk or talk. She could not hear
    out of her right ear, a condition that continued at trial. Ms. Steele remained
    in hospital for three months, followed by two months in a rehabilitation
    facility, and further rehabilitative therapy as an outpatient. She has no
    memory about what happened after she called 911, including the identity of the
    person who shot her.

The Police Investigation

[29]

The
    investigation that followed the shooting detected blood or a blood-like
    substance in the bathroom and on a washcloth, but none were tested to confirm
    the nature or origins of the blood. No tests were conducted to determine
    whether anyone had tried to clean up the apartment after the shooting.

[30]

Ian
    Green approached police officers in the lobby of the apartment building where
    the shooting had occurred. He told the police that he and Ms. Steele had been
    in the apartment listening to music and smoking when someone began banging very
    loudly on the door. Ms. Steele said that the person at the door was her ex-boyfriend,
    but she didnt say his name. When the man broke down the door, Green ran by him
    and out the door.

[31]

Ian
    Green was deported to Jamaica on March 18, 2008, about one year prior to the
    appellants trial. His statement was admitted into evidence at trial under the
    principled exception to the rule against hearsay.

THE GROUNDS OF APPEAL

[32]

On
    the appeal from conviction, the appellant advances three grounds of appeal. He
    says that the trial judge erred in


i.

admitting evidence of prior discreditable conduct of the appellant
    towards Ms. Steele or, alternatively, in failing to provide adequate
    instructions to the jury about its limited use;


ii.

responding to a question from the jury about the standard of proof; and


iii.

failing to instruct the jury in a fair and balanced way.

[33]

On
    the appeal from sentence, the appellant contends that the trial judge imposed a
    sentence that was unfit because it exceeded the applicable range of sentence
    for these offences and the offender, and was disproportionate to the gravity of
    the appellants offence and the degree of his responsibility for it.

the appeal from conviction

Ground #1: Evidence of Prior Discreditable Conduct

[34]

This
    ground of appeal has a dual aspect. The principal complaint is that evidence of
    prior discreditable conduct by the appellant was wrongly admitted at trial. The
    alternative grievance is that the trial judge failed to adequately instruct the
    jury about the limited use they could make of this evidence.

The Evidence

[35]

Prior
    to selection of the jury, the trial Crown sought to have ruled admissible what
    she described as prior discreditable conduct of previous acts of violence by
    the appellant towards Ms. Steele.

[36]

The
    evidence proposed for admission consisted of a transcript of proceedings in
    which the appellant, who was represented by counsel, entered pleas of guilty to
    two counts of assaulting Ms. Steele and another of contacting her in
    contravention of the terms of his recognizance.  The transcript included:

·

the entry of the guilty pleas

·

the recital of the allegations by Crown counsel

·

an acknowledgment of the accuracy of the allegations by the
    appellants counsel

·

the submissions on sentence

·

the sentence imposed by the trial judge

The transcript also included the appellants pleas of
    guilty to unrelated counts of possession of marijuana and obstructing a peace
    officer in the execution of his duty.

[37]

The
    assault counts to which the appellant pleaded guilty involved incidents that
    occurred in April and December of 2005. The shooting of Ms. Steele occurred on
    January 1-2, 2007.

[38]

In
    April 2005, the appellant confronted Ms. Steele at her school, grabbed her cell
    phone, and scrolled through it to determine the identity of persons with whom
    she had been in contact. He grabbed her by the hair and wrapped his arm around
    her neck. When Ms. Steele bit his hand, the appellant punched her and kept her
    under his control. When others from the school arrived to help her, the
    appellant ran away.

[39]

In
    December 2005, the appellant came to Ms. Steeles apartment despite a
    non-communication term in his recognizance. The couple argued. The appellant
    grabbed Ms. Steele, punched and choked her. A neighbour called 911. The
    appellant fled.

[40]

At
    trial, Ms. Steele gave evidence about the nature of her relationship with the
    appellant. She said that they argued frequently and were often involved in
    physical altercations during which each hit the other. The altercations began
    when she received phone calls from persons whom the appellant did not know. 
    Some callers were male, others female. The appellant struck Ms. Steele with
    various objects, including her cell phone, but never used a knife or a gun
    during their confrontations.

The Ruling of the Trial Judge

[41]

In
    his brief ruling on admissibility, the trial judge concluded that the evidence
    was admissible to

·

provide context and narrative of the relationship of the
    appellant and Ms. Steele; and

·

show the state of mind of both parties at the time of the offences
    charged.

The Jury Instructions

[42]

In
    his charge to the jury, the trial judge explained the use jurors could make of
    this evidence in these terms:

Evidence of previous bad character. You have heard
    that he has been convicted twice of assaulting her and those transcripts are
    with you. You cannot use the previous convictions to prove that he is the type
    of person who did this offence. Decide this case on the evidence which is
    before you. You can use the previous discreditable conduct to put their
    relationship in perspective, but you cannot use it to say, Well, he must [be] guilty
    because he assaulted her in the past.

The previous bad character gives some explanation why
    he behaves on those occasions towards the victim or why he has a motive to
    behave the way he did. It explains her behaviour of not opening the door or her
    call to 911 or hiding on the balcony. She knows how jealous and angry he gets.

[43]

Trial
    counsel for the appellant did not object to the charge to the jury about the
    use jurors could make of this evidence, or to the adequacy of the caution about
    the chain of reasoning that was not open to them.

The Arguments on Appeal

[44]

For
    the appellant, Mr. Norris begins with the unassailable proposition that
    evidence of an accuseds prior discreditable conduct is presumptively
    inadmissible. He submits that to overcome this presumption of inadmissibility,
    the Crown must demonstrate, on a balance of probabilities, that the probative
    value of the evidence exceeds its prejudicial effect. He says that the
    probative value of the evidence must be evaluated in relation to the issue on
    which the evidence is proffered. In order to determine the evidences probative
    value, Mr. Norris contends, the trial judge must consider the strength of the
    evidence that the conduct actually occurred, the extent to which the evidence
    supports the inferences advanced, and the extent to which the matters the
    evidence tends to prove are at an issue in the trial.

[45]

Mr.
    Norris acknowledges that the Crown may adduce evidence of prior discreditable
    conduct to provide context essential to an accurate interpretation of relevant
    events. On this basis, he says, the Crown can lead evidence showing that an
    accused has a strong disposition to act violently towards the victim. This
    evidence can support specific inferences that the accused is disposed to act
    violently and had that disposition at the time of the offence charged. That
    said, Mr. Norris continues, this evidence, as well as its permitted and
    prohibited use, must be explained to the jury.

[46]

Mr.
    Norris also concedes that evidence of prior discreditable conduct may be used to
    establish motive, provided its probative value on that issue exceeds its
    inherent prejudicial effect through its tendency to promote impermissible
    propensity reasoning.

[47]

The
    problem here, Mr. Norris says, is that the evidence was admitted to provide
    context and narrative to the relationship and the offence, as well as to show
    the state of mind of each of the principals, but was left to the jury as
    evidence that tended to suggest that the appellant was the shooter. This
    contradicted the defences theory that the person responsible was the third
    party Green. This use of the evidence, disposition as circumstantial evidence
    of conduct, was exacerbated by Ms. Steeles statements that the appellant was
    the kind of person to behave violently towards her, in contradistinction to
    her description of Green as not the kind of person to act violently. The
    trial judges instructions did nothing to curb the possibility of impermissible
    propensity reasoning inherent in this evidence, and rather compounded it.

[48]

For
    the respondent, Ms. Stephens resists any suggestion of error in the reception
    of the evidence or in final instructions about its limited use.

[49]

Ms.
    Stephens says that this evidence was admissible to demonstrate
animus
and motive, each of which is
    relevant to establish the identity of the appellant as the shooter and to prove
    his state of mind when he shot Ms. Steele. Propensity reasoning in this context
    is not prohibited, and conversely, is expressly permitted by a long line of
    authority in this province and elsewhere.  Further, Ms. Stephens reminds us,
    the trial judges decision assigning predominance to probative value over
    prejudicial effect is entitled to substantial deference by this court. His
    decision was neither unreasonable, nor undermined by legal error, or any
    misapprehension of the evidence.

[50]

Ms.
    Stephens contends that the evidence of the appellants prior discreditable
    conduct was not offered and did not amount, in its essence, to evidence of
    similar acts. There was no need to marshal the similarities and dissimilarities
    as if this were evidence to prove identity on the basis that the prior and
    current conduct was sufficiently similar that the jury could find their author
    was likely the same person  the appellant. This evidence could found an
    inference that the appellant had a motive to harm Ms. Steele and bore an
animus
towards her.  Evidence of
animus
and motive is relevant to
    establish identity and state of mind, both of which were in issue here.

[51]

Ms.
    Stephens adds that the judges instructions about the manner in which the jury
    could use, or must not use, this evidence were sufficient. The instructions
    enjoined propensity reasoning of the general kind. As evidence of motive or
animus
, no limiting instruction was
    required.

The Governing Principles

[52]

The
    appellants alternative arguments about admissibility and the adequacy of
    limiting instructions require a brief review of the authorities that inform our
    determination of each issue. The paths are well-trodden, but their terminus is often
    difficult to locate.

[53]

The
    threshold issue is admissibility. Several principles are informative.

[54]

First,
    as a general (but not unyielding) rule, evidence of misconduct beyond that
    charged in an indictment, which does no more than portray an accused as a
    person of (general) bad character, is inadmissible:
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, at paras. 31 and 36;
R. v. Moo
, 2009 ONCA
    645, 247 C.C.C. (3d) 34, at para. 96; and
R. v. Cudjoe
, 2009 ONCA 543,
    68 C.R. (6
th
) 86, at para. 63.

[55]

Said
    in a different way, what the law prohibits as a general rule is the
    introduction of evidence of bad character (as revealed by evidence of other
    discreditable conduct) for use as circumstantial evidence or proof of conduct
    on the occasion charged:
Handy
, at para. 31;
Moo
, at para. 96. 
    The general exclusionary rule is based on several policy considerations,
    including the potential for evidence of other discreditable conduct to foster
    prejudice, to distract the trier of fact from the true focus of the trial, and
    to waste time:
Handy
, at para. 37. The prejudice this evidence
    engenders has been characterized as moral prejudice, the danger that a finding
    of guilt will be grounded on bad personhood, and reasoning prejudice, the
    danger that the evidence will create confusion or distract a lay trier of fact
    from its true task:
Handy
, at paras. 139  146.

[56]

Second,
    the general rule excluding evidence of other discreditable conduct is not
    unyielding. After all, sometimes this evidence is so relevant and cogent that
    its probative value exceeds its prejudicial effect:
Handy
, at para.
    41;
Moo
, at para. 97;
Cudjoe
, at para. 63. To engage the
    exception to the general exclusionary rule, Crown counsel must establish, on a
    balance of probabilities, that the probative value of the evidence exceeds its prejudicial
    effect:
Handy
, at para. 55.

[57]

Third,
    in prosecutions for domestic homicide, evidence may be admitted of other
    discreditable conduct of the accused that shows or tends to show the nature of
    the relationship between the principals, or
animus
or motive on the part of the accused. This evidence is relevant to prove the
    identity of the victim or deceaseds killer and the state of mind that accompanied
    the unlawful killing:
Moo
, para. 98;
Cudjoe
, at para. 64. As
    a threshold requirement, the evidence of other discreditable conduct must be
    capable of establishing
animus
or motive:
R. v. S. (P.)
, 2007 ONCA 299, 221 C.C.C. (3d) 45, at paras.
    27 and 39;
R. v. Johnson
, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras.
    97-100. The same principles apply to domestic attempted homicides.

[58]

Fourth,
    when evidence of other discreditable conduct is excluded under the general
    rule, or admitted by exception, the standard applied on appellate review is
    deferential:
Handy
, at para. 153;
R. v. B. (C.R.)
, [1990] 1
    S.C.R. 717, at p. 733; and
R. v. James
(2006), 213 C.C.C. (3d) 235
    (Ont. C.A.), at para. 33. Appellate courts will defer to the trial judges
    assessment of where the balance falls between probative value and prejudicial
    effect unless an appellant can demonstrate that the result of the analysis is
    unreasonable, or is undermined by a legal error or a misapprehension of
    material evidence:
Handy
, at para. 153;
James
, at para. 33.

[59]

Finally,
    when evidence of other discreditable conduct is admitted because it shows or
    tends to show
animus
or motive
    on the part of an accused, limiting instructions usually required for this
    evidence are not necessary:
Moo
, at para.
100;
R.
    v. Jackson
(1980), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169;
R.
    v. Merz
(1999), 46 O.R. (3d) 161 (Ont. C.A.), at para. 59;
R. v.
    Krugel
(2000), 143 C.C.C. (3d) 367 (Ont. C.A.), at paras.
85-90;
    and
R. v. Pasqualino
, 2008 ONCA 554, 233 C.C.C. (3d) 319, at paras.
    65-68.

The Principles Applied

[60]

I
    would not give effect to this ground of appeal on either basis advanced in
    argument for reasons that I will explain.

[61]

First,
    I will address counsels submission that the evidence of other discreditable
    conduct should not have been admitted at trial.

[62]

The
    evidence of other discreditable conduct adduced at trial involved conduct
    towards Ms. Steele that included assaults on April 26 and December 6, 2005 of
    which the appellant was convicted, as well as a breach of a term of a
    recognizance that prohibited the appellant from communicating with Ms. Steele. 
    The evidence also extended to include the circumstances underlying convictions
    on pleas of guilty to possession of marijuana and obstructing police for giving
    a false name when stopped riding a bicycle without a light. Trial counsel did
    not object to the manner in which the evidence was adduced  by filing a
    transcript of the proceedings, including the pleas of guilty and sentencing,
    and reading its contents to the jury.

[63]

Ms.
    Steele gave evidence about the nature of her relationship with the appellant,
    including physical altercations and other controlling behaviour that caused her
    to move out in October2006, about two months prior to the shooting.  Trial
    counsel for the appellant appears not to have objected to the admission of her
    evidence.

[64]

First,
    the evidence of the prior discreditable conduct towards Ms. Steele must be
    capable of sustaining an inference (not merely inviting speculation) of an
animus
or motive on the appellants part
    to commit the offence charged:
P. (S.)
, at para. 27;
Johnson
,
    at paras. 100-101. While it could be argued that, on its own, the conduct that
    underpinned the convictions of assault and breach of recognizance was somewhat
    remote in time, thus engendering potential moral prejudice, the evidence did
    not stand alone, but rather was given currency by the evidence of Ms. Steele
    leaving her relationship with the appellant months before the shooting.

[65]

Second,
    as evidence of
animus
or
    motive, the evidence was relevant to prove the identity of the appellant as the
    shooter and the state of mind with which he fired the near-fatal shot:
Moo
,
    at para. 98;
Cudjoe
, at para. 64.

[66]

Third,
    the trial judges determination that the probative value of this evidence
    exceeded its prejudicial effect is entitled to deference on appeal unless it is
    unreasonable, tainted by legal error, or cumbered by a misapprehension of
    material evidence.  No such contaminant has been identified here.

[67]

It
    follows, in my view, that evidence of other discreditable conduct of the
    appellant towards Ms. Steele was relevant to material issues at trial: as
    evidence of motive or
animus
to
    prove the identity of Ms. Steeles assailant and the state of mind with which
    the shot was fired. That said, it is necessary to consider the manner in which
    the evidence was adduced  by filing (and reading into the trial record) a
    transcript of the guilty plea proceedings  to determine whether the manner of
    proof tilted the balance in favour of inadmissibility.

[68]

In
    most cases, evidence of other discreditable conduct is introduced through the
    testimony of those who suffered it (if alive), observed it, or, as admissible
    hearsay, by those to whom the victim reported it. But there is no closed list
    of the methods of proof.

[69]

Where
    evidence of other discreditable conduct has been ruled admissible at trial, the
    substance of the evidence could be incorporated in an agreed statement of facts
    and filed as a formal admission under s. 655 of the
Criminal Code
.
    Indeed, such a practice would reduce the risk associated with the spontaneity
    and unpredictability of
viva voce
testimony from witnesses more interested
    in skewering the accused than obeying judicial constraints.

[70]

What
    occurred here approached the functional equivalent of a formal admission. The
    appellant, represented by counsel, pled guilty. He admitted the accuracy of the
    facts alleged by Crown counsel. There could be no doubt that he engaged in the
    conduct underpinning the convictions. The fact that the convictions were
    revealed to the jury does not tip the balance in favour of exclusion:
R. v.
    Jesse
, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 51-57. Trial counsel
    for the appellant does not appear to have objected to the manner in which the
    evidence of the other discreditable conduct was introduced.

[71]

The
    guilty plea proceedings included pleas of guilty to two offences  possession
    of marijuana and obstructing a peace officer in the execution of his duty 
    that were irrelevant to proof of any
animus
towards Ms. Steele or motive to shoot her. The portion of the guilty plea
    proceedings relating to these offences should have been redacted. The same
    could be said of the sentencing proceedings for all the offences.

[72]

Despite
    this irrelevant clutter included in the transcript filed as an exhibit and read
    aloud at trial, I am satisfied that what occurred here caused the appellant no
    substantial wrong or miscarriage of justice.  I reach this conclusion for
    several reasons.

[73]

First,
    neither counsel at trial nor on appeal raised any objection to the manner of
    proof followed at trial.

[74]

Second,
    all the incidents included in the transcript filed at trial involved conduct much
    less serious than what was alleged here.

[75]

Third,
    the unrelated conduct was so different in kind than that alleged in the
    shooting of Ms. Steele that it surpasses belief that a contemporary Canadian
    jury would reach a conclusion of guilt on a charge of attempted murder by
    propensity reasoning founded on convictions for possession of marijuana or
    giving a false name to a police officer when stopped for riding a bicycle
    without a proper light.

[76]

Finally,
    it is worth recalling that the trial judge did give the jury an express
    instruction about the limited evidentiary value of the evidence of other
    discreditable conduct which was similar in kind, but markedly less serious,
    than the offence charged. This instruction, which enjoined propensity
    reasoning, was more favourable than the appellants due under the existing
    jurisprudence.

[77]

This
    ground of appeal fails.

Ground #2: The Response to the Jurys Question

[78]

The
    second ground of appeal relates to the answer the trial judge gave to a
    question asked by the jury about five hours into their deliberations. To frame the
    discussion that follows, it is helpful to set out briefly the question asked by
    the jury, the positions of trial counsel about how the question should have
    been answered, and portions of the trial judges response to the jury.

The Jurys Question

[79]

The
    jurys question was in these words:

The jury is requesting that you would re-explain what
    constitutes reasonable doubt before we break this evening.  Please offer
    examples.

The Positions of Counsel at Trial

[80]

Trial
    counsel for the appellant asked the trial judge, in his response to the jurys
    question, to include an instruction that proof of probable or likely guilt was
    not the equivalent of proof beyond a reasonable doubt, thus not sufficient for
    a finding of guilt.

[81]

The
    trial Crown sought an express instruction that a reasonable doubt must relate
    to an essential element of the case for the Crown, namely the identity of the
    appellant as the shooter, or his intention to kill Ms. Steele, before the jury
    could find the appellant not guilty of attempted murder.

[82]

Neither
    counsel at trial made any submissions about the jurys request for examples
    of reasonable doubt.

The Answer of the Trial Judge

[83]

The
    trial judge began his response to the jurys question by reiterating part of
    his earlier instructions to the jury on reasonable doubt.
[1]
He then turned to some examples of reasonable doubt concerning the identity of
    the person who shot Ms. Steele. The judge explained that a conclusion that Ms.
    Steele shot herself would amount to speculation and could not form the basis of
    a not guilty verdict.

[84]

The
    trial judge gave, as a second example, the potential involvement of Ian Green,
    the person the defence advanced as the shooter. Of Ian Greens participation,
    the trial judge said:

Ian Green, the man that was up in the apartment with
    her that drove her home or came home with her, say he shot her. He was there.
    She indicates that he has never been more than an acquaintance.  He is not a
    lover nor ever used violence against her. He argued with the accused, but
    somebody said that the accused was louder. He was never considered a suspect and
    there was no motive to shoot her. Is there some reasonable motive to say, well,
    why shoot her because you are up there and this guy comes in? If you find that
    would be a motive to shoot her, then you can say, well, he is most likely the
    shooter and not the accused.

[85]

With
    respect to the appellant as the shooter, the trial judge said:

About the accused, he had a history of violence
    towards Miss Steele, he was in a rage and he kicks down the door and he comes
    into the apartment demanding, Like who are you? Is this the nigger?  She is my
    girl.  Words to that effect.

The Crown says there was motive to injure her.  She
    in his mind is cheating on him and he is jealous and has shown examples of
    jealousy when he went to her high school and is scrolling through her cell
    phone and seeing who is calling her and so forth and supposedly beat her on
    that occasion. She is in his mind cheating on him and he is jealous. She did not
    open the door. He smashes it down and the 911 call says he is in the apartment
    and he is trying to hurt me and my friend.  Someone shot her and who is most
    likely to have shot her? The one in the rage? Is it reasonable to conclude that
    he was the shooter? If you have a reasonable doubt he was the shooter, you will
    acquit him.

[86]

The
    trial judge concluded his response to the jurys question in this way:

No one saw the accused shoot Miss Steele. Is it reasonable to
    conclude he did when after he breaks down her door in a rage comes into the
    apartment demanding answers and he has a history of abuse towards her and she
    knows how jealous he is and she has a man in the apartment. Is it logical to
    conclude that? Because if it is, then you would not have a reasonable doubt. If
    you say: No, I could conclude that, nobody saw him, I have a reasonable doubt
    as to he being the shooter, you will keep that reasonable doubt and you will
    acquit him.

I do not have anything more to say on reasonable
    doubt. Now, I am going to discharge you for the evening and we will see you
    tomorrow.

[87]

Trial
    counsel for the appellant objected to the judges response to the jurys
    question. She submitted that the effect of the instruction was to eliminate Ian
    Green as a viable alternative suspect and reaffirm the absence of any
    reasonable doubt about the identity of the appellant as the shooter.

[88]

The
    trial judge did not recall the jury for further instructions on reasonable
    doubt, nor did the jury ask any further questions on that subject.

The Arguments on Appeal

[89]

For
    the appellant, Mr. Norris begins his submissions by emphasizing the importance
    of correct and comprehensive responses to questions posed by a deliberating
    jury.  He reminds us that an error in a judges answer to a jury question
    cannot be rendered harmless by a prior correct instruction on the same issue in
    the main charge.

[90]

Mr.
    Norris submits that the error here was threefold. First, the trial judge was
    wrong to reiterate his earlier instructions about reasonable doubt when it was
    clear from the jurys question that they did not understand those instructions.
    Second, the trial judge erred in giving examples about reasonable doubt drawn
    from the case being tried. This mistake was compounded by the substance of the
    instructions that effectively removed the third party suspect defence (Green as
    shooter) as speculative, and left the appellant as the only logical candidate for
    the shooter. Third, the manner in which the trial judge responded to the
    question discouraged jurors from any further questions about the standard of
    proof.

[91]

For
    the respondent, Ms. Stephens says that the trial judges instructions about the
    standard of proof are correct and that he did not err in repeating his original
    instructions of which the jurors did not have a written copy.

[92]

Turning
    to the examples provided by the trial judge, Ms. Stephens submits that the
    trial judge did not, in express terms or by necessary implication, dismiss
    Green as an alternative suspect or say that the appellant had to be the
    shooter.  The speculative nature of the third party suspect defence was a
    product of an inadequate evidentiary underpinning. That what remained was an
    overwhelming case against the appellant as the shooter was the harsh reality of
    the evidence adduced at trial.

[93]

Ms.
    Stephens concludes by saying that the trial judges response did not foreclose
    further questions on any subject, as their subsequent question on another issue
    demonstrates.

The Governing Principles

[94]

This
    ground of appeal does not require any elaborate recitation of principle, but
    does warrant some discussion about the principles that govern judges responses
    to jury questions and the use of case-specific examples to illustrate or
    explain the principle of reasonable doubt.

[95]

First,
    questions from the jury are important, require careful consideration, and must
    be answered clearly, correctly, and comprehensively:
R. v. S. (W.D.)
,
    [1994] 3 S.C.R. 521, at p. 528. It is the trial judges obligation, with the
    assistance of counsel, to ensure that the jurys question is fully and properly
    answered:
S. W. (D.)
, at p. 528. A complete and careful response
    is necessary even if the subject-matter of the question has been carefully
    reviewed in the main charge:
S. (W.D.)
, p. 528.

[96]

Second,
    as a general rule, if an error is made in a recharge in response to a jury
    question, then the correctness of the original charge on the same subject cannot
    be summoned to excuse the subsequent error on the very subject on which the
    jury seeks clarification:
S. (W.D.)
, at pp. 530-531.

[97]

Third,
    where a jury remains in doubt after listening to the charge and asks a question
    about the standard of proof, the trial judge must try to answer the question in
    an effort to assist them in understanding what is required of them:
R. v.
    Layton
, 2009 SCC 36, [2009], 2 S.C.R. 540, at para. 3. Although it is
    preferable for a judge to clarify the standard of proof in response to a jurys
    questions about it, it is not necessarily fatal to repeat verbatim the original
    instruction, provided the judge makes it abundantly clear to the jury that it
    was welcome to return to the courtroom with further questions on the subject if
    jury members remain confused or uncertain of their ground as a result of the
    judges response:
Layton
, at paras. 29 and 32. Nothing the judge says
    in answer to the jurys question should discourage further questions on the
    subject:
Layton
, at para. 33.

[98]

Fourth,
    no matter how carefully crafted they may be, examples of what constitutes a
    reasonable doubt, like examples of what constitutes proof beyond a reasonable
    doubt, are fraught with difficulty:
R. v. Bisson
, [1998] 1 S.C.R. 306,
    at p. 310.

[99]

In
Bisson
, the trial judge illustrated proof beyond a reasonable doubt by
    giving the example of the steps a driver would take to determine that his motor
    vehicle had sufficient oil in it to run without damage. The example was given
    to illustrate the degree of certainty required by the phrase beyond a
    reasonable doubt, which the trial judge equated with the level of certainty
    associated with important decisions in our daily lives. The court criticized
    the example because it tended to indicate to jurors that the decision about
    whether guilt had been proven beyond a reasonable doubt could be made on the
    same basis as any decision in the course of their daily routines:
Bisson
,
    at pp. 310-311. The instruction was misleading, tended to lower the requisite
    standard of proof to something more akin to proof on a balance of
    probabilities, and through the use of examples, was likely to be applied
    subjectively:
Bisson
, at p. 311.

[100]

In
R. v.
    Palmer
, [1970] 3 C.C.C. 402, the trial judge gave an example based on the
    evidence adduced at trial of where a reasonable doubt might arise.  The British
    Columbia Court of Appeal concluded that the example, immediately prefaced by a
    proper definition of reasonable doubt, could not have misled the jury. The
    appeal was dismissed.

[101]

In
R. v.
    Stavroff
, [1980] 1 S.C.R. 411, the jury sought clarification of the law
    related to the phrase dangerous to the public peace with particular reference
    to its application within the confines of a persons home (p. 415). The trial
    judge offered to refer to some decided cases that took place in private homes
    to illustrate the meaning of the phrase dangerous to the public peace.  The
    Court held that in explaining the law to the jury, a trial judge may properly
    refer to illustrations to assist the jury, but must not, in doing so, take from
    the jury the right to reach their own conclusions on issues of fact that are
    theirs to decide:
Stavroff
, at p. 416.

[102]

Reference to
    decided cases and other authorities in order to provide illustrations to assist
    jurors in their task is not free of danger. A trial judge must not by the use
    of illustrations leave an issue to the jury in such a way to effectively remove
    a defence from the jury or convert into a legal requirement what is a question
    of fact for the jury to decide:
Stavroff
, at pp. 420-421. The trial
    judge must make it clear that his or her explanations are explanations of law,
    and that they must apply that law to the peculiar facts of the case they are
    trying only after finding the facts themselves:
Stavroff
, at p. 421.
    In each case, it is a matter of degree involving consideration of the influence
    the trial judges words had, or could have had, on the jury:
Stavroff
,
    at p. 422. See also
R. v. Gunning
, 2005 SCC 27, [2005] 1 S.C.R. 627,
    at paras. 5, 31 and 35.

[103]

A final point. In
    responding to a question posed by a deliberating jury, a trial judge should
    not, whether by express words or by necessary implication, foreclose or appear
    to foreclose further questions by the jury on the same or another issue:
Layton
,
    at paras. 29, 31, and 33.

The Principles Applied

[104]

This ground of
    appeal involves two discrete complaints about the adequacy of the trial judges
    response to a jury question about the standard of proof. Although I agree with
    the appellant that the trial judge erred in his response to the jurys
    question, in the circumstances I do not find that this error could have
    affected the verdict. Accordingly, I would apply the curative proviso and reject
    this ground of appeal.

[105]

The first complaint
    concerns the trial judges use of case-specific examples to illustrate the
    operation of the principle of reasonable doubt.

[106]

The question
    asked by the jury several hours into their deliberations requested the trial
    judge to offer examples of reasonable doubt. It is well-settled that the
    trial judge was required to provide a clear, comprehensive, and correct answer
    to the jurys question:
S. (W.D.)
, at p. 528. He was entitled to the
    assistance of counsel in formulating his response, but neither defence counsel
    nor the Crown offered any assistance on this issue.

[107]

The authorities
    make it clear that in providing legal instructions to a jury a trial judge may
    use illustrations or give examples to assist the jurys understanding:
Stavroff
,
    at p. 416. But the use of illustrations or examples to help jurors understand
    must not have the effect of directly or indirectly


i.

converting a question of fact for the jury to decide into a legal
    instruction to reach a particular conclusion;


ii.

removing a defence, justification, or excuse (for which there is an air
    of reality) from the jury; or


iii.

taking away from the jury their right to form their own conclusion on a
    question of fact that is theirs to decide.

Stavroff
, pp. 416; 420; and 421.

[108]

Examples or
    illustrations from the evidence adduced at trial, used here to illustrate the
    principle of reasonable doubt, are especially problematic.  Examples of this
    kind adopt an appearance of legal instructions. They convert what is a question
    of fact for the jury to decide into a legal instruction that breaches the
    divide between the function of the judge and that of the jury.

[109]

When the last two examples are read together, it is possible to
    conclude that the jury could be left with the impression that evidence about
    Ian Greens potential participation in the attempted murder did not amount to a
    reasonable doubt, but that the evidence concerning the appellant led to a
    reasonable conclusion he was the shooter, thus proving his participation beyond
    a reasonable doubt. This instruction also reflects a legal error: the
    reasonableness of a conclusion does not amount to proof beyond a reasonable
    doubt unless the
conclusion of guilt is the only
    rational inference to be drawn from all the evidence:
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

[110]

The second
    alleged error is that by telling the jury that he had nothing more to say on
    reasonable doubt, the trial judge implied that, even though the jury was
    uncertain about the meaning of reasonable doubt, the judge could not assist
    them with the concept, and that there was no reason for the jury to return with
    a further question or to clarify precisely the source of their confusion.

[111]

The trial judge
    repeated his oral instructions on reasonable doubt. That he did so does not,
    without more, reflect error:
Layton
, at para. 32. This is not a case,
    like
Layton
, in which the jury had a written copy of the judges
    instructions. The answer was responsive to the first part of the jurys
    question and may have been sufficient had the judge confirmed its adequacy with
    the jury, or reminded them of their entitlement to further clarification if it
    failed to do so.  Unfortunately, the trial judge did neither. To the contrary,
    the trial judges parting words arguably discouraged further questions on
    reasonable doubt.

[112]

Nonetheless, in
    the circumstances of this case, given the strength of the Crowns case and the
    paucity of evidence substantiating the suggestion that Ian Green shot Ms.
    Steele, no substantial wrong or miscarriage of justice could have occurred from
    these errors. For reasons that I will develop, this is an appropriate case for
    applying s. 686(1)(b)(iv) of the
Criminal Code
.

The Curative Proviso: Governing Principles

[113]

Section 686(1)(b)(iii)
    of the
Criminal Code
allows an appellate court to dismiss an appeal
    notwithstanding that "the appeal might be decided in favour of the
    appellant" on an error of law if the court is of the opinion that "no
    substantial wrong or miscarriage of justice has occurred.

[114]

In
R. v. Van,
2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-36, the Supreme Court of
    Canada reviewed the jurisprudence regarding the application of the curative
    proviso under s. 686(1)(b)(iii) of the
Criminal Code
.  LeBel J.,
    writing for the majority, found that the jurisprudence established two categories
    of error that could be cured by application of the proviso.  The first is
    an error so harmless or minor that it could not have had any impact on the
    verdict.  The second category contains serious errors that would
    otherwise justify a new trial or an acquittal, but for the fact that the
    evidence against the accused was so overwhelming that any other verdict would
    have been impossible to obtain. In my view, the trial judges error in the
    present case falls into the second category.

[115]

The inadequacies
    in the trial judges re-charge to the jury cannot be called harmless or
    minor errors.  Thus, the question in this case must be whether the
    evidence against Stubbs was so overwhelming that there is no realistic
    possibility that a new trial would produce a different verdict.

[116]

LeBel J.
    described errors falling into the second category as follows, in para. 36:

An appellate court can also uphold a conviction under s.
    686(1)(b)(iii) in the event of an error that was
not
minor and that
cannot
be said to have caused no prejudice to the accused, if the case against the
    accused was so overwhelming that a reasonable and properly instructed jury
    would inevitably have convicted. ... The high standard of an invariable or
    inevitable conviction is understandable, given the difficult task for an
    appellate court of evaluating the strength of the Crown's case retroactively,
    without the benefit of hearing the witnesses' testimony and experiencing the
    trial as it unfolded. It is thus necessary to afford any possible measure of
    doubt concerning the strength of the Crown's case to the benefit of the accused
    person.

[Emphasis in original, citations omitted.]

[117]

The rationale
    for upholding a conviction in these circumstances is persuasive; in the words
    of Binnie J. in
R. v. Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751, at
    para. 46:

Where the evidence against an accused is powerful and there is
    no realistic possibility that a new trial would produce a different verdict, it
    is manifestly in the public interest to avoid the cost and delay of further
    proceedings. Parliament has so provided.

[Citations omitted.]

The Principles Applied

[118]

Despite the
    trial judges erroneous response to the jurys question, I am satisfied that in
    the circumstances no prejudice was caused to the appellant.

[119]

I turn first to the trial judges references to Ian Green
    as a third party suspect. First, this was a very strong circumstantial case for
    the Crown. Several eyewitnesses confirmed the appellants presence outside of
    Ms. Steeles apartment, angrily beating down her door. The appellant had an
    extensive history of violent assaults against Ms. Steele, which could be used
    to draw inferences about his animus towards her.

[120]

Second,
    the thrust of the defences focus at trial was that the Crown had failed to
    prove its case due to a dearth of reliable evidence linking the appellant to
    the victims shooting. The trial judge properly addressed the evidentiary
    weaknesses highlighted by defence counsel in his main charge. Defence counsel
    commented on, and did not object to, the main charge.

[121]

Conversely,
    there was no evidence led at trial to lend cogency to the defences theory that
    Ian Green shot Ms. Steele. The evidence led with respect to Green tended to
    diminish the likelihood of his involvement, as Green immediately went to give a
    statement to the police and was never considered a suspect by police. As a
    result, the defence theory that Green shot Ms. Steele was always thin. The
    trial judges instruction that if you can find that [Stubbs entering the
    apartment] would be a motive to shoot her, then you can say, well, he is most
    likely the shooter and not the accused sufficiently captured the strength of
    the defences theory vis-à-vis Green.

[122]

Next, I will
    consider counsels submission that the trial judge effectively discouraged any
    further questions from the jury on reasonable doubt. In my view, although the
    trial judge erred in giving the impression that the jury should not require
    further explanation of reasonable doubt, in the circumstances the error did not
    cause any prejudice to the appellant. In
Layton
, at paras. 30-32, the
    Supreme Court of Canada found a trial judge to have erred fatally in her reply
    to a jury question on reasonable doubt for two reasons. First, the trial judge
    erred by declining to provide any clarification to the jury which indicated
    that it was having difficulty with the concept, and second, exacerbating the
    first error, she implied that there was no reason for the jury to return with
    another question.

[123]

In this case,
    the trial judges error was less severe than that in
Layton
. The trial
    judge provided a responsive answer to the jurys question, communicating the
    legal meaning of proof beyond a reasonable doubt. He repeated his original
    charge on reasonable doubt and provided several examples, both relating to the
    case and more general examples. Counsel did not object to the adequacy of the
    trial judges response on reasonable doubt, but merely his instruction regarding
    Ian Green. I thus conclude that the error did not cause any prejudice to the
    appellant and falls within the ambit of the curative proviso.

[124]

Accordingly, I
    would reject this ground of appeal.

Ground #3: Unbalanced Jury Charge

[125]

The final ground
    of appeal against conviction attacks the overall fairness of the charge to the
    jury. It is advanced in a case in which the appellant did not testify or call
    evidence, and where his trial counsel did not object to the charge to the jury
    on this or any other ground.

The Positions at Trial

[126]

The central
    issue at trial was the identity of the person who shot Ms. Steele.

[127]

The appellant
    contended that the Crown had failed to prove beyond a reasonable doubt that he
    was the person who shot Ms. Steele. There was no reliable evidence, the
    appellant submitted, that he was at the apartment when Ms. Steele was shot. No
    one identified him as the shooter and the surveillance video showed him leaving
    the building before the shooting occurred. There were gaps in the
    investigation, and a viable third party suspect, Ian Green, whom the police
    really did not investigate. To conclude that the appellant was the shooter was
    stereotypical thinking, shored up by an inadequate investigation.

[128]

At trial, the
    Crown contended that the appellant shot Ms. Steele intending to kill her. There
    was ample evidence from those who saw the man at Ms. Steeles apartment
    door, and from what he said there, to conclude that it was the appellant who
    broke down the door and entered the apartment. He was jealous and controlling.
    He harboured an
animus
towards
    Ms. Steele and had a motive to kill her. Ian Green, the third party suspect
    advanced by the appellant as the shooter, had no such
animus
or motive and fled the apartment
    as soon as the appellant entered.

The Arguments on Appeal

[129]

For the
    appellant, Mr. Norris submits that the trial judge had an obligation to present
    the case to the jury in a fair and balanced manner. Whether the trial judge did
    so, Mr. Norris acknowledges, requires a functional assessment of the charge as
    a whole. Judged by that standard, he says, the charge failed to present any
    issues raised by the appellant about the credibility of Ms. Steele or the
    reliability of her evidence. The trial judge misstated evidence relied upon as
    supportive of the defence position and mischaracterized the position itself.

[130]

Mr. Norris says
    that the trial judges instructions, considered as a whole, usurped the role of
    the jury by being dismissive of the defence position that a third party, Ian
    Green, shot Ms. Steele. In essence, the charge left only the Crowns theory of
    liability to the jury, not the position advanced on the appellants behalf.

[131]

For the
    respondent, Ms. Stephens reminds us that we should review the charge, as a
    whole, on a functional basis to determine whether the jury was
properly
instructed, not perfectly instructed. We should also look to the addresses of
    counsel to determine whether salient features of the evidence have been
    marshalled for the jurys consideration.

[132]

In our
    assessment of the adequacy and fairness of the charge, Ms. Stephens says,
    we should also look at the position advanced by the appellants trial counsel.
    The credibility concerns advanced here were not raised at trial, and trial counsel
    made only a glancing reference to any reliability concerns in connection with
    Ms. Steeles evidence. Trial counsel did not object to the charge on any basis
    now urged to be fatally flawed.

The Governing Principles

[133]

Several
    well-established principles inform any decision about the adequacy of final
    instructions to the jury in a criminal case.

[134]

First, we test
    final instructions according to a functional approach that assesses their
    ability to fulfill the purposes for which they are given, not by reference to
    whether any particular formula or approach has been followed:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para.
14;
R. v.
    MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at para.
27.
    Considered as a whole, a charge should leave the jury with an understanding of

·

the factual issues to be resolved

·

the legal principles that govern those issues and the evidence
    adduced at trial

·

the positions of the parties; and

·

the essential features of the evidence relevant to the positions
    of the parties on the issues.

MacKinnon
, at para. 27.

[135]

Second, the
    extent to which the trial judge must review the evidence and relate it to the
    issues so that the jury appreciates its value and effect depends on the
    circumstances of each case:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
    523, at para. 57. The fundamental obligation of the trial judge, except in rare
    cases in which it would be needless to do so, is to review the substantial
    parts of the evidence, and give the jury the position of the defence, so that
    the jury may appreciate the value and effect of the evidence and how the law is
    to be applied to the facts as they find them:
Azoulay v. The Queen
,
    [1952] 2 S.C.R. 495, at pp. 497-498;
Daley
, at para. 54.

[136]

Third, a trial
    judge need not review all the evidence upon which an accused relies:
Azoulay
,
    at p. 498;
Daley
, at para. 55. Non-direction on a matter of evidence
    constitutes reversible error
only
where the omission is of a single
    item of evidence that constitutes the sole evidentiary support for a defence:
Daley
,
    at para. 55;
R. v. Demeter
(1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at
    p. 436, affd on other grounds, [1978] 1 S.C.R. 538.

[137]

Fourth, it is
    fundamental that a jury charge does not take place in isolation, but in the
    context of the trial as a whole. Appellate review of the adequacy of a jury
    charge encompasses the closing addresses of counsel. Those addresses may fill
    in some of the gaps, especially of evidentiary references, left in the charge:
Daley
,
    at para. 58.

[138]

Fifth, failure
    of counsel to object to a charge is a factor in appellate review.  Failure to
    object is not dispositive on appeal. But a failure to object about an aspect of
    the charge that later becomes a ground of appeal may be indicative of the
    seriousness of the alleged violation and of the overall fairness of the charge:
Daley
, at para. 58;
Jacquard
, at para. 38.

[139]

Finally, in some
    cases, evidence that tends to show an accused committed an offence far exceeds
    the evidence to the contrary. A balanced charge does not require a trial judge
    to ignore evidence that implicates an accused. Nor is a trial judge obliged to
    spin a web of exculpatory inferences, turning each piece of circumstantial
    evidence every which way to reveal its every possible inference.  This
    proposition is all the more applicable where the defence position appears to be
    that the cumulative effect of all the evidence falls short of proof beyond a
    reasonable doubt:
R. v. Lawes
(2006), 80 O.R. (3d) 192 (C.A.), at
    para. 62.

The Principles Applied

[140]

I would not give
    effect to this ground of appeal.  I am simply not persuaded that, considered in
    its entirety as it must be, the charge to the jury was so unfair and unbalanced
    that it deprived the appellant of his right to a fair trial.

[141]

First, this was
    not a complicated case. The principal issue for the jury to decide was the
    identity of the person who shot Ms. Steele. The evidence adduced at trial
    disclosed two possible candidates: Ian Green and the appellant.  The evidence
    tended to support a finding that, when the appellant broke down the door, Green
    bolted from the apartment. That left the appellant, the only occupant who bore
    Ms. Steele an
animus
and had a
    motive, jealousy, to harm her. The case against the appellant was formidable if
    not overwhelming.

[142]

Second, the task
    for the jury consisted principally of drawing inferences from largely
    uncontroverted evidence in determining whether the cumulative effect of that
    evidence satisfied the standard of proof the law requires of the Crown. This is
    routine fare for juries. A trial judge is under no obligation to turn over
    every piece of circumstantial evidence and recite the entire catalogue of
    inferences that may be available from it.

[143]

Third, the trial
    judge clearly explained the defence position to the jury in terms that
    attracted no objection from trial counsel. It is a reasonable inference that
    the jury understood that position.

[144]

Fourth, the core
    of the complaint here, that the trial judge did not draw the jurys attention
    to factors that diminished Ms. Steeles credibility and rendered her evidence
    unreliable, was not an essential feature of the defence advanced at trial. The
    closing address of trial counsel did not raise any real credibility concerns
    and made only limited and passing reference to the reliability of the evidence
    of Ms. Steele.

[145]

Fifth, this is
    not a case of competing or contradictory accounts of the same events. The
    appellant proffered no such evidence, rather relied on evidence of Greens
    presence (and his absence at trial), an inadequate police investigation, and
    the accuracy of the time impressed on the surveillance video to raise a
    reasonable doubt that he was the shooter. Any evidentiary references omitted
    did not result in the appellants defence not being fairly put to the jury.

[146]

Finally, while
    not dispositive of this ground of appeal, the failure of trial counsel to
    object to a charge that is now portrayed as unfair and unbalanced is of
    particular significance. The lack of objection signals to me at least that
    counsel who conducted the trial and heard the charge as it was delivered
    considered that it lacked neither fairness nor balance.

THE SENTENCE APPEAL

[147]

The trial judge
    imposed a total sentence of 22 years: 16 years for attempted murder, 16 years,
    concurrent, for break and enter to commit attempted murder, 4 years,
    consecutive, for use of a firearm while committing an indictable offence, 1
    year, consecutive, for possessing a firearm while prohibited from doing so; and
    1 year consecutive for disobeying a court order.

[148]

The appellant
    says that in the circumstances, this sentence is disproportionate. I do not
    agree. The sentence of 16 years for attempted murder falls within the range of
    sentences established by this Court for attempted murder committed in the
    context of a domestic relationship: see
R. v. K.G.,
2010 ONCA 177, 266
    O.,A.C. 334;
R. v. Tan,
2008 ONCA 574, 268 O.A.C. 385,
and R. v.
    Boucher
, (2004) 186 C.C.C. (3d) 479 (Ont. C.A.). The trial judge correctly
    considered the significant aggravating factors in imposing this sentence,
    including the appellants record of assaults against Ms. Steele, ignoring court
    orders, and the impact of the injury on her family.

[149]

Nor can I accept
    the appellants submissions that, in light of Ms. Steeles recovery, the
    injuries inflicted upon her by the gunshot were not serious. Ms. Steele remains
    with a bullet lodged in her head,. She has suffered long-lasting and severe
    physical and psychological injuries. The appellant, having been convicted for
    attempted murder, should not be entitled to benefit from Ms. Steeles
    fortuitous recovery.

[150]

Accordingly, I would
    dismiss the appeal from sentence.

CONCLUSION

[151]

For these
    reasons, I would dismiss the appeal from conviction. I would grant leave to
    appeal from sentence, but dismiss the sentence appeal.

Released:

RJS                                                 David
    Watt J.A.

AUG 12 2013                                   I
    agree Robert J. Sharpe J.A.

I
    agree E.E. Gillese J.A.





[1]
The trial judge did not provide the jury with a written copy of his charge or
    any portion of it.


