





CITATION:
R. v. Charles, 2011
          ONCA 228



DATE: 20110324



DOCKET: C49275



COURT OF APPEAL FOR ONTARIO



Sharpe, Watt and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Todd Michael Charles



Appellant



Michael
Dineen
and Emily Morton, for the appellant



Paul Lindsay, for the respondent



Heard: February 9, 2011



On appeal from the
          conviction entered by Justice Frank Marrocco of the Superior Court of
          Justice, sitting with a jury, on May 15, 2008.



Sharpe J.A.:



[1]

Todd Michael Charles appeals his conviction for first
    degree murder in the shooting of Kemar Brown in a rooming house in Toronto.  The appellant alleges that the trial judge
    made several errors in his charge to the jury by: (1) failing to review the
    position of the defence; (2) erring in response to a jury question; (3) introducing
    a new theory of liability; and (4) giving an inadequate
Vetrovec
warning as to the key
    Crown witness.

Facts

[2]

On the evening of July 11, 2006, just before 9:30 p.m.,
    Kemar Brown was shot and killed in a rooming house at 219 Church Street,
    Toronto.  Four men were present at the
    time of the shooting:  Troy Hines, who
    lived in the room, the deceased, the appellant and Cardinal Senior.  Hines testified that it was the appellant who
    shot the victim.  Neither the appellant
    nor Senior testified.  The Crown led
    evidence indicating that when interviewed by the police, Senior claimed to have
    no memory of the shooting.

[3]

The Crowns case essentially rested on the evidence of
    Hines.  Hines had a serious criminal
    record, and was both a drug user and a dealer.  Before the trial, he had given conflicting
    accounts of the events leading up to the murder. At the time Hines identified
    the appellant as the shooter, he had received certain favours from the police,
    including release on bail in relation to other outstanding charges.  Hines also faced additional charges at the
    time he testified at trial.

[4]

Hines and Brown were friends and fellow crack cocaine
    dealers.  The two had met while selling
    drugs in the same crack house, six to eight months prior to Browns death.  Brown sometimes stayed in Hiness room, which
    he also used as a base for drug dealing.

[5]

Hines testified that on the night of the murder, Senior
    arrived at Hiness room with the appellant, whom he introduced to Hines as my
    boy.  Hines had never met the appellant
    before.  Not long thereafter there was a
    knock on the door.  The appellant rolled
    out of the chair in which he was sitting and knelt down on one knee.  Hines heard a click and saw the appellant
    loading a gun.  He told the appellant to
    chill out as he was expecting his girlfriend.  When Hines answered the door, Brown walked in and sat down.  The appellant stood up, turned the gun on
    Brown, and the following exchange took place:

Charles:         Remember
    me, pussy?

Brown:           Hey,
    man.  I dont have
no
problem with you.

Charles:         Do
    you remember me, pussy?

Brown:           Oh,
    man, yo, man, like I paid him.

Charles:         Youre
    lying, pussy.

Brown:           Hey,
    man, like I got $50 on me right now.  Take what money you have right now.

Charles:
            You remember me, pussy?

Brown:           Please, dont shoot me.

[6]

According to Hines, Charles then shot Brown three
    times. (The forensic evidence indicated that Brown was shot four times.) As he
    prepared to leave, the appellant pointed the gun at Hines but Senior
    intervened.  Senior and the appellant
    then fled the building.  Hines called for
    an ambulance, cleared his room of some drugs and drug paraphernalia, then went
    outside and flagged down a police car.  Brown died of the gunshot wounds shortly after they were inflicted.

[7]

Earlier that same day, Senior had attended Hiness
    room.  Senior and Hines were old friends
    and drug-dealing associates who had just re-united the day of the shooting.  Senior brought Hines drugs, and while they
    were in Hiness room, Brown arrived.  Senior and Brown did not know each other, but Hines introduced them and
    the three men socialized for approximately half an hour.  Brown was planning to come back to see Hines
    later that day, and Senior was also planning to return to bring more drugs.

[8]

Shortly after Senior and Brown left, Hines exited his
    room to go to the bathroom.  Through a
    window in the hallway, he saw Senior coming in from the roof of the
    building.  Hines asked Senior Whats up,
    man? and Senior replied, Just checking out my surroundings.  And I had some plans to do business in that
    building.

[9]

It was common ground at trial that the appellant,
    Senior and Hines were in the room when Brown was murdered.  The trial judge ruled that the defence was
    entitled to advance Senior as an alternative suspect.  The focus of the appellants defence and
    defence counsels cross-examinations was an all-out attack on Hiness credibility
    in order to suggest that Senior, not the appellant, was the shooter.

[10]

In addition to Hines, the Crown called,
inter alia
, a number of police witnesses
    and two civilian witnesses who had seen two men, allegedly the appellant and
    Senior, in the vicinity of the crime scene on the night of the murder and there
    was some evidence to suggest that the shooter had his hands in the pockets of
    the sweatshirt.  The Crown also filed a
    pathologists report to establish the cause of death.  Police witnesses testified as to various items
    belonging to the appellant that were found near the crime scene and at the
    appellants residence.  An expert witness
    testified that one particle of gunshot residue was found on a hooded sweatshirt
    taken from the appellants residence.  The sweatshirt corresponded to what the shooter allegedly wore on the
    night of the murder.  The Crown also called
    evidence of several phone calls the appellant made to Brown in the months
    leading up to the shooting in order to establish a connection between them.

[11]

Apart from cross-examining witnesses, the only evidence
    called by the defence was to recall the gunshot residue expert.  Defence counsel had asked the expert to examine
    the pockets of the hooded sweatshirt as there was some evidence to suggest that
    the shooter put his hands in the pockets of the sweatshirt.  The expert found no traces of gunshot residue
    in the pockets.  He testified that if
    someone had fired a gun and put his hands in the pockets, he would expect to
    find gunshot residue.

[12]

After a four week trial, the jury returned a verdict of
    guilty to first degree murder and the trial judge imposed the mandatory
    sentence of life imprisonment with no eligibility for parole for 25 years.

Issues

1.  Did the trial judge err by failing to put the
    position of the defence to the jury?

2.  Did the trial judge err in his response to a
    jury question relating to the involvement of Charles Senior?

3.  Did the trial judge err by leaving a
    speculative theory of planning and deliberation with the jury?

4.  Did the trial judge err by failing to give a
    proper
Vetrovec
warning about the witness Troy Hines?

Analysis

1.  Did the trial judge err by failing to put the
    position of the defence to the jury?

[13]

In his instructions to the jury, the trial judge
    provided the jury with standard legal instructions including the presumption of
    innocence, the burden on the Crown to prove the case beyond a reasonable doubt
    and how to deal with matters such as circumstantial evidence and prior
    inconsistent statements.  He also gave a
    detailed, witness-by-witness account of the evidence and a clear instruction on
    the legal elements of first degree murder.

[14]

The trial judge did not, however, follow the usual and
    accepted practice of specifically relating the evidence to the issues or
    setting out the respective positions of the Crown and the defence.  In his detailed summary of the evidence,
    virtually all of which was led by the Crown, the trial judge mentioned possible
    theories of liability, but at no point did he explicitly set out the Crowns
    position or explicitly instruct the jury on the position of the defence.  When the jury retired, defence counsel
    objected that the charge was unbalanced and that it failed to set out the
    defence position.  Without giving any
    explanation or reasons, the trial judge refused to bring the jury members back
    and give them any further instruction.

[15]

The appellant submits that the trial judges failure to
    set out the defence position amounts to an error of law warranting a new trial.
     Earlier in the proceedings, the trial
    judge had ruled that the defence could advance the theory that Senior was the
    killer.  As this became a central theory
    of the defence, the appellant submits that his right to a fair trial required
    the trial judge to explain to the jury the defence theory of the case: namely
    that
Senior
was the killer and not the appellant.

[16]

There is a long line of authority that requires trial
    judges to identify the issues raised by the case, to relate the evidence to
    those issues and to explain to the jury the positions of the parties.  In a passage that is often quoted on this
    point,
Taschereau
J. stated the following rule in
Azoulay
v. The Queen
, [1952] 2 S.C.R. 495,

at pp. 497-98:

The rule which has been laid
    down, and consistently followed is that in a jury trial the presiding judge
    must, except in rare cases where it would be needless to do so, review the
    substantial parts of the evidence, and give the jury the theory of the defence,
    so that they may appreciate the value and effect of that evidence, and how the
    law is to be applied to the facts as they find them.

See also
R. v. Colpitts
, [1965] S.C.R. 739;
R. v. Mahalingan
(2006), 80 O.R. (3d) 35 (C.A.).

[17]

In
R. v. MacKinnon
(1999), 43 O.R. (3d) 378
    (C.A.), Doherty J.A. reviewed this principle.  He noted that there was no particular approach or specific formula that
    had to be followed in every case, and that appellate courts should review the
    jury charge from a functional perspective.  He distilled the principle to these essentials, at p. 386:

By
    the end of the instructions, whatever approach is used, the jury must understand:

·

the
    factual issues which had to be resolved;

·

the law
    to be applied to those issues and the evidence;

·

the
    positions of the parties; and

·

the
evidence
    relevant to the positions taken by the parties on the various issues.

[18]

Doherty
    J.A. cited
R. v. Jacquard
, [1997] 1
    S.C.R. 314, at
para
. 14, where Lamer C.J. reiterated
    the need to relate the evidence to the issues and the position of the defence,
    but also cautioned against imposing a standard of perfection:


As long as an appellate court, when
    looking at the trial judges charge to the jury as a whole, concludes that the
    jury was left with a sufficient understanding of the facts as they relate to
    the relevant issues, the charge is proper.

Doherty J.A. also referred to
R.
    v. Cooper
,  [
1993]
    1 S.C.R. 146, at p. 163, per Cory J:


... At the end of the day, the
    question must be whether an appellate court is satisfied that the jurors would
    adequately understand the issues involved, the law relating to the charge the
    accused is facing, and the evidence they should consider in resolving the
    issues.

See also
R. v. Zebedee
(2006), 81 O.R. (3d) 583 (C.A.), at paras.
108-109.


[19]

The overall effect of the authorities is to hold that
    failure to follow the accepted formula is risky and almost always fatal.  More is required than a serial review of the
    evidence.  The trial judge is expected to
    relate the evidence to the issues and the positions of the parties.  However, we are to apply a functional test.  If we are satisfied that the charge as a whole
    conveyed to the jury a sufficient understanding of the issues and the facts as
    they relate to the charge faced by the appellant, the appeal must be dismissed.

[20]

The issue for us in this case is the following: despite
    the trial judges failure to clearly and explicitly set out the defence
    position, did his instructions provide the jury with the assistance it required
    to decide the case fairly and according to the law?  For the following reasons, I conclude that the
    instructions were adequate to meet the needs of this case, and that while the
    trial judges approach was ill-advised, it did not result in a reversible error
    in the singular circumstances of this case.

[21]

The defence position was not complicated.  The appellant conceded that he was one of four
    people in the room when Brown was murdered.  No one suggested that Hines was the shooter.  The appellants defence was simply this: Hines
    was a disreputable witness and an acknowledged liar who had incentives to
    assist the police.  Senior was Hiness
    friend and drug-dealing associate, and there was evidence that Hines feared
    reprisals from Senior as well as friends of the deceased.  Hiness evidence that it was the appellant, and
    not Hiness old friend and associate, Senior, who had shot Brown, could not be
    believed.  As the appellant did not
    testify, and as he offered no evidence to point the finger at Senior, his
    defence, including the alternative suspect theory, essentially rested upon an attack
    on Hiness credibility.

[22]

While this was a four week trial, the ultimate issue
    was quite simple and straightforward: was the appellant the man who shot Brown?
     It would have been obvious to the jury
    that there were only two possible shooters: the appellant and
Senior
.  If the jury
    believed Hines, the appellant was the shooter.  If the jury did not believe Hines, or was left
    with a reasonable doubt, the shooter was or could have been Senior.

[23]

It is my view that when the jury instructions are read
    against the backdrop of the way the evidence was presented and the closing
    addresses of counsel, the jury would have understood each of the four key elements identified in
MacKinnon
, namely: (1) the factual
    issues which had to be resolved; (2) the law to be applied to those issues and
    the evidence; (3) the positions of the parties; and (4) the evidence relevant
    to the positions taken by the parties on the various issues.

[24]

The key factual issue to be resolved was whether the
    appellant was the shooter.  The trial
    judge repeatedly instructed the jury that to convict the appellant, they had to
    be satisfied beyond a reasonable doubt that it was the appellant who shot
    Brown.

[25]

The trial judges explanation of the law to be applied
    to that issue is not challenged.

[26]

Although the trial judge did not explicitly state the
    defence position, the jury must have understood that it involved two
    propositions that were flip sides of the same coin.  Hiness evidence that the appellant was the
    shooter could not be believed, and that meant that Senior must have been the
    shooter.

[27]

The trial judge reviewed Hiness evidence at great
    length and in significant detail.  He
    gave a strong
Vetrovec
warning (to
    which I will return below), cautioning the jury that it would be dangerous to
    convict on the basis of Hiness evidence without confirmatory evidence.  The trial judge reviewed Hiness alleged prior
    inconsistent statements and inconsistencies in considerable detail.  The core of the defence theory was that Hines
    could not be believed and that theory was adequately presented to the jury.

[28]

This was not a case where the defence raised any issue
    apart from the frailties of the Crowns case.  The alternative suspect theory operated by way
    of default.  If Hiness testimony that
    the appellant shot Brown could not be believed, then the killer must have been
    Senior.  In his painstaking review of the
    evidence, the trial judge explained those frailties, as they had been drawn out
    by defence counsels vigorous cross-examination of Hines. The jury must have
    understood that the appellants strenuous attack on Hines could only support
    the alternative suspect theory of Senior as the shooter.

[29]

While it certainly would have been preferable for the
    trial judge to have explained the defence theory more explicitly, I am satisfied
    that, at the end of his charge, the jury must have understood what the defence
    position was and what evidence was relevant to that position.

2.  Did the
    trial judge err in his response to a jury question relating to the involvement
    of Charles Senior?

[30]

After one day of deliberation, the jury asked the
    following question:

If we/I are
    satisfied that Todd Charles and Cardinal Senior may have been involved in the
    planning and execution of the murder of Kemar Brown and considering the fact
    that Cardinal Senior has not been charged with murder in this case and not
    knowing with certainty who pulled the trigger, does the law require us/me to find
    Todd Charles guilty?

[31]

The trial judge sought submissions from counsel but did
    not vet his answer.  He answered the
    question by instructing the jury to focus on Todd Charles:

First of all, the issue in the trial is
    whether Todd Charles to use the wording of your question was involved in the
    planning and execution of the murder of
Kemar
Brown.

My concern is that the focus on Cardinal Senior can become a
    distraction.  There is lots of evidence
    about Cardinal Senior and his participation, and I am sure you will pay very
    close attention to all of that evidence, and I am not suggesting to you for a
    moment that you should not but the issue in this trial is whether Todd Charles
    is guilty of the offence, not Cardinal Senior so I would ask you to start by ...
    focusing in on Todd Charles.

[32]

Then, referring to the part of the question stating
    that Charles and Senior may have been involved in the planning and execution
    of the murder the trial judge stated:

... [L]
et
us take Cardinal Senior out of it for a second. The issue is whether you are
    satisfied beyond a reasonable doubt that Todd Charles was involved in the
    planning, deliberation and carrying out of the murder.

Whether you
    are satisfied on the evidence that Cardinal Senior was involved is not the
    question. The question is Todd Charles involvement.

[33]

The trial judge then instructed the jury not to
    speculate about why Senior had not been charged with murder, as there were many
    reasons why that might have occurred and there was no evidence to indicate why
    he was not charged:

Do not give any
    consideration to the fact that Cardinal Senior was not charged with murder. It
    is not about Cardinal Senior. It is about Todd Charles.  I recognize Cardinal Senior figures in this
    piece. Mr. Hines evidence, the evidence on the video and so on.  He identifies them.  Of course you have to consider all of that
    evidence but the fact that Cardinal Senior was not charged is not an issue
    before you.

[34]

With respect to the final part of the question  and
    not knowing with certainty who pulled the trigger, does the law require me to
    find Todd Charles guilty?  the trial judge stated:

[T]o find Todd
    Charles guilty of first degree murder, Crown counsel must prove each of these
    elements beyond a reasonable doubt[,] that Todd Charles caused the death of
Kemar
Brown; that he caused the death of
Kemar
Brown unlawfully; that he had the state of mind for
    murder; and that the murder was planned and deliberate.



If
    you are not satisfied beyond a reasonable doubt that Todd Charles caused the
    death of Kemar Brown by shooting him, then Todd Charles is entitled to the
    benefit of reasonable doubt and the law does not require you to convict. []

I would repeat what I
    said. I urge you not to become distracted by issues involving the liability or
    not of Cardinal Senior.  Focus on the
    defendant and whether the charge against the defendant is proven beyond a
    reasonable doubt.

I hope that answers your
    question.  It is as close as I could
    come, and I will let you retire to continue your deliberations.

[35]

Less than two hours later, the jury reported that it
    had reached an impasse and could not arrive at a verdict.  The trial judge gave a standard exhortation
    and, three hours later, the jury returned its guilty verdict.

[36]

The appellant argues that that the trial judges response
    to this question was deficient for the following reasons:

1)

it
    took the alternative suspect defence away from the jury by telling it not to
    consider Seniors liability;

2)

it
    left open the possibility that the jury might convict on a theory of party liability;
    and

3)

it
discouraged the jury from asking further questions.

[37]

I do not agree that the trial judges answer took away
    the alternative suspect theory of the defence.  The trial judge emphasized in his answer to
    the question, as he had in his charge, that to find Todd Charles guilty of
    murder, the jury had to be satisfied beyond a reasonable doubt that Charles had
    caused the death of Kemar Brown.  The
    trial judge did not tell the jury to ignore the evidence about Seniors
    involvement.  He reminded the jury that
    there was lots of evidence about Cardinal Senior and his participation and he
    encouraged the jury to pay very close attention to all of that evidence.  The trial judge did not err by instructing the
    jury to avoid becoming distracted by the fact that Senior had not been charged
    with murder.  He reminded the jury that
    there was no evidence on the point and, in any event, it had no bearing on the
    appellants guilt or innocence.  Finally,
    I note that neither during the pre-answer submissions nor after the question
    was answered did the appellants very diligent trial counsel suggest that
    either the question or the answer prejudiced the alternative suspect theory of
    the defence.

[38]

Nor do I accept the submission that the trial judges
    answer opened the possibility that the jury might convict the appellant on a
    party liability theory.  The risk that
    the jury might be considering some form of party liability was squarely
    addressed by counsel in their submissions to the trial judge before he answered
    the jurys question.  In his answer, the trial
    judge clearly instructed the jury members that to find the appellant guilty,
    they had to be satisfied beyond a reasonable doubt that the appellant had
    caused Browns death.  He warned them not
    to be distracted by what role Senior might have played in the murder.  In my view, this effectively took any
    suggestion of party liability off the table and left the jury members with a
    clear instruction that they could only convict the appellant if they found that
    he was the shooter.

[39]

Finally, I do not agree that the concluding portion of
    the answer unduly discouraged the jury from asking any further questions.  It took a considerable period of time for the
    trial judge to get the submissions of counsel and to formulate his answer.  His rather apologetic statement  It is as
    close as I could come  should be read in that light.

3.  Did the
    trial judge err by leaving a speculative theory of planning and deliberation
    with the jury?

[40]

The trial judge advised the jury to consider the
    observations of witness Mark Alton, which arguably placed two black men on a
    rooftop adjacent to 219 Church Street
prior
to the murder.  The appellant argues that
    this statement by the trial judge left a speculative theory of planning and
    deliberation with the jury.  The
    appellant points out that neither party had referred to this evidence in their
    arguments, and that the Crown had actually invited the jury to find that Alton
    had seen the appellant and Senior
after
the murder, in order to corroborate Hiness account of their escape route.  The appellant contends that, fairly read,
    Altons evidence was incapable of supporting the inference drawn by the trial
    judge.

[41]

I agree that Alton was uncertain in his evidence as to
    when he saw the two black men on the roof adjacent to 219 Church Street.  At one point in his evidence, he did fix the
    time between 8:15 to 8:30 p.m.  In the
    end, however, he was uncertain of the time.  The trial judge may have overstated the effect
    of Altons evidence when he told the jury that Alton saw two men on the
    roofand he places the time between 8:15 p.m. and 8:30 p.m.  Altons statement would put the appellant and
Senior
on the roof before the murder, providing evidence
    capable of supporting an inference that the men were there planning their
    escape after the murder they planned to commit in Hiness room.

[42]

However, I disagree that this overstatement of Altons
    evidence could have had any practical bearing on the verdict.  The trial judge instructed the jury members that
    it was their recollection of the evidence, not his, that mattered.  Moreover, I agree with the respondent that if
    the jury was satisfied by Hiness evidence that the appellant shot the victim, then
    a finding that the murder was planned and deliberate was virtually inevitable.  There was evidence that the appellant knew
    Brown prior to the shooting and that he had a pre-existing motive to kill Brown
    over a drug debt or other financial dispute.  The appellant had come to Hiness room, armed with a gun and ammunition,
    with seemingly no other purpose than to lie in wait of Browns arrival to
    settle the account.  The evidence before
    the jury provided a firm basis to find that the murder was planned and
    deliberate.

4.  Did the
    trial judge err by failing to give a proper
Vetrovec
warning about the witness Troy Hines?

[43]

As already indicated, the trial judge gave a
Vetrovec
caution with respect to Troy
    Hines. He told the jury that it would be dangerous to convict on the basis of
    Hiness evidence without supporting evidence.  Hines had a lengthy criminal record and, as he
    faced unrelated criminal charges, he stood to gain from cooperation with the
    police.

[44]

The appellant alleges two errors in the trial judges
Vetrovec
warning.

[45]

First, the appellant contends that the trial judge may
    have minimized Hiness motive to testify favourably for the Crown.  Hines was in custody on unrelated charges
    when he was interviewed by the police.  Shortly
    after Hines changed his initial story and identified the appellant as Browns
    killer, the investigating homicide officers intervened with the Crown to have
    Hiness bail conditions altered so that he could be released using his
    girlfriend as a single surety.  After
    explaining to the jury that the incentive to secure favours of this kind should
    be taken into account when assessing Hiness credibility, the trial judge added
    that time spent in pre-trial custody is typically taken into account during sentencing.

[46]

The appellant contends that, by mentioning the enhanced
    credit normally given for pre-trial custody, the trial judge suggested that
    Hiness release on bail in exchange for co-operation with the authorities was
    of reduced importance.  Hines was never
    asked at trial whether he was content to stay in custody in order to earn
    enhanced credit, and the reference to credit for pre-trial custody improperly
    invited the jury to minimize one of Hiness motives to lie.

[47]

The trial judges explanation of credit for pre-trial
    custody was unnecessary and beside the point.  On the other hand, it was an accurate statement
    of the law and I do not agree that the jury would have taken it as undercutting
    the force of the trail judges warning that Hines had something to gain from
    the police when he changed his initial story and implicated the appellant.  I note that the appellants trial counsel took
    no objection to this aspect of the charge at trial.

[48]

The second alleged error with respect to the
Vetrovec
warning is
    that the trial judge refused to allow defence counsel to refer in his closing
    address to Hiness outstanding firearms charges.  Hines was arrested the day before his
    testimony on various charges, including uttering death threats, assault and
    several firearms offences, all arising from an altercation with his common law
    wife.  Defence counsel cross-examined
    Hines extensively on the fact that he was facing these charges.  After Hines testified, but before counsel made
    their closing addresses to the jury, the firearms charges were dropped because
    of an expert report indicating that the items in question did not fall within
    the definition a firearm.

[49]

The Crown raised the concern that defence counsel would
    paint Hines as a gun-toting individual in his closing address, a label that
    no longer attached in view of the withdrawal of the firearms charges.  The trial judge ruled that defence counsel
    could refer the fact that Hines was facing criminal charges at the time he
    testified, but could not refer to the charges as firearms charges.  The appellant argues that he should have been
    allowed to paint the full picture of the Sword of Damocles hanging over Hines
    at the moment he testified.

[50]

I do not agree that the trial judge erred by limiting
    defence counsel in this manner.  Defence
    counsel was still able to point to the fact that Hines, who was facing criminal
    charges when he testified, might have hoped to gain from giving evidence
    favourable to the Crown.  The trial judge
    instructed the jury to the same effect:

You have heard that Mr. Hines is charged
    with a series of criminal offences arising out of an altercation with his
    common law wife on April 27th, 2008.  The
    trial has not yet been held.  A person
    who is awaiting trial himself on charges may have an interest in testifying
    favourably for the Crown in this trial.  He
    may believe that favourable testimony here will help him out with this case
    later.  You should approach the evidence
    of Mr. Hines with caution in this regard.

[51]

I agree with the respondent that it fell within the
    trial judges discretion to place a modest limit on defence counsel, with a
    view to ensuring that the jury was not misled into believing that Hines might
    have been guilty of offences involving firearms.  Defence counsel was still able to make the
    crucial point that a Crown witness facing outstanding criminal charges may hope
    to gain by testifying in favour of the Crown, and that important point was
    reinforced by the trial judge in his
Vetrovec
instruction.

Conclusion

[52]

Accordingly, despite the capable arguments advanced by Mr.
    Dineen and Ms. Morton on behalf of the appellant, I would dismiss the appeal from
    conviction.

Robert J. Sharpe J.A.

I agree David Watt
    J.A.

I agree Karakatsanis
    J.A.

RELEASED:  March 24,
    2011


