



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ibrahim, 2019 ONCA 631

DATE: 20190726

DOCKET: C61798

Rouleau, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adib Ibrahim

Appellant

Christopher Murphy
, for the appellant

Joan Barrett, for the respondent

Heard: February 21, 2019

On appeal from the conviction entered by Justice Robert
    A. Clark of the Superior Court of Justice, sitting with a jury, on October 30,
    2015.

By the Court:

A.

introduction

[1]

Ralph Bissonnette was riding his longboard on a street in downtown
    Toronto. The appellant was driving a taxi in the same direction. The appellant
    changed lanes, collided with Mr. Bissonnette and ran over him, killing him
    instantly.

[2]

The appellant was charged with second degree murder. The Crown alleged that,
    in the throes of road rage, the appellant intentionally hit Mr. Bissonnette
    with his taxi. The appellants position was that he was unaware of Mr. Bissonnettes
    presence, and collided with Mr. Bissonnette as a result of a momentary lapse of
    attention as he was changing lanes.

[3]

The jury found the appellant guilty of manslaughter. The trial judge
    sentenced him to four years imprisonment.

[4]

The appellant argues that the trial judge erred in his instructions to
    the jury on how to apply the principles in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742 to liability for manslaughter based on the unlawful act of dangerous
    driving. He also submits that the trial judges conduct during the trial
    created a reasonable apprehension of bias.

[5]

For the reasons that follow, we would allow the appeal based on the
    trial judges instructions to the jury. While we would not give similar effect
    to the reasonable apprehension of bias argument, we feel obligated to comment
    on the manner in which the trial was conducted.

B.

the trial judges instructions to the jury

(1)

Introduction

[6]

The appellant was charged with second degree murder:
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 229(a). The Crown did not allege that the appellant
    intended to cause Mr. Bissonnettes death (s. 229(a)(i)); instead, it argued
    that the appellant intended to cause bodily harm to Mr. Bissonnette that he
    knew was likely to cause death, and was reckless as to whether death ensued (s.
    229(a)(ii)).

[7]

Early on in the trial, during a discussion about included offences, the
    Crown submitted that the appellant could be found guilty of manslaughter as a
    result of criminal negligence pursuant to s. 222(5)(b), or based on an
    unlawful act pursuant to s. 222(5)(a)  with the unlawful act being assault
    (ss. 265(1)(a), 265(1)(b)), dangerous driving (s. 249(1)(a)),
[1]
or even careless driving under s. 130 of the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8. The issue was discussed from time-to-time during the
    trial.
[2]
Ultimately, the trial judge left liability for manslaughter based on the
    unlawful acts of assault and dangerous driving with the jury. Further, he
    instructed the jury on the partial defence of provocation, providing another
    route to manslaughter:
Criminal Code
,

s. 232.
[3]

[8]

The appellant testified and gave an explanation of how the collision occurred.
    He described conduct that was suggestive of momentary inattention or
    carelessness, rather than a marked departure, which is the fault standard for
    dangerous driving. The trial judge gave the standard
W.(D.)
instruction
    in relation to second degree murder, and assault as a basis for unlawful act manslaughter.
    He took a different path with dangerous driving. The trial judges instructions
    will be considered in detail below, but the following brief passage from the
    instruction illustrates the appellants complaint that the trial judge failed
    to instruct the jury in accordance with the principles set out in
W.(D.)

in relation to liability for manslaughter based on the unlawful act of
    dangerous driving. The trial judge instructed the jury as follows:

If you accept as true Mr. Ibrahims explanation, or you are
    left with a reasonable doubt that it might be true, that does not necessarily
    mean that he is not guilty of dangerous driving. It may or it may not,
    depending on the facts you find concerning the overall nature of his driving.

The trial judge then instructed the jury to consider
    whether a reasonable person in similar circumstances ought to have been aware
    of the risk and of the danger involved in driving in the manner that you find
    Mr. Ibrahim drove.

[9]

As explained in greater detail below, we conclude that the trial judges
    instructions were deficient. The trial judge correctly instructed the jury on
    the elements of dangerous driving as set out by the Supreme Court in
R. v.
    Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49 and
R. v. Roy
, 2012 SCC
    26, [2012] 2 S.C.R. 60. Moreover, he was right to conclude that, due to the modified
    objective nature of liability for dangerous driving, the classic
W.(D.)
instruction could not be given. However, the appellants evidence still had
    exculpatory potential in assessing whether the Crown had established the
    elements of dangerous driving. The trial judges instructions improperly neutralized
    this potential by failing to explain how the appellants evidence could raise a
    reasonable doubt.

(2)

Factual Background

(a)

Evidence adduced by the Crown

[10]

It
    was not disputed that Mr. Bissonnette was killed when the appellant changed
    lanes and Mr. Bissonnette was struck by the appellants taxi. It happened
    around 6 p.m. on a spring day that was clear, dry and sunny. Many people were
    walking on the sidewalk on both sides of the road.

[11]

The
    Crown relied on a video recording from a security camera mounted on a nearby
    building. The video shows Mr. Bissonnette on his longboard, traveling in the curb
    lane, by the front right passenger side bumper of the appellants taxi. Mr. Bissonnettes
    left hand makes contact with the taxi, close to the side mirror. Mr. Bissonnette
    is then shown leaning over the passenger side hood as the taxi appears to veer
    abruptly to the right. Fortunately, what happened next was not captured on
    camera. The taxi mounted the curb and ran over Mr. Bissonnette, crushing his
    head. The taxi came to a halt on the road, close and parallel to the curb, a short
    distance from the point of impact.

[12]

The
    Crown called 14 civilian witnesses who were either walking or driving in the
    area. Some of them heard yelling moments before the collision. Three witnesses saw
    Mr. Bissonnettes hands aggressively hit the taxi. Some heard a loud cracking
    noise, which was likely the sound of Mr. Bissonnettes longboard breaking apart.
    Others did not directly see or hear the collision.

[13]

There
    were conflicting accounts of Mr. Bissonnettes movements before the collision.
    It was unclear whether he was on the road for his entire journey, or whether he
    used the sidewalk at times. However, it would appear that he tracked a good
    part of the route that the appellant took after dropping off his last fare, which
    involved at least two turns.

(b)

The appellants account

[14]

The
    appellant was arrested at the scene and was charged with dangerous driving. Later
    that night he was charged with second degree murder. The police alleged that
    the appellant and Mr. Bissonnette had a verbal dispute and that the appellant
    intentionally ran him down.

[15]

In
    a statement to the police, the appellant said he was driving on King Street,
    looking for a fare. He did not see Mr. Bissonnette before hitting him. There
    was no verbal dispute. He said: I thought first I struck some skateboard. I
    ran into the skateboard. Thats what I heard; I didn't change lane. I didnt
    change lane at all; and Im not turning anywhere sir. He gave a different version
    at trial.

[16]

The
    appellant, who was 46 years old at the time of the trial, testified that he had
    driven a taxi for approximately 19 years and had travelled over 800,000
    kilometres in the ten years prior to the incident. He did not often encounter
    people on longboards or skateboards; he estimated seeing a skateboarder once a
    month or once in six months.

[17]

The
    appellant testified that he dropped off a fare to the east of where the
    collision occurred, approximately six minutes away. He then travelled west
    along Mill Street, north on Parliament Street, and then west along King Street
    East. The appellant reported no unusual incidents and said he was unaware of
    Mr. Bissonnette on his longboard.

[18]

Shortly
    before the collision, the appellant stopped at a red light, in the curb lane. He
    proceeded through the intersection and continued in the same lane. Ahead of
    him, a white car slowed to make a right-hand turn, causing the appellant to change
    lanes. As he returned to the curb lane, he struck Mr. Bissonnette  approximately
    204 feet from where the white car made its turn. It would have taken
    approximately five seconds to cover this distance, assuming speeds of 35 to 50
    km/h. The appellant said he was looking straight ahead the entire time, even
    though he was looking for a fare and was changing lanes. He acknowledged that
    he did not give 100 percent of his attention to his surroundings. He did not
    check his blind spot because he did not think that anything was in the curb
    lane after the white car had turned. The appellant said he did not see Mr. Bissonnette.
    He denied that there was a verbal dispute.

[19]

The
    appellant testified that his front wheel caught the longboard, causing a loud
    noise. His steering wheel became locked and he was unable to steer. He said
    that he froze and was unable to lift his foot off the gas pedal. He did not
    realize that he had hit anyone until he got out of his taxi to see what
    happened.

(3)

The Positions of Counsel at Trial

[20]

In
    pre-charge discussions, defence counsel agreed that the jury should be instructed
    on the unlawful act of assault, but not dangerous driving. He argued that the
    evidence disclosed nothing more than momentary inattention on the appellants
    part. The Crown insisted that the jury be instructed on dangerous driving as a basis
    for unlawful act manslaughter.

[21]

Ultimately,
    the jury was left with multiple routes to a conviction for manslaughter. Dangerous
    driving was only part of the picture. In his reasons on sentence, the trial
    judge found that the appellant intentionally hit Mr. Bissonnette with his car
    with knowledge that he would cause some significant degree of bodily harm:
R.
    v. Ibrahim
,

2016 ONSC 1538, at para. 40. However, that determination
    is irrelevant to our consideration of this issue on appeal.

(4)

Analysis

[22]

As
    noted, the appellant submits that in light of his account of the incident, the
    trial judge erred by failing to provide a
W.(D.)

instruction in
    relation to liability for manslaughter based on the unlawful act of dangerous
    driving. Before turning to an examination of the trial judges instructions, it
    is necessary to consider the offence of dangerous driving, and the principles
    set out in
W.(D.)
. We will begin by briefly reviewing the elements of
    dangerous driving, including the modified objective fault standard, and the
    role, if any, of the subjective perceptions of an accused person. Next we will
    review the
W.(D.)

framework and how this framework applies in
    relation to offences with an objective fault requirement, such as dangerous
    driving.

(a)

The elements of dangerous driving

[23]

The
    Supreme Court has addressed liability for dangerous driving on numerous
    occasions: see
Beatty
;
Roy
;
R. v. Hundal
, [1993] 1
    S.C.R. 867. See also Don Stuart,
Canadian Criminal Law  A Treatise
,
    7th ed. (Toronto: Carswell, 2014), at pp. 286-289. The
actus reus

of
    the offence is driving in a manner that is dangerous to the public, having
    regard to all the circumstances, including the nature, condition and use of the
    place at which the motor vehicle is being operated and the amount of traffic
    that at the time is or might reasonably be expected to be at that place: s.
    249(1)(a);
Beatty
, at para. 43. The focus of the inquiry is the manner
    of operation of the vehicle, not the consequences of the driving:
Beatty
,
    at para. 46;

Roy
, at paras. 33, 35. The
mens rea

for
    the offence is a marked departure from the standard expected of a reasonable
    person in the circumstances:
Beatty
, at para. 48;
Roy
, at
    paras. 36, 38. This fault requirement was summarized by Cromwell J. in
Roy
,
    at para. 36:

It is helpful to approach the issue by asking two questions.
    The first is whether, in light of all the relevant evidence, a reasonable
    person would have foreseen the risk and taken steps to avoid it if possible. If
    so, the second question is whether the accuseds failure to foresee the risk
    and take steps to avoid it, if possible, was a
marked departure
from the
    standard of care expected of a reasonable person in the accuseds
    circumstances. [Emphasis in original.]

[24]

The
    trial judge correctly explained these elements to the jury. The trial judge properly
    instructed the jury on what constitutes a marked departure:
Beatty
, at
    para. 37;
Roy
, paras. 39-42. He warned against leaping from the tragic
    consequences of the driving to a conclusion about dangerousness:
Beatty
,
    at para. 46;
Roy
, at para. 35. The trial judge emphasized that even
    good drivers may experience a momentary lapse of attention, and that such momentary
    inattention does not reach the level of a marked departure:
Beatty
, at
    para. 71,
per

McLachlin C.J. and para. 34,
per

Charron
    J.;
Roy
, at para. 37.

[25]

As
    mentioned above, the appellants position is that his evidence reveals conduct
    occurring over mere seconds, amounting to nothing more than non-criminal
    carelessness. He relies on
R. v. Willock
(2006), 210 C.C.C. (3d) 60
    (Ont. C.A.), in which Doherty J.A. held, at para. 31, that while [t]here can
    be no doubt that conduct occurring in a two to three second interval can amount
    to a marked departure  conduct that occurs in such a brief timeframe in the
    course of driving, which is otherwise proper in all respects, is more
    suggestive of the civil rather than the criminal end of the negligence continuum.
    See also
Beatty
, at para. 48.

[26]

Consequently,
    the fact of the conduct having occurred in a three to five second interval is
    not determinative of guilt. What matters is what occurred within that interval,
    framed by the overall nature of the accused persons driving and the standard
    expected of a reasonable driver in the circumstances.

(b)

The relevance of an accused persons explanation

[27]

Although
    dangerous driving engages a modified objective standard of fault, the Supreme
    Court has emphasized the potential significance of any explanation offered by
    the accused person.
Beatty
is the leading authority on this point. In
Beatty
,
    Charron J. considered the modified objective test as set out at pp. 888-889 of
Hundal

and observed that one of the difficulties in the application of the
Hundal

test was how to deal with evidence of the accuseds state of mind:
Beatty
,

at para. 42. Charron J. noted that there was uncertainty in the case law as
    to whether evidence of the accuseds state of mind is relevant in determining if
    the conduct constitutes a marked departure, or whether it should be considered
    in a distinct analysis on potential exculpatory defences.


[28]

Charron
    J. explained, at para. 43, that while the test requires an objective
    assessment, the accuseds actual state of mind may be relevant in making the
    assessment of whether the conduct amounted to a marked departure:

it may be useful to keep in mind that while the modified
    objective test calls for an objective assessment of the accuseds manner of
    driving, evidence about the accuseds actual state of mind, if any, may also be
    relevant in determining the presence of
sufficient mens rea
. [Emphasis
    in original.]

Accordingly, Charron J. summarized, at para. 43, the
mens
    rea
component of the offence, and explained how evidence of the accuseds
    state of mind and explanations offered by the accused should be considered by
    the trier of fact:

The trier of fact must also be satisfied beyond a reasonable
    doubt that the accuseds objectively dangerous conduct was accompanied by the
    required
mens

rea
.
In making the objective assessment, the
    trier of fact should be satisfied on the basis of all the evidence, including
    evidence about the accuseds actual state of mind, if any, that the conduct
    amounted to a marked departure from the standard of care that a reasonable
    person would observe in the accuseds circumstances.
Moreover,
if an
    explanation is offered by the accused, then in order to convict, the trier of
    fact must be satisfied that a reasonable person in similar circumstances ought
    to have been aware of the risk and of the danger involved in the conduct
    manifested by the accused.
[Emphasis added.]

[29]

Charron
    J. went on to elaborate on how to apply this aspect of the test for dangerous
    driving, at para. 47, under the heading Determining the
Mens Rea
.
    She emphasized that while subjective
mens rea
is not an element of the
    offence, evidence of the accuseds actual state of mind forms part of the
    totality of the evidence that the trier of fact must consider. She said the
    following, at para. 47:

In determining the question of
mens

rea
, the
    court should consider the totality of the evidence, including evidence, if any,
    about the accuseds actual state of mind.
As discussed at length above, the
mens

rea
requirement for the offence of dangerous driving will be
    satisfied by applying a modified objective test.
This means that, unlike
    offences that can only be committed if the accused possesses a subjective form
    of
mens

rea
, it is not necessary for the Crown to prove that the
    accused had a positive state of mind, such as intent, recklessness or wilful
    blindness.  Of course, this does not mean that the actual state of mind of the
    accused is irrelevant.
For example, if proof is made that a driver
    purposely drove into the path of an oncoming vehicle in an intentionally
    dangerous manner for the purpose of scaring the passengers of that vehicle or
    impressing someone in his own vehicle with his bravado, the requirement of
mens

rea
will easily be met. One way of looking at it is to say that the
    subjective
mens

rea
of intentionally creating a danger for other
    users of the highway within the meaning of s. 249 of the
Criminal

Code
constitutes a marked departure from the standard expected of a reasonably
    prudent driver. [Emphasis added.]

[30]

While the example provided by Charron J. in the latter
    portion of the passage quoted above suggests intentionally driving in a
    dangerous manner may amount to a marked departure
, she also explained
    that, in different circumstances, evidence of the accuseds state of mind may
    raise a reasonable doubt as to whether the conduct was the result of a marked
    departure.
In the following passage, which is
    critical to the analysis in this case, Charron J. links the testimony of the
    accused to reasonable doubt, at para. 49:

If the conduct does not constitute a marked departure from the
    standard expected of a reasonably prudent driver, there is no need to pursue
    the analysis. The offence will not have been made out.
If, on the other
    hand, the trier of fact is convinced beyond a reasonable doubt that the
    objectively dangerous conduct constitutes a marked departure from the norm, the
    trier of fact must consider evidence about the actual state of mind of the
    accused, if any, to determine whether it raises a reasonable doubt about
    whether a reasonable person in the accuseds position would have been aware of
    the risk created by this conduct.
If there is no such evidence, the court
    may convict the accused. [Emphasis added.]

[31]

Cromwell
    J. followed this approach in
Roy
, at paras. 39-41. Cromwell J.
    explained that determining whether the marked departure fault element is
    established will generally require the trier of fact to draw inferences from
    all the circumstances: at para. 39. This in turn requires the trier of fact to
    examine all of the evidence, including evidence about the accuseds actual
    state of mind.

[32]

Although
    evidence of an accused persons state of mind is relevant to fault for
    dangerous driving, it operates differently within the modified objective
    framework than it would in the case of an offence based on subjective
mens
    rea
. Factual assertions in an accused persons evidence  about things
    observed, actions performed, the sequence of events, etc.  may be helpful to a
    jury in determining whether the Crown has proved the fault requirements for
    dangerous driving. Such testimony may well raise a reasonable doubt.

[33]

However,
    given that these subjective perceptions must be considered within an objective
    framework, their acceptance does not necessarily lead to a verdict of not
    guilty. That is, it may be possible for the trier of fact to accept the
    accuseds evidence about what occurred but find that the marked departure
    standard has been proved. Still, as
Beatty
makes clear, the testimony
    of an accused person about his or her perceptions may be capable of raising a
    reasonable doubt about whether a reasonable person in the circumstances would
    have been aware of the risk created by the conduct. Indeed, the wording in
Beatty

at para. 49 directs that where such evidence is adduced, the trier of fact
must
consider whether this evidence raises a reasonable doubt. This is consistent
    with the underlying justification for the modified objective test as explained
    by Charron J. in
Beatty
, at para. 8:

Objective
mens rea
is based on the premise that a reasonable
    person in the accuseds position would have been aware of the risks arising
    from the conduct.  However where the accused raises a reasonable doubt whether
    a reasonable person in his or her position would have been aware of the risks
    arising from the conduct, the premise for finding objective fault is no longer
    sound and there must be an acquittal.

[34]

Therefore,
    in light of the direction in
Beatty
, the testimony of an accused
    person may be relevant to the

actus reus
of dangerous driving, as
    well as the two interrelated
mens rea
elements: (i) whether the
    conduct in question constitutes a marked departure from the standard of care
    that a reasonable person would observe in the accuseds circumstances; and (ii)
    whether a reasonable person in similar circumstances would have been aware of
    the risk of the danger involved in the conduct manifested by the accused.

(c)

The application of the principles in
W.(D.)

[35]

The
    appellant argues that the trial judge fell into error by failing to provide a
    classic
W.(D.)
instruction in relation to dangerous driving. The
    appellant makes two submissions in support of his argument. First, he submits that
    the trial judge erred by instructing the jury that they could find the
    appellant guilty of manslaughter even if they accepted his evidence of how the
    incident occurred. He submits that in doing so, the trial judge essentially
    told the jury that for the purposes of the unlawful act of dangerous driving it
    does not matter whether they believe what the appellant told them. Second, he
    submits that if believed, the appellants testimony would constitute a
    complete defence to manslaughter based on the underlying unlawful act of
    dangerous driving, therefore a classic
W.(D.)

instruction was
    necessary.

[36]

In
    considering these complaints, it is helpful to return to the suggested language
    in
W.(D.)
. Writing for the majority, Cory J., at p. 758, wrote that a
    trial judge might well instruct the jury on the question of credibility along
    the following lines:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

Judges have tinkered with the language of this
    formulation over the years. Some judges prefer a four-part approach over the
    three-part approach set out by Cory J. However, the core remains the same  the
    instruction is meant to explain how reasonable doubt applies to credibility.
    More specifically, the instruction is intended to convey to the jury that they
    must consider whether based on the whole of the evidence, including the
    testimony of the accused, they are left with a reasonable doubt: David Watt
,
Watts Manual of Criminal Jury Instructions
, 2nd ed. (Toronto:
    Carswell, 2015), at pp. 272-273.

[37]

The
    classic
W.(D.)

formulation will not always be appropriate; it
    depends on the context:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788, at para. 23;
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at
    para. 13. For example, it may be inappropriate to give the instruction when the
    accused persons testimony, even if believed, does not negate criminal
    liability:
R. v. McClenaghan
, 2010 ABCA 222, 258 C.C.C. (3d) 1178, at
    para. 31, leave to appeal refused, [2010] S.C.C.A. No. 353. In other
    situations, the instruction must be modified. For example, in
R. v. Thiara
,
    2010 BCCA 415, 79 C.R. (6th) 259, it was held that the trial judge did not err
    in modifying her
W.(D.)
instructions in light of the fact that the
    appellants evidence was partially inculpatory and partially exculpatory.

[38]

Objective
    fault components present challenges for the classic
W.(D.)
framework.
    The issue has been addressed infrequently by appellate courts. However, as the
    following review of the case law suggests, if there is a trend to be discerned
    from the cases, it is to dispense with such an instruction altogether when
    dealing with objective fault requirements. The question on this appeal is
    whether that approach sits comfortably with Charron J.s discussion in
Beatty
about evidence of the accused persons state of mind, and an accused persons
    explanation in response to a charge of dangerous driving. As discussed below, the
    better course in cases involving a charge of dangerous driving is to provide a
    modified
W.(D.)
instruction.

[39]

Turning
    to the cases considering
W.(D.)
instructions and objective fault
    requirements,
R. v. Dunchie
, 2007 ONCA 887 involved an appeal from a
    conviction for sexual interference and other offences. The appellant argued that
    the trial judge erred by failing to provide a
W.(D.)
instruction. The
    court disagreed, holding, at para. 15, that the classic
W.(D.)
instruction would not have been accurate in this case, given the objective
    element in s. 150.1(4) of the
Criminal Code

(mistake of age) that
    requires an accused person to take all reasonable steps to ascertain the
    complainants age. The court reasoned that even if the jury accepted the
    appellants testimony, he was not necessarily entitled to an acquittal on the
    charges of sexual assault and sexual interference. Moreover, the court was
    satisfied that the trial judges general instructions on reasonable doubt and
    the burden of proof were otherwise sufficient.

[40]

In
R. v. Sadiqi
, 2013 ONCA 250, 305 O.A.C 150, the appellant appealed two
    convictions for first degree murder. At trial, the appellant acknowledged that
    he intentionally killed both victims, but relied on the partial defence of
    provocation. On appeal, he argued that the trial judge erred in failing to
    provide a
W.(D.)
instruction in the context of provocation. This court
    rejected this argument, holding, at para. 21: Given the objective component of
    the provocation defence, the jury could have accepted the appellants evidence
    and still have been satisfied beyond a reasonable doubt that provocation was
    unavailable. The traditional
W.D.
formulation did not work in respect
    of provocation. The court in
Sadiqi

was ultimately satisfied
    that the reasonable doubt instruction as a whole properly equipped the jury to
    approach the elements of the offence and the provocation defence: at para. 22.
    See also
R. v. Reid
(2003), 65 O.R. (3d) 723 (C.A.), at paras. 70-73 (a
    self-defence case) and, generally,
R. v. Ryon
, 2019 ABCA 36, 371
    C.C.C. (3d) 225, at paras. 31, 51.

[41]

In
R. v. Reynolds
, 2013 ONCA 433, 309 O.A.C. 14, the appellant ran over a
    man in a mall parking lot, causing him bodily harm. The appellant testified
    that he had been driving carefully and did not realize he drove over someone
    and dragged that person under his car. The trial judge did not reject this
    evidence, but nonetheless found the appellant guilty of dangerous driving
    causing bodily harm.

[42]

This
    court allowed the appeal because the trial judges analysis of the
mens rea
for dangerous driving was inadequate. However, the court briefly commented on
    the further complaint that the trial judge failed to apply
W.(D.)
, at
    para. 9:

The trial judge stated at the beginning of his reasons that [he
    did not] find this a matter which involves any consideration of
W. (D.)
.
    We will not dwell on this issue, except to say that, in our view, it is unwise
    for a trial judge, in most cases where the accused testifies or where there is
    evidence favouring the defence, not to conduct a
W.(D.)
analysis.
That
    said, there is authority for the view -- at least where it is an objective
    element of the defence that is in play -- that the
W.(D.)
formulation
    does not always work; in some circumstances, it may be possible to find an
    accused guilty even where the trier of fact accepts his or her evidence
:
    see
R. v. Dunchie
, 2007 ONCA 887, at para. 15, and
R. v. Sadiqi
,
    2013 ONCA 250, at para. 21. [Emphasis added.]

The court explained, at para. 10, that the trial judge
    could have accepted the appellants testimony, but still considered whether the
    appellants failure to foresee the risk constituted a marked departure in the
    circumstances.

[43]

We
    also refer to
R v. Griffith
, 2019 BCCA 37, 38 M.V.R. (7th) 1, a case
    dealing with criminal negligence causing death and other offences. The
    appellant testified at trial that he drove in the manner that he did because he
    was attempting to extricate himself from a potentially violent confrontation. On
    appeal, he argued that the trial judge failed to engage in a
W.(D.)
analysis. In rejecting this ground of appeal, Fitch J.A. held that because the
    trial judge was required to apply a modified objective test, [a]cceptance of
    the appellant's testimony  would not necessarily lead to an acquittal: at
    para. 51. See also
R. v. Hecimovic
, 2014 BCCA 483, 317 C.C.C. (3d)
    503, at para. 35, affd 2015 SCC 54, [2015] 3 S.C.R. 483.

[44]

In
    their oral arguments, both parties relied upon the decision of the Court of
    Appeal for Saskatchewan in
R. v. Nahnybida
, 2018 SKCA 72, 365 C.C.C.
    (3d) 209, a decision rendered after the appellants trial. In that case, the
    accused drove his car into a ditch, killing his passenger. At trial, he was
    acquitted of impaired driving causing death, but convicted of dangerous driving
    causing death.

[45]

The
    Court of Appeal for Saskatchewan upheld the conviction. The main issue, both at
    trial and on appeal, was whether the appellant fell asleep and, if so whether it
    merely amounted to momentary inattention. Writing for the court, Schwann J.A.
    reviewed the trial judges instructions on momentary inattention. The trial
    judge provided a
W.(D.)
instruction that started in the following way:
    If you believe Mitch Nahnybida that he did not operate a motor vehicle in a
    manner dangerous to the public, considering all the circumstances, you must
    find him not guilty of this offence. The trial judge also provided instructions
    relating to the other branches of
W.(D.)
. Schwann J.A. held, at para.
    50: Based on the charge, I am satisfied the jury not only had the appropriate
    legal framework before them but were reminded of Mr. Nahnybidas testimony and
    his evidence that related to his momentary lapse defence.

[46]

In
    our view, the jury in
Nahnybida
was more than reminded of the
    accused persons evidence; they were told that acceptance of this evidence mandated
    a finding of not guilty. However, in fairness, the import of this aspect of the
W.(D.)
jury instruction was not squarely in issue in that case.
    Consequently, it is of limited assistance in resolving the issue on this
    appeal.

[47]

Similarly,
    none the cases discussed above consider the
W.(D.)
issue in any
    detail. However, it would appear that the disinclination to provide a
W.(D.)
instruction is rooted in the first branch of the classic formulation  if you
    believe the evidence of the accused, obviously you must acquit. With a
    modified objective standard of fault, exculpatory testimony from the accused does
    not lead inexorably to an acquittal. However, such evidence is a factor to
    consider. The difficultly associated with the first branch of the
W.(D.)
test in this context was explained in
Hecimovic
(a dangerous driving
    case), at para. 34:

In setting out the first leg of the three-part
W. (D.)
instruction,
    the judge stated "[i]f I believe the accused, I must acquit". I agree
    with the Crown that the instruction required modification in the circumstances
    of this case because it was possible that the respondent could potentially have
    been found guilty despite the acceptance of her testimony.
Even if she was
    believed, the degree of care exercised by her could have been found to be a
    marked departure from the standard of care a reasonable person would have observed
    in the respondent's circumstances
. [Emphasis added.]

[48]

But
    this is not the end of the inquiry. The accused persons perceptions of the
    situation may be capable of contributing to reasonable doubt on whether the
    modified objective standard is met. This is reflected in the words of Charron
    J. in
Beatty
, at para. 49 (reproduced above), when she said, the
    trier of fact must consider evidence about the actual state of mind of the
    accused, if any, to determine whether it raises a reasonable doubt about whether
    a reasonable person in the accuseds position would have been aware of the risk
    created by this conduct.

[49]

In
    these circumstances, the first prong of the classic
W.(D.)
formulation
    is inapplicable. However, whether accepted as true or not, evidence of an
    accused persons state of mind may be capable of raising a reasonable doubt on whether
    any of the elements of dangerous driving have been established by the Crown. This
    is precisely the point that a
W.(D.)

instruction is meant to
    bring home to the jury  that the verdict must be based on the whole of the
    evidence, and the jury must consider whether the evidence as a whole raises a
    reasonable doubt:
Watts Manual of Criminal Jury Instructions
, at pp.
    272-273;
Dinardo
, at para. 23.

(d)

The trial judges instructions to the jury

[50]

Overall,
    the application of
W.(D.)

was challenging in this case. The
    trial judge was required to address some offences with purely subjective fault
    requirements (i.e., murder and assault), as well as the objectively-driven
    offence of dangerous driving. In

Dunchie
, at para. 16, which
    involved a similar situation, this court said that the trial judge must make a
    judgment call on whether to provide a
W.(D.)
instruction for
    subjective offences after deciding not to do so with respect to an offence with
    an objective component. The court recognized the potential for confusion in these
    circumstances. That confusion was realized in this case.

[51]

The
    trial judge instructed the jury without error on the substantive components of
    dangerous driving. He also provided an accurate and detailed account of the
    appellants evidence. The appellants position that he suffered from a
    momentary lapse of attention was put squarely before the jury.

[52]

In
    his instructions to the jury on the elements of the offences, the trial judge
    first dealt with the offence of assault (as a basis for unlawful act
    manslaughter). No
W.(D.)
instruction was provided at this juncture.
    The trial judge then turned to the elements of dangerous driving. After
    explaining the fault requirements for this offence, he reviewed the evidence,
    including that of the appellant. The trial judge gave the following instruction
    (part of which is reproduced in para. 8, above):

It is no defence, necessarily, to a charge of dangerous driving
    that the driver of a motor vehicle did not see what he hit before he hit it. Although
    I have earlier said that momentary inattention or mere carelessness does not
    amount to dangerous driving, one is obliged when driving a motor vehicle to
    keep a proper lookout for hazards.
If you accept as true Mr. Ibrahims
    explanation, or you are left with a reasonable doubt that it might be true,
    that does not necessarily mean that he is not guilty of dangerous driving. It
    may or it may not, depending on the facts you find concerning the overall
    nature of his driving.

Once again, as I have already said, mere momentary
    inattention on Mr. Ibrahims part, without more, will not suffice as a basis
    upon which to conclude that Mr. Ibrahim is guilty of dangerous driving. You
    must go on to consider whether a reasonable person in similar circumstances
    ought to have been aware of the risk and of the danger involved in driving in
    the manner that you find Mr. Ibrahim drove.
[Emphasis added.]

[53]

The
    trial judge then provided the following instruction (an almost verbatim account
    of what Cromwell J. wrote in
Roy
, reproduced in para. 23, above):

You must ask yourselves two questions.

First, considering all the evidence, would a reasonable person
    have foreseen the risk and taken steps to avoid it?

If so, the second question is did Mr. Ibrahims failure to
    foresee the risk and/or his failure to take steps to avoid it, if such steps
    were possible, amount to a marked departure from the standard of care expected
    of a reasonable person in Mr. Ibrahims circumstances?

[54]

The
    trial judge next instructed the jury on the intent for murder in s. 229(a)(ii)
    of the
Criminal Code
. No
W.(D.)
instruction was given at this
    point. The trial judge then instructed the jury on the partial defence of provocation
    enumerated in s. 232 of the
Criminal Code
.

[55]

Finally,
    towards the end of his charge, the trial judge returned to the appellants
    evidence and provided the following instruction on the first branch of
W.(D.)
.
    This passage contains language (underlined below) that the appellant submits is
    incorrect. The trial judge said:

First, if you believe Mr. Ibrahims testimony that he did not
    have any altercation with Mr. Bissonette [
sic
] before his car struck him
    and the first he knew of any problem was after he struck him when he felt his car
    going over something, that would mean that he did not commit murder and you
    must find him not guilty of murder. It would also mean that he did not commit
    manslaughter by virtue of having committed the unlawful act of assault contrary
    to s. 265(1)(a) or (b).

As Ive already explained, whether he may have committed
    manslaughter by virtue of having committed the unlawful act of dangerous
    driving will remain for you to consider.
[Emphasis added.]

[56]

The
    trial judge instructed the jury that if they could not decide whether to
    believe the appellant or not, they must find him not guilty of murder or
    manslaughter by means of having committed the unlawful act of assault. The
    trial judge again singled out dangerous driving for special consideration in
    the following passage:

Once again, just as was the case if you believe his account,
    even if you cannot decide whether to believe Mr. Ibrahim or not, insofar as he
    acknowledges having hit Mr. Bissonette
it will remain for you to determine
    whether he may have committed manslaughter by virtue of having committed the
    unlawful act of dangerous driving.
[Emphasis added.]

[57]

For
    the sake of completeness, we include the remaining components of the trial
    judges
W.(D.)
instructions:

A third point. Even if you do not believe Mr. Ibrahims
    evidence, if it leaves you with a reasonable doubt as to his guilt or a
    reasonable doubt
on any element of the offence you are then considering
,
    you must find him not guilty of that offence.

Fourth, even if you do not believe Mr. Ibrahims account and
    you are not left with a reasonable doubt that what he says might be true,
    nonetheless, you may only convict Mr. Ibrahim
of the offence that youre
    then considering
if the rest of the evidence that you do accept proves his
    guilt of that offence beyond a reasonable doubt. [Emphasis added.]

[58]

The
    trial judge concluded this aspect of his instructions by warning the jury not
    to simply choose between competing versions of events, because doing so would
    not be giving proper consideration and effect to either the presumption of
    innocence or the principle that an accused must be proven guilty beyond a
    reasonable doubt.

[59]

Taken
    together, the trial judges instructions on the application of
W.(D.)
were confusing. His instructions had the effect of improperly neutralizing any
    exculpatory value of the appellants testimony as it related to dangerous
    driving.

[60]

The
    trial judge was correct to conclude that the first prong of a traditional
W.(D.)
instruction was inapplicable in the circumstances. Acceptance of the appellants
    evidence did not mandate an acquittal. However, the trial judge put it too strongly
    when he instructed the jury, If you accept Mr. Ibrahims explanation, or you
    are left with a reasonable doubt that it might be true, that does not
    necessarily mean that he is not guilty of dangerous driving. Although this
    sentence may be technically correct, it was expressed in a manner that tended
    to undermine any exculpatory potential of the appellants evidence. We do not
    accept the appellants submission the trial judge essentially told the jury
    that it did not matter whether or not they believed the appellants evidence.
    However, the trial judges instruction tends to gesture in that direction.

[61]

The
    jury should have been instructed in no uncertain terms that the appellants
    evidence  whether accepted as true or not  was relevant to whether the Crown
    had proved each of the elements of dangerous driving beyond a reasonable doubt.
    We acknowledge that the trial judges third and fourth points set out above
    could be taken as an attempt to revive the appellants testimony as being
    capable of amounting to reasonable doubt. But this can only be achieved by
    construing the qualifying words (underlined in the quoted passage at para. 57
    above) on any element of the offence you are then considering and of the
    offence youre then considering as including the offence of dangerous driving.
    However, dangerous driving had already been immunized from this treatment in
    earlier portions of the charge. Considered as a whole, the final instructions
    on how to deal with the appellants evidence in relation to dangerous driving would
    have been confusing.

[62]

As there must be a new trial, the question arises as
    to how the jury should be instructed if the appellant testifies again. We derive
    great assistance from
Reid
, in
    which this court considered the application of
W.(D.)
to self-defence in s. 34 of the
Criminal
    Code
. Writing for the court, Moldaver J.A.
    (as he then was) provided the following guidance, at para. 72:

I would suggest that in future cases, when the defence of
    self-defence is raised and the trial judge believes that a
W. (D.)
instruction is warranted, the jury should be instructed along these lines with
    respect to the first two principles:

1. If you accept the accused's evidence
    and on the basis of it, you believe or have a reasonable doubt that he/she was
    acting in lawful self-defence as I have defined that term to you, you will find
    the accused not guilty.

2. Even if you do not accept the
    accused's evidence, if, after considering it alone or in conjunction with the
    other evidence, you believe or have a reasonable doubt that he/she was acting
    in lawful self-defence as I have defined that term to you, you will find the
    accused not guilty.

[63]

This
    approach may be adapted to the context of dangerous driving. One suggested
    approach would include the following two elements:

1. If you accept the accused's evidence and, on the basis of
    it, you have a reasonable doubt about whether the Crown has satisfied any one
    of the offence elements required to prove dangerous driving, as I have
    explained those elements to you, you will find the accused not guilty.

2. Even if you do not accept the accused's evidence, if, after
    considering it alone or in conjunction with the other evidence, you have a
    reasonable doubt whether the Crown has satisfied any one of the elements
    required to prove dangerous driving, as I have explained those elements to you,
    you will find the accused not guilty.

[64]

It
    would helpful at this juncture to remind the jury of the elements of dangerous
    driving, stressing the modified objective nature of liability for this offence,
    as discussed in the passage from
Beatty
(at para. 43), reproduced at
    para. 28 above.

[65]

We
    leave it to the trial judge conducting the new trial to adapt his or her
    instructions to the live issues that may arise during trial, the positions of
    the parties, and the manner in which the substantive elements of dangerous
    driving are explained to the jury. Nevertheless, should the appellant testify
    again, the instructions should make it clear that his testimony, whether
    accepted as true or not, may be capable of raising a reasonable doubt on
    whether the elements of dangerous driving have been proved beyond a reasonable
    doubt.

[66]

Accordingly,
    we would allow the appeal and direct a new trial on the charge of manslaughter.

C.

Reasonable Apprehension of Bias

(1)

Introduction

[67]

The
    appellant argues that, throughout the trial, the trial judge demonstrated a
    reasonable apprehension of bias against him. Near the end of the Crowns case,
    defence counsel brought an application for a mistrial. After hearing some oral
    submissions, the trial judge adjourned the application to another day. Following
    further submissions, the trial judge dismissed the application orally with written
    reasons to follow. On the day that the appellant was sentenced, the trial judge
    released his reasons for refusing to declare a mistrial: see
R. v. Ibrahim
,
    2016 ONSC 7665 (mistrial reasons).

[68]

Although
    we would not allow the appeal on this basis, we are concerned about the manner
    in which the trial was conducted, and how the trial judge handled the mistrial
    application.

(2)

Background

(a)

The mistrial application and its summary dismissal

[69]

On
    the 14th day of trial (October 6, 2015), defence counsel (not Mr. Murphy) made an
    application for a mistrial based on the following complaints, which he asserted
    gave rise to a reasonable apprehension of bias: (1) the trial judge complained
    three times about the defence not having a disclosure obligation; (2) the trial
    judge required defence counsel to vet his cross-examination of witnesses ahead
    of time with the Crown and the court; (3) the trial judge accused defence
    counsel of trial by ambush and expressed disappointment in the conduct of defence
    counsel; (4) the trial judge interfered with the cross-examination of a Crown
    witness; (5) the trial judge continually shook his head with disapproval in
    front of the jury while defence counsel questioned witnesses; (6) the trial
    judge suggested, in the presence of the jury, that defence counsel was wasting
    time by cross-examining witnesses on videotaped statements, rather than from
    prepared transcripts; (7) the trial judge interfered with the examination of
    witnesses on a
voir dire
; (8) the trial judge accused defence counsel
    of attempting to engender the sympathy of the jury through inadmissible
    evidence; (9) the trial judge yelled at defence counsel on numerous occasions;
    (10) the trial judge glared at defence counsel, both in front of and in the
    absence of the jury; and (11) the trial judge constantly interrupted defence
    counsel during submissions.

[70]

When
    the motion was first brought, after briefly listening to oral submissions, the
    trial judge said he would give counsel an opportunity to make full submissions
    at a later juncture. However, of the complaints raised by defence counsel, the
    trial judge said at the time: I disagree with virtually all of them, I think.
    He went on to explain how he runs a tight ship and insists on adherence to
    the rules of evidence. He expressed concern that, counsel of late in my
    experience seem to have  the impression or the understanding that the rules of
    evidence just dont matter, and they matter in this court. When Im presiding,
    they matter.

[71]

The
    trial judge denied making facial expressions or physical gestures, but he said:
    If I have, I am a human being. The trial judge said it did not matter in any
    event because, in his experience, jurors generally do not look at him; they
    look at the witnesses and the counsel asking questions. Further, he disagreed
    that he yelled at anybody, or demonstrated any particular bias. All of these
    observations and denials occurred before full submissions were heard.

[72]

The
    mistrial application was re-addressed two days later, on October 8, 2015. By
    this time, defence counsel had filed an application record that contained two
    affidavits  one from Richard Diniz (co-counsel at trial) and one from Amanda
    Goncalves (an employee at defence counsels law firm, who had been in
    attendance on one day of the trial).

[73]

In
    his affidavit, Mr. Diniz enlarged upon the complaints made by defence counsel a
    few days earlier, when the mistrial application was first brought. He further
    swore that the trial judge had undermined the appellants relationship with his
    counsel, undermined his confidence in the fairness of the trial, and
    influenced and interfered with the [appellants] decision whether or not to
    testify.

[74]

In
    her affidavit, Ms. Goncalves described the conduct of the trial judge during
    the cross-examination of a Crown witness, Benjamin Elroy Yau. Ms. Goncalves
    said that the trial judge appeared to be visibly upset. She further described
    the trial judge shaking his head aggressively and star[ing] at defence
    counsel in what looked like an angry manner as defence counsel was asking
    questions.

[75]

The
    trial judge heard further submissions from defence counsel. However, a review
    of the transcript shows that the trial judge spoke frequently at this stage,
    sometimes going on for pages at a time. The trial judge criticized defence
    counsel for his apparent lack of understanding or misunderstanding of the rules
    of evidence. Moreover, he said, I categorically do not accept that I have
    yelled at you, claiming that, his normal voice is a very loud and deep voice.
    Unfortunately, he accused defence counsel of an ethical breach in terms of
    needlessly hectoring or abusing a witness when its not relevant. Further, he
    accused defence counsel of professional misconduct and sharp practice.

[76]

When
    the Crown was given an opportunity to respond, he was permitted to make his submissions
    virtually without interruption from the trial judge.

[77]

In
    reply, defence counsel submitted that the trial judges earlier remarks
    concerning unprofessionalism and sharp practice were unfair. He said that had
    these allegations been made against him by the Law Society, he would have been afforded
    a proper hearing before adverse findings were made against him. Counsel added
    this conduct to his list of reasons for requesting a mistrial.

[78]

At
    the conclusion of submissions, the trial judge said that he had given
    considerable thought to the matter since it was raised two days earlier and, having
    listened carefully to the submissions and reading the affidavit material, the
    application should be dismissed. He said:

The application is, with respect, without merit and the
    materials accompanied by the argument that Ive heard comes nowhere close to
    persuading me that I should mistry this matter based on my own alleged, quote,
    misbehaviour, closed quote.

[79]

The
    trial judge said he would prepare written reasons, to be released at a later
    date. The Crown then called one further witness as part of its case. The
    appellant testified and other evidence was called on his behalf.

(b)

The charge to the jury

[80]

For
    the sake of maintaining a chronology, we refer to an event that happened
    between the trial judges dismissal of the mistrial application and the release
    of his written reasons. On his own motion, the trial judge addressed his
    conduct in his final instructions to the jury in the following passage:

Further, speaking generally, part of the function of a trial
    judge is to ensure that counsel adhere strictly to the rules of evidence. To do
    that in any trial, a judge is required to intercede from time to time when it
    appears that counsel is infringing or about to infringe one of those rules. For
    the most part, the rules of evidence are well understood by the court and
    counsel in general terms, but disagreement frequently arises concerning the
    practical application of a rule in a given situation. When that happens, it is
    often the sort of thing about which reasonable people might disagree. I mention
    that to make the following point.

In this trial, I was obliged to deal with objections that were
    occasionally raised by counsel. At other times, even when there was no
    objection, I interrupted both Crown counsel and defence counsel when I felt
    that they had infringed or were about to infringe a rule of evidence. For the
    most part, the discussions that ensued took place in your absence. In some
    instances, however, they occurred with you present. In either case, the fact
    that I interrupted and/or corrected counsel on these occasions does not reflect
    badly on either counsel and, in coming to your decision in this case, you must
    give no consideration whatsoever to my having done so.
To the extent that in
    the course of any such interruption I may have appeared to be critical of
    counsel that is something that you must disregard entirely in your
    deliberations.

I wish to make one further point. Like jurors, judges, too,
    must be impartial. Further, the interests of justice require not only that
    judges be impartial, but that they manifestly appear to be impartial.
To
    that end, when presiding over a trial, judges make a concerted effort to appear
    impassive. But, being human, we are not always successful. Moreover, we are not
    always aware when we are doing something that might suggest to the independent
    observer a particular attitude on the part of the judge toward what is then
    taking place.

To the extent that you may have observed during the course
    of this trial any nonverbal behaviour on my part that, in turn, you may have
    perceived as reflecting impatience, irritation, annoyance or disapproval on my
    part toward a witness, or toward either counsel, you must disregard completely
    any such perceptions in your deliberations. You must not permit any nonverbal
    behaviour on my part that you may have observed, whether a facial expression or
    a movement of my head or body, as the case may be, to have any influence
    whatsoever on either your consideration of the evidence or your final decision
    in this case.
[Emphasis added.]

We return to these instructions below.

(c)

The trial judges reasons

[81]

As
    already mentioned above, the trial judge released written reasons for his
    decision refusing to grant a mistrial. The reasons are as remarkable for their length
    (64 single-spaced pages, with 49 footnotes) as they are for their tone. The
    trial judges displeasure with defence counsel is palpable throughout. The reasons
    are peppered with critical, and sometimes insulting, remarks.

[82]

We
    see little purpose in reviewing the reasons, page-by-page. We refer to relevant
    details in the following section which addresses our concerns with the conduct
    of the trial and the trial judges approach to the mistrial application.

(3)

Analysis

(a)

Introduction

[83]

The
    test for establishing a reasonable apprehension of bias is well known  would a
    reasonable person, properly informed and viewing the matter realistically and
    practically conclude that the decision-maker could decide the case fairly:
Committee
    for Justice and Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at
    p. 394,
per

de Grandpré J. (dissenting);
Yukon Francophone
    School Board, Education Area #23 v. Yukon (Attorney General)
,
2015
    SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

[84]

In
    Canadian law, judges are presumed to be impartial. As this court said in
R.
    v. Dowholis
, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18: There is a
    strong presumption of judicial impartiality and a heavy burden on a party who
    seeks to rebut this presumption. See also
Wewaykum Indian Band v. Canada
,
    2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59;
R. v. S.(R.D.)
, [1997]
    3 S.C.R. 484, at para. 117,
per

Cory J.;
R. v. Ruthowsky
,
    2018 ONCA 552, at para. 21.

[85]

When
    assessing whether the actions of a trial judge display a reasonable
    apprehension of bias, the conduct of the trial judge must be viewed in context.
    In
R. v. Stewart
(1991), 62 C.C.C. (3d) 289 (Ont. C.A.), appeal
    quashed, [1991] S.C.C.A. No. 110, Doherty J.A. said, at p. 320: It is a
    question of degree. At some point, incidents which, considered in isolation,
    may be excused as regrettable and of no consequence, combine to create an
    overall appearance which is incompatible with our standards of fairness. See
    also
R. v. Hungwe
, 2018 ONCA 456, 142 O.R. (3d) 22, at para. 44;
R.
    v. John
, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 50, 63;
R. v.
    Stucky
, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 72; and
R. v.
    Murray
, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 96-97.

[86]

In
    all of the circumstances, we are not persuaded that the conduct of the trial
    judge gave rise to a reasonable apprehension of bias. However, we are concerned
    with some aspects of how this trial was conducted, especially the manner in which
    the trial judge dealt with the mistrial application.

(b)

Procedure on the mistrial application

[87]

In
    his reasons, the trial judge is highly critical of defence counsel for the
    manner in which the mistrial application was brought  without proper notice
    and without formally serving the materials on the Crown ahead of time, nor filing
    them with the court in advance of oral argument. He accused defence counsel of
    giving evidence during his oral submissions. The trial judge, at paras. 46-47
    of the mistrial reasons, implicitly accused defence counsel of breaching the
    Canadian Bar Associations
Code of Professional Conduct
, which provides
    that a lawyer must not become an unsworn witness or put their own credibility
    in issue, and s. 5.2-1 of the Law Society of Ontarios
Rules of
    Professional Conduct
: see The Canadian Bar Association,
CBA Code of
    Professional Conduct
, Ottawa: CBA, 2009, ch. IX, commentary 5 (The Lawyer
    as Advocate: The Lawyer as Witness); The Law Society of Ontario,
Rules of
    Professional Conduct
, Toronto: Law Society of Ontario, 2000 (as amended),
    ch. 5, s. 5.2-1. We consider these allegations unfounded and, as discussed
    below, unfair.

[88]

The
    trial judge was displeased with essentially everything about the affidavits
    subsequently filed in support of the application. We need not itemize the trial
    judges entire litany of complaints about the affidavits, which span many pages
    of his written reasons. Mr. Diniz too was effectively accused of breaching s.
    5.2-1 of the Law Society of Ontarios
Rules of Professional Conduct
,
    which prohibits a lawyer from being an advocate and a witness in the same cause:
    see mistrial reasons, at paras. 21-22. On its own, this might seem like a
    plausible complaint. However, missing from the trial judges summary of the
    context are two things. First, although Mr. Diniz did not formally withdraw
    from the case after his affidavit was filed, he did not participate in the
    examination of any witness, nor did he make any submissions. This is consistent
    with the direction provided by the Law Society of Ontario in the commentary
    accompanying s. 5.2-1, which states: The lawyer who is a necessary witness
    should testify and entrust the conduct of the case to another lawyer.

[89]

Second,
    the trial judge, at para. 46, briefly referred to the need for some latitude to
    be given to counsel in the context of a mistrial application of this sort which
    involves the trial judge relying on his or her own observations of what
    occurred and counsel needing to do the same. However, it is not apparent that the
    trial judge provided any such latitude to counsel. He ruled the Diniz affidavit
    inadmissible as evidence given by counsel and treated it as submissions, yet
    was also critical of evidence being given by way of submissions.

[90]

The
    trial judge also criticized Ms. Goncalves affidavit. According to the trial
    judge, it too suffered from the lack of notice complaints mentioned above.
    Moreover, based on the trial judges comparison of Ms. Goncalves affidavit
    with Mr. Dinizs affidavit, he ruled that it lacked independence.

[91]

We
    make a number of observations. First, the Crown at trial (not Ms. Barrett) took
    no objection to the timing of the application, the service of the materials, nor
    the admissibility of the affidavits.

[92]

Second,
    and more importantly, the trial judge raised none of these concerns with
    counsel at the time. Defence counsel was not afforded the opportunity to
    respond to the serious concerns raised by the trial judge in his written
    reasons, including the allegations of professional misconduct.

[93]

This
    approach is resonant of the trial judges allegations during oral submissions
    on the mistrial application that defence counsel had engaged in professional misconduct
    and sharp practice (see para. 75, above). Most unfortunately, the trial judge accused
    defence counsel of petulance when he complained of these characterizations.
    Counsel was perfectly entitled to respond to these allegations of potentially
    disciplinable conduct. In our view, they should not have been made in the first
    place. They were without foundation.

[94]

In
    the end, it is apparent from the trial judges reasons that in his view, nobody
     neither counsel nor witnesses  was entitled to comment upon or characterize
    the manner in which the trial was conducted, except the trial judge himself.

[95]

To
    conclude, we are of the view that the trial judge conducted the mistrial application
    in an injudicious manner. However, given that this portion of the proceedings
    occurred entirely in the absence of the jury, we are not persuaded that this
    aspect of the trial judges conduct had any impact on the overall fairness of
    the proceedings: see
Murray
, at para. 97;
John
, at para. 51.

(c)

Interventions by the trial judge

[96]

While
    we agree that some of the trial judges comments and interventions during
    defence counsels examination of some witnesses, and during defence counsels
    submissions, were unwarranted, we are not satisfied that these interventions,
    either individually or in combination, gave rise to a reasonable apprehension
    of bias. The law affords trial judges wide latitude in discharging trial
    management responsibilities. As this court said in
R. v. Hamilton
,
    2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 30, leave to appeal refused,
    (2012), [2011] S.C.C.A. No. 547; [2012] S.C.C.A. No. 46; [2012] S.C.C.A. No.
    151; [2012] S.C.C.A. No. 166: When evaluating interventions by a trial judge,
    the fundamental question is whether the interventions led to an unfair trial. This
    assessment is made from the perspective of a reasonable observer present
    throughout the trial (citations omitted).

[97]

This
    inquiry should be undertaken with a view to the duty of the trial judge to
    manage the trial, and a consideration of the purpose and context of the
    interventions. As this court has noted, [t]here is a strong presumption that a
    trial judge has not unduly intervened and there may be many proper reasons why
    a trial judge may find it necessary to intervene:
Hamilton
, at para.
    29;
John
, at para. 48.

For example, as noted in
R. v. Ivall
,
    2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 166-168, a trial judge is
    entitled to intervene to restrict an improper line of cross-examination, or to
    apply rules of procedure and evidence: see
R. v. Assoun
, 2006 NSCA 47,
    244 N.S.R. (2d) 96, at para. 265-266, leave to appeal refused, [2006] S.C.C.A.
    No. 233;
R. v. Forrester
, 2019 ONCA 255, at para. 16.

However,
    even where there is a proper basis to intervene, the right to intervene must be
    exercised with caution so as not to undermine the fairness of the trial. See

R. v. Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at pp.
    230-232, leave to appeal refused, [1986] S.C.C.A. No. 298; see also
Hungwe
,
    at para. 40.

[98]

We
    are not persuaded that the interventions in this case reflect bias in the eyes
    of a reasonably informed observer. The trial judge was permitted to insist that
    the rules of evidence be strictly observed. Most of the trial judges interventions
    fall into this category. However, we would observe that this wide latitude
    afforded to trial judges is not a licence to be overbearing or aggressive. It
    is at times like these, when a trial judge feels compelled to intervene, that
    courtesy and constraint should be at a premium.

(d)

The trial judges deportment

[99]

We
    are concerned about the allegations regarding the trial judges deportment
    during the trial  his facial expressions, body language, and vocal
    communications  and about the manner in which he responded to these complaints
    in his written reasons. However, we are constrained in our ability to evaluate
    these claims.

[100]

On the one hand,
    we have the allegations made by defence counsel in his submissions at trial, as
    well as the Diniz and Goncalves affidavits. They allege yelling and other
    non-verbal expressions of impatience and hostility directed towards defence
    counsel.

[101]

On the other
    hand are the trial judges broad denials of any such shortcomings in his
    conduct of the trial. In his mistrial reasons, at para. 57, the trial judge
    indicated that he listened to the digital recordings of the trial to refresh
    his memory about certain aspects of the evidence. However, these recordings are
    not referenced in response to the allegations of yelling at counsel. Neither
    counsel invited us to listen to the recordings. We do not know whether they
    would have assisted us or not in resolving this issue.  Accordingly, our review
    of this aspect of the allegations is limited by the complaints as framed by defence
    counsel, and the trial judges response to these complaints in his written
    reasons.

[102]

The trial
    judge began his analysis of the complaints regarding his non-verbal conduct by
    acknowledging, at para. 80, that, I may have, on one or more occasions, exhibited
    some facial expressions or moved my head or body in such a way as to suggest
    impatience or annoyance. This is inevitable in the dynamics of a criminal
    trial. He denied that it occurred often.

[103]

The trial judge
    repeated the same observations that he offered in court on October 6, 2015,
    when he said that, in his experience, when witnesses are being examined, he is
    looking more or less directly at the jury: mistrial reasons, at para. 81. In
    his view, jurors are focused on the witness being examined, and examining
    counsel, not the judge. The trial judge concluded, at para. 81: If, then, I
    exhibited, from time to time, any untoward facial expression or made any body
    movement(s) that may have betrayed some frustration with counsel or disapproval
    of his methods, it is highly unlikely, in my view, that this would have been evident
    to the jurors. With respect, this seems doubtful. Just as the trial judge is positioned
    in such a way as to be looking more or less directly at the jury, the jury too
    would be looking more or less directly at the [trial judge]. Common sense
    suggests that this type of behaviour would, at the very least, be distracting
    to a jury. Counsel and witnesses may also be thrown off course in the same way.
    Moreover, the trial judges explanation minimizes the important position trial
    judges no doubt occupy in the minds of jurors. It is not implausible that
    jurors would consider the reactions of a trial judge to the examination of a
    witness, whether verbal or otherwise, to be important.

[104]

The trial judge
    acknowledged, at para. 82, that there might have been times when, in the
    course of legal argument he betrayed some degree of frustration of annoyance
    however he followed this by stating that the vast majority, if not all, of
    such occasions occurred when the jury was not present.

[105]

In discussing
    these occasions, the trial judge squarely placed the blame for any decorum
    default at the feet of defence counsel who he characterized as assertive,
    especially when it is apparent to him that the court is not receptive to one
    of his arguments: mistrial reasons, at para. 82. The trial judge took the
    position that [i]f the court responded, from time to time, in a way that
    conveyed impatience, annoyance or frustration, it was no more than [defence
    counsel] displayed in the course of repeatedly and forcefully pressing his
    arguments. He further observed that, more than once, this generated a
    vigorous discussion. No examples were provided. As discussed below, the
    absence of the jury does not absolve trial judges of their duty to maintain
    composure. More to the point, if counsel exhibits behaviour that a trial judge
    considers to be too assertive or aggressive, the appropriate judicial response
    is not to match or better this behaviour; instead, it is to attempt to restore
    decorum. As noted by this court in
R. v. Snow
(2004), 73 O.R. (3d) 40
    (C.A.), at para. 23, regardless of the trial judges perceptions of the conduct
    of counsel, the trial judge at all times should control proceedings with
    judicious demeanour.

[106]

The trial judge
    also addressed the allegation that he glared at counsel in the presence of
    the jury, and when defence counsel was making submissions. He consulted the
Concise
    Oxford English Dictionary
, 10th ed., Revised (Oxford: Oxford University
    Press, 2002) to define the word glare as being to stare in an angry or
    fierce way. He denied ever glaring at counsel in the presence or absence of
    the jury. As he explained, at para. 104:

In fairness, I recognize that, when my face is in repose, I
    have what could fairly be described as a stern visage.
But that is so
    irrespective of which counsel is on his feet and, surely, by the point in the
    trial at which counsel brought this application, the jury would have recognized
    that fact and attributed no particular significance to it.
Further, as I
    have already explained, when counsel was examining a witness, the jury was not
    looking at me, but was, rather, focused intently on counsel and the witness.
[Emphasis added.]

This passage fails to address the substance of the allegation
    which related to the trial judges responses or reactions to defence counsel.
    The complaint was not about a face in repose or a description of the visage
    of the trial judge, whether stern or kind.

[107]

The trial judge
    took a similar approach to the allegation that he yelled at counsel on
    numerous occasions. Again, the trial judge turned to dictionary definitions to
    explain the meaning of the common words, yell and numerous. Parsing these
    definitions, the trial judge said, at paras. 101-102:

In normal speech, I have a stentorian voice.
That said,
    at no time, in the presence of the jury, did I raise my voice when speaking to
    counsel and I did not yell, shout or scream at defence counsel at any point.
If,
    in the absence of the jury, I raised my voice, it was certainly not to a level
    that would constitute yelling.

Further, to the extent that I may have raised my voice, I
    reject the affiant's assertion that I did so on "numerous occasions
To
    the extent that I may have raised my voice on one or more occasions, I did not
    do so many times and certainly not very many times. Rather, measured against
    the entire length of the trial, those occasions were, to my recollection,
    relatively few
. [Emphasis added.]

[108]

However many
    times the trial judge may have raised his voice  and it is impossible to tell
    from the previous passage  it is to be hoped that it did not in fact occur in
    the presence of the jury. But even in the absence of the jury, other
    participants in the process  counsel, witnesses, court staff, and the public
    at large  should not expect to encounter this type of courtroom environment.

[109]

While we are
    unable to conclude that the allegations pertaining to the trial judges
    deportment gave rise to a reasonable apprehension of bias, allegations
    regarding a trial judges verbal and non-verbal conduct during a trial are
    serious. As the foregoing discussion explains, the trial judges manner of
    addressing these complaints in his reasons was inadequate and unresponsive to
    the issues raised by defence counsel. More broadly, the complaints raised in
    this case reflect the importance of the duty of the trial judge to maintain
    composure during the course of a trial, both in the presence and absence of the
    jury.

(e)

The jury instruction

[110]

As noted in
    para. 80 above, the trial judge provided an instruction addressing some of the
    complaints made by defence counsel. As the trial judge said in his mistrial
    reasons, he was not asked to give this instruction, nor did anyone object. It
    is surprising that the trial judge thought it was necessary to provide this
    instruction, especially given his insistence that any physical gestures or
    facial expressions he made would not have been noticed by the jury in the first
    place, and that the vast majority, if not all occasions where he conveyed
    frustration or annoyance toward defence counsel occurred in the absence of the
    jury.

[111]

Instructions
    such as the one provided by the trial judge, while not unheard of (see e.g.
Snow
,
    at paras. 48-49), do not appear to be commonly given. There is no model instruction
    for such an occasion in authoritative sources on jury instructions, such as
Watts
    Model Criminal Jury Instructions
, no doubt because judges should not
    generally find themselves in circumstances such as these. Had the jury noticed
    the conduct alluded to by the trial judge, the instruction may have been
    salutary; had they not, it would surely have been perplexing, and an
    unnecessary distraction from their most serious task. It would have signalled
    to them, as it does to us, that something was wrong with the manner in which
    the trial was conducted.

(f)

Conclusion

[112]

As indicated
    above, we are not persuaded that the trial judges interventions were of such a
    nature or frequency so as to give rise to a reasonable apprehension of bias.
    Nor has it been established that the behavioural components of the trial
    judges conduct tipped the balance. Nevertheless, we are led to conclude that
    the trial was not a model of judicial decorum:
Snow
, at para. 21.

[113]

We appreciate
    that a lengthy murder trial can be very stressful for all involved  the jury,
    witnesses, counsel, court staff, the judge, spectators and, most especially,
    the accused person and his or her family, as well as the deceaseds family,
    friends and supporters. There is so much at stake. Emotions may run high. Things
    may be said that should not have been, or words spoken in an ill-advised
    manner. In most cases these moments naturally pass, perhaps after a short
    break. Sometimes an apology may be warranted. Nevertheless, and notwithstanding
    where fault lies, it is the trial judges responsibility to reduce the stress
    of conflict, not to exacerbate the situation through harsh words, a raised
    voice, or distracting and hostile non-verbal communications.

[114]

As Lord Denning
    said in
The Family Story
(London: Butterworths & Co. (Publishers)
    Ltd., 1981), at p. 162: When a judge sits to try a case with a jury, he is
    himself on trial  before his fellow countrymen. It is on his behaviour that
    they will form their opinion of our system of justice. Notwithstanding the
    out-dated gendered language, this passage resonates with the same force today.

[115]

We dismiss this
    ground of appeal.

D.

conclusion

[116]

We would allow
    the appeal, set aside the conviction, and order a new trial on the charge of
    manslaughter.
[4]


Released: PR JUL 26 2019

Paul Rouleau J.A.

Gary Trotter J.A.

B. Zarnett J.A.





[1]

Section 249(1)(a) has since been repealed and replaced with s.
    320.13(1): see
An Act to amend the Criminal Code (offences relating to
    conveyances) and to make consequential amendments to other Acts
, S.C. 2018,
    c. 21,

ss. 14, 15.



[2]

During one mid-trial colloquy, the trial judge mused that
    dangerous driving might end up being superfluous and not necessarily
    available depending on the evidence adduced over the course of the trial.
He
    opined that short of evidence that the appellants conduct was the result of
    something entirely inadvertent, the conduct would be captured under s. 265(1)
    (assault) thereby making dangerous driving superfluous. He further noted that
    in these circumstances, dangerous driving may not necessarily be available if
    the conduct was a result of a momentary lapse.




[3]

The appellant did not ask the trial judge to instruct the jury
    on this basis of liability. The trial judge decided that, depending on what
    evidence the jury accepted, there was an air of reality to the partial defence
    of provocation. See
R. v. Fougere
, 2019 ONCA 505, at para. 24.



[4]
The sentence appeal was abandoned in oral argument.


