




CITATION:
R. v. Rowe, 2011 ONCA
          753




DATE:  20111201



DOCKET: C51150



COURT OF APPEAL FOR ONTARIO



Doherty, Juriansz and Rouleau JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Joacquin Rowe



Appellant



Joseph Wilkinson and Bradley Greenshields, for the appellant

Andreea Baiasu, for the respondent







Heard:  October 19, 2011

On appeal from the conviction
          entered by a jury, presided over by Justice Horkins of the Superior Court of
          Justice, dated August 8, 2008 and the sentence imposed on March 17, 2009.

Doherty J.A.:



I

[1]

The appellant was charged with five offences:

·

robbery while armed with a firearm;

·

assault with a weapon (pepper spray);

·

administering a noxious substance (pepper spray);

·

aggravated assault; and

·

unlawful confinement.

[2]

The jury convicted on all counts.  The trial judge imposed prison
    sentences totalling seven years, but credited the appellant with 490 days based
    on his 245 days in pre-trial custody.  The appellant appeals conviction and
    sentence.

[3]

The Crowns case depended largely on the evidence of two witnesses who
    were facing the same charges as the appellant when they testified for the Crown
    at the appellants preliminary inquiry and again at his trial.  One of those
    witnesses, David Andrade, recanted his preliminary inquiry testimony and testified
    at trial that the appellant had nothing to do with the robbery.  The trial
    judge correctly told the jury that the inculpatory portions of Andrades
    preliminary inquiry testimony could be considered by the jury for the truth of their
    contents.  However, she erred in law in her instructions as to the manner in
    which the jury should assess and potentially use the inculpatory and
    exculpatory portions of Andrades testimony.  Those errors, in the
    circumstances of this case, require that the appeal be allowed, the convictions
    quashed, and a new trial ordered.


II

(a)

The victims evidence

[4]

On November 24, 2006, the victim, Abbas Al-Ali, and David Andrade had a
    telephone conversation about the possible sale to Andrade of two PlayStation
    III videogame consoles.  Andrade wanted Mr. Al-Ali to bring the consoles to his
    apartment.  Mr. Al-Ali was hesitant to do so, but eventually drove to the basement
    apartment on Shaw Street with his brother.

[5]

Mr. Al-Ali and his brother went to the apartment, but returned to the
    car when Andrade was not available.  Andrade came to the car a short time later
    and after a brief discussion he and Mr. Al-Ali went back into the residence.  The
    brother remained in the car with the videogame consoles.

[6]

When Mr. Ali-Ali entered the apartment, he saw an older gentleman lying
    on the couch.  This person was introduced to Mr. Al-Ali as Andrades father.  In
    fact, it was Michael Acker, the tenant of the apartment.  A short time later, a
    black man wearing a bandana over his face and a cap approached Mr. Al-Ali and put
    a gun to his head.  The gunman moved behind Mr. Al-Ali, stuck the gun in his
    back and said, [w]here is the fucking shit mother fucker?

[7]

Mr. Al-Ali tried to leave the apartment but the door was closed.  A
    number of people, at least two in addition to the gunman, attacked him from
    behind.  He was pepper sprayed and temporarily blinded.  Mr. Al-Ali was struck
    several times.  He believed that the gunman hit him across the head with the
    butt of the pistol.  Mr. Al-Ali fell to the floor and pretended to be
    unconscious.  His attackers went through his pockets, stealing some change, his
    cell phone and his drivers licence.

[8]

The attack on Mr. Al-Ali subsided and he ran for the door.  A struggle
    ensued and Mr. Al-Ali was again hit on the head.  He managed to get out of the apartment
    and ran to his car.  He and his brother called the police and went to the
    hospital.  Mr. Al-Ali suffered significant head injuries.

[9]

Mr. Al-Ali could not identify the gunman or the other persons who attacked
    him.

(b) 
    Ackers evidence

[10]

The Crown alleged that the appellant was the gunman.  That allegation
    rested entirely on Michael Ackers testimony.

[11]

Acker lived in the apartment on Shaw Street.  He was 60 years old, had a
    lengthy criminal record and was addicted to alcohol and crack cocaine.  Acker
    was charged with robbery and other offences in connection with the attack on Mr.
    Al-Ali.  He was awaiting trial when he testified for the Crown both at the
    preliminary inquiry and at the appellants trial.

[12]

According to Ackers testimony, the appellant, Andrade, and a woman
    showed up unannounced at his apartment on November 24, 2006.  Acker knew the
    appellant because the appellant had visited a former roommate of his on several
    occasions.  Acker did not know Andrade or the woman.  Acker later picked the
    appellant out of a photo line-up.

[13]

When Andrade and the appellant arrived at Ackers apartment, they
    explained that they were interested in buying some videogame consoles and reselling
    them on the Internet.  They wanted to use Ackers apartment to make the
    purchases.  Andrade called a prospective seller (Mr. Al-Ali) from Ackers
    apartment.  The appellant and Andrade asked Acker to speak to the person and
    identify himself as Andrades father.  Andrade and the appellant told Acker
    that the prospective seller would feel more comfortable about coming to the
    apartment if he thought an older person lived there.  Acker did as he was asked.

[14]

Mr. Al-Ali arrived at the apartment shortly after the telephone
    conversation.  He left the apartment, but returned a few moments later.  Acker testified
    that he was lying on the couch and not paying much attention to the
    conversation between Mr. Al-Ali and Andrade.  He had consumed six beers earlier
    in the evening.

[15]

Acker indicated that after Mr. Al-Ali returned to the apartment for a
    second time, the appellant, who was wearing a bandana over his face, put a gun
    to Mr. Al-Alis head.  Acker had seen the appellant showing the gun to his
    female companion in the apartment earlier that evening.

[16]

Acker testified that he became very frightened when he saw the appellant
    point the gun at Mr. Al-Ali.  A struggle ensued involving Mr. Al-Ali, the
    appellant and Andrade.  According to Acker, apart from himself and Mr. Al-Ali,
    the appellant and Andrade were the only other male persons in the apartment.  In
    the ensuing melee, someone used pepper spray.  Acker had difficulty breathing
    and eventually made his way to the kitchen.  He locked the door and remained in
    the kitchen.

(c) 
    Andrades evidence

[17]

Like Acker, Andrade, who was 19, was charged with various offences
    arising out of the attack on Mr. Al-Ali and was awaiting trial when he
    testified for the Crown at the preliminary inquiry and at trial.  Andrade also
    had a criminal record.

[18]

At trial, Andrade testified that he decided to rob Mr. Al-Ali.  He planned
    to offer Mr. Al-Ali a small amount of money for the videogame consoles and when
    Mr. Al-Ali rejected the offer, Andrade intended to take them off him.  To
    effect his plan, Andrade needed to get Mr. Al-Ali to come to the apartment.  He
    had Acker pose as his father, believing that this would give Mr. Al-Ali a false
    sense of security in going to the apartment.  Andrade also had the appellant
    accompany him to the apartment.  Andrade believed that if any trouble
    developed, the appellant would be available to help him.

[19]

Andrade denied telling the appellant about his plan to rob Mr. Al-Ali.  He
    testified that the appellant had no idea of what was going to happen at the
    apartment and did not participate in any way in the robbery of Mr. Al-Ali.  According
    to Andrade, he was the only person who attacked Mr. Al-Ali.  He struck Mr.
    Al-Ali on the head with a teapot causing the injuries suffered by Mr. Al-Ali. 
    The appellant was standing against a nearby wall as this struggle unfolded.  Andrade
    testified that he did not use or have a firearm when he attacked and robbed Mr.
    Al-Ali.

[20]

Andrades trial testimony was inconsistent in several material respects
    with his preliminary inquiry testimony.  After cross-examining Andrade on those
    inconsistencies pursuant to s. 9(2) of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5, the Crown successfully moved to have parts of Andrades
    preliminary inquiry testimony admitted for the truth of their contents under
    the principled exception to the rule excluding hearsay evidence.

[21]

At the preliminary inquiry Andrade gave several answers that
    incriminated the appellant.  He resiled from that testimony at trial.  The
    potentially incriminatory parts of Andrades preliminary inquiry evidence
    included the following:

·

Andrade told the appellant of his intention to rob Mr. Al-Ali
    before Mr. Al-Ali arrived at the apartment;

·

Andrade told the appellant that he had asked Acker to pretend to
    be his father;

·

Andrade told the appellant he had mace that could be used, if
    necessary;

·

Andrade saw the appellant struggling with Mr. Al-Ali; and

·

After the pepper spray went off, Andrade fled upstairs leaving
    Mr. Al-Ali with the appellant.

[22]

Andrade did, however, testify at the preliminary inquiry, as he did at trial,
    that a gun was not used at any time during the robbery.

(d) 
    The live issues at trial

[23]

The appellant did not testify.

[24]

By the end of the evidence, it was common ground that Andrade had formed
    a plan to rob Mr. Al-Ali when he arrived at the apartment to sell the videogame
    consoles to Andrade.  It was accepted that Mr. Al-Ali was attacked and beaten
    in the apartment.  The defence also acknowledged that the appellant was present
    in the apartment with Andrade prior to and during the attack on Mr. Al-Ali. 
    Finally, while not conceded, Mr. Al-Alis evidence that his attackers went
    through his pockets while he was lying on the ground was not seriously
    disputed.  Setting aside the charges arising out of the use of pepper spray (counts
    2 and 3), the jury had two essential issues to consider  did the appellant participate
    in the robbery and, if so, did he have possession of a firearm at that time?

[25]

In his closing submissions, counsel for the appellant argued at length
    that Ackers testimony should be rejected as incredible.  He also argued that
    the jury should not rely on the extracts from Andrades preliminary inquiry
    that implicated the appellant.  Counsel submitted that, prior to the
    preliminary inquiry, Andrade was pressured by the police to implicate the appellant
    and was encouraged to use the disclosure material provided to him to supplement
    his actual recollection of the events.  Counsel also urged the jury to consider
    Andrades express admission in his trial testimony that he alone was
    responsible for the attack on Mr. Al-Ali.

III

[26]

Counsel for the appellant advanced numerous grounds of appeal.  Several
    focussed on the trial judges instructions concerning Andrades evidence.  By
    Andrades evidence, I mean both his trial testimony and the parts of his preliminary
    inquiry testimony admitted at trial for the truth of their contents.

[27]

Counsel for the appellant argued that the trial judge should have drawn
    a clear distinction between the exculpatory portions of Andrades evidence (his
    trial testimony) and the inculpatory portions (his preliminary inquiry
    testimony) when giving the jury a 
Vetrovec
 instruction in relation to his
    evidence.  Counsel submitted that instead the trial judge effectively told the
    jury that it should approach all parts of Andrades evidence in the same way,
    and that it must look for confirmatory evidence of both the inculpatory and the
    exculpatory portions of Andrades evidence.

[28]

In a closely related second submission, counsel contended that the trial
    judge failed to relate the presumption of innocence and the reasonable doubt
    standard of proof to Andrades exculpatory trial testimony.  They argued that
    the jury should have been expressly instructed that if Andrades trial evidence
    that he alone was involved in the robbery left the jury with a reasonable doubt
    as to the appellants guilt, the jury must acquit him.

[29]

Counsel further contended that the trial judge erred in effectively
    instructing the jury that it should consider the preliminary inquiry testimony
    of Andrade and his trial testimony on the same footing.  Counsel submitted that
    the jury should have been alerted to the difficulty inherent in assessing the
    credibility of the preliminary inquiry testimony given that the jury did not
    see the witness give that evidence.

[30]

Next, counsel argued that the trial judge unfairly summarized Andrades
    evidence.  They maintained that by focusing almost exclusively on the
    inconsistencies between Andrades trial testimony and his preliminary inquiry
    testimony, and by denigrating Andrades explanation for those inconsistencies,
    the trial judge put the weight of her office on the side of the Crown insofar
    as the assessment of Andrades evidence was concerned.

[31]

Finally, counsel submitted that in setting out the evidence that could potentially
    confirm Andrades evidence, the trial judge left the jury with evidence that was
    peripheral and insignificant and could not, therefore, provide confirmatory
    evidence.  Counsel submitted that this error was compounded when the trial
    judge misstated a significant portion of Andrades testimony in setting out the
    potentially confirmatory evidence.  In her summary of the potentially
    confirmatory evidence, the trial judge told the jury that Andrade had testified
    that he saw a person with a gun.  The Crown concedes that Andrade gave no such
    evidence.  He denied seeing a gun both in his preliminary inquiry evidence and
    in his trial testimony.

IV

[32]

Andrade was clearly an unsavoury witness.  Part of his testimony, specifically
    the excerpts from his preliminary inquiry testimony, implicated the appellant. 
    Other parts of his testimony, specifically his evidence at trial, exculpated
    the appellant.  For the purpose of determining whether a
Vetrovec
instruction
    should be given, Andrade was what this court has come to refer to as a a mixed
    witness, that is, an unsavoury witness called by the Crown whose testimony in
    part supports the accuseds defence:  see
R. v. Gelle
, 2009 ONCA 262,
    244 C.C.C. (3d) 129, at para. 16;
R. v. Tran
, 2010 ONCA 471, 103 O.R.
    (3d) 131, at paras. 27-28; and
R. v. Shand
, 2011 ONCA 5, 104 O.R. (3d)
    291, leave to appeal to S.C.C. requested [2011] S.C.C.A.  No. 270, at para.
    215.

[33]

The above-cited cases indicate that a
Vetrovec
caution will often
    be appropriate in respect of the testimony of a mixed witness.  The specifics
    of that caution and the format of the instruction are left very much in the
    discretion of the trial judge.  The jury instruction will be sufficient if, considered
    in its entirety, that instruction makes clear to the jury both that it is dangerous
    to rely on the inculpatory portion of the
Vetrovec
witnesss evidence
    without confirmatory support, and that the jury must acquit if the exculpatory
    portions of that witnesss evidence, alone or taken in combination with the
    rest of the evidence, leave the jury with a reasonable doubt.  In upholding an
    instruction directed at a witness much like Andrade, this court said in
Tran
,
    at para. 28:

The jury would have been aware of the conflicting
    statements made by these witnesses.  The evidence they gave at trial was
    essentially exculpatory while their pre-trial statements implicated the
    accused.
It would have been apparent to the jury that the trial judges
Vetrovec
warning amounted to an instruction to exercise considerable caution before
    convicting the appellants on the basis of the inculpatory evidence given by
    these witnesses and upon which the Crown relied.
The exculpatory evidence
    was simply the flip side of the same coin.  Reading the charge as a
whole, I
    am entirely satisfied that the jury would have understood that if that mixed
    evidence left them with a reasonable doubt they would have to acquit the
    appellants.
[Emphasis added.]

[34]

Where, as in this case, the inculpatory portions of the witnesss
    testimony are easily demarcated from the exculpatory portions, the best course
    is to specifically refer the jury to the exculpatory portions and to instruct
    the jury that with respect to those portions, the question is not whether the
    evidence is confirmed by other evidence, but rather whether the evidence alone
    or in combination with the other evidence heard in the case leaves the jury
    with a reasonable doubt.

[35]

In her instructions, the trial judge did not draw any clear distinction between
    Andrades trial evidence and his testimony at the preliminary hearing. 
    Instead, she presented the two as part of a single whole.  For example, in
    explaining the need to treat Andrades evidence with caution, the trial judge
    referred to the fact that he was awaiting trial when he testified.  Andrade was
    awaiting trial both when he testified at the preliminary inquiry and at the
    appellants trial.

[36]

The closest the trial judge came to distinguishing between Andrades
    exculpatory trial evidence and his inculpatory preliminary inquiry evidence for
    the purposes of the
Vetrovec
warning appears in the following extract:

Accordingly, you should look for some confirmation
    of Mr. Andrades evidence from somebody or something other than Mr. Andrade
before
    you rely on his evidence in deciding whether Crown counsel has proven the case
    against Mr. Rowe beyond a reasonable doubt.
[Emphasis added.]

[37]

If this instruction stood alone, it might suffice.  Unfortunately, other
    portions of the
Vetrovec
instruction sent a different message to the
    jury.  Immediately before giving the instruction quoted above, the trial judge
    said:

At the same time, it is important to remember
that
    this caution has no application to the case against Mr. Rowe
and he is
    entitled to the benefit of the presumption of innocence and the right to have
    the Crown prove the case against him beyond a reasonable doubt.  [Emphasis
    added.]

[38]

The trial judges reference to this caution is a reference to the
Vetrovec
instruction.  Contrary to her instruction, the caution applied
only
to
    the case against Mr. Rowe and has no application to the case
for
Mr.
    Rowe.

[39]

The trial judge further blended the inculpatory and exculpatory portions
    of Andrades evidence when she told the jury:

Now, as you search for confirmatory evidence for Mr.
    Andrade, of course, it depends on which evidence you are trying to confirm, the
    preliminary evidence or the trial evidence, because it would make a difference.

[40]

This instruction clearly implied that the jury should search for
    confirmation of both the exculpatory trial evidence and the inculpatory preliminary
    inquiry evidence.  As explained above, when examining Andrades trial evidence
    the jury should have measured that evidence against the Crowns burden of proof
    rather than searching for confirmatory evidence of Andrades trial testimony.

[41]

The shortcomings in the
Vetrovec
instruction were not overcome in
    the other parts of the jury instruction:  see
R. v. Khela
, 2009 SCC 4, [2009]
    1 S.C.R. 104, at paras. 55-56.  This was not a case like
Shand
, at para.
    221, where the trial judge told the jury, as part of the reasonable doubt
    instruction, that it must acquit the accused if the exculpatory statement made
    by the
Vetrovec
witness left the jury with a reasonable doubt.  That
    instruction, tying the Crowns burden of proof directly to the exculpatory
    portion of the
Vetrovec
witnesss testimony, will often overcome a
    failure to expressly distinguish between the inculpatory and exculpatory
    portions of the witnesss testimony as part of the
Vetrovec
instruction.

[42]

The
Vetrovec
instruction with respect to Andrades evidence did
    not make clear that the search for confirmatory evidence was properly directed
    at the inculpatory portions of Andrades testimony and that the appellant
    should be acquitted if Andrades exculpatory evidence, considered in the
    context of the entirety of the evidence, left jurors with a reasonable doubt. 
    To the contrary, I read the
Vetrovec
instruction as requiring the jury
    to approach all facets of Andrades evidence with caution and to search for
    confirmatory evidence of Andrades testimony before relying on any part of it.  That
    direction constitutes an error in law.

[43]

Two additional shortcomings in the instructions, while not amounting to
    reversible errors on their own, exacerbate the errors in the
Vetrovec
instruction.  First, the trial judge did not highlight an important distinction
    between the jurys ability to assess Andrades trial testimony and its ability
    to assess the credibility of his preliminary inquiry testimony.  The jury saw
    Andrade give evidence at trial and could use its assessment of his demeanour in
    measuring his credibility.  However, the jury did not see Andrade testify at
    the preliminary inquiry.  Nor was his testimony videotaped.  The jury was left without
    the potentially important insights that the ability to observe the witness when
    testifying can afford to a fact finder in the assessment of that witnesss
    credibility:  see
R. v. B.(K.G.)
, [1993] 1 S.C.R. 740, at pp. 792-93.

[44]

It would have been better had the jury been told that the inability to
    assess Andrades demeanour when he gave his evidence at the preliminary inquiry
    should be considered by the jury when deciding whether it could rely on that
    evidence, particularly in the face of the conflicting evidence given by Andrade
    at trial.
[1]


[45]

Secondly, as conceded by the Crown, the trial judge made a factual error
    in outlining the potentially confirmatory evidence.  She told the jury:

Andrade said that the guy with the gun
had a
    black hat on.  Abbas said he was wearing a black hat.  [Emphasis added.]

[46]

Andrade never testified that anyone had a gun.  In fact, he consistently
    denied that a gun was used both at the preliminary inquiry and at the trial. 
    Andrade did describe the appellant as having a black hat on and Mr. Al-Ali had described
    the gunman as wearing a black hat.

[47]

Juries are told to rely on their own recollection of the evidence.  This
    kind of factual error, which the trial judge was not asked to correct, will not
    usually, standing alone, warrant appellate intervention.  It too, however, adds
    some additional weight to the complaints directed at the trial judges
    instructions concerning Andrades evidence.

[48]

The errors described above are sufficiently significant in the
    circumstances to foreclose any application of the
curative proviso
. 
    Before leaving the trial judges treatment of Andrades evidence, however, I
    will address the contention that she presented that evidence unfairly to the
    jury.  I disagree with that contention.

[49]

The trial judge assembled Andrades evidence for the jurys
    consideration by reference to seven factual areas where his preliminary inquiry
    testimony was directly inconsistent with his trial testimony.  She gave the jury
    copies of the relevant parts of Andrades trial testimony and his preliminary inquiry
    testimony applicable to each of the seven areas of inconsistency.  The excerpts
    of the trial transcript provided to the jury did not include Andrades
    explanations for some of the inconsistencies between his trial testimony and
    the evidence he gave at the preliminary inquiry.  The trial judge did review
    these explanations in the course of her instructions.

[50]

The trial judge could have included the excerpts from the trial transcript
    that contained the explanations for the inconsistencies in the material she
    gave to the jury.  Her failure to do so, however, was not fatal.  Andrades explanations
    were straightforward and easily understood and recalled by the jury.  Those
    explanations were far from compelling and in some instances nonsensical.  From
    the appellants perspective, the less said about some of the explanations the
    better.

[51]

I would also observe that the trial judge did summarize, albeit briefly,
    Andrades trial testimony apart from the areas where the testimony was
    inconsistent with his preliminary inquiry evidence.  I see no unfairness in the
    way the trial judge assembled and presented Andrades conflicting versions of
    events to the jury.  To the contrary, I think it was helpful.

V

[52]

I would allow the appeal for the reasons set out above.  I will,
    however, consider one further argument made by the appellant because it raises
    an important matter of general concern in the conduct of criminal jury trials.  This
    was a factually and legally straightforward, but by no means easy, case.  The
    jury instructions were lengthy and, according to the trial judge, tedious. 
    Counsel for the appellant submitted that the charge was unnecessarily complex
    and contained superfluous instructions that must have confused the jury and
    distracted it from the real issues in the case.  Counsel contended that the
    unnecessary complexity of the jury charge constituted a stand alone basis for
    the reversal of the verdicts:  see
R. v. Hebert
, [1996] 2 S.C.R. 272, at
    para. 13.

[53]

As I would allow the appeal on the grounds set out above, I need not decide
    the ultimate merits of this submission.  However, and with respect to the trial
    judge who clearly worked very hard on her jury instructions, the charge was unnecessarily
    complex and confusing.

[54]

There are two explanations for the confusion and complexity.  First, I
    think the indictment contained counts which, by the end of the trial, were
    unnecessary to a fair and full adjudication of the merits.  There were five
    counts in the indictment.  The trial judge was required to deal with each count
    and with each element of the offence described in each count.  This necessarily
    made the jury instruction longer, more complicated, repetitive and inherently
    confusing.

[55]

I do not fault the Crown for placing the five charges in the indictment,
    or proceeding through the trial with those charges.  In my view, however, the
    Crown should have taken a hard look at the need to instruct the jury on all
    counts and require that it return verdicts on all counts.  Counts two and three
    related to the use of pepper spray against Mr. Al-Ali.  One of the two, either
    one, was redundant.  I see no disadvantage to the Crown had it asked for a
    verdict on only one of those two counts and relieved the trial judge of her
    obligation to address the second.
[2]


[56]

I also see no need from the Crowns perspective for a verdict on the
    unlawful confinement charge.  There was no chance that a reasonable jury would
    convict of unlawful confinement if it did not convict on the robbery charge. 
    If the jury convicted of robbery, an additional conviction for unlawful
    confinement, while virtually inevitable, would add nothing to the case.  A
    conviction on the unlawful confinement count was not necessary to accurately reflect
    the nature and extent of the appellants criminal culpability, or to permit the
    imposition of an appropriate penalty.  Apart from adding another line to the
    appellants criminal record, I see no purpose served by the unlawful
    confinement charge.

[57]

I emphasize that I am not suggesting that a trial judge can unilaterally
    decide to take counts in an indictment away from a jury as a means of
    facilitating the jurys deliberations.  Subject to the judges power to order
    severance, and assuming there is an evidentiary basis for the allegation in
    each count in the indictment, it is up to the Crown to decide whether a charge in
    the indictment should go to the jury for a verdict.

[58]

Crown counsel in the exercise of his or her responsibility to further
    the due administration of justice should consider whether multiple count
    indictments can be trimmed before the case goes to the jury without
    compromising the case the Crown seeks to have determined by the jury.  The
    possibility of not requiring verdicts on all counts in a multiple count
    indictment should be canvassed with counsel as part of the pre-charge
    conference.  It is self-evident that the fewer the charges a jury must
    consider, the less likely it is that confusion will intrude upon the jurys
    deliberation, or that the trial judge will fall into legal error.  Jury
    confusion can lead to a hung jury and legal error can necessitate a new trial. 
    Neither result serves the Crowns interest in the due administration of
    justice.  A properly trimmed indictment serves everyones interests in the
    criminal process.

[59]

The second source of unnecessary complexity in the jury instruction
    flows from what this court has described as over-charging:  see
R. v.
    Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 493.  In
Pintar
, the
    appellant complained that the self-defence instruction was so complex as to be
    incomprehensible.  Moldaver J.A. said:

Unquestionably, trial judges do encounter
    difficulties in explaining the self-defence provisions to juries for the
    reasons expressed by the Chief Justice.  In my opinion, these difficulties are
    compounded by the standards which appellate courts have imposed, or are perceived
    to have imposed, when assessing the adequacy of self-defence instructions. 
    Trial judges are often heard to say that 90 per cent of their legal instruction
    on self-defence is for the Court of Appeal and 10 per cent for the jury. 
    Expressed somewhat differently, fear of under-charging has led to over-charging.

Ironically, many trial judges have taken to leaving
    multiple self-defence provisions with the jury as a means of defending
    themselves against appellate assault.  This phenomenon, which I describe as over-charging,
    has itself come under attack....

[60]

My former colleagues comments were directed at the law of self-defence,
    a notoriously complicated area of the criminal law.  His comments, however, have
    more general application.  Like him, I think that fear of appellate reversal is
    one of the causes of over-charging.  Trial judges perceive, correctly I
    think, that legally accurate instructions that are superfluous will seldom lead
    to reversal, while a failure to instruct on an issue that may have been on the
    periphery of the trial, but has become central on the appeal, will lead to
    reversal and a new trial.  Instructions on anything and everything that have
    any possible relevance are seen as the best defence against the hindsight inherent
    in appellate review.

[61]

There is a second cause of over-charging that is the unfortunate by-product
    of a recent and beneficial development in the conduct of criminal jury trials. 
    Counsel and trial judges now engage in detailed pre-charge conferences in which
    proposed jury instructions are thoroughly vetted.  That vetting generates a written
    version of the jury instructions that is provided to counsel and to the
    jurors.  The pre-charge discussions often centre around the model jury instructions
    found in
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson
    Carswell, 2005).  Those instructions provide valuable assistance to judges and
    counsel in the formulation of appropriate jury instructions:  see
R. v.
    Banwait
, 2010 ONCA 869, 265 C.C.C. (3d) 201, revd 2011 SCC 55, at para.
    173, MacPherson J.A., dissenting.

[62]

The model instructions are not, however, a one-size-fits-all product
    to be used without modification or variation:  see
R. v. McNeil
(2006), 84
    O.R. (3d) 125 (C.A.), at para. 21.  Watt J.A., author of the model
    instructions, put it this way in
Helping Jurors Understand
(Toronto:
    Thomson Carswell, 2007), at p. 82:

A specimen is a sample.  A specimen instruction is a
    sample instruction about its subject-matter.  Specimen instructions do
not
and cannot be expected to provide legally accurate directions for every set of
    circumstances that fall within their reach.  There are no one-size-fits-all
    jury instructions.  At best, specimen instructions provide the basic building
    blocks for finals and other instructions.  The twists and turns of individual
    cases will dictate the nature and extent of modification required to ensure
    legal accuracy. [Emphasis in original.]

[63]

In keeping with the purpose of the model instructions, it does not
    follow that because an accused is charged with robbery it is either necessary
    or appropriate to read to the jury all of the model instructions referable to
    the offence of robbery.  Certainly, those model instructions will provide a
    valuable starting point for discussions between counsel and the trial judge as
    to the appropriate instructions.  Those discussions should tailor the model
    instructions to the specific circumstances.  Unfortunately in the present case
    that tailoring did not occur.  Large parts of the model instructions were used
    without modification and without regard to the specifics of the case.

[64]

Two examples from the trial judges instructions make the point that the
    model instructions must be tailored to the specifics of the case.  The trial
    judge spent five pages instructing the jury on the law of theft.  She read most
    of the model jury instructions on the crime of theft to the jury.  On the
    evidence, however, the trial judge had only to tell the jury that, as a matter
    of law, a theft occurred if Mr. Al-Alis assailants took anything from his
    pockets.  On the evidence adduced in this case, it was unnecessary to make any
    reference to concepts such as colour of right, and the
mens rea
for
    theft.  None had anything to do with the issues that arose in this case.

[65]

The instructions on the law of assault provide a second example.  Once
    again, the trial judge used the model instructions without regard to the evidence
    or the positions taken at trial.  It will be recalled that it was conceded by
    the defence that Mr. Al-Ali was attacked and assaulted in the apartment.  The
    trial judge had only to tell the jury that if it accepted the unchallenged evidence
    that Mr. Al-Ali was attacked and/or threatened with a weapon, either or both of
    those actions constituted an assault in law.  Instructions about the need for
    the intentional application of force and the absence of consent were unnecessary
    and could only distract the jury.

[66]

As explained in
Pintar
, at pp. 495-96, jury instructions must be
    shaped by trial judges and reviewed by appellate courts having regard to the
    purpose those instructions are intended to serve.  A proper jury instruction is
    one that fully and fairly arms a jury with the information it needs to reach a
    fair and proper verdict in the circumstances of the particular case.  Trial
    judges cannot simply cut and paste their charges together using the model
    instructions in
Watts Manual
.  Nor can appellate courts review the
    adequacy of jury instructions without regard to the positions taken at trial
    and the circumstances of the particular case.

[67]

A functional approach to the jury instructions required for count one 
    robbery with a firearm  would produce something like the following:

(i)

You [the jury] should first decide whether you are satisfied beyond a
    reasonable doubt that Mr. Al-Ali was attacked by one or more persons while he
    was in the apartment.  If you are not so satisfied, you should acquit on count
    one.  If you are satisfied, you should continue to the next stage of your
    deliberations on count one.

(ii)

Are you satisfied beyond a reasonable doubt that the accused either alone
    or with others participated in the attack on Mr. Al-Ali by threatening him
    and/or striking him?  If you are not so satisfied, you should acquit the
    accused on count one.  If you are, you should move to the next stage of your
    deliberations on count one.

(iii)

Are you satisfied beyond a reasonable doubt that when the appellant
    participated in the attack on Mr. Al-Ali he intended to and/or did steal
    something from Mr. Al-Ali, or alternatively he knew that others participating
    in the attack intended to and/or did steal something from Mr. Al-Ali?  If you
    are not satisfied, you will acquit the accused on count one and move on to the aggravated
    assault charge in count four.  If you are so satisfied, you will move to the
    next stage in your deliberations on count one.

(iv)

Are you satisfied beyond a reasonable doubt that the accused was armed
    with a firearm (as I will define it) when he participated in the attack on Mr.
    Al-Ali?  If you are so satisfied, you will convict on count one as charged,
    that is, that the accused did rob Mr. Al-Ali while armed with a firearm.  If
    you are not so satisfied, you will convict him of the included offence in count
    one of simply robbing Mr. Al-Ali.

[68]

The approach outlined above would, in my view, avoid references to
    unnecessary legal concepts, focus on the nature of the allegations made against
    the appellant, and direct the jury to the live issues in the case.

VI

[69]

I would allow the appeal, quash the convictions and direct a new trial.

RELEASED:
DD  DEC 01 2011

Doherty J.A.

I agree R.G. Juriansz J.A.

I agree Paul Rouleau J.A.





[1]
The trial judge may not have referred to the jurys disadvantaged position in
    assessing Andrades preliminary inquiry testimony because it would appear that
    the trial judge erroneously considered Andrades preliminary inquiry testimony
    to be automatically admissible because he was an accused.  While Andrade was
    facing the same charges, he was not an accused in this trial.  His preliminary
    inquiry testimony was admissible only if it met the twin criteria of necessity
    and reliability.  The inability to assess the declarants demeanour when the
    hearsay statement was made is relevant when determining reliability for
    admissibility purposes and in assessing ultimate reliability.



[2]
Although not canvassed in argument, I think there are different procedures
    which the Crown could have used to remove some of the counts from the jurys
    consideration.  For example, it could have requested that the trial judge enter
    a stay on those counts.


