



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hungwe, 2018 ONCA 456

DATE: 20180516

DOCKET: C59259, C59391, C59745, C60311, C60354

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis
    Hungwe, Christian Nkusi, Moussa Daoui, Richard
    Issachar Ellis and Geovanni Nicholas Ellis

Appellants

Michael Davies and Meaghan McMahon, for the appellant,
    Dennis Hungwe

Anthony J. Does, for the appellant, Christian Nkusi

Howard L. Krongold, for the appellant, Moussa Daoui

John Hale, for the appellant, Richard Issachar Ellis

Jonathan Dawe, for the appellant, Geovanni Nicholas
    Ellis

Andreea Baiasu, for the respondent

Heard: May 1, 2018

On appeal from the convictions entered on October 4, 2013
    and sentence imposed on January 24, 2014 by Justice Albert Roy of the Superior
    Court of Justice, sitting with a jury.

Nordheimer J.A.:

[1]

The five appellants were tried jointly on a multi-count indictment in
    the Superior Court of Justice in Ottawa before the trial judge sitting with a
    jury.  The charges all arose out of what was alleged to have been a home
    invasion robbery.  The charges included robbery; being unlawfully in a
    dwelling-house; pointing a firearm; possession of a prohibited firearm; and
    unlawful confinement.  After a 20-day trial, the jury found each of the five appellants
    guilty on most of the charges against them.
[1]

[2]

The appellants appeal from these convictions on the basis that: (i) the
    trial was rendered unfair by certain conduct of the trial judge and (ii) the
    trial judge erred in his instructions to the rotating triers with respect to the
    challenge for cause process during jury selection. The appellant, Dennis
    Hungwe, further appeals on the basis that (iii) the trial judge erred in his
    jury instructions in respect of the use of prior consistent statements. 
    Finally, the appellant, Richard Ellis, seeks leave to appeal his sentence in
    the event his conviction appeal is unsuccessful.

[3]

The record shows that the trial judge questioned defence witnesses and charged
    the jury in a manner that evinced his disbelief in the defence theory of the
    case.  In my view, the cumulative effect of the trial judges interventions, and
    comments in his charge, prejudiced the appellants right to a fair trial.  I
    would therefore allow the conviction appeals and order a new trial.  As such,
    there is no need to address Richards sentence appeal.

Background facts  the Crowns case

[4]

In February 2012, Gilbert Carby, then 46 years old, lived at 300 Glynn
    Avenue in Ottawa with his partner and their respective daughters.  The house
    was a bungalow with a finished basement.

[5]

Carby testified that he operated his own business promoting music events
    and parties.  The defence maintained that he was also a drug dealer and pimp.
    Carby denied this, but acknowledged that he had previously been in the
    business of pimping and had a prior conviction for drug importing.  He also admitted
    that he kept marijuana in the house for his own use, which he shared with his
    teenaged daughter.  He denied that he sold drugs to other people or that he
    kept a gun for protection.

[6]

Carby had a recording studio in his basement that he rented out as part
    of his music promotion business.  The rest of the basement was geared for
    entertainment, with a bar, dance floor, pool table, large screen TV, and video
    game consoles.  Carby described it as kind of like a rec centre, like a
    drop-in, as it were, for people to come and play games and chill.  He frequently
    hosted poker games that typically attracted around 18 players and lasted until
    3:00 a.m. or 4:00 a.m.  He agreed that his guests and the musicians who used
    his basement studio often drank and smoked marijuana and sometimes fell asleep
    and spent the night there.  However, Carby denied selling them alcohol or drugs,
    or running his poker games for profit.

[7]

On the night of February 1, 2012, Carby hosted a poker game in the
    basement of his home.  He testified that, at around midnight, the appellant Christian
    Nkusi, who Carby knew by the nickname Weezy, called to ask whether there was
    poker game that night.  Nkusi was a friend of the daughter of Carbys partner
    and had played poker at the house before.  Carby told Nkusi they were not
    playing poker that night but that there would be a game the next day.  Both of
    these things were untrue.  Carby explained at trial that he had lied to Nkusi because
    the game had already started and he wanted to get him off the phone.

[8]

Carby testified that on the following night, February 2, 2012, he went
    to lie down in his basement bedroom between 9:00 p.m. and 10:00 p.m.  He was
    not sure who else was in the house besides his partner and the children, but
    thought that two of his friends were probably in the basement.  At around 11:30
    p.m., Carbys partner told Carby that she was going out to visit her sick
    mother.  Carby fell asleep a short while later.

[9]

Carby testified that at around 4:00 a.m. on February 3, 2012 he received
    a phone call from Nkusi, who asked if there was a poker game that night.  Carby
    said there was no game, and Nkusi then asked if Carby had any weed, to which
    Carby replied no.  A few minutes later, Carbys partner called and said she
    would be returning home in about ten minutes.  When Carby heard knocking at the
    back door a few minutes later, he assumed it was her and went upstairs to let
    her in.  Carby said that he was only wearing boxer shorts.  Instead of his
    partner, Carby found two black guys, both strangers, standing outside.  He
    opened the back door and the men asked whether he had any weed.  Carby replied that
    he did not.  At this point two other men, also strangers, appeared and entered
    the kitchen.  Carby testified that one of these men was black.  The other
    looked Lebanese.  At trial, Carby identified the first two black men as Dennis
    Hungwe and Geovanni Ellis, the third black man as Richard Ellis, and the
    Lebanese man as Moussa Daoui.  However, Carby said that he had never seen any
    of them before and did not know any of their names at the time

[10]

Carby
    testified that Daoui opened the freezer door and looked inside. Richard said,
    It is what it is and drew a gun.  Daoui then hit Carby in the face with
    something in his hand.  Carby retreated downstairs to the basement bar area,
    and the four men followed.  They took Carby into his bedroom and demanded:
    Wheres all the money at? We know you have money and we know you have drugs.  One
    of the men tried unsuccessfully to use the belt from Carbys pants to bind his
    hands.  Richard then put his gun to Carbys head while Daoui held a knife to
    his throat and they demanded money again, saying they would not leave without
    it.  When Carby continued to insist that he had no money or drugs, the four men
    beat [him] up for a good ten seconds and then took him out to the bar area.

[11]

At
    this point, Richard gave his gun to one of the other men to watch Carby while
    he tore some phone wire out of the ceiling which he used to tie Carbys wrists.
     Meanwhile, the other two men were going around the basement rounding up
    equipment, like Xboxes and the big screen TV and piling it at the bottom of
    the stairs.  When they moved a couch that blocked the entrance to Carbys
    recording studio they discovered one of Carbys friends, who Carby had not
    previously realized was in the basement.  Carby heard the men shout in surprise
    and then what sounded like them beating the friend, and the friend screaming.  Carbys
    friend testified that one of the black men cut his face with a knife.

[12]

Carby
    testified that, shortly after the men brought him to the bar, one of them came
    down the stairs and announced that the police were there.  At this point, the
    men all changed their tone and began telling Carby to clean up his face.  They
    addressed him as Gilly and acted like they knew [him] even though he did
    not know any of them.  The men went into Carbys bedroom and tried to climb out
    the back window, but it was too small.  When they returned to the bar, Carby lied
    and told them that they could get to an exit by going through the storage room
    at the back of the basement.  When the men went into the storage room, Carby
    went up the stairs and left the house through the back door.

Background facts  the defence case

[13]

Richard
    and Geovanni Ellis are cousins and close friends.  At the time of trial,
    Richard was 28 years old and Geovanni was 20 years old.  They spent the evening
    of February 2-3, 2012 together at Geovannis mothers house in western Ottawa
    until around 1:00 a.m., when a friend of Geovannis named Alan came over and
    picked them up in a silver Honda.  They picked up Richards friend, Daoui,
    downtown and then drove to Vanier in east Ottawa to attend a party at the
    apartment of another of Richards friends named Mike.  Alan eventually left the
    party but told Geovanni he could borrow the Honda to drive home, explaining
    [i]ts stolen anyways.  It was an agreed fact that the Honda was stolen from
    its owner sometime after 7:30 p.m. on February 2, 2012.

[14]

The
    Ellis cousins and Daoui spent the next few hours drinking, smoking marijuana,
    and listening to music.  When the Ellis cousins ran out of marijuana, they
    asked a friend if he knew anyone nearby who could sell them more drugs at that
    time of the night.  The friend said he knew a dealer in the Overbrook area of
    Vanier who was always up and always had weed.  He made a phone call and told
    the person he was calling that he would be sending three friends over.  He then
    instructed the Ellis cousins to go to 300 Glynn Avenue  Carbys address  and
    knock on the back door, where Gilly would be waiting for them.  They had
    never heard this name before.

[15]

The
    Ellis cousins and Daoui drove to Carbys house in the stolen Honda.  They
    parked outside and Geovanni decided to leave the car running because he had had
    difficulty starting it.  They were planning to buy half an ounce of marijuana,
    which they expected would cost between $80 and $120, and then return to the
    party.  Daoui had money and was going to pay for the drugs.  None of the three
    men were armed.

[16]

On
    arriving at the address, the three men knocked on the back door and Carby, whom
    they had never seen before, invited them down to the basement.  He was fully
    dressed, wearing pants and a collared shirt.  The Ellis cousins and Daoui
    inspected a sample bag of Carbys marijuana and told him they would buy a half-ounce.
     Daoui did not speak English fluently so the Ellis cousins did most of the
    talking.  Carby announced that he was raising the price and that it would cost
    them $250, explaining that they had nowhere else to go at that hour, [s]o its
    my price or nothing.  The Ellis cousins objected and protested that this was
    bullshit and that Carby was trying to extort them.  As the discussion became
    heated, Carby reached to his waistband and pulled out a handgun.  Richard saw
    the gun in Carbys hand, but Geovanni only saw the hand movement and concluded
    that Carby was going to grab a gun.  The Ellis cousins and Daoui all rushed
    at Carby and wrestled him to the ground, at which point Geovanni saw the gun on
    the floor.  Richard kicked it aside before picking it up and putting it in his
    pocket.

[17]

Suddenly
    another man  Carbys friend  rushed at them screaming.  The Ellis cousins had
    not previously known he was in the dimly lit basement and did not know where he
    came from.  Geovanni saw that Carbys friend was holding something in his hand
    but could not see what it was.  Daoui, who was closest to Carbys friend,
    grabbed him in a bear hug and threw him to the floor.  Carbys friend fell face
    down and did not move.  Geovanni went to stand over him to make sure he did not
    get up again.  Neither Richard nor Geovanni realized that Carbys friend had
    cut his face or saw how this happened.  However, based partially on a knife
    that was found by the police in close proximity to Carbys friends discarded
    shirt outside of the house, the defence theorized that Carbys friend had been
    holding a knife and had accidentally cut his own face when Daoui threw him to
    the floor.  While Geovanni and Daoui were dealing with Carbys friend, Carby resumed
    fighting.  Richard testified that he took Carbys gun from his pocket and hit
    Carby with it a few times.  He denied ever pointing the gun at either Carby or his
    friend.  The Ellis cousins both denied that they or Daoui ever demanded money
    from Carby or took any of his property, apart from his gun, and denied taking
    anything from Carbys friend.

[18]

The
    Ellis cousins and Daoui decided to tie Carby up so they could leave without
    getting shot.  Richard tore some electrical cable from the ceiling and began
    tying Carbys hands, with a view to restraining Carby long enough so they could
    get away.  As he did so, they heard a knock on the back door.  Geovanni went
    upstairs to look and saw a police car parked outside.  He locked the back door
    and returned to the basement and reported the cops are here.  Everyone began
    to panic, but Carby told them not to worry.  He said that he would go talk to
    the police and make them go away.  He told them to go hide in the storage
    room, and they followed his advice.  Geovanni knew that he was in breach of a
    probation order and did not want to gamble that the police would believe their
    story, since they were in Carbys house and had arrived in a stolen car.  Richard
    hid the gun in the storage room because he did not want to be arrested with it,
    and thought that one of the others hid the sample bag of marijuana.  A few
    minutes later, they heard the police announce that the house was surrounded.  The
    Ellis cousins and Daoui followed the directions of the police to exit the house
    one by one.

[19]

Both
    Ellis cousins testified that they had never met their co-defendants, Hungwe and
    Nkusi, before seeing them in court.  They had not realized that Hungwe was in
    the house that night and did not know where he had been or what he had been
    doing.  They also did not know how Nkusi came to be sitting in the back of the stolen
    Honda they had left parked outside, which was where the police found him.

[20]

Nkusi
    explained in his police statement that he had gone to the house to visit.  He
    called and knocked on the door but nobody answered.  It was a cold winter
    night, so when Nkusi saw the car parked out front with its engine running, he
    got into the back seat to stay warm while he called a friend to come pick him
    up.  He did not know who the car belonged to or what it was doing there.  He
    was still sitting in the car when the police arrived.

[21]

Hungwe,
    as was his right, did not testify.  However, his position was advanced at trial
    through his ex-girlfriends testimony.  Hungwes position was that he knew
    Carby and was simply fortuitously present when the events occurred and that he
    did not participate in the altercation.  He was in the home consistent with the
    fact that it served as a neighbourhood drop-in centre and that people often
    came over and spent the night.  His ex-girlfriend contradicted Carbys evidence
    that he and Hungwe were strangers.  The ex-girlfriend testified that she had grown
    up in the area and knew Carby both from the neighbourhood and as a friend of
    her mothers.  She explained that, during the two years she and Hungwe dated,
    she had seen Hungwe and Carby exchange greetings and chat at social occasions
    in a way that showed that they were acquainted.  She also testified that she
    had never met the Ellis cousins, Daoui, or Nkusi, and that Hungwe never
    mentioned their names.

[22]

After
    their arrest, the appellants were searched and transported to the police
    station.  None had a knife or any other weapons in their possession.  Nor did they
    have any gloves or stolen items on them.  The police did find a knife and
    Carbys friends shirt in a snowbank near the stolen car, which as noted above,
    formed part of the defences theory that the knife belonged to Carbys friend.

[23]

In
    a subsequent search of the house, the police found a loaded .22 calibre handgun
    in the basement storage room, hidden behind a mattress that was leaning against
    the wall. No other guns, knives, or gloves were found.  The gun was tested for
    fingerprints and DNA but neither were found.  Officers also found three bags of
    what appeared to be marijuana in the basement along with some other drugs.

The issues

[24]

There
    are three issues raised in these appeals.  The first two issues are raised by
    all of the appellants.  The third issue is raised by the appellant, Hungwe,
    alone.  Those issues are that:

1.

The trial judge infringed the appellants rights to a fair trial by the
    manner in which he (a) questioned certain defence witnesses, and (b) made certain
    comments during the course of his charge to the jury.

2.

The trial judge gave inadequate instructions to the triers during jury
    selection on the challenge for cause process.

3.

The trial judge failed to properly charge the jury in respect of prior
    consistent statements made by Carby.

[25]

I
    will deal with each of these issues in turn.

Analysis

1(a)   The trial judges conduct in questioning witnesses

[26]

The
    defence called a number of witnesses, three of whom are essential to this issue. 
    One was Geovannis mother who gave evidence that Carby had a reputation in the
    West Indian community as a drug dealer and a pimp.  After counsel completed
    their examinations of the witness, the trial judge began to ask questions.  In
    the course of his questions, the trial judge asked Geovannis mother about
    Carbys reputation as a drug dealer and pimp and whether the police knew about
    it.  The following is but a brief excerpt of the exchange that occurred:

THE COURT: In answering the Crown, you said that youre not
    aware if your son or your nephew, here, consume drugs.

A. Yes, I  I dont know if they do. I really dont.

THE COURT: You dont know if they do?

A. I dont know.

THE COURT: Did anyone tell you that their alleging here that
    they were going over to buy drugs from Gillys when this whole incident
    happened.

A. I heard that in a bail hearing and preliminary hearing.

THE COURT: You heard that in a bail hearing?

A. Yes.

THE COURT: And you didnt  that didnt tweak that theyre
    using drugs, if theyre going up

A. Well, shes asking me if Im aware. Ive never seen them,
    Ive never been

THE COURT: Youve never

[]

THE COURT: Yes. And as far as youre concerned, the police
    should be aware of that?

A. They should be.

THE COURT: Yes. We just had a police officer testify here earlier,
    who was working Overbrook for a number of years, which is the area where he lives...

A. Uh-hmm.

THE COURT: ...and he said the police have no information on
    that.

A. I dont... .

THE COURT: Youre not?

A. I don't know - I cant answer to what he said. I dont know
    about that.

THE COURT: No. But youre satisfied that thats what he is?

A. Im positive, yeah.

THE COURT: So, what you're saying is that the police are 
    would appear not to be on top of things as far as hes concerned?

[27]

In
    total, the trial judges questioning of Geovannis mother occupied six pages of
    transcript.

[28]

The
    next witness was the appellant, Richard Ellis.  Again after counsel had
    finished their examinations, the trial judge began questioning Richard.  Two
    areas in particular were canvassed, that is, that Richard had not seen Hungwe
    in the basement and that Carby had been fully clothed when they arrived at the
    house.

[29]

On
    the first topic regarding the presence of Hungwe, the following exchange
    occurred:

THE COURT: Okay, and youve testified that Mr. Hungwe was not
    with you when you went inside the house, is that right?

A. Like, when we went to go....

THE COURT: To buy the drugs, you said....

A. No, he was not with us.

THE COURT: He was not with us., he didnt ride in the car
    with you?

A. No.

THE COURT: He didnt come inside the house with you?

A. No.

THE COURT: You didnt see him downstairs in the house?

A. No.

THE COURT: You understand thats a problem.

[30]

On
    the second topic, that is, the state of Carbys clothing, the following
    exchange took place:

THE COURT: Okay. You heard the evidence of the police officers
    that when he ran outside, he had no pants on and he had no shirt. He had a
    t-shirt or something on, just boxer shorts and a t-shirt and his cable around
    his hand. Some said both hands, I think some said they werent sure. You heard
    that?

A. Yes, Your Honour.

THE COURT: Yes, and you never saw him undress?

A. All I know is that we left him there in the room

THE COURT: Yes.

A. ...he was still inside the house...

THE COURT: Yes.

A. ...and we just went in the back room and I dont know how
    long he was there for.

THE COURT: Yes.

A. Im not sure, but...

THE COURT: Yes.

A. ...he was fully clothed though.

THE COURT: Yes. You understand that  how would he get the
    shirt, a button-down shirt off if the hands were tied in the front of him? Do
    you understand what I mean? If hes got hands....

A. I  I understand, but, like I said, on  on the way when he
    told us to go to the back room, he started trying to, like, untangle it. I dont
    know...

THE COURT: Yes.

A. ...if he successful did that. Maybe  maybe he took it off,
    took his shirt off, retied it, I dont know, but I know for sure that he was
    trying to unmangle it. Like, he was trying to take it off before he went
    outside to go talk to the police.

THE COURT: So, you think that probably what might have happened
    is that he got the cables off, undressed, put the cables around his hand again and
    ran outside?

[31]

The
    trial judges questioning of Richard took up more than five pages of
    transcript.

[32]

The
    next witness was the appellant, Geovanni Ellis.  Once again, after counsel
    finished their questions, the trial judge questioned Geovanni on the issue of
    how both Carby, and Carbys friend, had come to have cuts on their faces.  The
    following exchange took place regarding Carby:

THE COURT: No re-examination. Mr. Ellis, just to clear up or
    attempt to clear up a couple of things here, did you see a knife at all being
    yielded [
sic
] by anybody that night?

A. Not at all. No.

THE COURT: No, and did you or anyone else put a knife to the
    neck of Gilly that night?

A. No.

THE COURT: You didnt see any of that?

A. No.

THE COURT: Okay. So, maybe we could give the witness Exhibit
    number  Madam Clerk, Exhibit number 8. And if you look at Exhibit number 8,
    photograph number three and number four. You see that?

A. Yeah, I see that.

THE COURT: Yes, okay. You heard the evidence of Mr. Gilly
    saying that a knife had been put to his neck and these marks there on his neck
    were caused by knife being put there. You heard that evidence?

A. Thats what  thats what he said, yes.

THE COURT: Yes, and you didnt do that and you didnt see
    anyone else do that to him?

A. No, not at all.

THE COURT: Okay. So, do you have any explanation of how he
    would have injuries or marks there?

[33]

Later,
    the following exchange took place with respect to the cut to the face of
    Carbys friend:

THE COURT: You didnt see any blood in his face or anything
    else?

A. No.

THE COURT: Okay. You heard his evidence about the slash that he
    got, the number of stitches that he got?

A. Yes, I heard his evidence.

THE COURT: Yes, and if you look at Exhibit number 8, photograph
    number two, three, you see the slash on his face and the stitches there?

A. I see a cut. I wouldnt....

THE COURT: Is that  sorry, what are you....

CLERK REGISTRAR: Exhibit number 8?

THE COURT: Its Exhibit number 12...

CLERK REGISTRAR: Okay.

THE COURT: ...that he should be looking at.

CLERK REGISTRAR: Okay. Thats the right one, yes.

THE COURT: Okay. Have you got that

A. Yeah.

THE COURT: Mr. Ellis?

A. Yeah.

THE COURT: Okay. You didnt see any of this?

A. No.

THE COURT: No?

A. No.

THE COURT: Any explanation how he might have got that?

[34]

In
    all, the trial judges questioning of Geovanni also took up five pages of
    transcript.

1(b)   The trial judges comments during the jury charge

[35]

There
    were a number of instances where the trial judge, as he was instructing the
    jury, departed from the written jury charge that had been reviewed by counsel. 
    I do not consider it necessary to review each and every one of those
    instances.  The following examples will suffice.

[36]

In
    his charge to the jury, the trial judge gave a standard instruction to the
    effect that the evidence did not have to answer every question in the case.  However,
    he then departed from his prepared text and said the following with respect to defence
    counsels submissions regarding inadequacies in the police investigation:

And you have heard counsel raise questions about forensic
    evidence. Where is the DNA? Where is [
sic
] the fingerprints? Why didnt
    the police do this or why didnt the police do that? No case is perfect. You
    get the case  the facts have unfolded. The Crown  police investigated, they
    put the evidence before you, but there is no case  I have been at this awhile,
    you know, I have been before the Courts many years, over 40 years, I have yet
    to be in a case where I say, well I think every question has been answered.
    That is human nature. This is human nature where, you know, we do not get that.
    And in this case, when you heard all the police officers come back and forth in
    here you  one could hardly conclude that the police in this case did not throw
    enough resources at the investigation of this case.

[37]

Another
    instance occurred when the trial judge was instructing the jury on the use of
    demeanour in assessing the evidence of witnesses.  In particular, he referred
    to concerns that defence counsel had raised about how Carbys friend had given
    his evidence.  The trial judge said, in part:

And, it is for you to decide, but I would caution you about 
    and I think you observed that. An individual like Mr. Simon, who is jumping all
    over and reacting and everything else, it does not mean that his evidence is
    not reliable or that he is not telling the truth. You have got to look at the
    context of what happened, his  is his evidence consistent with the evidence of
    other witnesses, what took place, and as, I think, counsel for the Crown has
    pointed out, much of his evidence is corroborated by other independent
    evidence. So, I mean, that is one circumstance that you were  would emphasize
    a classic case of where careful [
sic
] about judging somebody about their
    demeanour.

[38]

Another
    example occurred when the trial judge addressed the issue of whether Carby was
    involved in drug activity at the time of the alleged robbery.  On this point, the
    trial judge said to the jury:

You recall that counsel in their cross-examination and in their
     some in their closing comments to you, made it sort of appear as though their
    records were recent and you recall that they made accusation [
sic
] that
    Mr. Carby was a pimp and was a drug dealer and so on. And Crown counsel dealt
    with that. You would consider the evidence whether there is evidence now to
    support this. One of the counsel, in his closing comments, expressed the
    opinion that Mr. Carby was still involved in criminal activity. And you have to
    ask yourself, is there evidence of this? There is some and you consider that
    evidence. And  but he said  was still involved in criminal activity but at a
    reduced rate. Again, ask yourself, is there evidence of this type of activity
    and at a reduced rate? I dont intend to deal anymore with that, because Crown
    has dealt with that evidence.

Propriety of the trial judges questions and jury charge comments

[39]

It
    is a long standing common law principle, and enshrined in s. 11(d) of the
Charter
    of Rights and Freedoms
, that any person accused of a crime is entitled to
    a fair and impartial trial.  Trial judges are charged with ensuring that, to
    the degree possible, such a trial will take place.  A critical component of
    ensuring a fair and impartial trial revolves around the conduct of the trial
    judge.  As is often said, justice should not only be done, but should
    manifestly and undoubtedly be seen to be done:
R. v. Sussex Justices; Ex
    parte

McCarthy, [1924] 1 K.B. 256 (E.W.H.C.), at p. 259.  In that same
    spirit, a trial judge must be conscious of not only being impartial, but being
    seen to be impartial.

[40]

There
    is no doubt that a trial judge is entitled to ask a witness questions. 
    However, the right to ask questions must be exercised with great caution,
    especially in a jury trial.  Questions to clarify a point, or to ask that an
    answer be repeated, or the like, are all proper questions.  Questions that
    suggest that the judge favours one side or the other are not.

[41]

These
    are not new principles.  They are ones of long standing expression.  These
    general principles are well-stated in
R. v. Valley
(1986), 26 C.C.C.
    (3d) 207 (Ont. C.A.), leave to appeal refused [1986] S.C.C.A. No. 298,
[2]
where Martin J.A. said, at p. 230:

The judges role in a criminal trial is a very demanding one,
    sometimes requiring a delicate balancing of the interests that he is required
    to protect. The judge presides over the trial and is responsible for ensuring
    that it is conducted in a seemly and orderly manner according to the rules of
    procedure governing the conduct of criminal trials and that only admissible
    evidence is introduced. A criminal trial is, in the main, an adversarial
    process, not an investigation by the judge of the charge against the accused,
    and, accordingly, the examination and cross-examination of witnesses are
    primarily the responsibility of counsel. The judge, however, is not required to
    remain silent. He may question witnesses to clear up ambiguities, explore some
    matter which the answers of a witness have left vague or, indeed, he may put
    questions which should have been put to bring out some relevant matter, but
    which have been omitted.

[42]

Justice
    Martin then made it clear that there are limits on the rights of trial judges to
    question witnesses.  He gave examples of where questioning by a trial judge had
    given rise to the quashing of a conviction.  One of those examples was as
    follows, at p. 231:

Questioning of an accused or his witnesses to an extent or in a
    manner which conveys the impression that the judge is placing his authority on
    the side of the prosecution and which conveys the impression of disbelief of
    the accused or defence witnesses

[Citations omitted.]

[43]

Justice
    Martin then concluded on this subject by stating the standard to be applied
    when determining whether interventions by a trial judge had infringed the
    accused persons right to a fair trial.  He said, at p. 232:

Interventions by the judge creating the appearance of an unfair
    trial may be of more than one type and the appearance of a fair trial may be
    destroyed by a combination of different types of intervention. The ultimate
    question to be answered is not whether the accused was in fact prejudiced by
    the interventions but whether he might
reasonably
consider that he had
    not had a fair trial or whether a reasonably minded person who had been present
    throughout the trial would consider that the accused had not had a fair trial

[Emphasis in original. Citation omitted.]

[44]

An
    isolated intervention by a trial judge would not normally render a trial
    unfair.  Instead, as is the case here, it is the cumulative effect of multiple
    interventions that must be considered.  As is also the case here, the
    interventions must be considered in light of any other conduct by the trial
    judge that may magnify the impact of those interventions.  The trial judges extemporaneous
    comments in his jury instructions fall into this latter category.  As Doherty
    J.A. said in
R. v. Stewart
(1991), 62 C.C.C. (3d) 289 (Ont. C.A.), at
    p. 320:

Improper questions by the Crown, unfortunate remarks and
    inappropriate questions made by a trial judge, and unsubstantiated findings of
    fact do not
per se
amount to reversible error. It is a question of
    degree. At some point, incidents which, considered in isolation, may be excused
    as regrettable but of no consequence, combine to create an overall appearance
    which is incompatible with our standards of fairness.

[45]

The
    impact of the trial judges interventions must also be considered in light of
    two other factors:
R. v. Stucky
, 2009 ONCA 151, 240 C.C.C. (3d) 141,
    at para. 66.  One factor is whether the trial judge permitted counsel the
    opportunity to ask further questions after the trial judge asked his or her
    questions.  In this case, the trial judge provided that opportunity.  However,
    providing the opportunity for counsel to ask further questions, when the
    gravamen of the concern is that the trial judge is telegraphing his view of the
    evidence to the jury, has marginal, if any, rehabilitative prospects.  Once the
    trial judges opinion is conveyed, there is little that further questioning by
    counsel can do to remove the resulting sting.

[46]

The
    other factor is whether counsel objected to the trial judges questioning.  In
    this case, while defence counsel did not object at the time, they did raise an
    objection, later in the trial, and asked that the trial judge include a
    specific instruction in his jury charge to ameliorate the effect of his questions. 
    The trial judge refused to provide any such instruction.

[47]

In
    my view, the tenor of the trial judges questions could leave a reasonable
    person with no other impression except that the trial judge did not believe the
    defence witnesses.  Indeed, it appeared that the trial judge viewed their
    evidence as incredible.  For example, the trial judge set up an inappropriate conflict
    between the evidence that Geovannis mother gave about Carby and what the trial
    judge said that the police knew.  I note that the stated knowledge of the
    police was apparently based solely on the evidence of a single police officer. 
    The trial judge also improperly called upon both of the Ellis cousins to give
    explanations for the evidence of other witnesses, undoubtedly leaving the
    impression that such explanations were not forthcoming because the other
    witnesses were telling the truth.

[48]

The
    biased impression against the appellants left by the trial judge was then exacerbated
    by his various comments to the jury during the course of his jury
    instructions.  I will say, as a general proposition, that when a trial judge
    has provided a draft of his jury instructions to counsel, and received their
    comments on that draft, it is generally a risky step for a trial judge to then
    add other commentary on the fly as s/he delivers her or his instructions. 
    While there may undoubtedly be occasions when some alteration is necessary,
    because an error or omission is discovered as the instructions are given, the
    addition of unscripted commentary should generally be avoided.

[49]

In
    my view, the questions asked by the trial judge, and the manner in which they
    were asked, seriously compromised the appearance of a fair and impartial trial. 
    There could be no doubt in the minds of the jurors, or to an outside reasonable
    observer, that the trial judge had aligned himself with the Crown in this
    prosecution.  That impression was only reinforced by the comments offered by
    the trial judge during the course of his jury instructions.

[50]

On
    that latter point, I would reiterate that a balanced charge to the jury is essential
    to a fair trial.  As this court said in
R. v. Baltovich
(2004), 73
    O.R. (3d) 481 (C.A.), at para. 114-17
per curiam
:

we think it important to underscore the significance of the
    charge to the jury and the need for trial judges to be fair and balanced in
    their recitation of the evidence and their review of the position of the
    parties.

The charge to the jury is a central feature in any jury trial.
    In the context of our adversarial process, its strength lies in its
    objectivity. In an otherwise partisan atmosphere, the jury is entitled to look
    to the charge to guide it safely through deliberations and assist it in
    arriving at a true verdict according to law.

[]

not all mistakes are alike. Some can be easily avoided.
    Failing to provide the jury with a fair and balanced charge is one of them.
    There is no justification for jury charges that are not even-handed.

[51]

A
    similar point was made in
R. v. Largie
, 2010 ONCA 548, 101 O.R. (3d)
    561 where Watt J.A. said, at para. 127:

A jury charge must also be even-handed, the instructions fair
    and balanced. No sides should be taken and no editorial comment should intrude

[Citation omitted.]

See also
R. v. McManus
, 2017 ONCA 188, 353
    C.C.C. (3d) 493 at para. 102.

[52]

In
    this case, the various extemporaneous comments made by the trial judge, during
    the course of his charge to the jury, were all directed against the defence.  They
    all tended to suggest that any issues that the defence had with the Crowns
    case were either without substance or were misguided.  These comments would
    only have served to reinforce in the minds of the jurors the message that the
    trial judge had delivered through his questions of the defence witnesses, that
    is, that the defence could not answer the Crowns case.

[53]

In
    my view, the trial judges conduct irretrievably compromised the fairness of
    the trial.

2.       The challenge for cause procedure

[54]

This
    trial involved a challenge for cause based upon possible racial prejudice.  There
    was a single question put to each prospective juror.  As part of the challenge
    for cause process, defence counsel asked for, and received, permission to use
    rotating triers as set out in s. 640(2) of the
Criminal Code
.  Defence
    counsel also asked for, and received, an order excluding the prospective jurors
    from the courtroom while the challenge for cause was determined: see,
e.g.,
    R. v. Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 18; and
R.
    v. Murray
, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 60
per
Watt
    J.A.

[55]

One
    of the practical disadvantages of using rotating triers, when prospective
    jurors are excluded from the courtroom during the challenge process, is that
    the trial judge is required to repeat any instructions to the triers as many as
    12 or 14 times.
[3]
To avoid that practical inconvenience, some trial judges will choose to give
    the instructions for the triers to the entire jury panel, prior to the
    challenge process commencing.  That is what the trial judge chose to do in this
    case.  Counsel did not object to this.

[56]

The
    trial judge told the entire jury panel what the challenge for cause question
    would be.  He also told the jury panel about the process of using triers and
    that the triers would determine whether a prospective juror was acceptable or
    not acceptable after he or she answered the question.  Specifically, the trial
    judge said:

They listen to the question, they listen to the answer, they
    can confer with each other, and they decide after the answer whether the person
    who has answered the question, the candidate, is acceptable or not acceptable
    as a juror in this case.

[57]

The
    trial judge then went on to explain how a prospective juror would be determined
    to be acceptable or not acceptable.  An acceptable juror was described as
    someone who would likely approach his or her duty with an open mind and decide
    the case on the evidence given at trial, and the legal instructions given by
    the trial judge.

[58]

The
    challenge process then began.  No further instructions were given to any of the
    triers until the point where 11 jurors had been sworn.  The jury panel was exhausted
    by that time and a new jury panel had to be brought in.  In the course of
    addressing this second jury panel, the trial judge gave slightly fuller
    instructions regarding the challenge for cause process and the duties of the triers. 
    It is the process utilized with the first panel that is the focus of the appellants
    complaint.

[59]

The
    appellants submit that the trial judge failed to instruct the first jury panel
    on the importance of the challenge for cause process, that is, the desire to
    find impartial jurors.  The appellants also complain that the trial judge did
    not instruct the triers, as the process proceeded, that for any prospective
    juror to be acceptable, both triers had to agree that the prospective juror was
    acceptable, but also that they had the right to disagree on that issue. 
    Finally, the appellants complain that the triers were not told that they had
    the right to retire to a separate room to consider their decision.

[60]

It
    is incontrovertible that there were deficiencies in the instructions that the
    trial judge gave respecting the duties of the triers.  While there is nothing
    wrong with a trial judge giving those instructions to the jury panel as a whole
    (especially with the agreement of counsel), the trial judge should make it very
    clear to the jury panel why he or she is doing this, and the importance of the
    instructions:
R. v. Douglas
(2002), 62 O.R. (3d) 583 (C.A.), at paras.
    19-22
per
Moldaver J.A. Among other things, the trial judge should
    make it clear to the jury panel that they must listen carefully to the
    instructions because each of them may be called upon to be a trier at some point.

[61]

The
    instructions should then cover each of the following areas:
[4]

1.

The process is designed to give each side the fairest trial possible.

2.

Each prospective juror will be sworn or affirmed to tell the truth in
    answering the question.

3.

Every jury panel member will be asked the same question. He or she will
    give an answer. The triers job is to listen to the answer each person gives
    and decide, based on the answer, whether that person is acceptable or not
    acceptable.

4.

An acceptable juror is a person who would likely approach jury duty with
    an open mind and decide the case on the evidence given at trial and the legal
    instructions given by the trial judge.

5.

The acceptability of a prospective juror is determined on a balance of probabilities.

6.

Just because a person has a prejudice or bias against a racial or ethnic
    group does not mean, by itself, that the person is not acceptable as a juror to
    try the case.  However, before finding anyone who has a prejudice or bias
    against a racial or ethnic group acceptable as a juror, the triers must find
    that that person would likely put that prejudice or bias aside in deciding the
    case.

7.

The role of the triers is to examine the impartiality of any prospective
    juror based on their attitudes towards matters of race and whether their
    ability to decide the case solely on the evidence will be affected by their
    attitudes.

8.

For anyone to be acceptable as a juror, both triers must agree that the
    person is acceptable.  However, they do not have to agree on the acceptability
    of any person.  Before they give their decision, they should discuss the matter
    between themselves in the jury box.  They also have the right to retire to a
    room to consider their decision, if they wish.

[62]

As
    an aside, on the last point, I appreciate that there are often practical
    difficulties that would be encountered if the triers actually did wish to
    retire to a separate room to consider their decision.  I see nothing wrong with
    a trial judge adding a comment to his or her instruction to the effect that it
    would probably not be necessary for the triers to do so in normal circumstances. 
    What is important is that the triers know that the option exists.

[63]

If
    a trial judge does decide to instruct the entire jury panel at once with
    respect to the role of a trier, then it is also desirable that the trial judge
    should ask each trier, as they are sworn, if they heard the instructions and
    whether they have any questions.  In this way, the trial judge can be satisfied
    that the jury panel member was actually listening when the instructions were
    given.  A trial judge may also wish to give the triers a written copy of the
    instructions, for their reference, while they are performing their duties as
    triers.

[64]

There
    is no absolute rule regarding how these instructions should be communicated to
    the triers.  Different judges will express the instructions in different ways. 
    The point is to ensure that the various topics are covered so that the triers
    understand their role.  If it becomes apparent, as the challenge process
    unfolds, that any trier does not understand his or her role, then the trial
    judge should reinstruct them.

[65]

While
    not perfect by any means, the trial judge in this case did communicate the
    essential elements of a triers duties.  A review of the challenge process does
    not suggest any misapprehension by the triers in terms of those duties. 
    Indeed, at one point, two triers initially disagreed on the acceptability of a
    prospective juror.  The trial judge told them to talk about it and the triers
    then agreed on the acceptability of the juror.  This incident clearly shows
    that the triers understood that they had the right to disagree.

[66]

The
    appellants rely principally on the statement made in
R. v. Li
(2004),
    183 C.C.C. (3d) 48 (Ont. C.A.) where Borins J.A. said, at para. 32, that the
    deficiencies in the instructions in that case were fatal.  I do not view that
    decision, especially when read in the context of other decisions of this court,
    as standing for the proposition that deficiencies in the instructions on the
    challenge for cause process will always render the conduct of the trial so
    defective as to require it to be redone.  Rather, the extent of the
    deficiencies, and their potential impact, will have to be evaluated on a case
    by case basis.  As this court said in
R. v. Brown
(2005), 194 C.C.C.
    (3d) 76, at para. 33
per
Simmons J.A.:

As other decisions of this court have illustrated, the fact
    that a trial judge may not have recited the precise words used in
Hubbert
,
    or may have omitted one or more of its recommended elements, does not
    necessarily give rise to reversible error. Rather, the issue to be determined
    is whether the circumstances of the particular case reveal a reasonable
    likelihood that the triers misunderstood the nature of their task and the
    procedure they were to follow.

[Footnote omitted.]

[67]

In
    my view, the deficiencies in the trial judges instructions to the jury panel
    regarding the duties of the triers were not so serious as to warrant a new
    trial.  In reaching that conclusion, I would observe that the importance of an
    impartial trial, and the concern that racial prejudice could play in that
    regard, would not be matters that would be lost on ordinary members of the
    public who are called for jury duty.  They would readily understand the need to
    inquire into such matters.  Despite some of the antiquated aspects of the overall
    jury selection process, the importance of the challenge for cause process is
    not one that ordinary members of the public would not be able to grasp as the
    process played out.  I would also note that none of the defence counsel raised
    any objection, during the course of the challenge process, as to the manner in
    which it was conducted.

[68]

I
    would not give effect to this ground of appeal.

3.       The prior consistent statement issue

[69]

As
    I noted earlier, this issue is raised by the appellant, Hungwe, alone.  It
    deals with the use of certain statements made by Carby in various Facebook messages. 
    This issue arises out of Carbys evidence that he did not know any of the four
    males who tried to rob him, including Hungwe.  Hungwe called his ex-girlfriend
    to dispute Carbys evidence that he did not know Hungwe.

[70]

The
    ex-girlfriend knew both Hungwe and Carby.  Carby acknowledged that he and the ex-girlfriend
    were Facebook friends.  The ex-girlfriend gave evidence that she had seen
    Carby and Hungwe exchange greetings and engage in small talk at social events
    in a fashion that led her to believe that they knew each other.

[71]

During
    the Crowns cross-examination of the ex-girlfriend, the Crown began to ask her
    about Facebook messages between her and Carby.  The messages were a
    conversation between Carby and the ex-girlfriend between September 2011 and
    September 2012.  These messages had only come into the Crown's possession
    during the trial, just prior to the Crown closing its case, and after Carby had
    given evidence.

[72]

In
    the messages between them, Carby tells the ex-girlfriend, among other things,
    that he did not know any of the men who committed the robbery.  The specific
    message read, All I know there was 4 black and a white .. I dont know none of
    them soo. U know what I mean.  He also told her that he had no recollection of
    meeting and talking to Hungwe at a particular time.

[73]

During
    this questioning, counsel for Hungwe raised an objection.  Counsel asked the
    trial judge to give a mid-trial instruction to the jury on the use of prior
    consistent statements.  The trial judge said that he planned to give such an
    instruction at some point.  No such instruction was ever given.

[74]

The
    issue arose again in the Crowns closing submission.  Crown counsel said, in
    part:

Youll recall that she [the ex-girlfriend] even tried to persuade
    Mr. Carby, via those [Facebook] messages, that he had met Mr. Hungwe at Paris.
    Why? Because she wanted to bait Mr. Carby. Despite all her efforts, Mr. Carby
    told her he did not remember. Mr. Carby was consistent and unshaken. That means
    he didnt change, he didnt waiver, he didnt hesitate when he told [defence
    counsel] he did not recall Ms.  meeting [the ex-girlfriend] and Mr. Hungwe at
    Paris.

[75]

After
    the Crowns closing, defence counsel again asked for an instruction on the use
    of prior consistent statements.  The trial judge said that he would provide an
    instruction but referred to providing an instruction on prior inconsistent
    statements instead.  In the end result, no specific instruction was provided on
    prior consistent statements.  The trial judge, however, did reference the issue
    about the Facebook statements in his jury charge.  In doing so, he said:

Now, let me deal with what we referred to as prior statement or
    prior inconsistent statement [] You recall that [the ex-girlfriend] and []
    the daughter of Mr. Carby who testified, they were cross-examined about their
    text messages and  I think it was text messages mostly and I do not know if
    there was Facebook involved in that as well, but they were examined about
    something they exchanged with others and they said in their texts and so on.
    And so, those are some of the statement that I am talking about and I want to
    discuss with you here.

[]

In other words, again, what is important is the evidence of
    what the witness said here. The earlier statement, and you will notice we do
    not make the earlier statement exhibits because we want you to rely on the
    evidence under oath in the witness box here. And so the earlier statement is
    not evidence unless the witness says Yes, I accept that. I agree with that.

Carby, of course, had not accepted the Facebook
    statements because this issue arose after he had completed his evidence.  He
    was not recalled to address it.

[76]

There
    can be no debate that an instruction on prior consistent statements ought to
    have been given by the trial judge, especially after counsel requested one.  The
    trial judge did, however, communicate the essential element of a prior
    consistent statement instruction in the portion of his jury charge excerpted
    above.  While it was not the best way to communicate the point about prior
    consistent statements, it was, in my view, sufficient.  I note that inadequacies
    in an instruction on prior consistent statements are not necessarily fatal:
Murray
,
    at para. 155.

[77]

Justice
    Doherty also dealt with the failure to give a jury instruction on prior
    consistent statements in
R. v. L.O.
, 2015 ONCA 394, 324 C.C.C. (3d)
    562.  He said, at para. 38:

Certainly, the [prior consistent statement] instructions could
    have been given and, in a perfect jury charge, would have been given: e.g. see
R.
    v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at paras. 32-34. However,
    perfection is not the standard:
R. v. Ellard
, 2009 SCC 27, [2009] 2
    S.C.R. 19, at paras. 41-42. I am satisfied that the failure to give these
    instructions in this case did not constitute a legal error.

[78]

That
    conclusion applies with equal force in the instant case.  I would not give
    effect to this ground of appeal.

Conclusion

[79]

Given
    my concerns regarding the trial judges interventions and the comments he made during
    the course of giving the jury charge, I am not satisfied that the appellants
    received a fair trial.  Consequently, the appeals must be allowed, the
    convictions set aside, and a new trial ordered.

Released: DW MAY 16 2018

I.V.B. Nordheimer J.A.

I agree. H.S. LaForme J.A.

I agree. David Watt J.A.





[1]

The appellants were variously convicted of offences
    under
ss. 87(2), 95(2), 266, 268, 279(2), 344(1), 349(1), 355(b), and
    465(1)(c) of the
Criminal Code
, R.S.C. 1985, c. C-46.



[2]

Justice Martins analysis in
Valley
has been
    repeatedly affirmed by this court, including most recently in
R. v. John
,
    2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 47-51.



[3]

Indeed, theoretically, if there were a jury of 14
    selected plus two alternates, the instructions might have to be given 16 times.



[4]

All of these requirements are set out in The
    Honourable Justice David Watt,
Watt's Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015), at Preliminary 12-B and 12-C.


