



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Wasfi,







2009 
          BCCA 4



Date: 20090109

Docket: CA034750

Between:

Regina

Respondent

And

George 
    Wasfi

Appellant




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Hall




The 
          Honourable Madam Justice Saunders








P.J. 
          Wilson, Q.C.
L. Sears


Counsel for the Appellant




C. 
          Sweeney, Q.C.


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




21 November 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




9 January 2009








Written 
          Reasons by
:




The 
          Honourable Chief Justice Finch




Concurred 
          in by:




The 
          Honourable Mr. Justice Hall
The Honourable Madam Justice Saunders



Reasons 
    for Judgment of the Honourable Chief Justice Finch:

I.          INTRODUCTION

[1]

Mr. Wasfi appeals his conviction on one count of first degree murder 
    entered on 9 December 2006 following a trial before Madam Justice Morrison 
    and a jury.  The appellant raises two grounds of appeal.  He submits that 
    the trial judge erred in her instructions to the jury concerning the appellants 
    post-offence conduct.  He also submits the trial judge prejudiced his right 
    to a fair trial by criticizing a statement made by defence counsel during 
    his closing address to the jury.

[2]

In my respectful opinion, the learned trial judge did not err in either 
    of the ways alleged.  For the reasons that follow, I would dismiss the appeal.

II.         
    FACTS

A.  Procedural History

[3]

The appellant was charged as a party to the shooting death of Vikash 
    Chand on 7 October 1998 along with three other accused: Simon Chow, Sameer 
    Mapara and Shane Shoemaker.  A trial of all four commenced in the fall of 
    2000.  On 18 December 2000 the appellant was granted severance.

[4]

A separate trial of the appellant commenced in 2003.  The learned trial 
    judge there held that evidence of intercepted communications between the appellant 
    and others was inadmissible.  Faced with that ruling, the Crown elected to 
    call no evidence, and the trial judge directed the jury to return a verdict 
    of acquittal.  This Court overturned that decision:
R. v. Wasfi
, 
    2006 BCCA 55.

[5]

The subject proceedings then commenced on 14 October 2006 before Madam 
    Justice Morrison and a jury.  The prosecution called 28 witnesses and entered 
    a larger number of exhibits including the intercepted communications and communication 
    records.  The critical evidence appears to have been that evidence of intercepted 
    communications and the records of same, together with the evidence of Haddi 
    Binahmad, who was an accomplice in the killing, and who testified pursuant 
    to an immunity agreement.  Wasfi did not testify or call evidence.

B.  Evidence as to the Shooting of Chand

[6]

The evidence of Binahmad and eyewitnesses established that shortly 
    after 2:00 p.m. on 7 October 1998 Chand was shot six times by a lone gunman 
    at a used-car lot in Burnaby called Rags to Riches.  The car lot, located 
    on the north/east corner of Boundary Road and 2
nd
Avenue, was owned 
    by Sameer Mapara.

[7]

The lone gunman was Shane Shoemaker.  He was driven to the vicinity 
    of the car lot by Binahmad in Binahmads mothers van.  Binahmad waited in 
    the car while Shoemaker went to the car lot and shot Chand.  After the shooting, 
    Shoemaker ran east on 2
nd
Avenue and was picked up by Binahmad.

[8]

The prosecutions theory was that the appellant, Wasfi, organized and 
    arranged Chands murder.  The Crown relied on Binahmads testimony, the testimony 
    of others, and the intercepted telephone communications.

[9]

Binahmad testified to a history of illegal activity with and for Wasfi. 
    Binahmad admitted he sold and transported drugs.  Wasfi had drug-related dealings 
    with Chow and Chand, and other dealings with Mapara, the car lot owner.  Wasfi 
    raised the topic of killing Chand in the fall of 1997, and asked Binahmad 
    whether he wanted to do it.  Binahmad said it was hard, but could be done.  
    He was motivated by money.

[10]

In May or June 1998, Binahmad and a person named Sam Oli accepted guns, 
    money and drugs from Wasfi to kill Chand while Wasfi was to be away in Mexico.  
    Binahmad and Oli set out twice to do the killing, but were frustrated on both 
    occasions.

[11]

Binahmad testified that before the murder, in September or early October 
    1998, Wasfi and Shoemaker visited him.  They told him that Shoemaker had agreed 
    to shoot Chand.  Binahmad agreed to drive Shoemaker out of town after the 
    killing.

[12]

About a week before the murder, Wasfi gave Binahmad the murder weapon.  
    Binahmad gave the weapon to Shoemaker.  On 5 October 1998 Binahmad picked 
    up $7,000 in one hundred dollar bills from Chow, the payment Wasfi had arranged 
    for Shoemaker.  Binahmad gave the money to Shoemaker.  On the same day, Binahmad 
    agreed with Shoemaker that he would drive him to the place where the shooting 
    was to occur, and then drive him away from the scene.

[13]

Binahmad testified that on 6 October, the day before the shooting, 
    Wasfi called Binahmad from Regina to tell him that Chand would be at the Rags 
    to Riches parking lot the next day.  Wasfi instructed Binahmad and Shoemaker 
    to go to the area of the Rags to Riches car lot and wait.  Binahmad testified 
    that Wasfi told him he would page Binahmad when Chand was at the Rags to Riches 
    car lot, and that Chand should be shot at that location.

[14]

Binahmad testified that on the day of the shooting he drove Shoemaker 
    to the car lot knowing that Shoemaker was to shoot Chand.  He and Shoemaker 
    waited in a nearby McDonalds parking lot.  Wasfi phoned, Binahmad drove Shoemaker 
    to a place near the Rags to Riches parking lot, and Shoemaker shot Chand.

[15]

A significant part of the prosecutions case against Wasfi was the 
    many communications by telephone and pager on 7 October 1998 prior to the 
    murder, involving Wasfi and the other participants in the plan to kill Chand, 
    principally, Binahmad.

[16]

Between 7:57 and 9:26 a.m. on the morning of 7 October 1998, the day 
    of the shooting, there were four telephone and cell phone communications placed 
    from Binahmad to Shoemaker to meet up.  From Regina, Wasfi placed calls to 
    Binahmad at 9:32, to Shoemaker at 9:35 and to Binahmad again at 9:36, 9:44 
    and 9:55.  Wasfi placed calls to Mapara at 10:02 and 10:07, then to Binahmad 
    at 10:15 and again to Mapara at 10:22.  Wasfi received a call from Mapara 
    at 10:24 and then placed calls to Binahmad at 10:27 and Mapara at 10:30.  
    Wasfi placed calls to Binahmad at 11:12, to Mapara at 11:14 and to Shoemaker 
    at 11:16.  Wasfi paged Binahmad at 11:18, and called Shoemaker at 11:19 and 
    Mapara at 11:20.  Wasfi paged Binahmad at 11:21 and called Binahmad at 11:22 
    and 12:01.  Wasfi placed six calls to Mapara from 12:01 to 12:04.

[17]

At 12:09, Wasfi received an intercepted call from Chow and Mapara.  
    During that call, Chand called Mapara on another line.  Maparas words to 
    Chand were overheard on the intercepted call and provided Wasfi with knowledge 
    that Chand was on his way to meet with Mapara at Rags to Riches.  At 12:15 
    Wasfi called Binahmad.  An unknown party placed three calls to Binahmad at 
    1:54, 1:58 and 2:00 p.m.  An unknown party called Shoemaker at 2:05 p.m. Shoemaker 
    shot Chand at 2:07 or 2:08 p.m.

C.  Evidence of Post-Offence Conduct

[18]

After Shoemaker shot Chand, Binahmad drove him away from the scene 
    in the van owned by Binahmads mother.  Someone got the license number of 
    the vehicle, and on the evening of 7 October 1998 Binahmads parents were 
    arrested.

[19]

The Crown placed emphasis on two post-offence phone calls.  Wasfi called 
    Chow at 11:18 a.m. on 8 October 1998 to request that Chow provide $2,000 for 
    [Binahmad], who was in trouble and needed to leave (call number 88).  Wasfi 
    noted that [Shoemaker] had already left.  Concerning Binahmad, Wasfi said: 
    hes the only fucken mistake, okay, and Im going to handle that.  So just 
    get him out of there.  Thats all I need you to do.

[20]

Chow called Wasfi on 22 October 1998 (call number 105).  In the course 
    of that conversation, Wasfi disclosed that the police had the license plate 
    number of the vehicle Binahmad drove and knew who they were looking for, but 
    that Wasfi had got them out of the country.  As for the driver (Binahmad), 
    everybody knows this dummy works for me.

[21]

With the money Binahmad received from Chow, Binahmad was able to leave 
    town.  He met Wasfi in Montreal.  Shoemaker was also there.  Wasfi gave Binahmad 
    and Shoemaker each $2,000 to $3,000.

[22]

Those three, together with others, then left Montreal and made their 
    way to Las Vega, Nevada.  The group included Wasfis girlfriend, Monica Janousek, 
    and Binahmads girlfriend, Theresa Deck.  During this trip, Wasfi paid the 
    bills.  The evidence of Janousek and Deck supported Binahmads evidence that 
    Wasfi paid for the expenses of all in travelling to Las Vegas, and for hotel 
    and living expenses while there.

D.  Binahmads Credibility

[23]

Binahmad was subjected to a long and thorough cross-examination.  His 
    criminal record began in 1991.  He had been interviewed several times by the 
    R.C.M. Police in Las Vegas.  The police gave Binahmad information they had 
    obtained from other witnesses.  The first two interviews in Las Vegas were 
    not tape-recorded.

[24]

A third interview was tape-recorded and in that interview the police 
    provided Binahmad with additional information obtained from other sources.

[25]

Before the interview on 19 October 1999 the police provided Binahmad 
    with a book of transcripts of intercepted calls.  Binahmad, in custody in 
    Canada, read these transcripts and decided to cooperate with the police.

[26]

Binahmad testified at trial pursuant to an immunity agreement, which 
    was negotiated after his arrest and return to Canada from Las Vegas.  He admitted 
    that the police had told him that there was a much better case against him 
    and Shoemaker than there was against Wasfi, and that his lawyer told him when 
    the immunity agreement was being negotiated that the police wanted evidence 
    against Wasfi.

III.        THEORIES OF THE CROWN AND DEFENCE

[27]

The Crowns case was that Wasfi had organized and coordinated Chands 
    murder.  It relied on the evidence of Binahmad which it said was supported 
    and corroborated by the evidence of others.

[28]

The Crown relied on the evidence of post-offence conduct, which it 
    said was consistent with Wasfis dominant role in relation to Binahmad, and 
    which also provided circumstantial evidence of Wasfis guilt.  The Crown placed 
    special emphasis on the intercepted call number 105, which it characterized 
    as a virtual confession.

[29]

The defence attacked Binahmads evidence as inherently unreliable and 
    corrupted by his bias, the manner in which the police took statements from 
    him, his immunity agreement with the police, and his self-interest in avoiding 
    a lengthy prison sentence.

[30]

The defence also questioned the meaning to be given to various of the 
    intercepted communications involving the use of code words.  Defence counsel 
    asked the jury to consider whether the conversations were about murder, or 
    merely about drug dealing, and Wasfis attempts to get money after losses 
    at gambling.

[31]

As to Wasfis role in directing and financing Binahmads trip to eastern 
    Canada, and then to Las Vegas, defence counsel acknowledged that Wasfi had 
    helped Binahmad to escape, but said that fact did not make him a party to 
    Chands murder.  He submitted that Wasfis post-offence conduct was consistent 
    with his being an accessory after the fact, and that he would not oppose such 
    a conclusion.

IV.        ISSUES ON APPEAL

A.  The Charge on Post-Offence Conduct

[32]

The appellant says the trial judges charge on post-offence conduct 
    is in error for two reasons.  First, the appellant says the charge does not 
    set out the alternative inference or inferences which might be drawn from 
    the evidence, namely that Wasfi was an accessory after the fact, rather than 
    a party to the offence of murder.  Second, Wasfis counsel says the charge 
    contains a clear misdirection in the underlined passage of the charge on this 
    issue, which is set out in full below:

Im 
    going to speak to you for a minute about post-offence conduct.  Youve heard 
    evidence concerning Mr. Wasfis conduct and movements following the murder 
    of Vik Chand on October 7
th
, 1998.  The murder is alleged to have 
    occurred around 2:07 or 2:08 in the afternoon of October 7
th
, 1998.  
    At that time Mr. Wasfi, as you know, was in Regina with Monika Janousek.  
    Youve heard and read evidence of telephone calls to and from certain parties 
    with regard to that time.  Youve heard and seen evidence with regard to a 
    car trip from Regina to Montreal, beginning October 7
th
, approximately, 
    then a trip to Burlington after that, and finally a trip to Las Vegas via 
    Niagara Falls and Buffalo.  Youve heard who accompanied Mr. Wasfi on these 
    trips.  Much of this post-offence conduct is circumstantial evidence for you 
    to weigh when you determine whether the Crown has proved the accuseds guilt 
    beyond a reasonable doubt.  This evidence should not be viewed in a vacuum, 
    but should be assessed like all other circumstantial evidence.  To find guilt 
    based on such evidence, it must be consistent with the accuseds guilt and 
    inconsistent with any other rational conclusion.

The evidence of the accuseds post-offence conduct has only an indirect bearing 
    on the issue of guilt.  You should exercise caution in inferring guilt because 
    conduct might be explained in an alternative manner.  The defence has suggested 
    explanations for post-offence conduct in the questioning of witnesses.  There 
    were questions with regard to Mr. Wasfis drug dealings and gambling.  The 
    accuseds post-offence conduct can only be used by you to support an inference 
    of guilt when you reject any innocent explanation for that conduct.

The indictment charges Mr. Wasfi with first degree murder of Mr. Chand on 
    October 7
th
.  The evidence is that the accused was in Regina, as 
    Ive said, at the time of the murder.  You may use the post-offence conduct 
    evidence of the telephone calls and the trips to Montreal to support an inference 
    that despite his absence from the scene of the crime, Mr. Wasfi knew what 
    had been done; that he helped to plan and organize the killings, and so had 
    the necessary criminal intent to commit the crime of first degree murder.
On the other hand, if the evidence of the telephone calls and the trips 
    raises a reasonable doubt in your mind as to whether he committed the crime 
    of first degree murder, you may only use the accuseds post-offence conduct 
    evidence of telephone calls and flight as circumstantial evidence that he 
    committed the crime
.

You should reserve your final judgment about the meaning of the accuseds 
    post-offence conduct until you consider all of the evidence in the normal 
    course of your deliberations.  At the end of the day you may draw whatever 
    permissible inferences you choose from the evidence that youve heard.  You 
    may keep in mind that people travel for innocent reasons.  Even if you find 
    that the accuseds post-offence conduct was motivated by some feeling of guilt, 
    that feeling could be attributable to some other criminal acts apart from 
    the offence set out in the indictment.  Those matters might be important to 
    you in weighing the evidence.

So there is a difference in opinion, of course, between the Crown and the 
    accused as to whether his post-offence conduct relates to the crime charged 
    in the indictment or to some other blameworthy act.  If you determine that 
    the post-offence conduct relates to the crime charged, then you may weigh 
    that evidence when deciding whether the accused is guilty or not guilty of 
    the offence charged.  But if you determine it relates to some other blameworthy 
    act or innocent act, then you should disregard the evidence and give it no 
    weight in your deliberations as to whether the accused is guilty or not guilty.

You may decide that substantial evidence proving the guilt of the accused 
    arises from his post-offence conduct, and that that evidence is subject to 
    two directly conflicting interpretations, one favouring the accused and one 
    not.  Before deciding which theory you believe with respect to this evidence 
    you should first consider the evidence as a whole, and at the end, as always, 
    if there is a doubt you give the benefit of the doubt to the accused.

[Emphasis added]

[33]

I will address first the underlined passage of the charge containing 
    what is said to be the clear misdirection.  Counsel for both Crown and defence 
    have listened to the recording of this part of the charge.  Counsel advise 
    us they are both satisfied that the transcript is completely accurate.

[34]

Counsel for the Crown concedes that the underlined sentence is an incorrect 
    statement of the law, but he says it is a mistake without consequences.  Counsel 
    maintains that the charge as a whole on the issue of post-offence conduct 
    was correct, and that the Court should apply the provisions of s. 686(1)(b)(iii), 
    the
curative proviso
.

[35]

Counsel for Wasfi submitted that the judges clearly erroneous statement 
    would have negated a key aspect of Wasfis defence, namely the innocent explanation 
    that Wasfi contended should have been inferred from the post-offence conduct 
    of his assisting Binahmad to flee.

[36]

Viewed in context, the trial judges misstatement of the law in the 
    underlined statement in the charge could have no effect on the jurys assessment 
    of the evidence, the issues it had to decide, or the verdict.  Apart from 
    that misstatement the charge to the jury correctly instructed it that:

(a)        
    the post-offence conduct evidence was circumstantial evidence     to be weighed 
    in deciding if the Crown had proven its case        beyond a reasonable doubt;

(b)        
    the post-offence conduct had only an indirect bearing on the            issue 
    of guilt;

(c)        
    caution should be exercised in inferring guilt because the     conduct might 
    be explained in an alternative manner;

(d)        
    the jury was to reserve final judgment about the meaning of the       post-offence 
    conduct until it considered all the evidence; and

(e)        
    the jury was to keep in mind that people travel for innocent   reasons and 
    even if motivated by guilt, that could be attributed   to some other criminal 
    act than that charged.

[37]

Counsel for the defence did not object at trial that the judge erred 
    in instructing the jury that it could treat the evidence of Wasfis post-offence 
    conduct as circumstantial evidence of his guilt in the killing of Chand.  
    Although not determinative (see
R. v. Jacquard
, [1997] 1 S.C.R. 
    314, 113 C.C.C. (3d) 1), counsels failure to object to the charge on this 
    point is one factor in considering the accuracy and completeness of the charge, 
    and the seriousness of the alleged error.

[38]

I will now turn to the alleged failure of the trial judge to set out 
    the alternative explanations for the post-offence conduct. In
R. v. 
    White
, [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385, Major J. giving the 
    judgment of the Court said:

[22]      
    It has been recognized, however, that when evidence of post-offence conduct 
    is introduced to support an inference of consciousness of guilt it is highly 
    ambiguous and susceptible to jury error. As this Court observed in
Arcangioli
, 
    the danger exists that a jury may fail to take account of alternative explanations 
    for the accused's behaviour, and may mistakenly leap from such evidence to 
    a conclusion of guilt. In particular, a jury might impute a guilty conscience 
    to an accused who has fled or lied for an entirely innocent reason, such as 
    panic, embarrassment or fear of false accusation. Alternatively, the jury 
    might determine that the conduct of the accused arose from a feeling of guilt, 
    but might fail to consider whether that guilt relates specifically to the 
    crime at issue, rather than to some other culpable act.

And 
    further:

[57]      
     As previously noted, there is a risk that juries might jump too quickly 
    from evidence of post-offence conduct to an inference of guilt. However, the 
    best way for a trial judge to address that danger is simply to make sure that 
    the jury are aware of any other explanations for the accused's actions, and 
    that they know they should reserve their final judgment about the meaning 
    of the accused's conduct until all the evidence has been considered in the 
    normal course of their deliberations. Beyond such a cautionary instruction, 
    the members of jury should be left to draw whatever inferences they choose 
    from the evidence at the end of the day.

[39]

In
Arcangioli v. The Queen
, [1994] 1 S.C.R. 129, 87 C.C.C. 
    (3d) 289, Major J. again speaking for the Court said:

B.         
    The Issue of Flight

It 
    is well established that an inference of guilt may be drawn from circumstantial 
    evidence such as flight from the scene of a crime or the fabrication of lies 
    relating to the offence in question. However, in charging a jury, a trial 
    judge must take care to ensure that evidence of flight is not misused. The 
    danger exists that a jury may erroneously leap from such evidence to a conclusion 
    of guilt if not properly instructed, see McCormick on Evidence, supra, vol. 
    2, sec. 263, at p. 182:

... in many situations, the inference of consciousness of guilt of the particular 
    crime is so uncertain and ambiguous and the evidence so prejudicial that one 
    is forced to wonder whether the evidence is not directed to punishing the 
    "wicked" generally rather than resolving the issue of guilt of the 
    offense charged.

[40]

The Crown submits that the evidence in this case did not support the 
    alternate explanation contended for by the defence.  Crown counsel drew our 
    attention to two judgments of the Ontario Court of Appeal.  In
R. v. 
    Thurston
(2001), 43 C.R. (5
th
) 153, Labrosse J.A. writing 
    for the court said:

[9]        
    I agree with the Crown's position that this case differs from
Arcangioli
in two further significant ways.

[10]      
    Firstly, in
Arcangioli
, the accused testified. In the present case, 
    the appellant did not testify, nor did he make any formal admission under 
    oath regarding his commission of the offence of being an accessory after the 
    fact to murder. The evidence is part of a second statement made to the police 
    which is contrary to his first statement. Accordingly, it was open to the 
    jury, as instructed by the Trial Judge, to decide that the statement was untrue 
    and, therefore, could still itself serve as a basis to infer consciousness 
    of guilt.

[41]

And in
R. v. Savojipour
(2006), 207 O.A.C. 202, 205 C.C.C. 
    (3d) 533, the court said:

[21]      
    As to the second part of the appellant's submission, the trial judge provided 
    an adequate summary of the other explanations offered by the appellant with 
    respect to the post-offence conduct evidence and specifically instructed the 
    jury to assess the explanation given by the appellant. To have referred to 
    other explanations not given in evidence by the appellant, could have seriously 
    undermined the evidence of the appellant and invited the jury to engage in 
    speculation.

[42]

In the case at bar, Wasfi did not testify, and the defence called no 
    evidence.  The alternate explanation the jury was invited to accept came only 
    from the submissions of defence counsel.  He suggested that the intercepted 
    telephone calls related to drug deals.  He said the calls were consistent 
    with the fact that Wasfi was a high-level drug dealer who gambled his money 
    away, and then phoned others to collect the money owed to him on drug deals.  
    And he submitted to the jury that the appellant assisting Binahmad to flee 
    supported the concession that Wasfi was an accessory after the fact.

[43]

In his address to the jury, defence counsel said:

You 
    know all the stuff about what happened in Montreal.  If you help somebody 
    escape you are an accessory after the fact.  I have no opposition to the conclusion 
    that Mr. Wasfi was an accessory after the fact to murder.  Theres no doubt 
    about it.  Hes helping those guys get out of there.  Binahmad said that he 
    would turn to Wasfi for help.  But the fact that you help somebody escape 
    doesnt mean youre guilty of the murder.

[44]

Counsel said that failure of the judge to put these alternate explanations 
    to the jury was a non-direction amounting to a misdirection.

[45]

There was no evidence that Wasfis post-offence conduct was motivated 
    by his knowledge that he was guilty of being an accessory after the fact.  
    The Crown did not allege he was an accessory.  Wasfi could not therefore have 
    established that fact by making a formal admission.  He chose not to testify.

[46]

In the absence of any evidence, the alternate explanation suggested 
    could amount only to speculation.  There was nothing in that to explain why 
    Wasfi would be prepared to help Binahmad flee.  The explanation that he was 
    an accessory after the fact was, simply, that he was an accessory after the 
    fact.  It would have been wrong for the judge to invite the jury to speculate 
    in this way.

[47]

The drugs and gambling explanation was apparently not pursued at trial.  
    There was no direct evidence to support that interpretation of the intercepted 
    communications.  Even if that explanation were consistent with some of the 
    conversations, it could not explain away Wasfis assistance in Binahmads 
    flight, and it would also have tended to cast Wasfi in an unfavourable light 
    with the jury.

[48]

With respect, I would not give effect to this ground of appeal.

B.  Criticism of Defence Counsel

[49]

Counsel for Wasfi submits that one statement in the judges charge 
    was a direct criticism of defence counsels address to the jury, and prejudiced 
    Wasfis right to a fair trial.  He says the trial judges statement led to 
    a miscarriage of justice.

[50]

Counsels closing address ended with these words:

Theres 
    more at stake here than George.  His life is important enough, but there are 
    more important principles at stake, and they are principles that you have 
    to stand up for.  Principles which were designed to prevent the abuse and 
    to prevent the risk which the corruption of Mr. Binahmads evidence represents.  
    You must not allow those principles to be eroded in this case.  Not only is 
    the cost for George Wasfi too high, its more than the rest of us can afford 
    to pay.  And thats why I ask you to acquit Mr. Wasfi.

One 
    last thing.
You have to be true to your oath and I know that you will 
    be, but if youre with me on this stick to your guns.  Thank you.

[51]

Near the end of her charge the learned trial judge said this to the 
    jury:

... 
    Because this is a criminal trial you must be unanimous in whatever verdict 
    you see fit to return.  Each of you must make your own decision whether the 
    accused is guilty or not guilty, but you should do so only after a consideration 
    of the evidence with your fellow jurors, and you should not hesitate to change 
    your mind when you are convinced that you may be wrong.
Telling you to 
    stick to your guns before you begin your deliberations is not an appropriate 
    instruction or advice.
Unless you are unanimous in finding the accused 
    not guilty you cannot acquit him, nor can you return a verdict of guilty unless 
    you unanimously agree that he is guilty.

[52]

Counsel for the appellant says the underlined statement was unfair, 
    prejudicial and led to a miscarriage of justice.

[53]

On this ground of appeal, the appellant need not show actual prejudice.  
    The question is whether the appellant might reasonably consider that the trial 
    was unfair, or whether a reasonable person present throughout the trial would 
    consider that the appellant had not had a fair trial (see
R. v. Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.) and
R. v. Ertmoed
, 
    2006 BCCA 365, 211 C.C.C. (3d) 49.

[54]

In my respectful opinion, the appellant cannot meet this test in this 
    case.  It was both necessary and appropriate for the trial judge to remind 
    the jurors of their obligation to keep an open mind in the course of their 
    deliberations, and to warn them against adherence to a viewpoint shown to 
    be in error.

[55]

The trial judges caution was a single sentence in the charge.  The 
    appellant does not point to any other comment by the judge to the jury, or 
    to any exchange between her and defence counsel during the course of the trial.

[56]

In the context of the submission and the charge as a whole, I do not 
    consider the judges comment to be insulting or demeaning.  I do not consider 
    it would undermine the force or credibility of defence counsels other submissions, 
    as counsel contends.  I do not consider that a reasonable person, familiar 
    with the whole trial, would regard the comment as unfair or prejudicial.

[57]

I would not give effect to this ground of appeal, and with respect 
    to the underlined misstatement, I would apply the provisions of s. 686(1)(b)(iii).

V.         CONCLUSION

[58]

For the reasons given I would dismiss the appeal.

The Honourable 
    Chief Justice Finch

I 
    AGREE:

The Honourable Mr. Justice Hall

I 
    AGREE:

The Honourable Madam Justice Saunders


