



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)      Unless an order is made under
    section 486.4, on application of the prosecutor in respect of a victim or a
    witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is of the opinion that the order is in the
    interest of the proper administration of justice.

(2)      On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or
    (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or
    section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)      An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application to
    the prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)      An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)      The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)      In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious effects
    of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)      An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)      Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given
    or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or
    justice system participant in the proceedings.
2005,
    c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murray, 2017 ONCA 393

DATE: 20170517

DOCKET: C55371

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Boysie Alexander Murray

Appellant

Philip Campbell, for the appellant

Grace Choi and Luke Schwalm, for the respondent

Heard: September 29-30, 2016

On appeal from the conviction entered on May 31, 2011 by
    Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a
    jury.

Watt J.A.:

[1]

Shawn James was a drug dealer. Bleecker Street was his turf.

[2]

Early one Sunday morning in July several years ago, Shawn James was
    outside an apartment building on Bleecker Street. A Beck Taxi with dark-tinted
    rear windows rolled up the street. Boysie Murray was the driver. C.L. was the
    front seat passenger. And a youth, T.J-D. was the only passenger in the rear
    seat.

[3]

The taxi stopped as Shawn James walked along the street. The rear window
    opened. T.J-D. fired three shots from a semi-automatic 9 mm handgun. One of the
    shots struck and killed Shawn James. The taxi drove off.

[4]

Each of the occupants of the taxi was arrested. Each was charged with
    first degree murder.

[5]

T.J-D. pleaded guilty to first degree murder in Youth Court. He received
    a youth sentence of ten years.

[6]

C.L. pleaded guilty to being an accessory after the fact to the murder
    of Shawn James. She received a sentence of time served.

[7]

A jury found Boysie Murray guilty of first degree murder. T.J-D. and C.L.
    testified as witnesses for the Crown at Boysie Murrays trial. Murray did not
    testify or call any witnesses in his defence.

[8]

Boysie Murray appeals his conviction on several grounds. These reasons
    explain why I would order a new trial.

THE BACKGROUND FACTS

[9]

The grounds of appeal advanced do not require an elaborate recital of
    the circumstances that preceded, accompanied and followed the shooting death of
    Shawn James.

[10]

The evidence at trial left no doubt about who shot Shawn James. Nor
    about who else was in the taxi when the shots were fired. Nor about which seats
    those persons in the taxi occupied when T.J-D. pulled the trigger.

[11]

The critical issue for the jury to resolve at trial had to do with
    Boysie Murrays state of mind, more particularly, his knowledge of the purpose
    of the trip to Bleecker Street and what T.J-D. intended to do there.

[12]

A brief overview of the positions advanced at trial will provide an
    adequate backdrop for the issues raised on appeal.

The Case for the Crown

[13]

The occupants of the Beck Taxi that early Sunday morning in July were
    well known to each other. They shared an interest in crack cocaine. C.L. was a
    crack addict who supported her habit by acts of prostitution. T.J-D. and Boysie
    Murray were drug dealers.

The Case for the Crown

[14]

In large measure, the case for the Crown relied upon the evidence of C.L.
    By the time of trial, C.L. had ceased drug use and prostitution, upgraded her
    educational qualifications and was a second-year student at a community
    college.

[15]

The narrative provided by C.L. about the events that preceded,
    accompanied and followed the shooting of Shawn James furnished the basis for
    the Crowns claim that Boysie Murray aided T.J-D. in the planned and deliberate
    murder of Shawn James.

[16]

It was the evidence of C.L. that as she, Boysie Murray and T.J-D. drove
    downtown in the Beck Taxi, Murray asked her to phone Shawn James on a
    cellphone. C.L. was unable to do so because her own cellphone, which contained
    James number, was still at Vanier Correctional Centre from which she had recently
    been released.

[17]

According to C.L., as Murray drove the taxi up Bleecker Street, he said
    there he is. Murray drove around the block and came up Bleecker Street a
    second time. Murray stopped the taxi near the walkway to 375 Bleecker. James
    walked in front of the taxi heading towards the front entrance of the building.
    C.L. heard the rear window of the taxi being rolled down. She then heard shots.
    James fell to the ground.

[18]

Boysie Murray asked T.J-D. whether he had got him. T.J-D. said that he
    had. Murray accelerated away and headed back to the Scarborough apartment
    building from which they had departed for downtown. En route, Murray stopped
    the cab and told C.L. to clean the car. She did so.

[19]

When C.L., Murray and T.J-D. returned to the apartment, the driver whose
    cab they had used to go downtown to re-up their drug supply was still there.
    Murray and T.J-D. took off their sweatshirts. Each was wearing a bulletproof
    vest. C.L. fell asleep. When she woke up, C.L. saw news coverage of the
    shooting of Shawn James on a local television channel. Murray was speaking on a
    telephone. C.L. heard him say the General is dead.

The Defence Case

[20]

Trial counsel for Boysie Murray challenged the credibility of C.L. and
    the reliability of her evidence. In essence, counsel alleged that C.L.,
    desirous of a favourable disposition on her original charge of first degree
    murder, concocted evidence against Murray, supplementing her original account
    with further details that implicated Murray as an aider and abettor of James
    murder with knowledge in advance of T.J-D.s plan to shoot and kill James.

[21]

The Crown also called T.J-D. as a witness at trial. He had pleaded
    guilty to first degree murder in Youth Court and was then serving a sentence of
    ten years. T.J-D. was represented by counsel when he entered his guilty plea.
    Counsel acknowledged, as did T.J-D., that the Agreed Statement of Facts read at
    the plea and sentencing proceedings correctly stated what had occurred.

[22]

At trial, T.J-D. resiled from the Agreed Statement of Facts filed in
    support of his guilty plea. He admitted that he shot Shawn James, but said that
    he never accepted the contents of the Agreed Statement of Facts. It was his
    evidence, oft-repeated, that he shot Shawn James when the opportunity to do
    arose. Neither Boysie Murray nor C.L. knew in advance of the shooting what he
    (T.J-D.) was doing.

[23]

T.J-D. refused to answer questions about where and from whom he had
    obtained the gun he used to shoot Shawn James and from whom he bought drugs. In
    each case, he based his refusal on a concern for his life were he to reveal his
    sources.

[24]

In some respects, his account was contradicted by the photographic
    record obtained from surveillance cameras in the taxi and at the Scarborough
    apartment building from which he, C.L. and Murray left and to which they
    returned after the shooting.

[25]

T.J-D. denied several specific allegations advanced by the Crown to
    establish Murrays guilt as a party to a planned and deliberate murder. In
    particular, T.J-D. denied:

i.

that the dispute about the drug-dealing terrain on Bleecker Street
    involved Murray as well as himself with James;

ii.

that the occupants of the cab had first spotted James on Bleecker
    Street, then circled the block a second time before the shooting;

iii.

that Murray said anything, in particular, there he is, before the
    shooting and had asked whether he (T.J-D.) got him after the shots were
    fired; and

iv.

that Murray said the General is dead when a news report of the
    shooting appeared on the television at the Scarborough apartment.

[26]

Trial counsel for Murray did not openly embrace all aspects of T.J-D.s
    version of the relevant events. Counsel acknowledged that much of what T.J-D.
    said in his testimony was at once incredible and unreliable. But counsel
    invited the jury to have a reasonable doubt about Murrays guilt based on the
    impulsive nature of the shooting and Murrays lack of knowledge and assistance
    to T.J-D. in the shooting.

The Grounds of Appeal

[27]

Boysie Murray (the appellant) advances five grounds of appeal. As I
    would paraphrase them, the appellant contends that the trial judge erred:

i.

by requiring the trial of the challenges for cause to be conducted by
    static triers if unsworn jurors were to be excluded from the courtroom during
    the challenge for cause procedure;

ii.

by frequently and improperly intervening and expressing opinions about
    the credibility of T.J-D. and the reliability of his evidence, thus rendering
    the trial unfair;

iii.

in giving a
Vetrovec

caution in connection with the
    evidence of T.J-D., who was favourable to the defence, and in failing to point
    out evidence that was confirmatory of his testimony;

iv.

in permitting the Crown to put before the jury C.L.s previous
    statements and further in instructing the jury that the testimony of C.L. was
    enhanced by her previous consistent statements; and

v.

in misdirecting the jury on the standard of proof required to establish
    guilt.

Ground #1: The Use of Static Triers to Decide the Challenge for Cause

[28]

This ground of appeal was raised in a supplementary Notice of Appeal and
    was not part of the oral argument. Counsel agreed to file supplementary written
    materials and have this issue determined on the basis of those written
    materials.

[29]

A brief canvass of the circumstances in which the error alleged is said
    to have occurred provides a helpful point of departure.

The Challenge for Cause

[30]

It was common ground that a race-based challenge for cause was warranted
    at trial. The challenge proceeded on the basis of a single question to be asked
    of each prospective juror by trial counsel for the appellant.

The Selection of Triers of the Challenge

[31]

In an appearance about three weeks before jury selection was to begin,
    the trial judge inquired of counsel whether they had agreed on the method by
    which the trial of the challenge for cause would be determined. The trial judge
    described the available options in these terms:

So, now, the other question is, do you want the panel in or
    out? In other words, are you agreed to so-called static jurors as opposed to
    rotating? Because if you want rotating jurors, then I usually leave the whole
    panel in during the process.

[DEFENCE COUNSEL]: Well, what we had decided was the rotating,
    which is the system Im more familiar with.

THE COURT: But that means, then, that everybody is going to
    stay in the courtroom.

[DEFENCE COUNSEL]: And then, of course, everybody gets to hear
    everybodys excuses.

THE COURT: So do you want to think that one over?

[DEFENCE COUNSEL]: Yes, I do.

THE COURT: Okay.

The discussion then turned to the manner in which
    static triers would be selected. Defence counsel indicated that he had no
    experience with static triers.

[32]

The discussion about the mode of trial of the challenge for cause
    resumed when the jury panel summoned for the trial appeared at the courthouse.
    In the absence of the panel, the trial Crown reminded the trial judge that s.
    640 of the
Criminal Code
requires an application by the accused for
    exclusion of prospective [and sworn] jurors from the courtroom during jury
    selection. The trial judge confirmed his understanding of the wording of the
    statutory provision (s. 640(2.1)) and continued:

They cant have the best of both words. So what theyre going
    to do is, if they want, its got to be a formula, if they want jurors to remain
    in the court, thenif they dont want the jurors to remain in the court, then
    its going to be static jurors. So its an application, in effect, to exclude
    the panel from the Court during the process.

On the other hand, if they want the rotating jurors, Ill only
    let them have the rotating jurors if in fact the panel remains in the courtroom
    during the process. So thats the way its going to be.

[33]

After a brief recess to permit counsel to consider their final decision
    on the mode of trial of the challenge, the following exchange occurred:

[CROWN COUNSEL]: Are we doing static or rotating?

[DEFENCE COUNSEL]: Were doing static.

THE COURT: So you want the panel out during the process?

[DEFENCE COUNSEL]: Thats correct.

The jury was selected using static triers.

The Arguments on Appeal

[34]

The appellant says that the trial judge erred in ruling that if counsel
    wanted the unsworn prospective jurors excluded from the courtroom during the
    selection process, the trial of the challenge for cause would be determined by
    static triers. Treating the method by which the trial of the challenge would be
    determined as a binary choice, dependent on whether counsel wished unsworn
    prospective jurors in or out of the courtroom during the selection process was
    wrong.

[35]

According to the appellant, where a challenge for cause is tried by
    rotating triers, a trial judge has a discretion to exclude unsworn prospective
    jurors from the courtroom during the selection process. The amendment which
    created the static triers mode of trial of the challenge for cause  s.
    640(2.1)  neither expressly nor impliedly ousted the well-established
    discretion of the trial judge to exclude unsworn jurors from the courtroom
    during the selection process using rotating triers. Exclusion preserves and
    promotes the impartiality of the selection process.

[36]

The appellant contends that the trial judge peremptorily told the
    parties that there were only two procedures available for the trial of the
    challenge for cause:

i.

rotating
triers with the balance of the jury panel  the
    unsworn prospective jurors 
in

the courtroom during the selection
    process; or

ii.

static

triers with the balance of the jury panel  the
    unsworn prospective jurors 
outside

the courtroom during the
    selection process.

To put the
    available procedures as a binary choice is wrong in law. Its effect was to
    deprive the appellant of an available choice and his preferred method of trial,
    rotating jurors, with the unsworn prospective jurors excluded from the
    courtroom.

[37]

In the end, the appellant says, he was forced to select a mode of trial
    of the challenge  static triers  for which he never expressed a preference,
    in order to preserve and promote the impartiality of the selection process by
    excluding unsworn prospective jurors from the courtroom during selection. This
    prophylactic measure was also available when the challenge was tried by his
    preferred method  rotating triers. The denial of this option created an unfair
    selection process and warrants a new trial.

[38]

The respondent counters with the submission that although the trial
    judge did not expressly offer the appellant the option of choosing rotating
    triers with the unsworn prospective jurors excluded from the courtroom during
    the selection process, he (the trial judge) did
not

preclude
    defence counsel from seeking such a procedure for jury selection. The trial
    judge explained that with rotating triers he usually left the unsworn
    prospective jurors in the courtroom during selection, not that he
always
did
    so. Defence counsel never made submissions seeking any departure from the trial
    judges usual rule.

[39]

In this case, the respondent says, defence counsel was offered ample
    opportunity to decide on the mode of trial of the challenge. He chose static
    triers with the unsworn prospective jurors excluded from the courtroom during
    selection. The appellants preferred choice  rotating triers with the unsworn
    prospective jurors out of the courtroom during selection  is not a method of
    selection available as of right. The appellant must demonstrate why exclusion
    of unsworn prospective jurors is necessary to preserve impartiality when
    rotating triers are to be used. But the appellant offered nothing in support of
    such an order. The trial judge cannot now be faulted for failing to direct a
    method of trial of the challenge that he was never invited to consider.

The Governing Principles

[40]

The
Criminal Code

offers two methods of trying the truth
    of challenges for cause, provided the ground of challenge is something other
    than that the name of the prospective juror is not on the panel, a decision
    that is assigned to the trial judge:
Criminal Code
, ss. 640(2) and
    (2.1).

[41]

The first method, which we designate as rotating triers, has been part
    of our criminal procedure since the enactment of our first
Criminal Code
in 1892. Until 2008, it was the only method available to determine the truth of
    a challenge for cause. This method, authorized by s. 640(2) of the
Criminal
    Code
, requires no application by either party.

[42]

Section 640(2) contains no reference to the presence or exclusion of
    unsworn prospective jurors from the courtroom during selection. In like manner,
    it says nothing about excluding jurors who have been sworn, but are no longer
    participating as triers of the challenge, from the courtroom as the challenge
    process continues.

[43]

Since 2008, the
Criminal Code
has offered a second method of
    trial of challenges for cause. Sections 640(2.1) and (2.2) authorize the use of
    what are described as static triers to determine the truth of the challenge
    for cause. This procedure may only be invoked by an accused, requires a
    preliminary finding of fact by the presiding judge and may result in the
    exclusion of
all
jurors  sworn
    and unsworn  from the courtroom during jury selection. Put another way, the
    static trier procedure is only available on satisfaction of two conditions
    precedent:

i.

an application by the accused; and

ii.

a finding by the presiding judge that exclusion of
all

jurors
     sworn and unsworn  from the courtroom during the trial of the challenge is
    necessary to preserve the impartiality of the jurors.

Where these conditions precedent have been met, the
    judge
may
make an order excluding all jurors  sworn and unsworn  from
    the courtroom during the trial of the challenge:
Criminal
Code
,
    s. 640(2.1). The triers are selected in accordance with s. 640(2.2).

[44]

The available procedures to try challenges for cause, when each may be
    invoked and the consequences for unsworn prospective jurors have been the
    subject of recent decisions of our court and remain to be determined in several
    other outstanding appeals. These authorities establish several principles that
    inform the decision in this case.

[45]

In
R. v. Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, this
    court emphasized that static triers were not merely an alternative method to
    rotating triers to try challenges for cause. Trial of the challenge by static
    triers is only available where:

i.

an accused applies for exclusion of all jurors during the trial of the
    challenge for cause; and

ii.

the judge is satisfied the exclusion of all jurors is necessary to
    preserve the impartiality of the jurors ultimately selected.

See,
Noureddine
, at para. 35.

[46]

These requirements are cumulative. Absent an application by an accused
    to exclude
all
jurors from the
    courtroom during the trial of the challenge for cause, static triers may not be
    used to try the truth of the challenge:
Noureddine
, at para. 37;
R.
    v. Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at paras. 28-30.

[47]

The
Noureddine
court acknowledged the undoubted authority of a
    trial judge to manage the jury selection process to make effective use of court
    resources and ensure fairness to all parties:
Noureddine
, at para. 38;
R. v. Moore-McFarlane
(2001), 56 O.R. (3d) 737 (C.A.), at para. 85.
    Whether this authority be described as an inherent jurisdiction or
    characterized otherwise, it does not clothe trial judges with the power to make
    orders that contradict or brush aside (mandatory) requirements of the
Criminal
    Code
. And so it is that a trial judges determination to use static triers
    to try the truth of a challenge for cause in situations that do not satisfy the
    requirements of s. 640(2.1), cannot acquire sustenance as an incident of a
    trial judges inherent jurisdiction to manage the jury selection process:
Noureddine
,
    at para. 38.

[48]

The decision in
Noureddine
is also helpful in assessing the
    impact of errors in the determination of the mode of trial of challenges for
    cause. In combination, an order for static triers that denies an accused the
    benefits of using rotating triers, contrary to the language in s. 640(2); that
    requires rotating triers absent an application by the accused for static
    triers; and overrides the insistence of the accused that rotating triers be
    used, creates an appearance of unfairness. This appearance of unfairness cannot
    be saved harmless by either proviso in s. 686(1)(b) of the
Criminal Code
:
Noureddine
, at paras. 48-55, 57 and 68.

[49]

The decision in
Noureddine
left open the possibility that the
    proviso in s. 686(1)(b)(iv) could be applied if an accused had agreed to the
    use of static triers, but had failed to bring an application required under s.
    640(2.1). Such a procedural irregularity may fall within the sweep of s. 686(1)(b)(iv):
Noureddine
, at para. 57.

[50]

In
R. v. Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, the accused
    brought a race-based challenge for cause and asked, initially at least, for the
    challenge to be heard by rotating triers with the unsworn jurors excluded from
    the courtroom during jury selection:
Grant
, at para. 14. The trial
    judge seemed to acknowledge that he had a discretion to make the order sought,
    but declined to do so. After a dialogue with defence counsel, the trial judge
    asked whether they wanted rotating or static triers. Defence counsel responded:

Ifthe Court does not want to exercise discretion to allow
    rotating triers and the jury out, then well take the static triers.

The trial judge directed that the challenge be tried by
    static triers:
Grant
, at para. 15.

[51]

On appeal, the appellants argued that the jury, selected by the use of
    static triers, was improperly constituted and required that their convictions
    be quashed:
Grant
, at para. 16.

[52]

The
Grant

court reached three conclusions:

i.

that the discretion trial judges had to exclude unsworn prospective
    jurors when challenges for cause were determined by rotating triers prior to
    the 2008 amendment authorizing static triers remained after the static triers
    amendment became law;

ii.

that the trial judge recognized that he had the discretion to exclude
    unsworn prospective jurors when the truth of the challenge for cause was
    determined by rotating triers, but did not err in refusing to exercise it
    because the appellants gave him no good reason to do so; and

iii.

the appellants decision to choose to have static triers should be
    treated as an application under s. 640(2.1) to exclude both sworn and unsworn
    jurors from the courtroom during the challenge for cause proceedings.

See,
Grant
, at para. 18.

[53]

In
Grant
, this court recognized that prior to the amendment
    authorizing the use of static triers to determine the truth of the challenge
    for cause, trial judges who were restricted statutorily to rotating triers had
    a discretion to exclude unsworn prospective jurors from the courtroom during
    the trial of the challenge. This discretion was not ousted by the 2008
    amendments. But this exclusion is not for the asking, in other words, as of
    right. Exclusion is discretionary, linked to the need to preserve impartiality
    in the jury selection process. A trial judge, invited to exercise this
    discretion is entitled to insist on a sufficient reason for doing so. What is
    sufficient depends on the circumstances of each case:
Grant
, at para.
    41.

[54]

Although the point did not arise in
Grant
, some courts have
    held that this discretion to exclude unsworn prospective jurors when the truth
    of the challenge for cause is tried by rotating triers extends to sworn jurors
    who are not acting as triers:
Swite
, at para. 28;
R. v. English
(1993), 84 C.C.C. (3d) 511 (Nfld. C.A.), at pp. 533-534, leave to S.C.C. refused.
    87 C.C.C. (3d) vi.

[55]

What also emerges from
Grant
is that the absence of a formal
    application under s. 640(2.1) to have sworn and unsworn jurors excluded during
    the trial of the challenge for cause and to have static triers try that
    challenge is not dispositive against the use of static triers. Substance trumps
    form. A decision by defence counsel to choose static triers may amount to the
    functional equivalent of an application to exclude sworn and unsworn jurors
    under s. 640(2.1):
Grant
, at para. 51. Likewise, a desire to exclude
    prospective jurors during the challenge process and satisfaction with properly-vetted
    static jurors:
R. v. Mansingh
, 2017 ONCA 68, 136 W.C.B. (2d) 16, at
    para. 12.

The Principles Applied

[56]

This is a case that falls close to the line. On balance, however, as I
    will explain, I would not set aside the appellants conviction on this ground.

[57]

When the subject of the mode of trial of the challenge for cause was
    first raised by the trial judge, defence counsel indicated that he wanted the
    unsworn prospective jurors excluded from the courtroom during the selection
    process. Counsel made no reference to the exclusion of sworn jurors and added
    that his only prior experience with challenges for cause had involved the use
    of rotating triers. At no point did defence counsel object to the use of static
    triers or say that he did not wish static triers.

[58]

The trial judge explained that there were two options available for
    trial of the challenge. The options were linked to the location of the unsworn
    prospective jurors during the selection process. According to the trial judge,
    the choices were:

i.

rotating triers with unsworn prospective jurors remaining in the
    courtroom during jury selection; or

ii.

static triers with the unsworn prospective jurors excluded from the
    courtroom.

[59]

The trial judge never wavered from these options for trial of the
    challenges for cause. He never suggested, for example, that unsworn prospective
    jurors could be excluded from the courtroom if the challenges were tried by
    rotating triers, provided there was good reason to do so to ensure the
    impartiality of the selected jurors. Quite the contrary, the trial judge made
    it clear that defence counsel could not have the best of both worlds by which
    I understand the trial judge to have meant rotating triers with unsworn
    prospective jurors excluded during the selection process.

[60]

The trial judge was wrong to limit the available modes of trial of
    challenge for cause to the binary choice he put to counsel. In fact, there are
    three options available for the trial of a challenge for cause:

i.

rotating triers with the unsworn prospective jurors remaining in the
    courtroom;

ii.

rotating triers with the unsworn prospective jurors excluded from the
    courtroom; or

iii.

static triers with both sworn and unsworn prospective jurors excluded
    from the courtroom.

In the future, at least in cases of uncertainty, trial
    judges might consider advising counsel of the available alternatives in
    language similar to what appears in s. 536(2) of the
Criminal Code
about elections of mode of trial.

[61]

In this case, defence counsels decision to have the challenge for cause
    tried by static triers resulted from his request to have unsworn prospective
    jurors excluded from the courtroom and the trial judges dictate that such an
    exclusion was only available with static triers. In the absence of a formal
    application by defence counsel under s. 640(2.1) to exclude the sworn and
    unsworn jurors from the courtroom during the selection process, what occurred
    here can only be sustained if what occurred was the functional equivalent of an
    application under s. 640(2.1).

[62]

What requires close scrutiny here is the substance of what occurred, not
    its form.

[63]

In this case, defence counsels primary request was that unsworn
    prospective jurors be excluded from the courtroom during the trial of the
    challenge for cause. What was of concern to defence counsel was that juror impartiality
    might be compromised were the unsworn prospective jurors to remain in the
    courtroom hearing the responses given by their colleagues in answer to the
    questions posed in the challenge for cause. Although counsel did
not
request
    exclusion of sworn jurors during the selection process, I do not consider the
    absence of such a request fatal to a conclusion that what occurred was the
    functional equivalent of an application under s. 640(2.1). Where static triers
    are the mode of trial of the challenge for cause, selected jurors have no role
    to play in the selection process, as would be the case with rotating triers.
    Further, the role of selected jurors commences when selection (including any
    alternative and additional jurors) has been completed and the person accused is
    about to be given into their charge. The exclusion of sworn jurors from the
    courtroom when static triers determine the truth of the challenge for cause is
    an inevitable consequence of the use of static triers. And so it is that I do
    not regard the failure of defence counsel to add and sworn jurors to the
    request to exclude unsworn jurors as fatal to my conclusion that what occurred
    here was the functional equivalent of an application under s. 640(2.1).

[64]

Two further points buttress my conclusion.

[65]

First, defence counsel never rejected the use of static triers. What he
    wanted was the exclusion of unsworn prospective jurors during the selection process.
    He got what he wanted. All he said about static triers was that he was
    unfamiliar with their use. Further, he appeared satisfied with the trial
    judges proposal about how the static triers would be selected.

[66]

Second, to insist that counsel must request the exclusion of both sworn
    and unsworn jurors before that occurred can be considered the functional
    equivalent of an application under s. 640(2.1) is to sacrifice substance on the
    altar of form.

Ground #2: The Interventions of the Trial Judge

[67]

The second ground of appeal advanced asserts that the number and nature
    of interventions by the trial judge during the evidence of the defence-friendly
    Crown witness T.J-D. resulted in an unfair trial, thus constituted a
    miscarriage of justice that warrants a new trial.

The Additional Background

[68]

An appreciation of this ground of appeal requires some additional
    background about the witness and a representative sampling of the interventions
    said to warrant our intercession.

The Witness

[69]

T.J-D. was 20 years old when the trial Crown called him as a prosecution
    witness at the appellants trial. He had pleaded guilty to first degree murder
    as the shooter of Shawn James and been sentenced under s. 42(2)(q) of the
Youth
    Criminal Justice Act
, S.C. 2002, c.1, as amended, to ten years, including
    carceral and conditional supervision components.

[70]

The trial Crown anticipated that T.J-D. would prove a difficult witness
    and likely require an application to cross-examine him under s. 9(1) of the
Canada
    Evidence Act
, R.S.C. 1985, Chapter C-5, as amended, or as a hostile
    witness at common law. She was not disappointed. T.J-D. lived up to the
    expectations of the trial Crown. The trial judge declared T.J-D. hostile and
    permitted the trial Crown to  cross-examine him early during the examination-in-chief.

[71]

During his examination-in-chief, T.J-D. took full responsibility for the
    unlawful killing of Shawn James. Neither the appellant nor C.L. knew of his
    plan to shoot James or his purpose in doing so. It was clear for all to see at
    trial, as T.J-D. admitted on several occasions, that he would not and did not
    say anything that would make the appellant a party to the unlawful killing of
    the deceased.

[72]

The version of events described by T.J-D. at trial was also at odds with
    the Agreed Statement of Facts entered on his plea of guilty and acknowledged as
    accurate there. At every opportunity, T.J-D. distanced himself from what was
    admitted on his plea of guilty. His position, that he killed Shawn James but
    did not accept the facts on his plea of guilty, was a constant refrain
    throughout his evidence. On the version of events he presented at the
    appellants trial, he did not commit first degree murder, but was guilty of
    second degree murder having shot James when the opportunity presented itself. It
    was a version of events that was contradicted not only by the Agreed Statement
    of Facts, but also by incontrovertible evidence produced by video surveillance
    cameras in the taxi and at the apartment building in Scarborough.

The Interventions

[73]

To determine the outcome of this ground of appeal, it is not necessary
    to trawl through the entire catalogue of judicial interventions said to result
    in an unfair trial. The claim includes at least 70 questions directed to T.J-D.
    in examination-in-chief and a further 50 comments on the contents of his
    testimony, as well as his character and the motivation that underpinned his
volte-face
from the contents of the Agreed Statement of Facts on which his plea of
    guilty to first degree murder was based. A representative sample will suffice.

[74]

Shortly after the trial judge declared T.J-D. a hostile witness and
    permitted Crown counsel to cross-examine him, the trial judge commented that
    T.J-D.s memory loss was feigned and that he was simply unwilling to tell the
    truth about relevant events as he recalled it.

[75]

The trial judge characterized T.J-D.s refusal to acknowledge the truth
    of several aspects of the Agreed Statement of Facts entered to support his plea
    of guilty to first degree murder as ridiculous.

[76]

T.J-D. denied that, as C.L. had testified, the appellant said the
    General is dead when a news report of James death was shown on the television
    at the Scarborough apartment to which C.L., T.J-D. and the appellant had
    returned after the shooting. In the presence of the jury, the trial judge
    commented:

Well, well see if the jury  the jury will determine whether
    or not your words to the court indicate that that wasnt true. So go on. The
    jury will make that determination; you wont.

[77]

When Crown counsel asked T.J-D. whether the police located the taxi at
    the Scarborough apartment building the day after the shooting, the witness
    responded with a familiar mantra I did not support it. The trial judge
    interjected on the basis that the answer was not responsive to the question.
    The trial judge repeated the question to which T.J-D. responded No, theyre
    not supported. After an interjection by defence counsel that perhaps T.J-D.
    did not understand the difference, the trial judge said:

He understands exactly whats going on. He thinks hes smarter
    than we are, thats the problem.

[78]

Crown counsel asked T.J-D. from whom or where he had obtained the gun
    with which he shot Shawn James. T.J-D. answered I cant disclose that, maam.
    In the jurys presence, the trial judge, on his own initiative, directed that
    T.J-D. be handcuffed and removed from the courtroom. He then explained to the
    jury:

Ive gone through this experience several times. The usual
    result in a murder case is the witness will refuse to answer, and then I have
    to sentence him for contempt. And the problem is, if the person is not
    undergoing sentence, then theyve got something to fear. But if theyre
    undergoing sentence, as Mr. [J-D.] is, they virtually have nothing to fear. So
    its an exercise in futility and they end up refusing to answer. So I just
    wanted to explain to you that distinction about what happens.

Had he been a witness, certainly coming in with no criminal
    record, not under sentence, there is no right to simply say I refuse to say so,
    I can compel him to answer, and then theres a stick there, theyre fearful of
    being sentenced to jail. This person has no fear of being sentenced to jail
    because hes already doing a considerable sentence as a young offender.

[79]

Later in examination-in-chief by the Crown, T.J-D. refused to disclose
    who was driving the car in which he was arrested in the appellants presence.
    The trial judge remarked, again in the presence of the jury:

Im not going to compel him. Its going to lead nowhere so I
    think the jury will make whatever  the jury will basically probably find hes
    incredible in much of what he says. So well go from there.

[80]

After a brief discussion in the jurys absence during which time the
    trial judge characterized T.J-D.s attitude in the courtroom as defiant of the
    Court, the jury returned and the trial judge asked T.J-D. whether he still
    refused to answer the question although he was compelled to do. T.J-D.
    confirmed his previous response and the reason: Sir, if I answer that, it put
    (
sic
) my life in jeopardy. The judge observed:

Its a very convenient excuse that hes giving. So lets see
    where we go.

[81]

Finally, during the pre-charge conference in the absence of the jury,
    the trial judge commented on T.J-D.s evidence adding: I mean you might say
    its B.S., ninety-nine percent.

The Arguments on Appeal

[82]

The appellant acknowledges the authority of a trial judge to intervene
    in the questioning of witnesses to assist the trier of fact. That said, no
    authority permits a trial judge to insert him or herself into a case in such a
    manner or to such an extent as to compromise an appearance of fairness, to
    denigrate any witness or to impose his or her opinions about the motivation or
    credibility of a witness or the reliability of the witness testimony.

[83]

According to the appellant, the lens of analysis we should employ on
    review is whether what occurred compromised the appearance of fairness
    essential to the trial process. Where a witness has been diminished by the
    trial judge in the presence of the jury, an appearance of unfairness sufficient
    to warrant reversal has been established.

[84]

In this case, the appellant continues, the trial judges interventions,
    taken together, were intrusive, insulting and lop-sided. They created the
    impression that the trial judge was placing his authority on the side of the
    Crown. Further, that the judge disbelieved the evidence of T.J-D. whose
    testimony provided the only support for the appellants defence that, unaware
    of T.J-D.s purpose or plan, he could not be convicted as an aider or abettor
    in either degree of murder.

[85]

The appellant says that it was obvious that T.J-D. shot and killed Shawn
    James. T.J-D. committed murder as a principal. What was equally obvious was
    that T.J-D. was a friend of the appellant whom he wanted to help by his
    testimony. T.J-D. was an unreliable witness whose testimony was at odds with
    the Agreed Statement of Facts on the basis of which his plea of guilty was
    accepted and with many incontrovertible facts established at trial. But it was
    the core of T.J-D.s testimony  that the appellant was an unwitting bystander
    at an impulsive, unplanned shooting  in which the appellants only prospect of
    acquittal resided. The effect of the trial judges interventions was to
    eradicate any prospect of a reasoned, objective assessment of this exculpatory
    feature of T.J-D.s evidence, render the trial unfair and the conviction a
    miscarriage of justice.

[86]

The respondent reminds us that we should begin our analysis mindful of a
    strong presumption against appellate interference on the ground of undue
    judicial intervention in the conduct of a trial. Myriad reasons exist for
    judicial intervention. To focus or clarify the evidence. To curtail the
    introduction of irrelevant or repetitive evidence. To dispense with proof of
    obvious or agreed upon matters. And, importantly here, to ensure that the way a
    witness answers, or fails to answer a question, does not unduly hamper the presentation
    of the evidence or the progress of the trial. And it is the trial judge, not a
    reviewing court, who is best situated to take the temperature of the trial and
    to determine whether and to what extent intervention may be required.

[87]

The respondent says that the fundamental question to determine on
    appellate review is whether, from the perspective of a reasonable observer
    present throughout the trial, the interventions of the trial judge, considered
    in the context in which they arose, led to an unfair trial, thus caused a
    miscarriage of justice.

[88]

The respondent does not gainsay that the trial judge intervened
    frequently, sometimes unnecessarily, and said some things that would have been
    better left unsaid. In some instances, however, the interpositions were in
    service of trial management, for example, in calling to order a confrontational
    witness who seemed to consider himself in charge of the questioning and
    management of the trial proceedings. In every event, what is of concern is not
    the number of interventions, but rather their effect and impact on the actual
    and apparent fairness of the trial.

[89]

According to the respondent, what occurred here had no impact on the
    defence advanced at trial or the jurys assessment of it. The issue of T.J-D.s
    credibility was left to the jury with several reminders about the need to keep
    an open mind and to disregard the trial judges expressed or apparent views on
    the issues of fact. It is also not without significance that experienced
    counsel did not object to most interventions, complain about any impediments to
    his own cross-examination of T.J-D. and, in closing, went to great lengths to
    distance himself from the bulk of T.J-D.s evidence and the attitude he
    displayed in giving it.

The Governing Principles

[90]

Once again, the parties differ little on the principles we are to apply
    in determining this ground of appeal. Where they part company is on the result
    the application of those principles yields on this case.

[91]

It is well established that a trial judge is no longer a mere referee,
    an ear and eye witness who must sit passively while counsel present the case as
    they see fit:
R. v. Felderhof
(2003), 68 O.R. (3d) 481 (C.A.), at
    para. 40;
Chippewas

of Mnjikaning First Nation v. Ontario
    (Minister of Native Affairs)
, 2010 ONCA 47, 265 O.A.C. 247, at para.
    232, leave to appeal to S.C.C. refused, 276 O.A.C. 398 (note);
R. v. Brouillard
,
    [1985] 1 S.C.R. 39, at p. 44. We accept that not only may a judge intervene in
    the adversarial process, but also that sometimes intervention becomes essential
    to ensure that justice is done in substance and appearance:
Brouillard
,
    at p. 44.

[92]

A trial judge may intervene to focus the evidence on issues material to
    a determination of the case. To clarify evidence as it has been given and is
    being given. To avoid admission of evidence that is irrelevant. To curtail the
    needless introduction of repetitive evidence. To dispense with proof of the
    obvious or uncontroversial. To ensure the way that a witness answers or fails
    to respond to questions does not unduly hamper the progress of the trial. And
    to prevent undue protraction of trial proceedings:
Chippewas
, at
    paras. 233-234.

[93]

Trial judges should be cautious in the exercise of these various
    incidents of what might be compendiously described as the trial management
    power. For the most part, a trial judge should confine herself to her own
    responsibilities, leaving counsel and the jury to their respective functions:
R.
    v. Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231, leave to
    appeal to S.C.C. refused, [1986] 1 S.C.R. xiii (note);
R. v. Torbiak and
    Campbell

(1974), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31.

[94]

The principal types of intervention that attract appellate
    disapprobation include, but are not limited to:

i.

questioning an accused or witnesses in such a way as to convey an
    impression that the judge aligns him or herself with the case for the Crown;

ii.

questioning witnesses in such a way as to make it impossible for counsel
    to present the defence case;

iii.

intervening to such an extent in the testimony of the accused that it
    prevents the accused from telling his or her story; and

iv.

inviting the jury to disbelieve the accused or other defence witnesses.

See
Valley
, at pp. 231-232;
R. v. Stucky
,
    2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 71.

[95]

Appellate courts are reluctant to interfere on the ground that a trial
    judge improperly interfered during the course of a trial. A strong presumption
    exists that a trial judge has not intervened unduly at trial:
R. v.
    Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal
    to S.C.C. refused, 304 O.A.C. 398 (note), 304 O.A.C. 397 (note), and 303 O.A.C.
    395 (note);
Chippewas
, at paras. 231, 243.

[96]

When undue intervention is advanced as a ground of appeal, the
    fundamental question for the reviewing court to determine is whether the
    interventions led to or resulted in an unfair trial. The issue is assessed from
    the perspective of a reasonable observer present throughout the trial:
Hamilton
,
    at para. 30;
Stucky
, at para. 72. The analysis is contextual and
    requires an evaluation of the interventions cumulatively, likewise their
    cumulative effect on the actual or apparent fairness of the trial:
Hamilton
,
    at para. 32;
Stucky
, at para. 72.

[97]

The question ultimately to be decided is whether the comments and
    interventions would create the appearance of an unfair trial to a reasonable
    person present throughout the trial proceedings. The analysis is not
    mathematical. And what is critical is what occurred in the presence of the
    jury. Events that took place in their absence, at least in most cases, cannot
    affect them or their decision:
Valley
, at p. 235.

The Principles Applied

[98]

As I will explain, I would give effect to this ground of appeal.

[99]

This ground of appeal focuses on the trial judges treatment of a single
    witness in a trial that lasted several weeks. The witness was not someone on
    the periphery of the case, who sketched in a few lines of background. T.J-D.
    was the person who shot and killed Shawn James from the backseat of a taxi
    driven by the appellant in which the principal Crown witness, C.L., was a
    front-seat passenger. T.J-D. pleaded guilty to and was convicted of a planned
    and deliberate first degree murder.

[100]

But T.J-D. was no ordinary witness. He was, to borrow a significantly
    understated descriptive used by the trial judge in his charge, a problematic
    witness. And for several reasons. He was sufficiently antagonistic to the
    Crown, the party who called him, to be declared hostile and subject to
    cross-examination in examination-in-chief. His language was crude, I suspect
    deliberately so. He was unresponsive in his answers to questions, preferring to
    ignore or rearrange and answer them as he chose. He was contemptuous of the
    court process. He was disrespectful to the Crown when she asked him directly a
    question he did not like or pressed him to respond to a previous question to
    which he had provided a non-answer.

[101]

T.J-D. was also a witness with an agenda to promote. He was bent on
    exculpating the appellant, his friend and fellow traveller in the drug
    business. And in service of his agenda, T.J-D. was at best indifferent to the
    objective realities of the case and gave evidence inconsistent with the facts
    admitted on his plea of guilty to first degree murder.

[102]

Witnesses like T.J-D., regrettably not an unknown species in the trial
    of criminal cases, test the patience of trial judges, whether sitting alone or
    with a jury. For that is the lot of the trial judge. The conduct of such
    witnesses warrants judicial intervention, to bring them to book, to ensure that
    their answers are responsive to the questions put and that the way the witness
    answers or does not answer questions does not hamper the progress of the trial.

[103]

In jury trials, trial judges must always keep in mind that they are neither
    an advocate nor the trier of fact. The position of established neutrality of trial
    judges require that they should confine themselves as much as possible to their
    own responsibilities, leaving to counsel and the members of the jury their
    respective functions.

[104]

In this case, the defence advanced on the appellants behalf related to
    his state of mind. He was not an aider or abettor of T.J-D.s planned and
    deliberate murder of Shawn James because he did not have any knowledge of such
    a plan. If T.J-D.s evidence that the killing was impulsive  an opportunity
    provided and taken when James unexpectedly appeared  was believed or raised a
    reasonable doubt, the appellant was entitled to be acquitted of murder. This
    testimony was the sole basis upon which the appellant could rely to counteract
    the inculpatory force of the evidence of C.L.

[105]

The trial judges repeated interventions during the testimony of T.J-D.
    left no doubt of his views of T.J-D. and his evidence. His remarks were
    disparaging and prejudicial, leaving no doubt where the trial judge stood on
    the issue of the appellants knowledge. What occurred marred the appearance of
    fairness so vital in criminal proceedings. To a reasonable observer, the trial
    judge had cast his lot with the prosecution. The conviction must be set aside.

Ground #3: The
Vetrovec
Instruction

[106]

This ground of appeal focuses on what is said to be an error in
    providing a
Vetrovec
instruction in connection with the evidence of
    T.J-D., a witness called by the Crown who provided a version of events
    exculpatory to the appellant.

[107]

A convenient place to begin consideration of this ground of appeal is
    with a brief reference to the trial judges charge in connection with T.J-D.s
    evidence and a snapshot of the arguments advanced on appeal.

The Charge to the Jury

[108]

The trial judge grouped C.L. and T.J-D. together in what he termed
    problematic witnesses. He identified the circumstances that made T.J-D. a
    problematic witness:

i.

he was an accomplice in the murder of Shawn James;

ii.

he was undoubtedly the shooter who intentionally killed Shawn James;

iii.

he pleaded guilty to first degree murder, but claimed he had acted
    impulsively when testifying at trial, thus providing a version of events
    inconsistent with his guilty plea;

iv.

he was a close friend of the appellant who refused to disclose the
    appellants identity when he pleaded guilty, although he knew that the
    appellant was driving the cab at the time of the shooting; and

v.

he was a drug dealer.

[109]

After listing the circumstances that made T.J-D. a problematic witness
    and required the utmost caution in any assessment of his evidence, the trial
    judge added:

Of course, the witness [J-D.s] evidence is largely favourable
    to the accused Murray.

[110]

The trial judge cautioned the jury about relying on the evidence of C.L.
    and T.J-D. in these terms:

The reliability of the evidence of the Crown witnesses [T. J-D.]
    and [C.L.] is problematic. There is a real and significant risk that these
    witnesses may be perjuring themselves on various material matters. Thus, you
    must assess his or her evidence with utmost caution as to its reliability on
    essential matters. You must look for confirmatory evidence which may be used as
    enhancing his or her credibility and reliability as a witness.

Even if you were to find that there is confirmatory evidence
    which tends to enhance the reliability of the witness problematic evidence,
    that is not the end of your assessment of the reliability of his or her
    evidence. It is still necessary for you to assess the evidence tending to
    undermine the reliability of his or her evidence.

In order for evidence to be confirmatory of the witness
    testimony, it need not implicate the accused in the crime or even establish an
    essential element of the crime charged.

I will repeat that.

In order for evidence to be confirmatory of a witness
    testimony, it need not implicate the accused in the crime or establish an
    essential element of the crime charged, but it must relate to a significant
    matter.

Furthermore, evidence may be confirmatory, even though it does
    not  its a negative  does not relate to a disputed matter. Nonetheless, in
    order for evidence to be confirmatory it must emanate from a person other than
    the problematic witness, or emanate from an exhibit. For example, from a video
    or from a photo.

Furthermore, the independent evidence from a third party or an
    exhibit must be confirmatory of the problematic witness credibility on a
    significant matter.

[111]

The trial judge then turned to C.L.s testimony and explained to the
    jury the necessity of them seeking confirmation of it. He said:

Insofar as Ms. [L.s] evidence at the trial tends to favour the
    Crowns case, it is necessary for you to determine whether or not there was
    confirmatory evidence that may be viewed as strengthening her general
    credibility and reliability as a witness.

[112]

After listing several items of evidence that were potentially
    confirmatory of the evidence of C.L., the trial judge added:

Finally, let me say that [C.L.] is to be commended, rather than
    condemned, for attempting to rehabilitate her life. She appears to have been
    drug free even after her guilty plea in December of 2008. After that time, she
    was no longer subject to a sentence and her only motive to keep drug free is to
    rehabilitate herself.

[113]

The trial judge did
not
suggest to the jurors items of evidence
    that may be confirmatory of the testimony of T.J-D. He concluded his
    instructions on the problematic witnesses in this way:

The problematic witness may be telling the truth, even in the
    absence of confirmatory evidence of the witness reliability.

You must keep in mind the substantial risk that the witness may
    not be telling the truth. A problematic witness may be lying to you on a
    material matter, even if you find as fact that there is confirmatory evidence
    of the witness reliability.

Thus, you must keep in mind that risk that the witness may not
    be telling the truth in your careful assessment of his or her evidence, and from
    your determination of whether the witness is telling the truth or is lying.

In the end, the onus remains on the Crown to satisfy you that
    the witness is telling the truth on various essential matters.

The Arguments on Appeal

[114]

The appellant says that the trial judge made three errors in connection
    with his instructions about the problematic witness T.J-D.:

i.

in including T.J-D., whose evidence favoured the appellant, in a
Vetrovec
caution;

ii.

in advising the jury that they must look for confirmatory evidence in
    connection with T.J-D.s testimony; and

iii.

in listing potentially confirmatory evidence in connection with C.L.,
    but not with respect to T.J-D.

[115]

In the submission of the appellant, a
Vetrovec
instruction was
    not warranted in connection with T.J-D. The trial judge was entitled to caution
    the jury about the frailties associated with the testimony of T.J-D. But what
    occurred here was no mere caution, rather a full-throat
Vetrovec
warning. This warning was not appropriate for a witness, albeit called by the
    Crown, whose evidence was exculpatory of the appellant, or at the least not
    befitting the exculpatory parts of the evidence if he were considered a mixed
    witness.

[116]

In addition, the appellant continues, the trial judge erred in
    instructing the jury to look for confirmatory evidence for the testimony of
    T.J-D., a witness whose core testimony was exculpatory of the appellant. If,
    however, an instruction on the need to search for confirmation were appropriate,
    the failure to include reference to confirmatory evidence reflects error. A
    mistake exacerbated by the imbalance created by the listing of potentially
    confirmatory evidence for C.L.

[117]

The respondent rejects the claim of error advanced by the appellant. A
Vetrovec
caution was justified for the evidence of T.J-D. To omit such a caution would
    have created a serious imbalance and permitted the jury to act on the
    unconfirmed evidence of T.J-D. to the extent it inculpated the appellant, but
    required a diligent search for confirmatory evidence in finding guilt on the
    basis of C.L.s testimony.

[118]

The respondent says that the contents of the
Vetrovec
caution
    were appropriate and did not impose a burden of proof on the appellant. The
    trial judge was careful to limit the desirability of confirmatory evidence to
    testimony that implicated the appellant (the evidence of C.L.). The
    instructions link this requirement to the onus of proof. It was a reasonable
    exercise of discretion not to refer to specific evidence that confirmed
    T.J-D.s testimony. The appellant would have been prejudiced had the trial
    judge made reference to confirmatory inculpatory evidence.

[119]

This instruction was acceptable to trial counsel for the appellant and
    achieved a functional and understandable distinction between inculpatory and
    exculpatory evidence.

[120]

Mindful of the obligation of an appellate court to take a functional
    approach when invited to find error in a jury charge and to consider the
    instructions as a whole, the respondent points out that the exculpatory aspect
    of T.J-D.s evidence  that the appellant knew naught of what T.J-D. was about
     was the subject of a
W.(D
.)
direction by the trial judge.
    Such an instruction clarified the role of this aspect of T.J-D.s evidence,
    left no doubt of its exculpatory effect and properly assigned the ultimate
    burden of proof.

The Governing Principles

[121]

Precedents abound in connection with
Vetrovec
warnings since
    their origin about 35 years ago in
R. v. Vetrovec
, [1982] 1 S.C.R.
    811. From the dizzying array of precedent, I extract five principles of
    significance to the ground of appeal advanced here.

[122]

First,
Vetrovec
cautions are appropriate only where the tainted
    witness is giving evidence that assists in the demonstration of guilt. These
    witnesses are almost invariably testifying on behalf of the Crown:
R. v.
    Tzimopoulos
(1986), 29 C.C.C. (3d) 304 (Ont. C.A.), at p. 340, leave to
    appeal to S.C.C. refused, [1987] 1 S.C.R. xv;
R. v. Chenier
(2006),
    205 C.C.C. (3d) 333 (Ont. C.A.), at p. 352.

[123]

Second, a
Vetrovec
caution is not to be given in respect of the
    testimony of an accused or witnesses who testify on his or her behalf:
R.
    v. Hoilett
(1991), 3 O.R. (3d) 449 (C.A.), at pp. 451-452;
R. v.
    Pilotte
(2002), 163 C.C.C. (3d) 225 (Ont. C.A.), at para. 92, leave to
    appeal to S.C.C. refused, 170 C.C.C. (3d) vi (note). The rationale that
    underlies this principle is that any instruction that invites the jury to look
    for confirmation of evidence adduced or relied upon by the defence
    impermissibly transfers a burden of proof to an accused and is contrary to the
    commands of
R. v. W.(D.),
[1991] 1 S.C.R. 742.

[124]

Third, in the case of mixed witnesses, that is to say, witnesses called
    by the Crown who give evidence that is partially inculpatory and partially
    exculpatory, a trial judge has a discretion, but not a duty, to give a
Vetrovec
instruction:
Tzimopoulos
, at p. 341;
R. v. Gelle
, 2009 ONCA
    262, 244 C.C.C. (3d) 129, at paras. 14, 16;
R. v. Tran
, 2010 ONCA 471,
    257 C.C.C. (3d) 18, at para. 27.

[125]

Fourth, where a
Vetrovec
caution is given for a mixed witness
    called by the Crown, a trial judge should make it clear that the desirability
    of confirmatory evidence applies only to the inculpatory aspects of the
    witness testimony, not to its exculpatory features:
R. v. Rowe
, 2011
    ONCA 753, 281 C.C.C. (3d) 42, at paras. 33-34. To fail to mark out this
    distinction risks an impermissible transfer of a burden of proof to the accused
    and a compromise of the principles in
W.(D.)
:
Chenier
, at p.
    353.

[126]

Finally, where a trial judge gives a
Vetrovec
caution in
    connection with exculpatory evidence, or where the instruction given is unclear
    in its scope, a reviewing court may look to the balance of the charge and the
    conduct of the parties to determine whether a substantial wrong or miscarriage
    of justice has occurred:
R. v. Shand
, 2011 ONCA 5, 104 O.R. (3d) 491,
    at para. 221, leave to appeal to S.C.C. refused, [2011] S.C.R. xii (note).

The Principles Applied

[127]

For several reasons, I would not accede to this ground of appeal.

[128]

First, T.J-D. was a mixed witness called by the Crown. He gave
    evidence that included some inculpatory features, but was largely exculpatory
    of the appellant on the critical issue of knowledge. In practical terms, the
    exculpatory aspect of T.J-D.s evidence afforded the only sustenance for the
    appellants denial of complicity in the murder of the deceased.

[129]

Second, as a consequence of T.J-D.s status as a mixed witness, the
    trial judge had a
discretion
to give a
Vetrovec
caution in
    relation to T.J-D.s evidence, likewise in the language used to convey that
    caution. In addition, as I will discuss later, the
Vetrovec
caution
    was requested by trial counsel for the appellant.

[130]

Third, the trial judges error was
not
in including a
Vetrovec
caution in connection with the evidence of T.J-D., but in failing to
    distinguish between its inculpatory aspects, where confirmation was desirable,
    and its exculpatory components, where it was not.

[131]

Fourth, the functional approach to the assessment of the adequacy of a
    jury charge and the obligation to view it as a whole makes it clear that the
    vice of a
Vetrovec
instruction that includes exculpatory evidence may
    be alleviated by other parts of the charge. In this case, that task was
    completed by a
W.(D.)
instruction expressly relating to the
    exculpatory aspects of T.J-D.

s evidence.

[132]

Finally, it was the defence position at trial that the trial judge
    should give a
Vetrovec
instruction with respect to the evidence of
    T.J-D. Counsel did not seek an instruction distinguishing between the
    inculpatory and exculpatory components of T.J-D.s testimony; did not complain
    about its omission; was satisfied that any reference to the desirability of
    confirmatory evidence should be omitted; and offered no dissent from the
    language used in the instruction given by the trial judge.

Ground #4: Re-examination of C.L. and Jury Instructions about Her Previous
    Consistent Statements

[133]

This ground of appeal has a dual aspect. The first has to do with the
    propriety of Crown counsels re-examination of C.L. on parts of her first
    police interview consistent with her testimony at trial. The second alleges
    error in the trial judges instructions on the use jurors could make of C.L.s
    prior consistent statements.

[134]

Some additional background and brief references to the re-examination
    and jury instructions are necessary to provide the ground work for the
    discussion that follows.

The Additional Background

[135]

C.L. was a critical witness for the Crown. She accompanied the appellant
    and T.J-D. from the Scarborough apartment to the Bleecker Street area to
    re-up their depleted supply of crack cocaine. She was in the front passenger
    seat of the taxi when T.J-D. fired the shots that killed Shawn James. She
    cleaned up the interior of the cab as the trio drove back to the Scarborough
    apartment.

[136]

C.L. provided three statements to the police about what had happened
    before, at the time of and after the shooting. The statements varied in detail
    and in their inculpatory effect on the appellant. In her evidence at trial, C.L.
    admitted that she did not exactly tell the truth in her first statement. The
    gist of the account she provided at trial was contained in her second statement
    with some further details added in her third interview shortly before trial.

[137]

Defence counsel vigorously cross-examined C.L. Counsel took the position
    that C.L. had lied from the outset to get out from under the charge of first
    degree murder, adding details in her later statements to further incriminate
    the appellant. Defence counsel suggested on several occasions that C.L.s first
    statement was full of lies, including positive misstatements about events and
    omissions of key facts. C.L. agreed. However, C.L. insisted that, except for
    the two details she added in her third interview, her second statement was
    truthful.

The Re-examination

[138]

At the outset of her re-examination of C.L., the Crown proposed to play
    the first police interview with C.L. in its entirety. The Crown explained that
    defence counsel had cross-examined C.L. extensively on the statement in service
    of counsels claim that the statement was full of lies. By replaying the
    statement and asking questions about it, the Crown sought to establish that, in
    many respects, the statement was consistent with C.L.s testimony.

The Ruling of the Trial Judge

[139]

The trial judge reminded the Crown that the scope of re-examination was
    limited. He would not permit her to review the entire statement with the witness,
    but did allow her to play and re-examine C.L. on specific parts of it that were
    said to be consistent with her trial testimony. Defence counsel offered no
    objection to the proposed re-examination. The first police interview was not
    filed as an exhibit at trial.

The Charge to the Jury

[140]

The trial judge explained to the jury that prior consistent statements
    could not be used as evidence of the truth of their contents. He then
    instructed the jury about the permitted use of such statements:

Instead, a fact of a prior consistency is only admissible as to
    the witness credibility to show that he or she has been previously consistent
    on a particular matter.





Again, all these prior out-of-court statements are not
    admissible to prove their truth. Instead, they are admissible only to help you
    in your assessment of the credibility of the witness, [C.L.].

[141]

The trial judge then explained the evidentiary value of prior
    inconsistent statements before embarking upon his
Vetrovec
instruction
    in connection with the testimony of C.L. and T.J-D.

[142]

Defence counsel did not object to the instructions on prior consistent
    statements.

The Arguments on Appeal

[143]

The appellant contends that the trial judge was wrong to permit the
    re-examination of C.L. on the portions of her first police interview consistent
    with her testimony at trial.

[144]

The appellant says that the defence position at trial was that C.L. had
    lied from the outset in the hope that the charge of first degree murder she
    then faced would go away. As time passed, C.L. embellished the original story
    with further details. The re-examination simply repeated things said earlier
    under oath that did not involve any suggestion that C.L. had changed her story
    or acknowledged lies in the first interview that had not been thoroughly
    canvassed in both examination-in-chief and cross-examination. This was not
    proper re-examination.

[145]

The appellant submits that defence counsel never alleged that C.L.s first
    police interview was total lies. The re-examination was not justified on the
    basis of anything that arose out of cross-examination and was extremely
    prejudicial to the appellant.

[146]

As for the charge to the jury, the appellant says that because of the
    volume of the interview canvassed in re-examination, there was a clear and
    present danger that the jury could infer that these statements enhanced C.L.s credibility.
    Careful instructions were required. But what was said simply exacerbated the
    problem and enhanced the likelihood of improper use.

[147]

The respondent denies any impropriety in the re-examination permitted or
    the instructions given.

[148]

The respondent says the re-examination was proper in light of the
    cross-examination that alleged the first police interview was full of lies.
    Necessity required the re-examination to provide the jury with the appropriate
    context for the assessment of the significance of the alleged inconsistencies
    on the credibility of C.L. and the reliability of her evidence.

[149]

The respondent reminds us that experienced defence counsel did not
    object to the re-examination. This provides a reliable indication of its propriety
    and the absence of any prejudice associated with it.

[150]

In connection with the jury instructions, the respondent points out that
    the trial judge provided the jury with an express instruction that the prior
    consistent statements could not be used as evidence, much less proof of the
    truth of their contents. This was important to guard against misuse. In
    explaining that the statements could be used as to the witness credibility,
    the trial judge used language that is consistent with the authorities and
    attracted no objection from defence counsel either before or after the charge
    was given.

The Governing Principles

[151]

It is well-established that, as a general rule, prior consistent
    statements of a witness are not admissible:
R. v. Ellard
, 2009 SCC 27,
    [2009] 2 S.C.R. 19, at para. 31. This is so because these statements are
    self-serving, lack probative value and are superfluous in light of the witness
    presence at trial:
R. v. Evans
,
[1993] 2 S.C.R. 629, at p. 643;
R. v. S. (D.D.)
, 2006 NSCA 34, 207
    C.C.C. (3d) 319, at para. 83;
R. v. J. (M.A.)
, 2015 ONCA 725, 329
    C.C.C. (3d) 149, at para. 45.

[152]

The prohibition against the introduction of prior consistent statements
    of a witness is not absolute:
Ellard
, at para. 32. Prior consistent
    statements may provide important context in which a trier of fact may assess an
    attack on the witness reliability based on alleged inconsistencies. And
    consistencies may counter, or at least mitigate, a claim that a witness was not
    credible or their evidence reliable because of many prior inconsistent
    statements:
R. v. O. (L.)
,
2015 ONCA 394, 324 C.C.C. (3d) 562,
    at paras. 34, 36;
J. (M.A.)
, at para. 46.

[153]

But cross-examination of a witness on alleged inconsistencies between the
    witness trial evidence and prior statements does not render admissible the
    contents of all prior consistent statements of the witness. Where evidence of a
    prior consistent statement is offered as support of a witness credibility, a
    trial judge must decide whether, in all the circumstances, evidence that the
    witness made a prior consistent statement could assist the trier of fact in
    making an accurate assessment of the witness credibility by removing potentially
    erroneous impressions fostered by an incomplete picture of what the witness
    said or failed to say. Relevant factors in this determination include:

i.

the general rule that prior consistent statements are of no assistance
    in assessing credibility;

ii.

the likelihood of prejudice to an accused or the orderly and timely
    conclusion of trial proceedings; and

iii.

the extent to which the prior statement should be admitted.

See,
R. v. Hunter
(2004), 182 C.C.C. (3d) 121
    (Ont. C.A.), at para. 5.

[154]

Where prior consistent statements have been admitted in a jury trial, a
    trial judge must apprise the jury of the limited use it may make of this
    evidence. This instruction should advise jurors that the prior statement is in
    no sense evidence or proof of the truth of what is said:
R. v. Divitaris
(2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para.
31;
R.
    v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at para.
33. On
    the other hand, these statements are relevant to an assessment of the
    credibility of the witness and the reliability of his or her evidence:
R.
    v. Stirling
,
2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 11-12;
O.
    (L.)
, at paras. 34-36;
R. v. Perkins
, 2015 ONCA 521, 123 W.C.B.
    (2d) 311, at para. 9.

[155]

Inadequacies in final instructions on the evidentiary use of prior
    consistent statements are not necessarily fatal:
O. (L.)
, at para. 38;
J. (M.A.)
, at para. 47. After all, perfection is not the standard
    appellate courts are to apply in assessing the adequacy of jury instructions:
Ellard
,
    at paras. 41-42;
O. (L.)
, at para. 38. Of some importance is the failure
    of trial counsel to object:
Ellard
, at para. 47;
O. (L.)
, at
    para. 40.

The Principles Applied

[156]

I would reject this ground of appeal in both respects advanced in
    argument.

[157]

First, admissibility.

[158]

An essential feature of the appellants defence at trial involved a vigorous
    attack on C.L.s credibility and on the reliability of her evidence. Part of
    the attack focused on inconsistencies between the testimony C.L. gave at trial
    and her first police interview or statement. The attack included contradictory
    statements and omissions.

[159]

In response to these claims of inconsistency, the Crown was entitled to
    attempt to rehabilitate the witness by reference to consistencies between the
    two accounts. These consistencies provided context for the jury to better
    evaluate the impact of the inconsistencies on C.L.s credibility and the
    reliability of her evidence. They countered or mitigated the defence claim that
    C.L. was testimonially unreliable in part because of the inconsistencies
    between her first statement and her trial testimony.

[160]

It is also not without significance that trial counsel appears to have
    taken no objection to the re-examination. This affords some indication that he
    did not consider the re-examination unwarranted in light of his own
    cross-examination of C.L. or unduly prejudicial. The danger of jury misuse of
    the prior statement was further reduced by the fact that it was not filed as an
    exhibit (nor should it have been) available for review in the jury room.

[161]

In connection with the charge to the jury, I am satisfied that nothing
    said or left unsaid by the trial judge constituted misdirection or
    non-direction amounting to misdirection.

[162]

Of single importance to instructions on evidence of limited
    admissibility, such as prior consistent statements, is a direction about the
    prohibited use of that evidence. That instruction was given here in
    unexceptionable terms. The jury was plainly told that they could not use the
    prior statement as evidence of the truth of its contents. Nor did the
    instruction on the permitted use of the evidence exceed what was permissible.
    The jury was not told that prior consistent statements enhanced the credibility
    of C.L. (which would have been wrong), only that they were admissible as to
    the witness credibility to show that he or she has been previously consistent
    on a particular matter. Such an instruction does not exceed what this court
    and the Supreme Court of Canada in
Stirling
have said is appropriate.

[163]

Trial counsel did not object to the content of this instruction. While
    not fatal, the failure to object affords some evidence that he did not consider
    the instruction inappropriate or prejudicial to his clients case.

Ground #5: The Instructions on the Standard of Proof

[164]

The final ground of appeal challenges the adequacy of the trial judges
    final instructions on the standard of proof. To determine whether this ground
    of appeal warrants reversal, it is helpful to begin with an excerpt of the
    instructions before turning to the arguments of counsel and the principles that
    govern our decision.

The Charge to the Jury

[165]

The core of the appellants complaint inhabits the following passage in
    the trial judges charge:

Furthermore, reasonable doubt may arise because you are unable
    to determine the credibility or reliability of particular witnesses in relation
    to essential matters. Even if you are satisfied that the accused is probably or
    likely guilty, that is not sufficient. In that case, you must give the benefit
    of the doubt to the accused and acquit him of the particular charge because the
    Crown would have failed to satisfy you of the guilt of the accused on the
    higher standard of proof beyond a reasonable doubt.

Proof on a balance of probabilities is attained at 51 percent
    of possibility; whereas, proof to a certainty is attained at 100 percent of
    possibility. Proof beyond a reasonable doubt, the criminal standard, falls
    closer to certainty than it does to proof on a balance of probabilities, the
    civil standard.

However, it is important to keep in mind that it is rarely
    possible to prove anything with absolute or mathematical certainty and so the
    burden of proof on the Crown is to prove guilt beyond a reasonable doubt, but
    not beyond any conjectural or speculative doubt whatsoever. Thus, the Crown is
    not  thats a negative  is not compelled to prove guilt to the impossible
    degree of proof to its certainty.

Furthermore, if you were to be asked by your fellow jurors as
    to why you have reasonable doubt, you must be able to articulate in a logical
    and common sense manner the objective basis of your particular reason or
    reasons for having reasonable doubt. After all, your doubt must be based on
    reason  it must be reasonable  not conjectural or speculative.

The Arguments on Appeal

[166]

The appellant says that the trial judges modifications of the
    instruction suggestion in
R. v. Lifchus
, [1997] 3 S.C.R. 320, and
    other model formulations shifted and understated the standard required of the
    Crown to prove guilt. In locating the standard of proof between probability of
    guilt, on the one hand, and certainty of guilt, on the other, the trial judge
    diluted the standard of proof by describing it simply as closer, rather than
    much closer to certainty. The trial judge failed to equate proof beyond a
    reasonable doubt or describe it as a standard of certainty when he said that
    the Crown was
not

required to prove guilt to a certainty.

[167]

The appellant fastens onto two further aspects of the instruction on
    standard of proof as reflecting error. The trial judge failed to include a
    direction that to find the appellant guilty, the jurors must feel sure of his
    guilt. The second complaint impeaches the instruction that for a juror to have a
    reasonable doubt, the juror must be able to articulate in a logical and common
    sense manner the objective basis for that doubt. Such an instruction is wrong
    in law because it distorts and dilutes the burden of proof. Only a conviction
    requires the articulation of a reason for reaching the conclusion.

[168]

The respondent finds no fault with the trial judges final instructions
    on the standard of proof. While the respondent acknowledges that the trial
    judge departed from the
Lifchus
model, the charge, read as a whole,
    does not create any reasonable likelihood that the jury misapprehended the
    correct standard of proof required to establish guilt.

[169]

The respondent says that, taken as a whole, the charge contained all the
    essential elements required by
Lifchus
and none on the list of
    instructions to be avoided. All that is required is that the instruction
    achieves substantial compliance with
Lifchus
, a threshold this
    instruction meets.

[170]

The respondent rejects the claim that the omission of the modifier
    much in the phrase closer to absolute certainty than to probable guilt
    reflects error. Inclusion of this reference is not mandatory and the omission
    of much is of no moment when the instruction is considered as a whole as it
    must be. Likewise, the complaint about inclusion of a reference to feeling
    sure about guilt. The jury was well-schooled in the degree of certainty
    required for conviction.

[171]

The respondent disagrees that in describing a reasonable doubt as a
    doubt for which a juror could articulate in a logical and common sense manner
    the objective basis for the doubt, the judge distorted the burden of proof. Even
    if this court finds otherwise, the respondent contends that when the charge is
    considered as a whole and a functional approach to adequacy applied, the jury
    was adequately instructed.

The Governing Principles

[172]

It is well settled that the gold standard for jury instructions on the
    standard of proof is that suggested by Cory J. in
Lifchus
at para. 39.
    But it is not a catechism or magical incantation. While departures from it are
    a perilous endeavour, substantial compliance with its principles, albeit not
    its precise language, is sufficient:
R. v. Avetysan
, 2000 SCC 56,
    [2000] 2 S.C.R. 745, at para. 12;
R. v. Russell
, 2000 SCC 55, [2000] 2
    S.C.R. 731, at para. 22;
R. v. Beauchamp
, 2000 SCC 54, [2000] 2 S.C.R.
    720, at para. 16.

[173]

On review of an instruction on the standard of proof that is not
Lifchus
-compliant,
    a reviewing court must determine whether the charge, read as whole, gives rise
    to a reasonable likelihood (not a mere possibility) that the jury
    misapprehended the correct standard of proof:
Avetysan
, at para. 12;
R.
    v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 233.

[174]

It is not fatal to a claim of
Lifchus
-compliance that an
    instruction:

i.

fails to include a direction that jurors must be sure of an accuseds
    guilt before they may make a finding of guilt;

ii.

omits a reference to  the modifier much when stating that proof beyond
    a reasonable doubt falls closer to absolute certainty; or

iii.

includes an erroneous instruction that a reasonable doubt is a doubt for
    which a juror could articulate a reason in a logical and common sense manner.

See
R. v. Palarajah
, 2010 ONCA 625, 268 O.A.C.
    50, at paras. 8-11, leave to appeal to S.C.C. refused, 294 O.A.C. 394 (note);
R.
    v. McLennan
, 2016 ONCA 732, 343 C.C.C. (3d) 39, at paras.
76-77;
R. v. Carriè
re
(2001), 159 C.C.C. (3d) 51
    (Ont. C.A.), at paras.
27-29.

The Principles Applied

[175]

For several reasons I would not give effect to this ground of appeal.

[176]

First, I am satisfied that the instructions, which are not free of
    error, substantially comply with the
Lifchus
mandate. They include
    nothing that is to be excluded from final instructions under
Lifchus
and everything that is to be included.

[177]

Second, the inclusion of a reference to sure as expressing the degree
    of persuasive force required of the case for the Crown to prove guilt, if
    accompanied by an appropriate explanation of its meaning, is a helpful
    inclusion but not a mandatory component of an instruction on the standard of
    proof.

[178]

Third, in this province, an instruction that locates proof beyond a
    reasonable doubt much closer to absolute certainty than to probable guilt is
    not mandatory. Its omission here, coupled with the balance of the instruction,
    did not diminish or dilute the level of certainty required to establish the
    appellants guilt.

[179]

Fourth, the ill-advised equation of a reasonable doubt with a doubt for
    which a juror could articulate a reason is not, on its own or in the context of
    the instruction as a whole, a fatal error.

[180]

Finally, these instructions were accompanied by flawless directions on
    the presumption of innocence and the burden of proof, as well as a
W.(D.)
direction that focused the jurys attention on the critical issue at trial.
    None attracted an objection from trial counsel.

[181]

In the end, I am satisfied that there was no reasonable likelihood that
    the jury misapprehended the correct standard of proof. The charge was adequate.

CONCLUSION

[182]

For these reasons, I would allow the appeal, set aside the conviction
    and order a new trial on the ground that the trial judges interventions and
    comments during the evidence of T.J-D. caused an appearance of unfairness that
    constituted a miscarriage of justice.

Released: May 17, 2017
    (EEG)

David Watt J.A.

I agree. John Laskin J.A.

I agree. E.E. Gillese J.A.


