



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chacon-Perez, 2022 ONCA 3

DATE: 20220107

DOCKET: C67251

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Miguel Chacon-Perez

Appellant

James Lockyer and Jack Gemmell
, for the appellant

Roger A. Pinnock
, for the respondent

Heard: April 20, 2021 by video conference

On appeal from the
    conviction entered by Justice Michael D. McArthur of the Superior Court of
    Justice, sitting with a jury, on December 14, 2018.

Watt J.A.:


[1]

Chad Robinson (the deceased) went to a
    Christmas party. The party was held for employees and subcontractors of a
    building company. The deceased worked for the company. He was an apprentice
    plumber.

[2]

The appellant also went to the Christmas party.
    He worked as a flooring subcontractor for the company.

[3]

The appellant and deceased had met at a job site
    earlier in the same year. The meeting was friendly.

[4]

Alexis Aparicio-Chicas (Chicas) also went to
    the party. He had worked for a few months as a painter for the building
    company. He and the appellant had been friends since high school. Chicas only
    met the deceased the night of the party.

[5]

The deceased died at the Christmas party. He
    died from a single stab wound to the heart.

[6]

The Crown alleged that the appellant stabbed the
    deceased to death. The appellant denied the stabbing. He pointed to his friend,
    Chicas, as the assailant.

[7]

The appellant was charged with second degree
    murder arising out of the death of the deceased. At his trial, the jury found
    him guilty of the offence with which he was charged.

[8]

The appellant appeals his conviction on several
    grounds. These reasons explain my conclusion that his appeal should be allowed,
    his conviction set aside, and a new trial ordered.

The Background Facts

[9]

The grounds of appeal the appellant invokes
    include a submission that the jurys verdict was unreasonable and unsupportable
    on the evidence adduced at trial. And so it becomes necessary to set out in
    some detail those portions of the evidence tending to show the identity of the
    person who stabbed the deceased, the single controverted issue at trial.

The Christmas Party

[10]

The Christmas party was hosted by Mike Persaud,
    the owner of the building company, at a banquet hall in London. The invited
    guests included employees and subcontractors of the company.

[11]

Among the invited guests were Bhannita Panday,
    the hosts sister-in-law, as well as her husband,
Jaimini
,
    and sons, Ajay and Jayson. The deceased attended with another plumber, Nathan
    Smith. The appellant arrived with his mother, fiancée, and a friend who was
    also related to Mike Persaud. Danielle Fountain‑Smith, Mike Persauds
    right hand, was at the party with her mother, Kathy Adams, Garth Adams, and
    Kathys friend, Brenda Thompson. Chicas came to the party with his younger
    brother, Samuel, and a friend, Octavio Merino.

[12]

As the evening progressed, several guests became
    intoxicated, among them, the appellant, Chicas, the deceased and their friends.
    When he died, the deceaseds blood alcohol concentration was 196 mg of alcohol
    in 100 ml of blood. Traces of THC were also detected.

The Kijiji Man

[13]

Shortly before midnight, the appellant was at
    the bar. Nathan Smith, a friend of the deceased with whom he had come to the
    party, called to the appellant Whats up Kijiji Man. The appellant took
    offence. He confronted both Smith and the deceased. He considered that Smiths
    remark was racially motivated. The deceased put down his drink. He moved
    towards the appellant to whom it appeared that the deceased was getting ready
    to fight. Another guest separated them. The appellants mother and fiancée took
    him out of the banquet hall. Outside, the appellant, admittedly acting like an
    idiot, threw his coat on the ground and said angrily fucking white boys.

[14]

Nathan Smith testified that his Kijiji Man
    comment was not racially motivated or intended as an insult. The deceased had
    told him about a conversation he (the deceased) had had with the appellant
    earlier in the Fall of that same year. The appellant had described for the
    deceased his intention to sell things on Kijiji. Smith recalled that the
    deceased tried to shake the appellants hand after his (Smiths) Kijiji Man
    remark. The appellant angrily declined. Smith walked away. The appellant and
    the deceased stayed at the bar.

The Appellants Departure and Return

[15]

Chicas, his brother, and their friend, Octavio
    Merino, decided to leave the party and drive downtown to a bar. Chicas invited
    the appellant to join them. The appellant, who had been escorted outside by his
    mother and fiancée after the Kijiji Man remark, was admittedly drunk. On
    an inebriety scale of one to ten, he rated himself as a six or an eight. His
    mother told him to go home because he was drunk. Chicas invited the appellant
    to join the group heading downtown. After assuring his mother that he will not
    return to the party, the appellant jumped into Chicas van.

[16]

The appellant had no intention of going
    downtown. He was mortified about having been removed from the party by his
    mother. He wanted to leave on [his] own terms and to correct any negative
    impression he had left on his work colleagues by his conduct. He asked Chicas
    to turn around and drive back to the party, but did not say why he wanted to do
    so. Chicas turned around. All four men returned to the party.

The Fight Starts

[17]

When the four men in the van returned to the
    parking lot by the banquet hall, the deceased was inside the hall talking to
    Ms. Fountain-Smith and Ms. Thompson. Several others, including Nathan Smith and
    the Panday brothers, were outside smoking. As the four men got out of the van
    in the parking lot, Chicas dropped a knife on the ground. It was the
    appellants Ranger work knife. The appellant picked it up. The men argued.

[18]

One of the Panday brothers who was watching the
    events as they unfolded, testified that the appellant may have returned the
    knife to Chicas or put it in his own pocket. The appellant said that Chicas
    grabbed the knife out of his (the appellants) hands.

[19]

Nathan Smith was smoking in the parking lot. He
    saw the appellant talking with his friends. Smith walked towards him. The
    appellant told Nathan Smith to go back inside the banquet hall. But Smith
    continued to walk towards the appellants group. The appellant took a swing at
    Nathan Smith who retaliated by punching the appellant in the face. Both fell to
    the ground. Smith, a much larger man, told the appellant you dont want to do
    this with me. The appellant agreed that their fight was over.

[20]

Chicas denied having or seeing a knife at any
    time that night. He and the appellant argued in the parking lot. The appellant
    accused Chicas of [backing] up the white boys. Chicas hit Nathan Smith
    several times after Smith punched the appellant in the face. Chicas also hit
    Jayson Panday in the face when the Panday brothers tried to break up the fight
    between Chicas and Nathan Smith.

The Deceased Returns to the Parking Lot

[21]

At about the same time as the parking lot
    altercation between Nathan Smith and Chicas, the deceased, Ms. Fountain-Smith
    and Ms. Thompson decided to leave the banquet hall for a smoke outside. The
    deceased approached Nathan Smith and asked him what had happened. Smith said
    its the Miami boys. He then left for the washroom to wash the blood from his
    face. He wiped his face with his shirt, threw the shirt away, and stayed in the
    washroom until police arrived. They arrested him on a charge of assault and
    causing a disturbance.

[22]

Ms. Fountain-Smith returned to the banquet hall
    to tell Mike Persaud about the fight in the parking lot. Persaud rushed outside
    with several others, including Jaimini Panday and Kathy and Garth Adams. Each
    provided an account of the altercation that led to the deceaseds death. Their
    accounts differed. Only Jaimini Panday claimed to have seen the fatal stabbing.

The Fatal Altercation

[23]

Mike Persaud was drunk. He saw people screaming
    and running outside the banquet hall. Chicas was shirtless, wild and out of
    control. Persaud enlisted the appellant, who was somewhat agitated, to help
    restore order. The appellant tried to convince his friends to return to their
    van. Chicas did not cooperate. Persaud was outside when the fatal altercation
    occurred. He said that he didnt see any weapons nor did he see the deceased
    get stabbed.

[24]

Brenda Thompson was also intoxicated. She moved
    the appellant to the opposite end of the parking lot to separate him from the
    deceased who was shouting, extremely angry, and seemed ready to fight. She
    tried to calm the appellant down by telling him that the fight was over. Chicas
    rushed towards her and the deceased. As she tried to keep Chicas away from the
    deceased, she saw the deceased fall hard on the icy driveway. Chicas skirted
    her and kicked the deceased in the head. She and Chicas grappled. Both fell.
    Chicas shirt came off. He kicked the deceased in the head again. Ms. Thompson
    did not see the appellant near the deceased at any time. As she went to assist
    the deceased, Ms. Thompson noticed the appellant and Chicas talking behind
    Kathy Adams car.

[25]

The trial judge included a
Vetrovec
caution about Chicas testimony in his final instructions to the jury. In
    addition, he characterized Chicas as an alternate suspect whose potential
    involvement in the stabbing could raise a reasonable doubt about the
    appellants guilt.

[26]

Chicas admitted that he was intoxicated when he
    became embroiled in a confrontation with the deceased who was also drunk. They squared
    up opposite each other. The deceased fell down. He acknowledged that he may
    have kicked the deceased in the head. Somehow, he lost his shirt during this
    confrontation. He denied fighting with Nathan Smith. He conceded that when he
    gets drunk and angry, he sees red and tends to black out.

[27]

Chicas testified that he heard Ms.
    Fountain-Smith say I saw you, you have a knife, but he had no idea to whom
    she was referring because he was involved in a fight at that time. The only
    knife he saw that night was one in Garth Adams hand as he attacked Chicas
    younger brother. Chicas knew nothing about any Ranger knife. He asked the
    appellant to help his brother whom Garth Adams was attacking with a knife. He
    was unable to do it himself. When police arrived, Chicas, still shirtless, was
    sitting on the steps of the banquet hall wearing his coat and apparently
    weeping.

[28]

As Garth Adams came out of the banquet hall, he
    noticed the appellant trying to defuse the situation in the parking lot. Chicas
    was angry and out of control. Adams attempted to calm the deceased, but the
    deceased would have none of it. In a menacing tone, the deceased responded get
    the fuck away from me. Do I know you?. Mr. Adams began to walk towards his
    wifes car so that they could leave the party.

[29]

The owner of the banquet hall reached into
    Chicas van, removed the keys from the ignition, and headed back towards the
    banquet hall. Chicas younger brother, who was in the drivers seat in the van,
    got out and chased the owner. Mr. Adams tried to stop the pursuit. The two
    men fought. Danielle Fountain-Smith said that the appellant had a knife. Mr.
    Adams saw something in the appellants waistband area but couldnt say whether
    it was a knife or his belt. He did not report this observation to the police
    when interviewed the night of the killing.

[30]

For much of the evening, Kathy Adams stayed
    outside the banquet hall smoking cigarettes with Brenda Thompson. But she was
    inside the hall when her daughter, Ms. Fountain-Smith, reported that there was
    a fight in the parking lot. When Ms. Adams went outside, the scene she observed
    was chaotic. Chicas was running around, out of control like a pinball
    machine. As she, her husband, and daughter readied to leave, the appellant
    took her by the arm and told her to get out of the way so as not to get hurt.

[31]

Ms. Adams saw the deceased go after Chicas. The
    men circled each other, their fists up. Chicas did something. The deceased went
    after him, then fell. She did not see any stabbing. After the deceased fell,
    Ms. Adams recalled having seen the appellant standing in the driveway, a knife
    held like a torch in his left hand. A blade of the knife was five or six inches
    long and was silver in colour. Chicas took a running kick at the deceaseds
    head. Ms. Adams made no mention of seeing the appellant holding the knife when
    she spoke to the police at the scene.

[32]

Danielle Fountain-Smith acknowledged that she
    was intoxicated at the Christmas party. She remembered that Chicas was running
    around shirtless. He was aggressive and out of control. At one point she told
    both the appellant and Chicas that they were both fired. Sometime before the
    deceased collapsed, she saw a black-handled knife about ten inches in length,
    in the waistband of the appellants pants. She heard the deceaseds head hit
    the ground, but did not see him fall.

[33]

Ms. Fountain-Smith called 911. She told the
    operator that the Spanish guys have a knife. The man with the knife was
    wearing jeans, but no shirt. A white guy was on the ground and may have been
    stabbed. Then she described the man with the knife as wearing clothes
    consistent with the way in which the appellant was dressed. She testified that she
    had no memory of seeing Chicas with a knife. She could not explain why she had
    first told the 911 operator otherwise.

[34]

When police arrived, Garth and Kathy Adams told
    them that they had seen the appellant standing at the end of the parking lot
    with some of his friends. They saw him make a throwing motion towards the
    fence. They directed police to the area. The officers found a Ranger knife
    covered in snow a few feet from the fence. The knife was black and had a
    three-inch blade.

The Defence Case

[35]

The appellant testified. He said that when they
    got out of Chicas van after returning to the party, Chicas dropped a knife on
    the ground. The appellant recognized it as his Ranger work knife. The men
    argued about Chicas habit of taking the appellants work tools. Chicas grabbed
    the knife.

[36]

Nathan Smith approached the group who had come
    back in Chicas van. He ignored the appellants colourful request to go back
    inside. The appellant pushed Smith who responded with a headbutt. Both men fell
    down. Smith punched the appellant repeatedly causing him to bleed and become
    disoriented. The deceased yelled where is your fucking girlfriend now. Ms.
    Fountain-Smith told the appellant he was fired. Mike Persaud screamed at him to
    collect his friends and leave. The appellant shouted at Chicas and the others
    to get into their van.

[37]

The appellant saw and heard Chicas and the
    deceased screaming at one another. Chicas shouted at the appellant to help his
    (Chicas) brother who was fighting with Garth Adams. The appellant went over to
    help Samuel. The appellant did not see the stabbing. Chicas, who was not
    wearing a shirt and had a psycho face, approached the appellant, the Ranger
    knife in his hand. Chicas said that Ms. Fountain-Smith had called the
    police. He told the appellant to get rid of the knife. Unaware that anyone had
    been stabbed, the appellant took the knife, walked with Chicas brother and
    Merino to the end of the parking lot, and threw the knife over the fence.

[38]

Jaimini Panday, the general manager of the
    company that supplies uniforms to law enforcement and the military police,
    testified as a defence witness. He has never met the appellant, deceased, or
    Chicas. He was undergoing medical treatment at the time of the party and only
    drank one beer there. He attended with his wife and two sons.

[39]

When told about the fight in the parking lot,
    Mr. Panday asked his wife to check on their two sons. He then went outside
    himself. One of his sons was fighting. He ordered his wife and sons to return
    inside. He stayed outside. He had a good view of the area which was well lit,
    the lighting enhanced by the reflection from the snow. He saw the deceased run
    to the van and pull someone out with whom the deceased began to interact. He
    heard someone say a knife and saw Garth Adams brandish a knife with a two
    inch long silver blade. Chicas was holding a larger knife with a bigger black
    blade, about three and one half or four inches long in his hand.

[40]

Jaimini Panday gave evidence that everybody
    was fighting. This included Chicas and the deceased. Both Chicas and the
    deceased fell on the icy surface. They kicked and punched each other as they
    regained their footing. Then they fell and got up again. Mike Persaud held the
    deceased from behind and told him to stop fighting. Then Chicas, who was not
    wearing any shirt, punched the deceased in the chest. Persaud released his grip
    on the deceased who fell really hard on his face. The deceased never got up.
    Chicas also kicked the deceased in the head.

[41]

After the deceased fell, Jaimini Panday spoke to
    Mike Persaud briefly. He told Persaud I think that guy get [sic] stabbed.
    Persaud responded dont say anything; that I saw anything; that I was out
    here. The Panday family stayed at Persauds house that evening.

[42]

Mr. Panday gave two statements to the police.
    The first, about an hour after the stabbing, the second, the following
    afternoon at the police station. He was not entirely truthful with
    investigators for several reasons. His sons, who had been in legal trouble
    previously, had been fighting with sticks in the parking lot and remained in
    custody the following afternoon when Mr. Panday spoke to police for the second
    time. Mike Persaud pressured him to leave out any account about the fatal
    stabbing. He did not come forward when the appellant was charged because he
    thought it was the shirtless man (Chicas) who had been charged.

[43]

According to Mr. Panday, he first found out that
    the appellant, not Chicas, had been charged when defence counsel (not counsel
    on appeal) visited at his home. Counsel urged Mr. Panday to give a further
    statement to police. He declined to do so because he feared that he too would
    be charged.

The Police Response

[44]

Police responded to the 911 call. They found
    Nathan Smith, the Panday brothers and their mother in the womens washroom.
    They arrested all three men on assault and caused disturbance charges, but
    released them the next day. The charges did not proceed. Police also arrested
    Chicas, his brother, and Octavio Merino on the same charges. Prior to trial,
    Chicas pleaded guilty to assault causing bodily harm to the deceased and
    assault on Nathan Smith. He was sentenced to 12 months in jail. The charges
    against the other two were withdrawn by the Crown.

[45]

The appellant approached the police during their
    response to the 911 call. He admitted that he had been involved in a fight.
    When an officer asked whether he had a knife with him, the appellant said man,
    I dont know what youre talking about. My head is killing me. When can I
    leave?. The appellant also indicated that the deceased had made some kind of
    utterance about his wife, but he offered no details of what was said. He did
    not appreciate the deceaseds remark. Police arrested the appellant on charges
    of assault and causing a disturbance. Later, the police upgraded the charge to
    second degree murder.

The Forensic Evidence

[46]

Police found the appellants Ranger knife where
    he had thrown it. The handle was bloodstained with a combination of blood from
    the deceased, the appellant, and an unknown source. Blood from the deceased was
    found on the blade. The appellants blood was also detected on the bottoms of
    Chicas shoes.

[47]

Chicas DNA was not located on any sample from
    the Ranger Knife police examined. An expert gave evidence that if Chicas had
    handled the knife, he may not have left sufficient DNA to generate a profile or
    any profile he generated may have been masked by the appellants DNA.

The Cause of Death

[48]

The deceased died from a single stab wound to
    his chest which penetrated his heart. The wound travelled downward and to the
    right. It was twelve centimetres long and two centimetres wide. He had also
    suffered abrasions to his forehead, temple, cheek, and arm as well as a bruise
    to his right elbow.

The Grounds of Appeal

[49]

The appellant urges four grounds of appeal. He
    submits that:

i.

the verdict is unreasonable and unsupported by
    the evidence adduced at trial;

ii.

the closing address of the trial Crown caused a miscarriage
    of justice;

iii.

the trial judge erred in failing to instruct the
    jury of the included offence of manslaughter; and

iv.

the trial judge erred in denying the jurys
    request for the testimony of four witnesses.

Ground #1: Unreasonable Verdict

[50]

The appellant claims that the verdict of the
    jury is unreasonable. It was a verdict, according to the appellant, that no
    properly instructed jury acting judicially could reasonably have rendered.

[51]

To evaluate the merits of this ground of appeal
    requires no rehearsal of the evidence adduced at trial beyond what has already
    been done. A brief summary of the position of the parties as they were
    developed at trial will provide the essential background.

The Positions of the Parties at Trial

[52]

The controverted issue at trial was the identity
    of the person who stabbed the deceased to death. Reduced to its essence, the
    Crown alleged that the killer was the appellant. Defence counsel submitted that
    Chicas killed the deceased, or at least that the appellant did not do so.

The Position of the Crown

[53]

The Crown alleged that the appellant returned to
    the banquet hall because the deceased and Nathan Smith had disrespected him
    earlier. He sought revenge because Smith had referred to him as Kijiji Man
    and the deceased had said something about the appellants girlfriend.

[54]

In support of their submission that the
    appellant killed the deceased, the Crown relied on the combined effect of
    several items of circumstantial evidence. Ajay Panday saw the appellant pick up
    the knife that Chicas dropped when the appellant, Chicas, his brother, and
    Octavio Merino got out of the van when they came back to the banquet hall. Ms.
    Fountain-Smith saw a knife in the waistband of the appellants pants. Ms.
    Thompson saw the deceased collapse to the ground before Chicas came into
    contact with him. Kathy Adams saw the appellant holding the knife in his hand
    like a torch after the deceased was on the ground. The appellants DNA was on
    the handle of the knife  his knife  that he admitted throwing away. And that
    knife, his knife, was the murder weapon.

The Position of the Defence

[55]

The defence position focused on Chicas as the
    person who killed the deceased. The evidence about Chicas showed that he did
    kill the deceased or was at least sufficient to raise a reasonable doubt that
    the appellant was responsible for the deceaseds death.

[56]

The appellant pointed to the evidence of Kathy
    Adams who saw the deceased and Chicas facing each other with their fists
    raised. Chicas did something to the deceased who went after Chicas. Then the
    deceased fell down and did not get up. No witness saw the appellant within
    close proximity to the deceased at any time. In her 911 call, Ms.
    Fountain-Smith told the operator that the Spanish guys had a knife, in
    particular, a man who was not wearing a shirt. That man was Chicas. The only
    time the appellant had the knife was after the deceased had been stabbed and
    was on the ground.

[57]

The appellant placed significant reliance on the
    testimony of Jaimini Panday who they stressed was not only an independent
    witness unconnected to any of the participants, but also the only witness who
    had an unobstructed view of the actual stabbing. He had no motive to falsely
    accuse Chicas whom he identified as the killer. He accurately described the two
    knives that were involved in the melee. He said that Chicas had the bigger
    knife with a blade between three and four inches in length. The murder weapon,
    the appellants Ranger knife, has a blade of 3.54 inches in length.

[58]

Defence counsel also relied upon the appellants
    testimony in which he denied causing the deceaseds death.

The Arguments on Appeal

[59]

The appellant says that the case for the Crown
    depended entirely on inferences drawn from testimony that the appellant was
    seen in possession of a knife both before and after the stabbing. No witness
    upon whose testimony the Crown relied claimed to have seen the appellant
    actually stab the deceased.

[60]

The inculpatory inferences upon which the Crown
    relies to establish guilt are explained by the appellants own testimony which
    was not diminished in any way by cross-examination. The appellant picked up the
    knife when Chicas dropped it after they got out of the van on their return to
    the parking lot. They argued. Chicas grabbed the knife and only gave it back
    after the stabbing when he (Chicas) told the appellant to get rid of it. The
    appellant threw the knife over the fence. This explains why the appellants DNA
    was found on the knife handle.

[61]

The test applicable on appellate review of a
    verdict resting on circumstantial evidence for unreasonableness is whether a
    trier of fact, acting judicially, could reasonably be satisfied that the guilt
    of the accused was the only reasonable conclusion on the evidence taken as a
    whole. Here, the evidence, in particular that of the only independent witness,
    Jaimini Panday, supported a strong contrary conclusion  that Chicas was the
    killer.

[62]

In assessing the reasonableness of the verdict,
    the appellant invites us to consider several factors. Witnesses saw Chicas drop
    the knife in the parking lot. This meant that he was in possession of the knife
    up until he dropped it, despite his evidence to the contrary. The same
    witnesses saw Chicas and the appellant argue when the appellant picked up the
    knife. The witnesses acknowledge that Chicas could have got the knife back. The
    appellant was calmer than Chicas who was violent, out of control, and enraged.
    The appellant tried to defuse the situation.

[63]

In addition, the appellant continues, no one saw
    the appellant in close proximity to or in an altercation with the deceased.
    Chicas had a propensity for violence. Kathy Adams saw Chicas do something to
    the deceased before he collapsed, but could not recall what the something was
    that she had seen. Ms. Adams had said nothing about seeing the appellant
    holding the knife in his hand like a torch when she spoke to the police. She
    also acknowledged a longstanding neurological condition which diminishes the
    reliability of her evidence.

[64]

The appellant submits that Ms. Fountain-Smith
    saw Chicas with a knife before the stabbing. She saw the appellant with it only
    after the deceased had been stabbed. However, the most important evidence in
    the analysis of the unreasonableness of the verdict is that of the independent
    witness, Jaimini Panday. He saw Chicas strike the deceased in the chest. The
    deceased fell to the ground. He did not get up. The appellants testimony
    explains how his DNA was found on the knife handle. This occurred after Chicas
    handed the appellant the knife after the stabbing. The appellant handled the
    knife and threw it over the fence.

[65]

The respondent rejects the submission that the
    verdict rendered was unreasonable. The fundamental issue for the jury was
    whether the Crown had proven beyond a reasonable doubt that the appellant
    stabbed the deceased to death. The jury found that the Crown had met that
    standard of proof. When tested for unreasonableness, the verdict rendered is
    measured against a well-established standard. The verdict must be one that a
    properly instructed jury, acting judicially, could reasonably have rendered.
    The verdict here meets that standard.

[66]

To survive appellate review for
    unreasonableness, the case for the Crown need not be compelling, let alone overwhelming.
    What is required is that on the record as a whole, there is evidence the jury
    could reasonably accept that established the essential elements of the offence.
    In combination, the testimony of those who witnessed the events and the
    forensic evidence established the essential elements of the offence with the
    necessary degree of certainty.

[67]

What set the entire train of events in motion
    was the Kijiji Man remark by Nathan Smith. Whether intended to be so or not,
    the appellant considered the remark to be racist and humiliating. Likewise, the
    deceaseds comment about the appellants girlfriend. This prompted a verbal contretemps
    with the deceased which almost led to a physical altercation. The appellants anger
    persisted. His mother took the appellant outside. She encouraged him to leave.
    He got into Chicas van. They headed downtown. But the appellant wanted to
    return. He convinced Chicas to turn around and drive back to the party. Chicas
    did so.

[68]

The respondent argues that when Nathan Smith
    came outside to apologize for his earlier remark, he and the appellant got into
    an altercation. The appellant shoved Smith, then punched him in the face.
    Chicas dropped a knife as he and the appellant argued. The appellant picked it
    up. Witnesses saw a knife or something stuck in the waistband of the
    appellants pants.

[69]

When Brenda Thompson pushed Chicas away from the
    appellant, she heard something. She turned around and saw the deceased fall to
    the ground. Chicas moved around her and kicked the deceased in the head. The
    appellant was standing nearby holding a knife upward like a torch. Shortly thereafter,
    the appellant was at the back of the parking lot where he made a throwing
    motion over the fence.

[70]

The respondent invites us to consider the expert
    evidence as well. The appellant and the deceased could not be excluded as
    sources of the blood found on the knife with which the deceased was stabbed.
    However, the analysis excluded Chicas as a contributor. In addition, there was
    evidence of after-the-fact conduct by the appellant. He lied to the police when
    he denied knowing about any knife.

[71]

In addition, the respondent continues, the jury
    was given clear and correct instructions about how they should approach the exculpatory
    evidence of Jaimini Panday. This testimony was the subject of a
W.(D.)
instruction. It required careful consideration by the jury. Their decision to
    reject it does not render their verdict unreasonable.

The Governing Principles

[72]

The resolution of this ground of appeal is
    controlled by well established precedent about which no serious dispute arises.
    The parties differ about the result of the application of those principles in
    this case.

[73]

Section 686(1)(a)(i) of the
Criminal Code
,
    R.S.C., 1985, c. C-46, permits a court of appeal to allow an appeal from
    conviction on the basis that the conviction is unreasonable or cannot be
    supported by the evidence adduced at trial. The question framed by s. 686(1)(a)(i)
    is whether the verdict is unreasonable on the evidence received at trial, not whether
    the verdict is unjustified:
R. v. Corbett
, [1975] 2 S.C.R. 275, at p.
    282. See also,
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 184.

[74]

The test for an appellate court to apply in
    responding to a claim that a trial verdict is unreasonable or unsupported by
    the evidence is whether the verdict is one that a properly instructed jury,
    acting judicially, could reasonably have rendered:
R. v. Biniaris
,
    2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. It requires the appellate court
    to determine what verdict a reasonable jury, properly instructed, could judicially
    have rendered. In this exercise, the court must review, analyze, and, within
    the limits of appellate disadvantage, weigh the evidence. Both objective and
    subjective assessments are involved:
Biniaris
, at para. 36.

[75]

A verdict is unreasonable or cannot be supported
    by the evidence if it is a verdict that a properly instructed jury, acting
    judicially, could not reasonably have rendered:
R. v. H.(W.)
, 2013 SCC
    22, [2013] 2 S.C.R. 180, at para. 26, citing
Yebes
, at p. 185 and
Biniaris
,
    at para. 36.

[76]

Appellate review of a jurys verdict of guilt
    for unreasonableness is conducted within two well-established boundaries. The
    appellate court must give due weight to the advantage of the jury as the trier
    of fact, eye and ear witnesses to the unfolding of the evidence and narrative
    at trial. But the review is not limited to a mere assessment of the sufficiency
    of the evidence. The role of the reviewing court is not spent by its conclusion
    that there was some evidence which, it believed, supports the verdict and
    conviction. The court must also consider whether the jurys conclusion
    conflicts with the bulk of judicial experience:
H.(W.)
, at para. 28,
    citing
Biniaris
, at para. 40.

[77]

The traditional test for unreasonable verdict
    applies to cases in which the verdict is based, as are many, on the trier of
    facts assessment of the credibility of witnesses and the reliability of their
    evidence. In its application of the test in such cases, we must show great
    deference to the trier of facts assessment at first hand of the credibility of
    the witnesses and the reliability of their evidence. This is especially so when
    the trier of fact is a jury:
H.(W.)
, at paras. 30-32.

[78]

In a jury trial, it is for the jury to decide,
    despite any difficulties that may appear in any witness testimony, how much,
    if any, of that testimony the jury accepts. And an assessment of credibility is
    not a one-dimensional exercise dependent only on an appraisal of objective
    considerations, such as inconsistencies, motives for concoction, and the like,
    susceptible of reasoned review by an appellate court. The demeanour of the
    witness and the common sense of the jury are of vital importance and elusive of
    appellate review:
H.(W).
, at para. 32, citing
R. v. François
,
    [1994] 2 S.C.R. 827, at pp. 836-837.

[79]

To succeed on a claim of unreasonable verdict
    under s. 686(1)(a)(i), an appellant must persuade the appellate court that no
    properly instructed jury, acting judicially, could reasonably have found the appellants
    guilt established:
R. v. Arias-Jackson
, 2007 SCC 52, [2007] 3 S.C.R.
    514, at para. 2.

[80]

When the evidence adduced at trial is wholly or
    substantially circumstantial, the question to be decided when the verdict is challenged
    as unreasonable is whether the trier of fact, acting judicially, could
    reasonably be satisfied that the appellants guilt was the only reasonable
    conclusion available on the totality of the evidence:
R. v. Villaroman
,
    2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, citing
Yebes
, at p.
    186. The circumstantial evidence does not have to totally exclude other
    conceivable inferences. Nor is a verdict unreasonable simply because the
    alternatives did not cause a doubt in the jurys mind. It remains fundamentally
    for the trier of fact to decide whether any proposed alternative way of looking
    at the case was reasonable enough to raise a doubt:
Villaroman
, at
    para. 56.

The Principles Applied

[81]

As I will explain, I would not give effect to
    this ground of appeal.

[82]

Several basic principles inform my approach to
    this claim of unreasonableness.

[83]

First. The issue that requires determination is
    whether the jurys verdict was unreasonable. The issue is not whether the
    verdict is unjustified:
Corbett
, at p. 282;
François
, at pp. 835-836.
    Our function is not to substitute ourselves for the jury, rather to decide
    whether the verdict rendered is one that a properly instructed jury, acting
    judicially, could reasonably have rendered:
Corbett
, at p. 279.

[84]

Second, we cannot infer from the mere presence
    of contradictory evidence that the verdict of the jury not giving effect to
    that evidence is unreasonable. As with any evidence and in accordance with
    instructions repeatedly given, a jury may accept none, some, or all of the
    evidence of any witness. How that evidence appears on the printed page at one
    remove is no talisman of how it appeared when given. Assessing credibility of
    witnesses and the reliability of their evidence is a difficult business.
    Determining where the truth lies, equally so. A jury may bring special
    qualities to these tasks, qualities not shared by appellate courts:
François
,
    at p. 837.

[85]

The argument advanced here, pared to its core, proceeds
    along the following lines. The evidence adduced by the Crown was
    circumstantial, the inferences supporting the conclusion advanced  that the
    appellant stabbed the deceased  were tenuous. On the other hand, the case for
    the defence, in particular the testimony of the independent witness, Jaimini
    Panday, identified Chicas as the killer. The jurys conclusion that the tenuous
    inferences met the standard of proof required, when juxtaposed with cogent
    exculpatory evidence, renders the verdict unreasonable and unsupported by the
    evidence.

[86]

In my respectful view this argument fails as a
    matter of general principle and in the circumstances of this case.

[87]

It is commonplace that, as the trier of fact, it
    is for the jury to assess the credibility of witnesses and the reliability of
    their evidence. As they are repeatedly instructed at various stages of the
    criminal trial process, the jury is entitled to believe some, none, or all of
    the evidence of any witness who testifies. It is of no moment to the exercise
    of this exclusive authority whether, viewed objectively, the evidence is, by
    nature, inculpatory or exculpatory. The credibility of witnesses is not
    determined by fixed or immutable rules, rather left to the common sense of the
    jury. That there was, or that the jury did not have, a reasonable doubt on the
    basis of exculpatory evidence received at trial does not render their verdict
    finding guilt established unreasonable.

[88]

In this case, several items of circumstantial
    evidence tended to point to the appellant as the person who killed the
    deceased. Evidence of motive. And of opportunity. And of possession of the
    means  the knife  used to carry out the killing. Forensic evidence linked him
    to the blood stained knife. After-the-fact conduct, including lies about knowledge
    of the knife and disposing of the knife after the stabbing. It was open to the
    jury to reject the appellants explanations, equally the testimony of Jaimini
    Panday.

[89]

Nor does the nature of the evidence introduced
    at trial support a conclusion that the verdict is unreasonable. In a
    prosecution based on circumstantial evidence it is fundamentally for the trier
    of fact to determine whether the cumulative effect of the evidence taken as a
    whole, often greater than the sum of its individual parts considered in
    isolation, excludes inferences other than guilt. But the circumstantial
    evidence does not have to exclude other conceivable inferences. Nor is the
    verdict unreasonable simply because the alternative, in this case that Chicas
    was the killer, did not cause the jury to have a reasonable doubt about the
    appellants guilt.

[90]

In this case, I am satisfied that the jury,
    acting judicially, could reasonably have been satisfied that the appellants
    guilt was the only reasonable conclusion available on the totality of the
    evidence. The claim that the verdict was unreasonable fails.

Ground #2: The Crowns Closing

[91]

The second ground of appeal alleges that in
    several respects the closing address of the trial Crown (not counsel on appeal)
    was improper. In combination, these improprieties rendered the trial unfair and
    caused a miscarriage of justice.

[92]

As a result of the introduction of defence
    evidence, Crown counsel addressed the jury last. Defence counsel objected to
    several aspects of Crown counsels closing. The trial judge gave corrective instructions
    to the jury about improprieties in the Crowns closing and repeated them in his
    charge the following day.

[93]

To evaluate the merits of this ground of appeal,
    it is not necessary to repeat the precise language used by Crown counsel in his
    closing address. It is sufficient to identify the components by their subject matter,
    describe the remedies sought at trial, and the response of the trial judge
    before turning to the governing principles and applying them to determine the
    consequences of any improprieties on the verdict rendered at trial.

The Essential Background

[94]

At trial and in this court, the appellant
    alleged four improprieties in the Crowns closing. A brief description of each
    follows.

Tailoring the Evidence

[95]

As part of his closing address, the trial Crown
    referred to what he labelled Forced Honesty, Confusion and an Inability to Explain.
    He submitted that, in giving evidence, the appellant was honest about some
    things because he had no real option to be otherwise as a result of the testimony
    of other witnesses. Those included his acknowledgment that he was upset about
    his altercation with the deceased in the banquet hall after the Kijiji Man
    remark by Nathan Smith. He also admitted that he picked up the knife after
    Chicas dropped it and that he threw it away. He had little choice because
    others had seen the incidents and his DNA was found on the bloody knife. These
    references did not include anything about access to pre‑trial disclosure,
    only to evidence given at trial.

Self-Interest in an Acquittal

[96]

Invoking common-sense reasoning, the trial Crown
    pointed to a witness bias, self-interest, and motive as reasons for the jury
    to be skeptical about believing and relying upon the witness testimony. He
    singled out two witnesses: the appellant and Jaimini Panday as those with a
    clear motive to lie. Later, he added Chicas to the list of witnesses in this
    category.

Testimonial Demeanour

[97]

In his closing address, defence counsel invoked
    the appellants testimonial demeanour as supportive of his credibility as a
    witness at trial. In his response, Crown counsel characterized the appellants
    demeanour at the scene and in the witness box as oddly calm, the antithesis
    of what would be expected of a person who, on his own evidence, had been
    wrongly accused of murder. The evidence seemed rehearsed.

Pandays Motive

[98]

Jaimini Panday did not know any of the
    principals: the appellant, the deceased, or Chicas. Crown counsel challenged
    his credibility and suggested that he was lying. In his closing address, the Crown
    acknowledged that what Mr. Panday had to gain from testifying was pure
    speculation. He then invited the jury to reject Mr. Pandays evidence because
    he had a motive to lie.

The Defence Objection

[99]

Defence counsel objected to the closing address
    of the Crown. He raised the spectre of a mistrial and contended that the
    closing address created an extreme risk of a miscarriage of justice. However,
    defence counsel never asked the trial judge to declare a mistrial. Counsel
    believed that the prejudice could be overcome by immediate corrective
    instructions and advocated in favour of their timely delivery.

The Corrective Instruction

[100]

Shortly after hearing argument about the need for instructions to
    the jury to dispel the prejudice said to arise from the closing address of the
    Crown, the trial judge recalled the jury. In instructions of which defence
    counsel expressly approved, the trial judge:

i.

identified the impropriety;

ii.

explained why it was improper;

iii.

corrected any misstatements of the evidence; and

iv.

cautioned the jury against prohibited chains of
    reasoning.

[101]

The corrective instructions did not include reference to Crown
    counsels remarks about forced honesty. Defence counsel had said nothing
    about that aspect of the closing when seeking corrective instructions. He
    raised it the following day before the trial judge began his charge to the
    jury. The trial judge repeated his previous corrective instructions in the
    charge and added a reference to the forced honesty portion of the closing.

The Arguments on Appeal

[102]

The appellant contends that the impugned aspects of the closing
    address of Crown counsel caused a miscarriage of justice. These remarks
    rendered the trial unfair, or, at the very least, created an appearance of
    unfairness. In either event, a miscarriage of justice occurred and can only be remedied
    by ordering a new trial.

[103]

Alleging that an accused has tailored their evidence because they
    have received disclosure and had the benefit of hearing the evidence against
    them at their trial is impermissible. To invite a jury to reason in this way
    exacts an evidentiary price from an accuseds constitutional right to
    disclosure, to know the case he has to meet, and to be present at his trial, as
    well as the statutory requirement that he be present. To invite a jury to
    reason in this way to reject the appellants evidence is especially dangerous
    and prejudicial to a fair trial because of the common-sense appeal of these
    inferences.

[104]

The appellant accepts the common-sense proposition that a witness
    interest in the proceedings may have an impact on their credibility also
    applies to an accused who testifies in their own defence. But in most cases,
    this factor is simply unhelpful as a credibility determinant. Nothing in this
    case justified Crown counsels repeated urgings that jurors be extremely
    skeptical of the appellants testimony because of his self-interest and bias.
    Nor how Crown counsel in turn played this off against the absence of any such
    contaminant affecting the testimony of prosecution witnesses.

[105]

Crown counsel also focused on the appellants calm demeanour as a
    factor the jury should consider in rejecting his testimony. The appellant
    accepts that, like any other witness, the demeanour of the accused is a
    relevant factor for the jury to consider in assessing his credibility. But, on
    its own, a witness demeanour is a notoriously unreliable predictor of the
    accuracy of a witness evidence. Admittedly, trial counsel relied upon the
    appellants testimonial demeanour as supportive of his credibility. But the
    Crowns response  that the appellants calm demeanour was the antithesis of
    what would be expected of a person falsely accused of murder and betrayed a
    rehearsed response at odds with the truth  went a step too far.

[106]

In connection with the testimony of Jaimini Panday, the Crown was
    entitled to challenge his credibility and suggest he was not being truthful.
    But to suggest that the witness had an agenda or a nefarious motive for giving
    exculpatory evidence was entirely barren of evidentiary support and invited the
    jury to speculate.

[107]

Taken together, these impermissible references rendered the
    appellants trial unfair in both substance and appearance. The comments related
    to a central point in the trial, the identity of the person who killed the
    deceased. The Crowns urgings were directed at the jurors natural instincts
    and invited paths of reasoning that the law forbids. There was good reason to
    believe that the jury would acquit the appellant. The closing address of the
    Crown deprived the appellant of the only true verdict the evidence supported.

[108]

The respondent acknowledges that some aspects of the trial Crowns
    closing address may have encouraged the jury to draw impermissible inferences
    or engage in prohibited reasoning to reach their verdict. The trial Crown
    conceded as much during the discussions that followed his address. However,
    experienced defence counsel did not ask the trial judge to declare a mistrial.
    When asked directly by the trial judge whether he sought a mistrial, defence
    counsel rejected a mistrial as the appropriate remedy. Corrective instructions
    were defence counsels remedy of choice. They were delivered within hours of
    the closing address, as defence counsel asked, and repeated in greater detail
    in the charge the following day. Nowhere did defence counsel take issue with
    their efficacy as a remedy. They were sufficient to advert any miscarriage of
    justice.

[109]

A critical factor in our assessment of whether the improprieties in
    the trial Crowns closing rendered the trial unfair and caused a miscarriage of
    justice, the respondent says, is the position of defence counsel at trial. An
    experienced criminal lawyer with the interest of his client foremost in his
    mind, defence counsel considered, but rejected a mistrial as the remedy
    required to eradicate the prejudice. The remedy he advanced and the trial judge
    provided was detailed corrective instructions that identified the error,
    explained why it was an error, and directed the jury not the follow the path of
    inference or reasoning the comments suggested but the law prohibited. The
    language used in the corrective instructions both in response to the address
    and the charge the following day, were discussed with and approved by defence
    counsel.

[110]

The respondent says that the choice of remedy in these circumstances
    rested within the sound discretion of the trial judge. As an ear and eye
    witness to the entirety of the trial, including the impugned address, his remedial
    selection is entitled to significant deference here. The decision should be set
    aside only where it is grounded in some erroneous principle or is clearly
    wrong. And neither has been established here. The appellant got what he wanted
    at trial. That the jury found guilt established does not mean that the remedy
    selected was clearly wrong or that the judge erred in principle in failing to
    grant a remedy  a mistrial  that was expressly rejected by defence counsel as
    necessary or appropriate.

[111]

In the vast majority of cases in which Crown counsels closing
    address is alleged to have caused unfairness, timely and focused curative
    instructions are a sufficient and appropriate remedy. In part, this is because
    we place confidence in the ability of juries to understand and follow judicial
    instructions. This includes instructions about permissible and impermissible
    uses of evidence, the inferences to be drawn or not drawn from that evidence,
    and the permitted and prohibited paths of reasoning to be applied to that
    evidence. Declaration of a mistrial, essentially what the appellant confronted
    with an adverse verdict now says should have been done, is a remedy of last
    resort, reserved for the clearest of cases. What occurred here, the respondent
    argues, fell well short of what is required to invoke such a drastic remedy.

The Governing Principles

[112]

The principal point of divergence between the parties concerns the
    adequacy of the remedy selected  timely and repeated corrective instructions 
    to preserve the actual and apparent fairness of the appellants trial.

[113]

Although the parties occupy common ground about the impropriety of
    some aspects of the trial Crowns closing address to the jury, the nature and
    extent of the impropriety is an important factor in assessing whether the
    remedy of timely and repeated corrective instructions was adequate to the task
    of ensuring and maintaining the appearance of a fair trial.

Tailored Evidence

[114]

Lines of questioning and submissions that characterized the
    testimony of an accused as suspect or unworthy of belief because they have
    received disclosure of the case for the Crown, or have been present throughout
    their trial as the case for the Crown unfolded, are problematic. They are
    problematic because an accused is constitutionally entitled to receive
    disclosure of the case for the Crown, to know the case to meet, to be present
    at their trial, and to make full answer and defence to the allegations made
    against them. They are statutorily required to be present at their trial and to
    see and hear the case for the Crown before they are permitted to respond.

[115]

The problems with the lines of questioning, argument, or reasoning
    in issue is that each turns fundamental constitutional rights, statutory
    obligations, or trial procedures into a trap for the accused exacting an
    evidentiary toll in the process:
R. v. White
(1999), 132 C.C.C. (3d)
    373 (Ont. C.A.), at para. 20;
R. v. Peavoy
(1997), 117 C.C.C. (3d) 226
    (Ont. C.A.), at para. 14;
R. v. Thain
, 2009 ONCA 223, 243 C.C.C. (3d)
    230, at paras. 21-24;
R. v. M.(D.)
, 2020 ONCA 290, 392 C.C.C. (3d) 29,
    at para. 30. Inherent in these suggestions is an element of prejudice since
    many coincide with the common sense that jurors are invited to exercise in
    reaching their decision:
White
, at para. 20.

Self-Interest

[116]

A witness interest in the outcome of proceedings is an issue that
    counsel may explore in cross-examination of the witness. This is because a
    witness interest in the result may have an impact on their credibility. This
    principle applies to an accused who chooses to testify at their trial:
R.
    v. Laboucan
, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 11-12. However,
    the fact that the witness is an accused raises a specific concern. This is
    because not only an innocent, but also a guilty accused has an interest in not
    being convicted. Thus, an assumption that an accused will lie to secure their
    acquittal offends the presumption of innocence:
Laboucan
, at para. 12.

[117]

In most cases the interest of an accused in the outcome of
    proceedings is unhelpful as a factor in assessing their credibility as a
    witness. It follows that, as a general rule, triers of fact should avoid this
    path of reasoning and counsel should not invite them to follow it. Otherwise,
    the trier of fact may err by making the impermissible assumption that the accused
    will lie to achieve an acquittal:
Laboucan
, at para. 14.

[118]

In each case, the defining question will be whether the comments of
    Crown counsel (or of the trial judge) undermine the presumption of innocence:
Laboucan
,
    at para. 18.

Demeanour Evidence

[119]

Testimonial demeanour is a relevant consideration in evaluating the
    credibility of any witness, including an accused:
R. v. M.(O.)
, 2014
    ONCA 503, 313 C.C.C. (3d) 5, at para. 34. But as a predictor of testimonial
    accuracy, a witness demeanour is fallible. Its fallibility is a function of
    many and disparate factors. The culture of the witness. Stereotypical
    attitudes. The artificiality of and pressures associated with a courtroom:
Law
    Society of Upper Canada v. Neinstein
, 2010 ONCA 193, 99 O.R. (3d) 1, at
    para. 66;
R. v. Hemsworth
, 2016 ONCA 85, 334 C.C.C. (3d) 534, at para.
    44.

[120]

The fallibility of a witness demeanour as a measuring stick of
    testimonial accuracy signals caution in its role. It is but one of many
    factors. Not exclusive. And not predominant:
Hemsworth
, at para. 45.

The Panday Motive

[121]

Any witness, including an accused, may be cross-examined on issues
    of bias, interest, or corruption. Their denials may be contradicted as an
    exception to the collateral facts rule. When this occurs, for example in
    cross-examination of a defence witness, Crown counsel may invite the trier of
    fact to reject the evidence of the witness. But Crown counsel must not invite
    the jury to speculate about a motive of which there is no evidence or follow a
    path of impermissible reasoning to infer a motive:
R. v. Pisani
,
    [1971] S.C.R. 738, at p. 741-742.

The Available Remedies

[122]

An improper closing address by Crown counsel is one of many trial
    irregularities that can affect the actual or apparent fairness of a criminal
    jury trial. The gravity of trial irregularities, including improper closings,
    is a variable, not a constant. Each requires individual evaluation according to
    its unique circumstances:
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R.
    823, at para. 74.

[123]

The remedies available to a trial judge when an irregularity occurs in
    a jury trial vary depending on the nature and gravity of the error or
    combination of errors. The trial judge is in a privileged position in choosing
    the appropriate remedy. The discretion about remedial choice is not absolute.
    However, the judges decision is subject to considerable deference and should
    not be routinely second-guessed on appeal:
Khan
, at para. 83;
R.
    v. Al-Enzi
, 2014 ONCA 569, 121 O.R. (3d) 583, at para. 64, leave to appeal
    refused, [2014] S.C.C.A. No. 405;
R. v. R.(A.J.)
(1994), 94 C.C.C.
    (3d) 168 (Ont. C.A.), at p. 174.

[124]

If a trial judge concludes that an irregularity has occurred in the
    closing address of the Crown and that irregularity has jeopardized the fairness
    of the trial, the trial judge must consider all the circumstances. This
    requires a balancing of the interests of the accused against other
    considerations, including the public interest:
Al-Enzi
, at para. 63.
    In most situations, the irregularity may be rectified by specific corrective
    instructions:
R. v. Rose
, [1998] 3 S.C.R. 262, at para. 125.

[125]

Declaration of a mistrial is a remedy of last resort, reserved for
    cases in which the irregularity fatally compromised the fairness of the entire
    trial and that no remedy other than a new trial is available:
R. v. Pires
,
    2004 BCCA 33, 183 C.C.C. (3d) 232, at paras. 53-59, affd on other grounds,
    2005 SCC 66, [2005] 3 S.C.R. 343.

[126]

When a trial judge realizes that an error has occurred in the
    conduct of a jury trial, but decides not to declare a mistrial, a reviewing
    court should consider the remedial selection as one of the elements in its
    assessment of whether the trial has been or has appeared unfair. Where the
    remedy chosen is a corrective instruction on what they may or must not consider
    in reaching their verdict, we must acknowledge the ability of jurors to
    understand and follow these instructions:
Khan
, at para. 81-82, citing
Corbett
, at pp. 692-694. We should intervene only if the trial judge exercised
    this well-established remedial discretion unreasonably or acted on a wrong
    principle:
Al-Enzi
, at para. 64.

[127]

A relevant factor in our assessment is the position of defence
    counsel when confronted with the irregularities now said to have fatally
    wounded the actual and apparent fairness of the trial:
Khan
, at para.
    85. Where the remedy sought on appeal, viewed through the lens of an
    unfavourable verdict, eclipses that sought at trial, and was itself expressly
    disavowed at trial, this affords some indication that the remedy chosen was
    adequate to ensure the trial was not unfair. Not in reality. And not in
    appearance:
Khan
, at paras. 85-86.

The Principles Applied

[128]

Several reasons persuade me that this ground of appeal fails.

[129]

Our response to this complaint involves two steps. At first, we must
    decide whether the Crowns closing was improper. Then, if so, whether,
    considered in the context of the trial as a whole, including the evidence
    adduced and the positions advanced, the substance or manner of the Crowns
    closing address caused a substantial wrong or miscarriage of justice by
    compromising the appellants right to a fair trial:
R. v. Clyke
, 2021
    ONCA 810, at para. 33.

[130]

In this court, the respondent accepts, as did Crown counsel at
    trial, that some aspects of the trial Crowns closing address may have
    encouraged the jury to draw impermissible inferences or engage in impermissible
    reasoning.

[131]

In his tailored evidence submissions, the trial Crown made no
    direct reference to access to pre-trial disclosure as a source of information
    to shape the appellants testimony at trial. Rather, the trial Crowns focus
    was the evidence given at trial. This, according to the trial Crown,
    essentially forced the appellant to concede certain events had occurred. While
    the submission made no direct reference to the appellants presence at trial as
    the source of or reason for the tailored evidence, the inference was
    unavoidable since his presence enabled him to hear the evidence that
    facilitated his account.

[132]

The bias, self-interest, and motive claims as a basis to reject the
    testimony of the appellant and Jaimini Panday extended beyond what is
    permissible comment on the interest of a witness and the outcome of proceedings
    as a factor to consider in assessing the witness credibility. Although we do
    not impose an absolute prohibition on prosecutorial or judicial comment on an
    accuseds interest in the outcome as a factor to consider in assessing their
    credibility as a witness, the weight of authority holds that this factor is
    simply unhelpful in most cases and that triers of fact are well advised to
    abjure that path of reasoning. Relatedly, the jury should not be invited to
    follow a similar path of reasoning in connection with another witness whose
    alleged motive is grounded in speculation, unhinged from the evidence adduced
    at trial.

[133]

We permit a trier of fact to consider a witness demeanour in
    assessing their credibility. In a jury trial, we allow trial judges to instruct
    jurors that a witness demeanour is a factor, one of many, that they may
    consider in assessing the witness credibility. Although we concede the
    relevance of demeanour as a credibility determinant, we also recognize that, on
    its own, demeanour is a notoriously unreliable predictor of the accuracy of a
    witness evidence. And so we eschew assigning it a place of prominence in the
    credibility analysis.

[134]

In this case, the trial Crowns closing address assigned undue
    prominence to the appellants testimonial demeanour as a factor for the jury to
    consider in assessing his credibility as a witness. The closing also invited
    the jury to follow a path of stereotypical reasoning from calm demeanour to
    rehearsed evidence and guilt.

[135]

Improper closing submissions by Crown counsel do not always require
    a new trial. Each case is different. Each is decided according to its unique
    circumstances. Several factors exert an influence on the result. The
    seriousness of the improper comments. The context in which the comments were
    made. The position of defence counsel at trial. Remedial steps taken by the
    trial judge in the aftermath of the address or in the charge to the jury:
Clyke
,
    at para. 37, citing
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at
    para. 128.

[136]

As I have said, my conclusion that this ground of appeal fails rests
    on the combined effect of several factors.

[137]

First, the discretionary nature of the decision and deference.

[138]

We owe substantial deference to the trial judges remedial selection
    in response to a claim of improprieties in the closing address of Crown counsel.
    The trial judge was there. Appellate counsel was not there. Nor were we. The
    trial judge could and did assess the impact and significance of the impugned
    remarks. He considered the nature and extent of remedial action required. He
    settled on corrective instructions. Shortly after the completion of the address.
    And again in the charge. We accord substantial deference to his conclusion. And
    so we should. His determination was not cumbered by any error in principle. Nor
    was it an unreasonable exercise of his remedial discretion.

[139]

Second, the remedy applied.

[140]

The trial judge considered a timely and repeated corrective
    instruction would eradicate any prejudice caused by the improprieties in Crown
    counsels closing address. This is the remedy applied in most cases of an
    improper Crown closing according to the prevailing authorities canvassed
    earlier. This remedy coincides with the confidence we repose in juries. Their
    understanding of the substance of corrective and limiting instructions. And the
    willingness and their ability to follow those instructions, especially those
    which direct them about permissible and impermissible uses of evidence, the
    inferences available from that evidence, and permitted and prohibited paths of
    reasoning based on that evidence.

[141]

In effect, the appellant now says that the trial judge should have
    declared a mistrial rather than providing corrective instructions to the jury.
    Twice. Yet he points to no error in principle that flawed the trial judges
    remedial selection. Nor does he say that the choice was unreasonable. He says
    that the verdict was a surprise. To trial counsel and the trial judge. Neither
    affords any ground for reversal. Declaration of a mistrial is a remedy of last
    resort reserved for the clearest of cases. This is not one of them.

[142]

Third, the corrective instructions provided.

[143]

As we have seen, timely and focused corrective instructions are
    usually sufficient to eradicate or alleviate any prejudice to an accuseds fair
    trial rights caused by an improper closing by Crown counsel. Specificity is
    preferable to a general admonition to dispassion.

[144]

In this case, the trial judge identified the improprieties,
    explained why they were improper, and provided an unambiguous instruction that
    enjoined impermissible use. The instructions were, as they should be, clear,
    specific, and forceful. They were given shortly after the impugned address and
    repeated the following day in the charge to the jury. They were composed of
    language of which defence counsel approved both before and after delivery. Any
    evidentiary misstatements were corrected.

[145]

Fourth, the position of trial counsel.

[146]

Trial counsel objected to Crown counsels closing. He made it clear
    that the improprieties could be corrected by instructions from the trial judge.
    He entreated the trial judge to provide the instructions after the closing and
    before the charge. The trial judge did so in language of which counsel
    approved. He then repeated the instructions in the charge. Trial counsel
    specifically declined to request a mistrial as a remedy. Appellate counsel,
    with the infallible wisdom of an unfavourable verdict, reverses field and
    asserts error in failing to declare a mistrial. An adverse verdict affords no
    evidence that the remedy afforded was wrong or inadequate, much less that it
    caused a miscarriage of justice.

Ground #3: Failure to Instruct on Manslaughter

[147]

Like its immediate predecessor, this ground of the appeal puts
    forward a claim of error contrary to the position advanced at trial. There,
    defence counsel rejected any suggestion that the included offence of manslaughter
    should be left for the jury to consider. Appellate counsel now says that the
    trial judge erred in failing to instruct the jury on manslaughter.

[148]

Brief reference to two aspects of the evidence received at trial and
    to the charge to the jury will provide a suitable framework in which to assess this
    ground of appeal.

The Relevant Evidence

[149]

The deceased died of a single stab wound to his chest. The wound
    penetrated his heart. It travelled downward and to the right, a distance of 12
    cm and was 2 cm wide. The blade of the knife that inflicted the fatal wound was
    only 3.5 inches long. The death of the deceased likely followed within seconds of
    the stabbing.

[150]

An expert witness testified that, at the time of his death, the
    deceaseds blood alcohol concentration was 196 mg of alcohol in 100 ml of
    blood. Traces of THC were also found. The appellant testified that on an
    inebriety scale of zero to ten, he was in the range of six to eight. No expert
    evidence was elicited of the appellants blood alcohol concentration.

The Charge to the Jury

[151]

The appellants position at trial was that he was not the person
    who stabbed the deceased and caused his death. Trial counsel made it clear in
    pre-charge discussions that he did not dispute that the stabbing was unlawful
    or that it amounted to murder in view of the nature and location of the fatal
    wound and the common-sense inference of intention. When asked directly by the
    trial judge about the included offence of manslaughter, trial counsel responded
    that he did not want manslaughter left to the jury.

[152]

Crown counsel agreed that the trial judge should not instruct the
    jury on manslaughter.

[153]

In his charge to the jury, the trial judge summarized the essential
    elements of murder. This included the requirements that the act causing death
    must be unlawful and accompanied by either of two specific fault elements.
    However, the trial judge did not explain either the unlawful act or fault
    requirements, or how they were to be established, as for example, through the
    use of the common-sense inference of intention, as affected by evidence of
    intoxication or other factors. The jury received no instruction about the
    verdict consequences of a reasonable doubt about proof of the fault element
    required for murder.

[154]

The trial judge instructed the jury that two verdicts were available.
    They were to find the appellant not guilty if they were not satisfied beyond a
    reasonable doubt that the appellant was the person who stabbed the deceased to
    death. And they were to find the appellant guilty of second degree murder if
    they concluded that he was the person who inflicted the fatal wound. The
    verdict sheet displayed only these same two available verdicts and the decision
    tree contained a single question the answer to which indicated which of the two
    verdicts the jury should render. As is the practice, neither the verdict sheet
    nor the decision tree contained legal instructions.

The Arguments on Appeal

[155]

The appellant begins by acknowledging that at trial, counsel on both
    sides agreed that the trial judge should not instruct the jury on the included
    offence of manslaughter or leave manslaughter as an available verdict. Counsel
    were wrong in their assessment, likewise the trial judge in his conclusion not
    to leave the included offence. Despite the position of counsel, a manslaughter
    instruction should have been provided and manslaughter left as an available
    verdict.

[156]

In this case, the appellant points out, the deceased died of a
    single stab wound. The location and nature of the wound were relevant factors
    for the jury to consider in assessing the state of mind of the person who
    inflicted it, likewise the common-sense inference of intention. But neither
    alone nor in combination were these factors dispositive of the fault element
    the Crown was bound to establish to prove the unlawful killing was murder. The
    scene was chaotic. The parking lot was icy. The principals were intoxicated.
    Passions were inflamed. This afforded a basis for a conclusion that the
    killing, while unlawful, may not have been murder.

[157]

What engages the obligation of a trial judge to instruct a jury on
    an issue is that the evidence at trial gives rise to an air of reality on that
    issue. It is beside the point whether defence counsel expressly advances it as
    a defence or disavows reliance upon it. In this case, the evidence adduced
    provided an air of reality for manslaughter. Failure to instruct on the
    included offence of manslaughter was a legal error requiring a new trial.

[158]

The respondent accepts that the obligation of a trial judge to
    instruct a jury on an included offence depends on two factors. The offence must
    be an included offence as a matter of law. And the evidence adduced at trial
    must be such that it permits a reasonable jury, properly instructed, to
    conclude that the essential elements of the included offence have been proven
    beyond a reasonable doubt, but not those of the principal offence charged.

[159]

On the other hand, the respondent contends, some cases exist in
    which the entirety of the evidence, the issues raised by the evidence, and the
    positions taken by the parties make it appropriate that only two possible verdicts
    be left of the jury  guilty or not guilty. This occurs when no reasonable view
    of the evidence, considered as a whole, could cause the jury to acquit on the
    principal offence charged but convict on the included offence. In these cases,
    an instruction on an included offence engenders confusion and invites a
    compromise verdict.

[160]

Here, the respondent submits, two principal factors support the
    trial judges conclusion not to instruct the jury on the included offence of
    manslaughter. Experienced trial counsel turned his mind to the issue of the
    included offence of manslaughter. At the pre-charge conference, he made it
    clear that manslaughter should not be left to the jury as a potential verdict.
    More to the point, the evidence adduced fell short of the air of reality
    standard required to trigger the obligation to instruct. The deceased died
    almost immediately after a deep penetrating stab wound to the heart. The
    inescapable inference from the nature, location, and extent of the wound is
    that the person who inflicted it intended its natural and probable consequences
     death. No evidence suggested that the wound was accidental. The deceased
    suffered no other significant injuries.

The Governing Principles

[161]

The principles governing a trial judges obligation to instruct a
    jury on included offences are uncontroversial.

[162]

The duty to instruct on included offences is not absolute. Nor is it
    coextensive with all offences that are included as a matter of law. The
    obligation to instruct on included offences depends upon the evidence received
    at trial, the issues raised by that evidence, and the positions taken by the
    parties:
R. v. Wong
(2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para.
    11. The evidence adduced at trial must be such that it permits a reasonable
    jury, properly instructed, to conclude that the essential elements of the
    included offence have been established, but not those of the principal offence:
Wong
, at para. 12;
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C.
    (3d) 16, at para. 75. See also,
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R.
    3, at paras. 50-55;
R. v. Aalders
, [1993] 2 S.C.R. 482, at p. 504-505.

[163]

Where, according to the legal principles that govern the principal
    and included offences, no reasonable view of the evidence taken as a whole
    could cause the jury to acquit on the principal charge, but convict on the
    included offence, an instruction on the included offence would achieve no
    purpose beyond confusion and compromise, the antithesis of a true verdict
    according to the evidence:
Wong
, at para. 12.

[164]

The air of reality test imposes a basic requirement, that of an
    evidentiary foundation. It applies to a variety of issues. Modes of
    participation. Essential elements of an offence. Defences. Justifications.
    Excuses. And included offences, which are often linked to defences. The test
    invokes two well-established principles. The obligation to put to the jury all
    defences and included offences that arise on the evidence, irrespective of
    reliance upon them by an accused. And a positive duty to keep from the jury
    defences, and included offences, for which there is no foundation in the
    evidence:
Cinous
, at para. 51.

[165]

The air of reality test has to do only with whether a defence, or
    included offence, should be left for the jury to consider. This determination
    requires the judge to consider the totality of the evidence and assume the
    evidence relied upon by the accused is true. This threshold determination does
    not decide the merits of the defence, or the basis for the included offence.
    The judge makes no findings of fact, does not weigh the evidence or draw
    determinate factual inferences. The air of reality test is not meant to assess
    and does not consider whether a defence or the basis for an included offence is
    likely, unlikely, somewhat likely, or very likely to succeed, or be the verdict
    returned at the end of the trial:
Cinous
, at paras. 53‑54.

[166]

Where no reasonable view of the evidence taken as a whole could
    cause the jury, on the basis of the legal principles applicable to the
    principal and included offence, to acquit on the main or principal charge, yet
    convict on the included offence, then the included offence should not be left
    for consideration:
Wong
, at para. 12.

[167]

When an appellant asserts error because of a failure to instruct on
    an included offence, a factor of importance for the reviewing court is the
    position of counsel at trial, especially defence counsel. This is because,
    among other considerations, an accused has a constitutional right, within
    limits, to control their defence:
Luciano
, at para. 77. The assessment
    also considers the strength of the evidence relied upon in connection with the
    included offence as well as the concessions made and position taken by trial
    counsel:
R. v. Chalmers
, 2009 ONCA 268, 243 C.C.C. (3d) 338, at para.
    52. Sometimes, it may be necessary to instruct the jury on the included offence
    of manslaughter despite the objections of defence counsel:
Chalmers
,
    at para. 51, citing
R. v. Murray
(1995), 93 C.C.C. (3d) 70 (Ont. C.A.),
    at pp. 84-86.

The Principles Applied

[168]

I would not give effect to this ground of appeal. In my respectful
    view, the failure of the trial judge to instruct the jury on the included offence
    of manslaughter did not amount to prejudicial error.

[169]

The obligation of a trial judge to instruct a jury on an included
    offence becomes engaged when two circumstances coalesce. The first has to do
    with the offence which is the subject of complaint. And the second relates to
    the evidence adduced at trial.

[170]

The offence omitted from the instructions must be what the law
    regards as an included offence. One offence may be included in another in
    different ways. In this case, it is common ground that manslaughter is, in law,
    an included offence in a count charging murder.

[171]

A trial judge is not required to instruct a jury on every offence
    that, as a matter of law, is an included offence. The obligation to instruct on
    the included offence also depends on the evidence adduced, the issues raised,
    and the positions taken by the parties on that evidence. In particular, the
    evidence adduced at trial must meet the air of reality standard on some basis that
    could result in return of a verdict for the included offence. This means that
    the evidence adduced must permit a reasonable jury, properly instructed and
    acting judicially, to conclude that the essential elements of the included
    offence, but not those of the principal offence have been established beyond a
    reasonable doubt.

[172]

Manslaughter may be voluntary or involuntary.
Voluntary
manslaughter is mitigated murder. The fault element in murder is proven, but
    the crime is reduced to manslaughter because a reasonable doubt arises about
    some defined mitigated circumstance such as provocation within s. 232(1) of the
Criminal Code
.
Involuntary
manslaughter is culpable homicide that
    lacks the fault element required for it to amount to murder.

[173]

A context-specific assessment of the appellants claim of
    prejudicial error requires an evaluation of the strength of the supportive
    evidence and the concessions made and position taken at trial on the basis of
    that evidence.

[174]

The defence advanced at trial focused exclusively on the identity of
    the killer. The evidence marshalled in support was principally that of Jaimini
    Panday and the appellant. Simply put, the defence was not me, it was Chicas.
    Nowhere did experienced defence counsel suggest that there was an air of
    reality to the statutory partial defence of provocation, or to intoxication or
    accident. As this court pointed out in
Peavoy
, defences incompatible
    with that advanced may be left with the jury in a way that does not compromise
    the position of counsel or the defence advanced:
Peavoy
, at para. 37.
    No such request was made here.

[175]

The appellant conceded the issue of intent at trial. Experienced
    trial counsel approved the specific instructions of the trial judge. Those
    instructions contained no directions on the unlawful nature of the killing or
    the fault element required for murder. That was as the appellant wished it with
    the focus on the adequacy of the Crowns proof that the appellant stabbed the
    deceased. The conclusion that the position advanced was a sound tactical
    decision undertaken with the benefit of advice of experienced counsel. That it
    turned out adversely to the appellant changes nothing.

[176]

It passes strange that the trial judge is now said to have erred by
    putting the appellants case to the jury in precisely the way in which the
    appellant sought to have it put. Yet this is the argument now advanced with the
    benefit of the clairvoyance provided by an adverse verdict.

[177]

As in
Chalmers
, the argument advanced
    does not extend beyond the air of reality relating to any defences that could
    find a verdict a manslaughter.

[178]

First, voluntary manslaughter. There was no evidence of a sudden
    loss of control following the Kijiji Man remark during which the stabbing
    occurred.

[179]

Second, involuntary manslaughter. If the jury accepted that it was
    the appellant who caused death, it is difficult on the record to conceive of a
    scenario where he did so without the requisite intent for murder: see
Chalmers
,
    at para. 49. The appellant never asserted that he stabbed the deceased without
    realizing or foreseeing that he would kill him. This is to be expected: the
    appellants entire evidence was that he did not cause the deceaseds death.
    While the appellant testified he was intoxicated, this evidence lacked
    persuasive force without expert support. Nor was there any evidence as to how
    the appellants intoxication affected, if at all, his ability to appreciate his
    actions.

[180]

In any event, the deceased was killed by a single and nearly
    immediately fatal stab wound to the heart. After the stabbing, the appellant
    carried out purposeful actions, throwing away the knife used to stab the
    deceased. His explanation at trial  that he did so at Chicas request  would
    no longer apply once the jury found that he caused the death. The evidence is
    thus consistent with a clear and determined intent to kill or, at the least, a
    reckless disregard for life.

[181]

Finally, perhaps the most telling indication of the defence view of
    the air of reality for manslaughter is counsels failure to advance it as an
    issue arising on the evidence that required a determination by the jury if it
    found the appellant had caused the deceaseds death.

[182]

In this case, the trial judges instructions about the possible
    verdicts tracked the appellants position throughout the trial. The trial judge
    vetted the proposed instructions and the potential verdicts with counsel. The
    instructions given were tailored and responsive to the position of the defence
    throughout. In these circumstances, including the paucity of evidentiary
    support for such a verdict, the instructions preclusive of a verdict of
    manslaughter do not reflect error. They also are consistent with the
    appellants right to control his own defence.

Ground #4: The Jury Question

[183]

The final ground of appeal was raised in a supplementary factum and
    advanced in oral argument. Brief reference to the question, the positions of
    counsel, and the trial judges response will provide the background necessary
    to evaluate its merits.

The Charge to the Jury

[184]

The trial judge completed his charge to the jury at about 2:00 p.m.
    on December 13, 2016. After a brief colloquy with counsel, he recalled the jury
    for further instructions.

The Jury Question

[185]

Within two hours of completion of the main charge, and an hour after
    the brief further instruction, the jury asked a question:

Could we have the court witnesses testimony
    of Danielle, Nicole, Jimini [
sic
] and Kathy?

The Positions of Counsel at Trial

[186]

Defence counsel advised the trial judge that jury questions required
    accurate and comprehensive responses. He noted the general nature of the
    question and suggested that the jury could be asked to particularize their
    request. In the alternative, defence counsel suggested the jury could be told
    that no transcripts of the evidence were available, nor would they be, and that
    replaying the recordings of the evidence would take several days of court time.

[187]

The trial Crown largely agreed with the position of defence counsel.

The Response of the Trial Judge

[188]

When the jury returned to the courtroom, the trial judge read out
    their question. He responded to it in this way:

We do not have transcripts of the evidence,
    nor are they capable of being provided. If it is a matter of focusing on
    specific issues in this regard, Im going to ask you to consider the testimony
    of the witnesses as you recall, as assisted by Counsels submissions and the
    charge that I have provided to you which outlines some areas of that evidence.

Practically speaking, to listen to the
    evidence of these witnesses in their entirety will involve likely a number of
    days to do so, of hearing the recording if that happened. So what Im going to
    direct you to do at this time is to consider the evidence along with the issues
    that youre facing as well in this matter, assisted by those submissions and
    the charge in that regard and we will leave matters at that point, at this
    time.

So what we are going to do, the best answer
    then that I can give is that a) we dont have transcripts available to us, and
    with respect to providing the audio recording of the evidence we can do so but
    that will require us to play the evidence of those witnesses, which occupies
    probably some hours and maybe some days of evidence as well.

So what we want you to do is first to deal
    with that in view of the instructions that have been provided and some of the
    outlines of the issues and the facts that have been discussed in the course of
    that, at this point in time, all right?

[189]

The jury asked no further questions. They returned their verdict the
    following afternoon almost twenty-four hours after they had asked their only
    question.

The Arguments on Appeal

[190]

The appellant begins, as did trial counsel, with a fundamental principle.
    When a jury asks a question during their deliberations they are entitled to a
    timely, correct, and comprehensive answer. This is because, by their question,
    the jury has identified an area or subject about which they require assistance.
    Where a jury question requests a read back or replaying of evidence, they are
    entitled to receive it.

[191]

In this case, the appellant submits, the trial judges complete
    rejection of the jurys request is a legal error that requires a new trial. This
    is so irrespective of the position counsel took at trial. Because of the unqualified
    nature of the initial request, the trial judge should have invited the jury to
    be more specific about the portions of the evidence they wished to have read
    out or replayed. The trial judges failure to seek a more specific description
    of what was required meant that the jury got no assistance at all. To make
    matters worse, the nature of the response eliminated the prospect of any
    further questions from the jury.

[192]

The appellant says that the substance of the information required by
    the jurys question aggravated the prejudice inherent in the trial judges
    failure to answer it. The witnesses whose evidence the jury sought were those
    whose testimony related to the identity of the person who stabbed the deceased.
    This included Jaimini Panday, the defence witness who identified Chicas, not
    the appellant, as the killer. Identity was the only contested issue at trial.
    As a result, a new trial is required.

[193]

The respondent submits that in any assessment of an alleged error in
    responding to a jury question, a relevant consideration is the position of
    counsel at trial. This is especially so when counsel expressly agree on the
    approach that the trial judge should take. That occurred here. And we should be
    slow to reach an opposite conclusion in the face of unanimity at first
    instance.

[194]

The preferable course for the trial judge to have followed in this
    case, the respondent acknowledges, would have been to invite the jury to
    identify those aspects of the testimony that they wished to rehear. But the
    trial judges failure to do so does not warrant appellate reversal. No
    miscarriage occurred in the result. This is so because experienced trial
    counsel, the person most proximately charged with advocating the best interests
    of the appellant, concluded that it was not essential in the interests of
    justice that the evidence of these witnesses be repeated for the jury. Their
    evidence had been fairly summarized in the charge in connection with the issues
    requiring resolution and the jury had its individual and collective memories of
    the testimony.

The Governing Principles

[195]

The principles governing how in-deliberation jury questions should
    be answered are uncontroversial. Some specific points emerge that are important
    in the circumstances of this case.

[196]

First, a jury question provides a clear indication of the specific
    problem that the jury is confronting and on which it seeks the judges
    assistance. The nature of the problems vary. But the nature of the response
    does not. What is required, after careful consideration of the question and the
    submissions of counsel, is a clear, correct, and comprehensive answer to the
    question asked or request made:
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at
    p. 759-750;
R. v. S.(W.D.)
, [1994] 3 S.C.R. 521, at p. 528.

[197]

Second, when the jurys request relates to evidence admitted at
    trial, the jury is entitled to have the evidence of a witness or witnesses on a
    particular subject, and the entire evidence of a witness or witnesses if
    requested, read back or replayed:
R. v. Andrade
(1985), 18 C.C.C. (3d)
    41 (Ont. C.A.), at p. 70.

[198]

Third, where the jurys question is ambiguous or unclear, the trial
    judge is entitled to seek clarification and should do so before responding to
    the question:
R. v. B.(N.J.)
(2004), 183 C.C.C. (3d) 180 (N.S.C.A.),
    at para. 14;
R. v. Fleiner
(1985), 23 C.C.C. (3d) 415 (Ont. C.A.), at
    pp. 420-421;
R. v. H.(L.I.)
, 2003 MBCA 97, 176 C.C.C. (3d) 526, at
    para. 72;
R. v. Shannon
, 2011 BCCA 270, 273 C.C.C. (3d) 80, at para.
    51.

[199]

Fourth, among the in-deliberation jury questions upon which a trial
    judge may seek clarification before responding is a request for a rereading or
    replaying of the testimony of a witness or witnesses:
Andrade
, at p.
    72. Relatedly, a trial judge might ask whether a summary of the witness
    testimony from the judges notes of it might suffice:
Andrade
, at p.
    72.

[200]

In some instances, failure to clarify questions that are unclear or
    ambiguous may amount to reversible error. This is so not only because of the
    nature of the response to which the jury is entitled to their in-deliberation
    questions, but also because the answer they are given, or in some cases
    refused, is the final word they hear on a problem they have identified in their
    deliberations:
R. v. Kahnapace
, 2010 BCCA 227, 255 C.C.C. (3d) 342, at
    paras. 50, 53.

[201]

Finally, nothing the judge says in responding to the jurys in-deliberation
    question should discourage the jury from asking further questions on that or
    any other subject:
R. v. Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181,
    at para. 97, citing
R. v. Layton
, 2009 SCC 36, [2009] 2 S.C.R. 540, at
    para. 33.

The Principles Applied

[202]

Several factors, considered together, persuade me that we should
    give effect to this ground of appeal.

[203]

First, the subject matter of the jurys question.

[204]

The jurys in-deliberation question related to the central, indeed
    only contested issue at trial: the identity of the person who stabbed the
    deceased. The evidence at trial, perhaps unsurprisingly in light of the scene
    observed and the conditions of the observers, lacked consistency. As among the
    witnesses. And in the evidence of individual witnesses. It resembled a crazyquilt
    of snapshots of individual events taken from myriad points of vantage by
    witnesses whose recollections lacked consistency and were tainted in some cases
    by self-interest and bias.

[205]

The jurys task required them to recall these disparate renditions,
    assess the credibility of their authors, determine the reliability of their
    observations, and apply the burden and standard of proof. By their question,
    they sought help about the substance of the evidence, including that of Jaimini
    Panday who identified Chicas as the assailant. The answer of the trial judge
    gave them no assistance. They had a copy of the charge, including the
    evidentiary references. This was apparently not enough. But they got no more.

[206]

Second, the failure to seek clarification.

[207]

The omnibus nature of the jurys request was a clarion call for a
    response that asked the jury whether they could be more specific about the
    aspects or subjects of the evidence which they wished to have repeated. The
    failure to make that request or even ask the jury to consider it in these
    circumstances was an error.

[208]

Third, the consequences of the failure. In the result, the jury, promised
    in the charge that their questions would be answered, received no assistance
    when they said they needed it about a subject on which they were the sole
    arbiter  whether the appellant killed the deceased.

[209]

Finally, both the substance of the trial judges response and his
    failure to remind the jury of its right to ask further questions and to receive
    answers to them essentially discouraged any further questions during
    deliberations. This too was an error.

[210]

In these circumstances, I do not consider this a case in which we
    are entitled to apply the proviso in s. 686(1)(b)(iii) of the
Criminal Code
.

Disposition

[211]

In the result, I would allow the appeal, set aside the conviction,
    and order a new trial on the indictment.

Released: January 7, 2022 D.W.

David
    Watt J.A.

I
    agree. L.B. Roberts J.A.

I
    agree. B. Zarnett J.A.


