



The COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. Walker, 2019 ONCA 806

DATE: 20191008

DOCKET: C60788

Hourigan, Brown and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Walker

Appellant

Philip Campbell and Alexander Ostroff,
    for the appellant

Michael Bernstein, for the respondent

Heard: September 16, 2019

On appeal from the conviction entered on
    March 12, 2014 by Justice Todd Ducharme, sitting with a jury, of the Superior
    Court of Justice.

Hourigan J.A.:

A.

INTRODUCTION

[1]

Nicholas Walker appeals his conviction for
    first-degree murder in the fatal shooting of Clifenton Ford. The shooting of
    Mr. Ford took place inside a bar and was captured on a security camera. Of
    critical importance at trial and on appeal is other security camera footage taken
    moments before the murder, in which two men are shown speaking in a stairwell
    in the bar. It was common ground that one of the people in that footage was
    Lester Coore. The Crowns position at trial was that the other person in the
    stairwell video was the appellant, and that the dark object he is seen holding
    was a gun. The defence argued that the appellant was not in the footage and
    that the object was not identifiable as a gun.

[2]

The appellant asserts three grounds of appeal:


(i)

The trial judge erred in opining in his jury
    charge that he believed that the dark object in the stairwell video looked like
    a gun;


(ii)

The trial judge erred in failing to caution the
    jury regarding the polices method of showing the still from the stairwell
    video to Mr. Coore; and


(iii)

The trial judge erred in allowing the Crown to
    speculate in closing that the appellant disabled a security monitor in the
    kitchen of the bar.

[3]

I conclude that the appeal must be allowed and a
    new trial ordered. As I will explain, the trial judge erred in offering his
    opinion about the stairwell video in circumstances where he ought to have known
    that it would unfairly undermine the defence on a critical factual issue. Due
    to the trial judges comment, the appellant was denied a fair trial.

B.

ANALYSIS

1.

The Trial Judges Comment

[4]

Mr. Coores evidence was that he recognized
    himself in the stairwell video and that the man standing next to him holding
    the dark object was the appellant, whom he was acquainted with. However, Mr.
    Coore denied seeing a gun that night.

[5]

In his charge to the jury, the trial judge
    opined that it looked to him that the dark object in the stairwell video was a
    gun:

In looking at the videotape, you may wish to
    consider the following. There is the image of the man in the black leather
    jacket talking to Mr. Coore in the back stairs. I have that as being on camera
    4 at 2:20:50. And ask yourself whether or not he has a gun in his right hand
    and whether or not, while his back is to the camera, he is loading the weapon.
    Now, at 21:33, it looks to me like the person in the leather jacket has a
    handgun in his right hand and it moves towards Mr. Coore and back, but that is
    something for you to decide.

[6]

In charging juries, trial judges are obliged to
    review the substantial parts of the evidence and relate that evidence to the
    issues the jurors must decide. There is no formula to determine the adequacy of
    the evidentiary review. Appellate courts do not demand a standard of perfection
    of trial judges: David Watt,
Helping Jurors Understand
(Toronto:
    Carswell, 1996), at pp. 185-88. Despite the deference paid to trial judges in
    crafting jury charges, it is essential that a trial judges summary of the
    evidence and the charge as a whole be fair and balanced:
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at paras. 114-18.

[7]

Beyond summarizing the evidence, a trial judge
    is permitted to opine on the evidence adduced at trial subject to certain
    limits. Watt J.A. reviewed the law regarding the permissible bounds for a judge
    commenting on evidence, in
R. v. John
, 2017 ONCA 622, 350 C.C.C. (3d)
    397, at paras. 108-10:

[108] The parties share common ground that a
    trial judge is entitled to express opinions on issues of fact, as strongly as
    the circumstances permit, provided that what is said amounts to advice, not
    direction, and the judge makes it clear that the jury is not bound by the
    judges views on these issues.

[
109
] A significant
    limitation is that a trial judges opinion can only be expressed
as strongly
    as the
circumstances permit
. A trial judge is entitled to express
    his or her own view of the facts or of the credibility of witnesses and to
    express that opinion in strong terms. But sometimes, even where a judge has
    told the jury that it is not bound by the judges views on the evidence, a
    judge may go too far by expressing an opinion that is far stronger than the
    facts warrant or by expressing the opinion so strongly that the jury is likely
    to be overawed by it.

[
110
] The judge must not
    use such language as leads the jury to think that they must find the facts in
    the way the judge has indicated. And the charge must not deprive the accused of
    a fair presentation of the defence case to the jury. In each case, it is a
    question of degree and of fairness. [Citations omitted, emphasis original.]

[8]

In
R. v. Lawes

(2006), 80 O.R.
    (3d) 192 (C.A.), at para. 23, leave to appeal refused, [2006] S.C.C.A. No. 175,
    Rouleau J.A. summarized the jurisprudence as follows:

What can be drawn from all of these cases is
    that, in this area, everything is a question of degree. The overarching
    principle is fairness. Within this principle of fairness is the recognition
    that the jury must remain the arbiter of the facts and that any comments made
    by the trial judge cannot amount to a rebuttal of the defence address to the
    jury or unfairly denigrate or undermine the position of the defence.

[9]

The question for determination on this appeal is
    whether the trial judge ran afoul of these principles by identifying a gun in
    the stairwell video.

[10]

It is plain from the excerpt quoted above that
    the trial judge instructed that the ultimate determination regarding whether
    the man in the stairwell video held a gun was the jurys and that he was only
    offering his opinion. This was consistent with other directions in the jury charge
    regarding the responsibilities of the judge and jury, including the statement
    that [d]eciding the facts is your job, not mine. In light of these comments,
    no reasonable juror who was undertaking his or her duties in a diligent manner
    would believe that the trial judges opinion was binding.

[11]

I am also satisfied that the opinion expressed
    was not stronger than the facts warranted. My review of the stairwell video leads
    me to conclude that the trial judge had a basis to support his opinion that the
    man in the video appeared to be holding a gun.

[12]

Nor am I of the view that the opinion was
    expressed so strongly that it would overawe the jury. The trial judge made a
    brief comment, which made clear that he was only expressing his opinion. He did
    not bolster that observation with his views on why he concluded that a gun was identifiable,
    nor did he attempt to persuade the jury that his opinion was the only correct
    one. He also did not state his opinion in absolute terms, such that it would
    unduly influence the jury.

[13]

As noted, a trial judges opinion on the
    evidence in a jury charge will be rendered impermissible if it prejudices the accuseds
    right to a fair trial. The appellant argues that the comment about the gun was
    highly prejudicial. In earlier submissions to the court, the Crown took the
    position that the gun was not clearly visible in the stairwell video but that
    an inference could be drawn that it was a gun based on certain circumstantial
    evidence. However, after becoming aware of the trial judges opinion, the Crown
    argued in closing that the stairwell video showed a gun. According to the
    appellant, the trial judge inappropriately intruded into the adversarial
    process on an issue that he was no better position in to opine on than the
    jury.

[14]

In my view, the trial judges comment compromised
    the appellants right to a fair trial. The proof of the prejudice is found in
    the changing position of the trial Crown on what the stairwell video shows. During
    pre-charge submissions counsel addressed the issue of whether Mr. Ford, the
    victim, was shown to be in possession of a gun at the time of the shooting. In
    the course of those submissions, the Crown urged that there is no air of
    reality to the suggestion that the video showed a gun in Mr. Fords hand, and
    then stated as follows:

Well, I will compare it to Mr. Coore. You
    know, what I do in my closing and what I say and what I would say is that theres
    an object that seems apparent that moves between the two men on the screen. You
    know, you cant completely make out clearly that its a gun, but there are a
    number of circumstantial factors that point to the fact that it is a gun.
    Ultimately, perhaps the most glaring of which, is if you accept that Mr. Walker
    goes out and shoots Mr. Ford, you can infer that what he was displaying to Mr.
    Coore was a gun. So theres evidence there upon which the inference can be
    drawn.

[15]

This was a significant concession by the Crown
    relating to whether, in the stair case video, a gun could be seen in the hand
    of the man Mr. Coore identified as the appellant. It meant that both the
    defence and Crown agreed that it was not clear from the stairwell video that
    the dark object was a gun. Given these submissions, the trial judge was aware that
    this was the state of play regarding whether a gun was visible in the stairwell
    video.

[16]

Later during the pre-charge submissions, the
    trial judge said that he would probably tell the jury that, on his review of
    the security footage, he did not see a gun in Mr. Fords hand. This prompted
    defence counsel to ask the trial judge whether he would be opining on whether a
    gun was visible in the stairwell video:

MS. SHEMESH: Yeah, and Im wondering if youre
    doing the same with the rear stairwell. I know we didnt get into that.

THE COURT: I dont think so. I think what Im going
    to say about the rear stairwell is Im just going to review what Mr. Coore had
    to say about it in-chief and in cross. Youre talking about Mr. Coore and Mr. 

MS. SHEMESH: If whether or not you see a gun
    in the rear stairwell.

THE COURT: I think in that regard, I will tell
    them that they should look at the hand, that to me it looks like hes holding a
    gun, but that they should keep in mind that Mr. Coore didnt see a gun and said
    he wasnt shown a weapon.

MS. SHEMESH: But Your Honour is going to say,
    to me it looks like a gun?

THE COURT: I think so.

MS. SHEMESH: So youre going to be opining on
    both pieces of evidence, providing your position on both pieces of evidence?

THE COURT: Probably, yes, as I can.
[1]

[17]

Thus, despite knowing that the Crown was taking
    the position that the stairwell video was unclear, the trial judge determined
    that he would offer his opinion that the gun was identifiable. The Crown, now
    armed with the knowledge that the trial judge would be offering this opinion,
    took a much more aggressive position in his closing than he had previously
    articulated. He stated the following about Mr. Coores denial that he had seen
    a gun in the appellants hand:

He saw Mr. Walker with that gun. He will not
    admit it. His loyalty to Mr. Walker tells you why he would withhold this
    devastating observation, but you can conclude that it was, in fact, a gun in
    Mr. Walkers hands for three reasons. The first is that you can see it for
    yourself on the video as Mr. Walker speaks to Mr. Coore. Mr. Walker appears to
    be doing something consistent with loading a gun before Mr. Coore arrives. And
    finally you see the same person on the video, the one who spoke to Mr. Coore
    and displayed what looks to be a gun, use that gun to shoot Mr. Ford minutes
    later. That person was, on all the evidence, Mr. Walker.

[18]

The alleged presence of the gun in the stairwell
    video was significant, especially since defence counsel was not strenuously contesting
    that the man seen in the video shooting Mr. Ford was not the same man shown in
    the stairwell video. If the jury concluded that a gun was indeed present in the
    stairwell video and accepted Mr. Coores evidence that the appellant was the
    person next to him, this would go a long way toward establishing the
    appellants guilt beyond a reasonable doubt. In short, this was a critical
    factual issue.

[19]

Appellate courts are obliged to ensure that an accused
    person receives a fair trial and that justice is not only done but that it be
    manifestly and undoubtedly be seen to be done:
Brouillard Also Known As
    Chatel v. The Queen
, [1985] 1 S.C.R. 39, at p. 13. As this court stated in
R. v. Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, leave
    to appeal refused, [1986] S.C.C.A. No. 298, a case about judicial intervention
    in questioning:

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

[20]

Trial judges must be alive to the dangers of
    intervention in the circumstances of the case before them. They must act
    judiciously and consider whether the exercise of an available discretion,
    including opining on evidence, is appropriate or whether there is a danger it
    will impair the accuseds rights to a fair trial. Where such a danger is
    apparent, we expect trial judges to proceed with caution and decline to
    intervene. It is not just a question of whether an opinion can be offered but whether
    it should be, recognizing that a trial judge has an overriding duty to ensure that
    the accused receives a fair trial.

[21]

In the case at bar, it would have been apparent
    to the trial judge that he was taking a more definitive position than the
    parties on whether a gun was identifiable in the stairwell video. There was an
    obvious danger that the Crown would be emboldened, or might feel obligated, to
    take a more aggressive position on this critical piece of evidence and withdraw
    his concession that the gun was not clearly identifiable in the stairwell
    video. This, in fact, was what happened in this case.

[22]

In the circumstances, the trial judges comment
    rendered the trial unfair because he intervened when he should not have and, in
    so doing, he undermined the defences position. By offering a stronger opinion
    than the one he knew the Crown was prepared to advance, he profoundly impacted
    the course of the argument on a critical piece of evidence. He removed a
    concession and strengthened the Crowns position. When the trial judge advised
    counsel that he would opine on the evidence because he could, he erred in not
    considering whether he should offer an opinion that was stronger than the Crowns
    position. This was fundamentally unfair to the appellant.

[23]

For the foregoing reasons, I would give effect
    to this ground of appeal and order a new trial. Below, I will briefly consider
    the other grounds of appeal in an effort to assist the trial judge and parties
    at the new trial.

2.

Identification of the Appellant

[24]

Mr. Coore spent substantial parts of the evening
    in the stairwell, only briefly speaking to the appellant. During their initial interview
    with Mr. Coore, the police only showed him a still of the stairwell video
    allegedly featuring the appellant, without the context of the rest of the
    footage from the stairwell. When the police showed him the still, Mr. Coore
    already knew that the appellant was a suspect. Despite the defence arguing that
    the way Mr. Coore was shown the still was suggestive and required a warning in
    the jury charge, the trial judge offered no instruction about Mr. Coores
    evidence in this regard.

[25]

The appellant argues that showing Mr. Coore the still
    of the stairwell video in isolation to identify the event that took place immediately
    before the shooting was a process imbued with suggestion and potential
    prejudice, especially since Mr. Coore believed that the still would show him
    and the appellant. According to the appellant, that risk merited a warning from
    the trial judge. The precise nature of that warning is not articulated, but he
    suggests that the dangers associated with this evidence are very close to an
    in-dock identification. The appellants position is that the non-direction was
    tantamount to misdirection.

[26]

I am not persuaded that the trial judge erred in
    declining to provide a specific instruction regarding the potential that Mr.
    Coores evidence was influenced by the manner in which the police showed him
    the still. There is nothing inherently suggestive in the police showing a
    witness a still or video clip and asking him or her to identify who is in it and
    what is happening.

[27]

It was open to the defence to argue that this frailty
    and others in Mr. Coores evidence rendered it incredible and unreliable, and
    indeed the defence made much of these issues in closing submissions.
    Significantly, in his jury charge, the trial judge provided a detailed summary
    of the defences position in this regard, including the statement: Lester
    Coore assumes that it is Mr. Walker in the photo because the police showed him
    one photo, but everything else about his description of their interaction is
    incorrect if you take the time to deconstruct what is actually on the
    videotape.

[28]

I am satisfied that the
    frailties in Mr. Coores evidence were sufficiently explained to the jury to
    enable them to properly evaluate their impact on his credibility and
    reliability.
The defence advanced many arguments,
    including one that the polices method of showing Mr. Coore the isolated still
    had influenced his evidence.
A special
    instruction was not required. Accordingly, I would dismiss this ground of
    appeal.

3.

Kitchen Monitor

[29]

During closing submissions, the Crown commented
    that a security monitor in the kitchen had been unplugged. The Crown insinuated
    that the appellant unplugged the monitor in a failed attempt to disable the
    security features of the bar. This theory was not put to any witness nor did
    the Crown adduce any evidence that the appellant was in the kitchen that night.

[30]

In my view, the argument that the appellant
    disabled the monitor was not sufficiently rooted in the evidence and crossed
    the line into impermissible speculation. In the absence of supportive evidence,
    the Crown had no basis to invite the jury to draw this inference. The appellant
    was prejudiced by the submission, because it went to both his culpability for
    the murder and the issue of premeditation.

[31]

The trial judge was obliged to instruct the jury
    to disregard this submission and he erred in declining to do so. While it is
    doubtful that this error alone would warrant a new trial, I identify it in case
    the Crown elects to invite the jury in the new trial to draw the same inference
    in the absence of a sufficient evidentiary basis.

C.

DISPOSITION

[32]

I would allow the appeal and order a new trial.

Released: D.B. October 8, 2019

C.W. Hourigan J.A.

I agree. David Brown J.A.

I agree. David M. Paciocco J.A.





[1]
The appellate concedes that the trial judges opinion about whether
    Mr. Ford had a gun is not significant because, even if he did have a gun, self-defence
    was not available on the facts of this case.


