COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Ivall, 2018 ONCA 1026

DATE: 20181213

DOCKET: C57346

Strathy C.J.O., Nordheimer J.A., McKinnon J. (
ad
    hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Ivall

Appellant

Michael Lacy and Deepa Negandhi for the Appellant

David Finley and Jacob Sone for the Respondent

Heard: October 15, 2018

On appeal from the conviction entered on February 27,
    2013 by Justice Terrence A. Platana of the Superior Court of Justice, sitting
    with a jury.

McKinnon J. (
ad hoc
):

Overview

[1]

The appellant was charged with the second degree murder of Edward
    Wilson, along with his co-accused Angela Duchene. The trial took place over two
    months in the winter of 2013 in Kenora, Ontario.

[2]

Three weeks into the trial, defence counsel for Duchene was
    appointed to the bench and another member of his firm took over her defence. He
    negotiated a plea of guilty for Duchene to the lesser-included offence of
    manslaughter. She was sentenced to 10 years and 8 months less pre-trial custody
    of 7 years and 8 months. She was then called as a witness by the Crown and implicated
    the appellant in the murder of Wilson. On February 27, 2013, the appellant was
    convicted of second degree murder and on June 28, 2013, the trial judge
    accepted a joint submission and sentenced the appellant to life imprisonment
    without eligibility for parole for 16 years.

[3]

The appellant appeals his conviction. For the reasons stated
    below, I would dismiss the appeal.

Background Facts

[4]

On March 21, 2009, the appellant and his then girlfriend, Duchene,
    were outside the bar located at the Tower Motor Hotel (the Tower) in a town
    near Kenora, Ontario. It was just after last call, at 2:00 a.m., and both the
    appellant and Duchene had been drinking heavily. The deceased, Edward Wilson,
    was also outside the bar. Duchene pointed Wilson out to the appellant and
    identified him as the stalker who had sexually assaulted her on a previous
    occasion, which resulted in the appellant confronting Wilson and the pair
    engaging in a verbal altercation. Wilson punched the appellant in the face,
    causing him to bleed profusely. This in turn caused Duchene to make retaliatory
    remarks at which point Wilson slapped her hard in the face.

[5]

A group of young men standing nearby observed the confrontation. They
    were thought to be from the Minaki area (the Minaki boys). The Minaki boys began
    to assault Wilson and dragged or chased him around the side of the hotel,
    repeatedly punching and kicking him in the head and torso for about 30 seconds
    to a few minutes. One of the men, Ian Hagar, delivered a vicious and
    potentially fatal soccer style kick to Wilsons head. Following this kick,
    there was no movement from Wilson which caused some of the Minaki boys,
    including Hagar, to fear that the kick may have been a fatal blow. The group
    fled, leaving Wilson apparently unconscious on the ground.

[6]

According to two of the Minaki boys, Mike Fleury and Josh Rheault,
    when they left Wilson outside the Tower, they could hear a snoring or heavy
    breathing sound coming from Wilson. None of the Minaki boys observed any
    injuries to Wilson, however, Rheault noticed a slight, one-inch cut above Wilsons
    right eyebrow. No one called 911.

[7]

The appellant and Duchene remained out front of the Tower during
    the assault on Wilson by the Minaki boys, but did not participate. No witness
    from outside the hotel saw the appellant around Wilson during the assault, nor was
    the appellant observed delivering any punches or kicks.

[8]

A patron, who was staying at the Tower that evening, stated that
    at 2:32 a.m. she was woken by the sounds of yelling and screaming. She
    testified that she heard a female say: Hold him down. Hold him down, and a
    man say: Im going to fucking kill him. The patron also heard stomping and
    what sounded like a very violent assault. She did not look outside her window.
    The last thing she heard was someone say, Lets get outta here and then the
    commotion was over.

[9]

Just before 3:00 a.m., a number of Ontario Provincial Police
    officers (Delorme, Duggan, Royal, Miles, and Davis) met at a Tim Hortons near
    the Tower for a coffee break. Ron Lalonde, a friend of both the appellant and
    Duchene, entered just behind the officers. Duchene then entered, followed a few
    minutes later by the appellant. Several of the officers suspected that the
    group was quite intoxicated, based on their demeanour. One officer described
    Duchene as jumpy and possibly high. Two of the officers noticed that
    Duchene went to use the washroom.

[10]

Officers Delorme, Duggan, Royal, and Davis testified that they
    observed a wet, shiny, red, blood-like substance on the top and/or side of the
    appellants shoe. Some of the officers also observed a red stain on the
    appellants baseball cap. At approximately 3:00 a.m., Lalonde, Duchene, and the
    appellant left the Tim Hortons.

[11]

At 3:44 a.m., a train engineer entered the Tim Hortons and
    notified the officers that his train had passed over a body on the nearby
    tracks. The body had been severed below the neck, partially through the
    shoulder area. The head, upper arms, and forearms were found clear of the train
    tracks.

[12]

Police searched the area near the tracks and
    noticed a large concentration of what appeared to be blood on the snow on the
    trail that led from the area of the Tower to a line of railway tracks. They
    also observed an area of grass estimated to be approximately 2.5 feet in
    diameter that appeared to be matted down with a large quantity of blood and a
    cigarette lying right in the middle. One officer described what appeared to him
    to be long drag marks in an area close to the matted down grass.

[13]

Lalonde had met the appellant through Duchene, whom he had known
    for years. On the evening in question, Lalonde had been at the same bar as
    them, drinking throughout the evening. Lalonde left the bar at around 2:45 a.m.
    or 3:00 a.m. and planned to stop at the nearby Tim Hortons before walking home.
    He was permitted to be in the bar after the last call because he was a friend
    of the bartender. He did not see any fights at the bar that night. Lalonde
    testified that as he was walking towards Tim Hortons away from the Tower on A
    Street West, he bumped into the appellant and Duchene, who were walking in an easterly
    direction on A Street towards the Tower. Lalonde assumed they had just come
    from Tim Hortons and were on their way home. According to Lalonde, he noticed a
    red spot, smaller than the size of a toonie, on the appellants baseball cap.
    When he asked the appellant about it, the appellant was very calm and said
    something like, shit happens and that it wasnt a big deal.

[14]

Lalonde testified that he did not perceive anything out of the
    ordinary. The appellant and Duchene appeared very normal and did not seem
    nervous or upset. Lalonde claimed that the three chatted briefly, and he
    invited them over to his place to continue drinking and partying. He recalled
    Duchene being excited about the idea but the appellant just wanting to go home.

[15]

According to Lalonde, the group parted ways and he went to Tim
    Hortons alone and then walked home. Lalonde had no memory, even after being shown
    videotape evidence, of being inside the Tim Hortons with the appellant and
    Duchene. Further, Lalonde had no recollection of leaving Tim Hortons, however, he
    did have a vague recollection of having a dispute over a bagel while there.

[16]

According to the videotaped statement given by Duchenes to the police,
    portions of which were admitted for the truth of their contents, when the
    appellant saw Lalonde approaching along A Street West, he had her make sure
    that Lalonde did not take the pathway heading to the train tracks where he
    would have come across Wilson.

[17]

At some point that night, Hagar asked Fleury to
    drive him back to the Tower so that he could check on the condition of Wilson. Fleurys
    truck was captured on the Tim Hortons video surveillance camera making a right
    hand turn off of Lakeview Drive, driving down the lane way between the Tim
    Hortons and the nearby building at 3:01 a.m., and exiting the Tim Hortons
    driveway at 3:04 a.m. According to Fleury and Hagar, while they were driving,
    they saw a man and a woman on the side of the road close to Tim Hortons. They
    drove back to the hotel where the Minaki boys were staying and did not return
    to where Wilson had been left.

[18]

The following morning, the Minaki boys learned
    that someone had died. They panicked and discussed among themselves whether
    they should go to the police, and if so, what they should say.
With the
    exception of Hagar, all of the Minaki boys involved in the assault provided
    statements to the police within days of March 21, 2009. They also turned over
    their clothing and shoes to the police. At trial, they all admitted to lying during
    their statements to the police by minimizing their involvement in the assault
    and omitting details about the nature of the attack. Furthermore, they all
    agreed to keep Hagars name from the police, fearing that he could have
    possibly killed Wilson during the assault. As a result of the Minaki boys
    attempt to keep Hagars participation in the assault a secret, the police did
    not interview or even know about Hagar until ten months following the event,
    and as such, never forensically examined Hagars shoes and clothing.

[19]

The appellant was arrested for attempting to obstruct justice by being
    a party, along with Duchene, to cleaning his clothing and boots on the evening
    of March 21, 2009. He gave a voluntary videotaped statement to the police. The
    appellant denied being involved in the assault of Wilson and had no
    recollection of kicking anyone. Other than describing the interaction outside
    of the Tower (which was consistent with the evidence of other witnesses), the
    appellant did not provide any information about the events that followed. The
    appellant told the police that he was wearing Timberland shoes, black pants, a
    vest, and a turtleneck. Video surveillance showed the appellant wearing jeans,
    not black pants.

[20]

The Crown played the videotaped statement as part of its case at
    trial, for the purpose of showing that the appellant lied about what he was
    wearing that night and to suggest that he was not forthcoming with information
    about what he did after the Minaki boys left the Tower, and what transpired on
    the trail by the train tracks.

[21]

The Crowns theory at trial was that after the Minaki boys left
    the Tower, the appellant and Duchene walked alongside the Tower and came across
    Wilson. They dragged Wilsons body up a nearby trail leading to the train
    tracks, continued the assault, and then placed Wilsons body face down on the
    tracks. A train drove through the area shortly thereafter, decapitating and
    dismembering Wilsons body.

[22]

Dr. Pollanen, a forensic pathologist, testified that the cause of
    death was blunt head and facial trauma. The major mechanism of death was
    aspiration of blood. Positional asphyxia may have played a role in Wilsons
    death given that he was found lying face down on the train tracks. Dr. Pollanen
    testified that there were two major classes of injury on Wilsons body: the
    injuries that occurred prior to the train hitting him; and those that occurred
    at the point of impact with the train.

[23]

All of the injuries Dr. Pollanen observed were consistent with
    punching and kicking. He observed a bloody imprint on Wilsons bare back,
    consistent with the sole of a shoe or boot. While Dr. Pollanen was unable to
    say whether Wilson was alive or deceased when he was placed on the tracks, he
    was able to conclude that Wilson was deceased when the train passed over him.
    In Dr. Pollanens opinion, the assault related injuries sustained by Wilson
    prior to the train running him over were unlikely to have been fatal had Wilson
    received timely medical treatment.

[24]

At trial, Duchene described her relationship with the appellant
    as one of friends with benefits, and that the pair were living together at
    the time of the homicide. According to Duchene, on the day of the assault she
    and the appellant had been drinking heavily and using drugs. Duchene admitted
    to being highly intoxicated that evening and, in her view, the appellant was equally
    as intoxicated as she was.

[25]

According to Duchene, neither she nor the appellant participated
    in the Minaki boys assault on Wilson. Instead, Duchene and the appellant went home
    and passed Wilson, who was not moving, along the way. Duchene testified that
    she slapped Wilsons face and kicked him in the face and torso two or three
    times. She did not hear any noises coming from Wilson and was unsure whether he
    was breathing. While she had a clear recollection of the events up to this
    point, Duchene testified that her memory of the remainder of the evening was
    fragmented. At some point she grabbed one of Wilsons arms while the
    appellant grabbed the other. Together they dragged Wilson onto the trail
    leading to the train tracks.

[26]

Police thoroughly searched the area around the
    Tower and found no evidence of Wilsons blood. The closest blood deposits
    attributed to Wilson were located 44 meters to the west of the Tower on A
    Street West. Dr. Pollanen testified that Wilsons injuries would have resulted
    in considerable external blood loss and that he would have expected to see
    blood loss at the location where the injuries were inflicted. There was
    evidence of considerable external blood loss along the trail leading up to the
    tracks, including an area of pooled blood that was attributed to Wilson.

[27]

Duchene testified that she was close to the top of the trail,
    near the train tracks, when she saw the appellant stomping on Wilsons head
    repeatedly with his right boot. She said the appellants kicks sounded really
    wet. She stated that she tried to get the appellant to stop but was
    unsuccessful. She could hear sounds coming from Wilson as though he were
    gasping for air. According to Duchene, the appellant was angry with Wilson
    and said: This piece of shits gonna get it. Duchene stated that she could
    feel Wilsons blood spatter onto her face and believed that some ended up on
    her pants and shirt. Upset by the situation, she began to walk away. The
    appellant followed after a little bit and arrived home a few minutes after
    her. According to Duchene, she believed that Wilson had been left on the trail
    leading to the train tracks.

[28]

The appellant and Duchene returned to their nearby home, located on
    the other side of the train tracks. The pair were possibly observed by a
    neighbour shortly after 3:00 a.m. coming up from the railway track area. A
    housemate of the appellant and Duchene was awoken at approximately 3:30 a.m. by
    the two talking loudly.

[29]

According to Duchene, once they were both home, she and the
    appellant began bickering. She was angry with him because he had left his
    really bloody socks and shoes balled up behind the bathroom door. She
    testified that his right sock and his right shoe were drenched as though he
    had stepped in a really deep puddle. Duchene further noted that the appellants
    right pant leg was really dark red at the bottom. Afraid that the police were
    going to come looking for them, she threw his shoes, pants, and socks into the
    washing machine. She could not recall what she did with the clothing after
    that. Duchene claimed that she washed the appellants clothes on her own and
    not because he asked her to. She did not, however, wash her own clothes. Duchene
    testified that at the time she felt scared, confused, and jittery; she took a
    valium and eventually fell asleep.

[30]

The Crown played excerpts from Duchenes videotaped statement
    regarding the plan to distract Lalonde and avoid the possibility of him
    discovering Wilsons body by the train tracks. Duchene testified that viewing
    the videotaped excerpts did not assist in refreshing her memory, and that she
    had no independent recollection of the statement or of the appellant telling
    her to take Lalonde to Tim Hortons.

[31]

During her testimony, Duchene claimed that she did not know how
    Wilsons body came to be on the train tracks. She testified that she did not
    see the appellant move Wilson and did not know whether Wilson was breathing
    when she last saw him. She stated that when she last saw him, Wilson did not
    move, that his eyes were closed, and that he was not making any noises.

[32]

Duchene further testified that she had reviewed her entire statement
    to police and had no recollection of making it, nor did she remember having
    spoken to them. She claimed that reviewing portions of her statement would not
    assist in refreshing her memory with respect to how Wilson ended up on the
    tracks; whether the appellant told her to distract Lalonde so that he would not
    see Wilsons body; and whether Wilson was breathing when she last saw him.
    Accordingly, the Crown brought an application to have portions of Duchenes
    police statement, including the purported conversation between her and the
    appellant about distracting Lalonde, admitted into evidence for the truth of
    its contents. That application was successful.

[33]

In addition to the testimony of Duchene, the Crown led evidence
    that Wilsons blood was found on the appellants jacket and his blue sweater. Defence
    counsel conceded that the appellant was wearing those articles of clothing that
    night. Wilsons blood on these items arguably could not have come from the
    altercation outside the Tower as on all accounts, including the appellants,
    the appellant did not inflict any injury on Wilson during the brief interaction
    and was not involved in the ensuing assault by the Minaki boys. Wilson could also
    not be excluded as one of the sources of the blood stain on a pair of jeans
    found at the appellants apartment. In addition, a pair of Kodiak Pathfinder
    boots were found inside a duffle bag at the apartment that appeared to be
    freshly cleaned. Blood was detected on the right boot, although its quality was
    insufficient for comparison.

[34]

Two footwear experts opined that the right boot seized from the appellants
    apartment could not be excluded as the source of the impression on Wilsons
    body, an impression that Dr. Pollanen opined was created by blood. Further, a
    forensic video analyst testified that the boots could not be excluded as being
    the footwear the appellant was wearing in the Tim Hortons surveillance footage
    from the day of Wilsons death.

[35]

Regarding the items worn by Duchene, Wilson could not be excluded
    as the source of the blood found on the outside cuff of her black hooded
    sweatshirt nor as the source of blood transfer and spatter stains found on her
    right boot.

[36]

On the morning of March 23, 2009, Officer Wiebe was working as a
    guard with the Kenora Police Service. She saw the appellant and Duchene lodged
    in separate cells and overheard their conversation. According to Officer Wiebe,
    the appellant and Duchene were engaging in lovey-dovey talk, telling one
    another how much they loved each other, how they could not wait to get married,
    and that if they got married they would not have to testify against each other.
    Officer Wiebe heard them discussing how drunk the appellant was and that he did
    not remember the evenings events. At one point, Officer Wiebe heard the
    appellant say to Duchene, perhaps in a questioning tone: So we did hurt
    someone really bad. Officer Wiebe also heard the appellant tell Duchene: That
    fucking guy will never slap you again.

[37]

Regarding the guilty plea, Duchene testified that the Crown
    offered her a plea to manslaughter and a withdrawal of the charge of attempting
    to obstruct justice. Duchene explained that part of the deal was that she would
    have to provide a new statement, to be approved by the Crown, and that she would
    later be subpoenaed as a witness to testify against the appellant.

Issues

[38]

The appellant appeals his conviction on the following grounds:

1.

The trial judge erred in his treatment of the Minaki boys
    evidence;

2.

The trial judge erred by ruling that excerpts from the unsworn
    videotaped statement of the co-accused turned
Vetrovec
witness, Duchene,
    that were not adopted at trial could be used for the truth of their contents;

3.

The trial judge erred by failing to adequately review and relate
    the evidence to the rolled up charge addressing intoxication and provocation
    and failed to impress upon the jury the admonition that the sane and sober
    inference is permissive and subject to a consideration of the evidence of
    intoxication;

4.

The trial judge erred by failing to adequately relate exculpatory
    evidence provided by the appellant to the burden of proof and the presumption
    of innocence in accordance with
R. v. W.(D.)
, [1991] 1 S.C.R. 742;

5.

The trial judge erred by permitting the Crown to adduce opinion
    evidence of a police officer regarding the veracity of the appellant; and

6.

The cumulative effect of the trial judges interjections over the
    course of the trial, in addition to the admission of highly prejudicial
    evidence, undermined the fairness of the appellants trial.

Issue 1: Did the trial judge err in his treatment of the Minaki boys
    evidence?

Appellants Position

[39]

The appellant submits that the trial judge erred in his treatment
    of the Minaki boys evidence by: (1) failing to provide the jury with an
    adequate instruction cautioning them about how to approach the evidence of the
    Minaki boys, who admitted to lying to police and who had a motive to fabricate
    and minimize their involvement in assaulting Wilson; and (2) failing to leave
    the jury with the appellants alternate theory that the Minaki boys were
    responsible for Wilsons death.

[40]

The appellant submits that causation was one of the main issues
    at trial and that the assault by the Minaki boys caused significant injury to
    the deceased, which resulted in bleeding. The Crowns position at trial was
    that the assault by the Minaki boys did not cause serious injury to Wilson.

[41]

All of the Minaki boys admitted to having lied to the police, panicking
    upon realizing that the person they assaulted the previous evening had died,
    and concealing Hagars identity, thereby depriving the police of relevant
    evidence.

[42]

During the pre-charge conference, given the concerns with the
    Minaki boys evidence, both counsel suggested that a
Vetrovec
caution
    was required in respect of their evidence and that of Duchene:
R. v.
    Vetrovec
, [1982] 1 S.C.R. 811. The Crown argued that such a warning was
    necessary because the defence would inevitably take the position that the
    Minaki boys killed Wilson. The trial judge interjected and stated that based on
    the defence counsels opening address to the jury, he understood the defence
    position to be that Duchene was solely responsible. Both Crown and defence
    counsel clarified that the defence position was that Wilsons death was a
    result of the combined actions of both the Minaki boys and Duchene. The trial
    judge stated that he would comment on the state of intoxication of the Minaki
    boys and that their evidence can only be charitably said as confusing. The
    trial judge advised counsel that he would provide a general
Vetrovec
warning
    with respect to the Minaki boys evidence and a very specific one with
    respect to Duchenes evidence.

[43]

The trial judge also indicated that he did not propose to go into
    any great detail with respect to the Minaki boys evidence and that the
    critical aspect that the jury needed to know about was Wilsons condition after
    he was assaulted by them. The trial judge added that he was taking this
    position based on the evidence about Wilsons condition at the time the Minaki
    boys left him on the roadway and because none of the forensic evidence
    indicated there was blood on any of the Minaki boys. However, this was not
    accurate since blood was in fact detected on Fleurys shoes. Further, this
    summary ignored the fact that Hagars clothing and shoes were never examined. Although
    the trial judge presented the jury with the facts in this manner, he later re-instructed
    the jury on this point after being corrected by counsel.

[44]

The trial judge briefly mentioned in a section of his charge
    dealing with prior inconsistent statements that the Minaki boys had lied to the
    police. He stated: You have heard many of the  [Minaki boys] testify. Many or
    all of them admitted they had previously lied to police. However, the trial
    judge failed to reiterate during his review of the evidence that the Minaki
    boys had tried to cover up and minimize their involvement; that they had lied
    to police to keep Hagars identity hidden; and that, because of their lies,
    neither Hagars shoes nor his clothing were seized or forensically tested.

[45]

Given the circumstances surrounding the nature of the Minaki boys
    evidence, the absence of physical evidence from Hagar, and the theory of the
    defence, the appellants position is that the jury ought to have been more
    strongly cautioned about the Minaki boys evidence. Instead, the trial judge made
    the following statement about their evidence:

You heard evidence from a number
    of individuals who testified as to events that took place outside the Tower Motel
    that evening. I do not propose to review all of their evidence with you. Needless
    to say, there was much confusion and contradiction in the evidence given by
    [the Minaki boys].

[46]

The trial judge then proceeded to summarize the evidence of each
    of the witnesses who were outside the Tower that evening.

[47]

The appellant submits that it was clear from some of the trial
    judges comments throughout the trial and during the pre-charge conference that
    it was his view that the evidence relating to what took place outside the Tower
    was less relevant and less significant than what Duchene testified happened by
    the train tracks. These comments suggest that the trial judge misapprehended or
    failed to appreciate the significance of the evidence relating to the assault
    on Wilson by the Minaki boys and the issue of causation. The appellant contends
    that by placing little, if any, significance on the events that preceded the
    events by the train tracks, the trial judge effectively dismissed the defence
    theory that the Minaki boys had caused or contributed to Wilsons potentially
    fatal injuries, and that Duchene was contributorily responsible for Wilsons
    death because she rolled him onto his back, causing him to aspirate on his own
    blood.

[48]

The appellant submits that this error was exacerbated by the
    trial judges failure to expressly refer to the defence theory that the Minaki
    boys contributed to Wilsons death. In his charge to the jury, the trial judge
    mentioned that the defence had two alternative theories, but went on to describe
    only one  that Duchene caused Wilsons death. The trial judge omitted the
    alternative position that the Minaki boys caused Wilsons death.

[49]

The manner in which the trial judge approached the Minaki boys
    evidence culminated in a brief summary of their evidence in the charge and a
    complete absence of the defence position relating to the potential effect that
    the Minaki boys assault had on Wilson. The appellant contends that on a
    functional assessment of the trial judges charge to the jury, this significant
    omission rendered the charge unbalanced and impacted the fairness of the trial.

Respondents Position

[50]

The respondent submits that the trial judge did not misrepresent
    the position of the defence. The trial judge set out the position that counsel sought
    to advance, namely, that it was Duchene who assaulted Wilson, but if the jury
    found that the appellant was involved then they should only convict him of
    manslaughter. There was no alternate theory pertaining to the Minaki boys. The
    possible role of the Minaki boys was only part of the theory that it was
    Duchene who killed Wilson. From his opening address, it was defence counsels
    position that Duchene killed Wilson and that the appellant played no role in
    anything that happened to Wilson after the events at the Tower. In his closing
    address, defence counsel argued that Duchene could have even strangled Wilson. The
    defence suggested that the events at the train tracks evidenced a personal act
    of revenge, that Duchene had such a motive, and that it was possible that the
    Minaki boys had a role in moving Wilson up the pathway.

[51]

In his closing address, defence counsel also submitted that it
    was Hagars kick to Wilson that may have caused injuries that potentially
    played a part in him aspirating his own blood. The defence further argued that
    Duchenes act in turning Wilson on his back also played a role. The trial judge
    later confirmed with defence counsel that he was not suggesting that the
    incident involving the Minaki boys was ultimately what caused the death of Mr.
    Wilson. Defence counsel replied: except that perhaps it was an additional
    compounding factor. There was the following exchange:

The Court: Okay, so your theory is, what Im to focus on is
    that it was [Duchene]

Mr. Watkins [defence
    counsel]: Yes. Through the flip or a                  combination

The Court: who effected the death of Mr. Wilson.

Mr. Watkins: Absolutely sir.

[52]

Both counsel then expressly agreed to provide the trial judge
    with a written summary of their respective positions by the following afternoon
    so that he could properly charge the jury on these theories.

[53]

When the trial resumed the following week, the trial judge gave
    his charge to the jury, wrapping up the respective theories of the Crown and
    the defence. To summarize the trial judges charge regarding the latter,
    defence counsel submitted two possible scenarios, namely, that it was Duchene
    alone who killed Wilson; or in the alternative, if the jury found that it was
    the appellant who had killed Wilson, that he lacked the specific intent for
    murder and should be found guilty only of manslaughter.

[54]

This summary has been impugned for the reason advanced by the
    appellant. However, it is a reasonable inference that the trial judge communicated
    to the jury the defence position that defence counsel wanted him to give. Defence
    counsel did not object to the charge. The defence would be expected to raise an
    objection if the trial judge misstated the defence theory or position.

[55]

The summary was consistent with defence counsels opening and
    closing addresses. While the summary did not include the possible role of
    Hagars kick, it did include the possible role of Fleury and Hagar by the train
    tracks. Defence counsel had suggested that Fleury and Hagar might have been involved
    in the killing of Wilson based on their evidence that they went looking for
    Wilson at around 3:00 a.m.
The Tim Hortons surveillance video
    camera footage showed Fleurys white pickup truck pass Tim Hortons at 3:01 a.m.
    and then return at 3:04 a.m., a span of only three minutes. Having regard to
    the observations of the police officers, Wilson would no longer have been on
    the roadway at this time and it would have been impossible for Fleury and Hagar
    to have attended near the train tracks where a large amount of Wilsons blood
    was discovered.

[56]

The respondent submits that no further warning about the Minaki
    boys evidence was required. It was for the trial judge to decide what was
    required, and this court should not interfere with that exercise of discretion.
    The trial judge reminded the jury that the Minaki boys had lied, and that their
    recollection of the events may have been affected by alcohol and confusion in
    the circumstances of the assault. The trial judge also gave a balanced view of
    their evidence and that of related witnesses.

[57]

Further, after Duchenes guilty plea the defence focused on
    Duchenes role in Wilsons death. Thus the possible role of the Minaki boys was
    of secondary significance. Notably, there was no forensic evidence to connect
    the Minaki boys to the scene by the train tracks.

[58]

Finally, while the pre-charge colloquy between the trial judge
    and counsel respecting what warnings should be given preceded closing
    addresses, it is a fair reading of that exchange that the trial judges charge was
    not set in stone. He was open to further discussion. To read the trial judges
    comments, one might have thought that he was going to give two
Vetrovec
warnings, one specific to Duchene and a one generally regarding the Minaki
    boys. However, defence counsel did not object to the charge on the bases now
    advanced on appeal.

Disposition

[59]

I would not give effect to this ground of appeal.

[60]

In my view, the trial judge provided an adequate instruction in
    cautioning the jury about how to approach the Minaki boys evidence. In the
    course of his charge, he reviewed the salient features of their evidence.

[61]

With respect to the failure to give a specific
Vetrovec
warning to the jury concerning the Minaki boys evidence, the trial judge told
    the jury that the Minaki boys all admitted to lying to the police and that
    there was much confusion and contradiction in their evidence. These words
    would have clearly impressed upon the jury that they should approach the
    evidence of the Minaki boys with heightened caution.

[62]

I do not accept the appellants submission that the trial judge
    erred by failing to leave the jury with the appellants alternative theory that
    the Minaki boys were causally responsible for Wilsons death. Defence counsels
    primary theory was that Duchenes actions, combined with the earlier assault by
    the Minaki boys, caused Wilsons death. Defence counsel had an opportunity to
    submit his theory of the case in writing to the trial judge, and did not object
    to this aspect of the charge to the jury.

[63]

The trial judge did not misrepresent the position of the defence.
    There was no alternative theory pertaining to the Minaki boys. The possible
    role of the Minaki boys was only part of the theory that it was Duchene who
    killed Wilson. This position is supported by the fact that in his closing
    address, defence counsel submitted that it was Hagars kick to Wilson that may
    have caused the injuries that played a part in him aspirating his own blood.
    Defence counsel further argued that Duchenes act in turning Wilson onto his
    back also played a role. The trial judge later confirmed with defence counsel
    that he was not suggesting that the incident involving the Minaki boys was
    ultimately what caused the death of Mr. Wilson. Defence counsel replied,
    [e]xcept that perhaps it was an additional compounding factor. As stated
    earlier the exchange between the trial judge and defence counsel during the
    pre-trial conference confirmed the point absolutely.

[64]

As the respondent noted, defence counsel would be expected to
    raise an objection if the trial judge misstated the defence theory or position.
    It was the position of the defence that the assault by the Minaki boys caused
    significant injury to the deceased which resulted in bleeding. However, defence
    counsels theory was that Wilsons death was ultimately caused by Duchene
    rolling him onto his back causing his airway to become obstructed by blood.

[65]

While the trial judge erred in stating that none of the forensic
    evidence indicated that there was any blood on any of the Minaki boys clothing,
    this error was fully corrected in the trial judges re-instruction to the jury
    after counsel brought it to his attention.

[66]

Finally, in describing the essential elements for second degree
    murder, the trial judge stated the following in relation to whether the
    appellant caused Mr. Wilsons death:

You may wish to consider the
    evidence of the incident outside the Tower involving the Minaki boys. In
    particular look at what evidence you find with respect to the injuries suffered
    by Mr. Wilson after the beating.
Does the evidence indicate he was still
    alive then?
[Emphasis added.]

[67]

In my view, this instruction left no doubt in the mind of the
    jury that they had to determine whether the Minaki boys had caused Wilsons
    death.

Issue 2: Did the trial judge err by ruling that excerpts from the unsworn videotaped
    statement of the co-accused turned
Vetrovec
witness, Duchene, that were
    not adopted at trial could be used for the truth of their contents?

Appellants Position

[68]

The trial judge ruled that an unsworn videotaped statement
    provided by Duchene to the police proximate to the events in question was
    voluntary and could have been introduced by the Crown as against Duchene in the
    event that she remained an accused. The introduction of this statement would
    not have amounted to evidence against the appellant. When Duchene became a
    witness, the Crown successfully applied to cross-examine her on three aspects
    of the statement pursuant to s. 9(2) of the
Canada Evidence Act
.

1.

An alleged interaction with Lalonde in order to distract him from
    taking the trail to the train tracks;

2.

The sound made by Wilson when the appellant purportedly kicked
    him; and

3.

How the appellant purportedly dragged Wilsons body to the train
    tracks.

[69]

Under cross-examination, Duchene did not remember the events and testified
    that she did not remember giving the statement on account of her own intoxication
    at the time of the events. Over the objection of the defence, the Crown
    successfully applied to have the three items of Duchenes statement noted
    above, admitted pursuant to the principled exception to the hearsay rule. The
    trial judge granted the Crowns request and admitted the statement for the
    truth of its contents. The appellant submits that the trial judge erred in
    principle by so doing on the basis that the statement did not meet the test for
    threshold reliability.

[70]

Duchenes prior statement was presumptively inadmissible hearsay.
    The dangers associated with introducing hearsay evidence and undermining the
    fairness of the trial were not overcome because there was no effective means by
    which to test the declarants perception, memory, narration, or sincerity,
    particularly in light of the absence of a present memory of having even made
    the prior statements. The appellant submits that the trial judges ruling
    failed to adequately assess threshold reliability, specifically that a witness
    who has no memory of giving a statement and no memory of what was said during
    the statement cannot be cross-examined.

[71]

In his ruling, the trial judge erroneously held that the
    inability to cross-examine only went to ultimate weight, relying on a brief
    endorsement of the Supreme Court of Canada in
R. v. Biscette
, [1996] 3
    S.C.R. 599.

[72]

The inability to cross-examine is properly considered at the
    threshold reliability stage. The appellant maintains that Duchenes prior
    statement could not meet the bar of threshold reliability because she was
    heavily intoxicated during the events she described in her statement, she was
    intoxicated at the time of making the statement, and she admittedly lied during
    the statement. The statement was not made under oath and was not cautioned. Duchene
    could not say whether she was trying to tell the truth. At the time she
    provided her statement, Duchene had a motive to falsely implicate the appellant
    and to exculpate herself.

[73]

The appellant further submits that the trial judge failed to
    highlight for the jury the concerns potentially undermining the reliability of
    the statement and failed to alert the jury to the inability to cross-examine on
    the statement, and how that should affect the weight to be given to the
    statement.

Respondents Position

[74]

The respondent submits that, even if the segments of Duchenes
    police statement were improperly admitted due to the trial judges failure to conduct
    the proper threshold reliability assessment, the admission of this evidence did
    not result in a miscarriage of justice. The curative proviso in s.
    686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c. C-46, applies
    because there is no reasonable possibility that the verdict would have been any
    different had the evidence been excluded. Further, the trial judge provided
    sufficient jury instructions on this evidence.

[75]

This evidence was only one part of the body of evidence that the
    Crown relied on to prove the appellants state of mind, namely, that he either
    intended to kill Wilson or intended to cause Wilson bodily harm that he knew
    was likely to cause death, and to eliminate reasonable doubt arising from
    intoxication, provocation, or some combination of both. The evidence available
    to the Crown included:

1.

Duchenes testimony describing the appellant stomping on Wilsons
    head;

2.

Duchenes testimony regarding the
    appellants statements during the assault on Wilson;

3.

Dr. Pollanens
testimony
describing the serious injuries to Wilsons head;

4.

The copious amount of blood along
    the trail leading to the tracks;

5.

The testimony of the police officers
    who were at the Tim Hortons, describing the apparent blood stains on the
    appellants shoes and hat;

6.

Duchenes testimony regarding cleaning
    the appellants clothing and shoes;

7.

The forensic analysis of the
    appellants clothing and shoes;

8.

The photograph of the bloody
    impression of a shoe left on Wilsons body, which was not inconsistent with the
    appellants shoes;

9.

The details in the appellants
    police statement that arguably evidenced good recall (relevant to establishing
    the degree to which he was intoxicated); and

10.

The final
act of leaving
    Wilson on the train tracks. It was a reasonable
inference
that the final act was in the nature of a deliberate
coup de grâce
. Both
    the Crown and the defence relied on this fact.

[76]

The respondent submits that much of this evidence was
    corroborative of Duchenes account of the events.

[77]

That said, the respondent submits that the excerpts were properly
    admitted under the principled exception to the rule against hearsay. The
    respondent contends that the trial judge did not err in relying on
Biscette
,
    where the court concluded that the inability to cross-examine on account of the
    witness failure of memory alone, is not a reason to bar admission of hearsay
    evidence, but rather goes to its weight.

[78]

Furthermore,
Biscette
was followed by this court in the
    decision of
R. v. Chretien
, 2014 ONCA 403, 309 C.C.C. (3d) 418, in
    which Watt J.A., citing
Biscette
, stated at para. 58:

. After all, it may be open
    to question whether the inability to effect a complete cross-examination due to
    a witness' asserted failure of memory is a reason to bar admission of the
    statement or is a factor for consideration on the issue of weight. [Citation
    omitted.]

[79]

Further, the respondent submits that the trial judges
    instructions were sufficient and cannot be disassociated from his
Vetrovec
warning
    concerning the evidence of Duchene, which immediately followed his instruction
    that the jury could rely on portions of her videotaped statement for its truth.
    The trial judge stated: There is good reason to look at Angela Duchenes
    evidence with the greatest care and caution. You are entitled to rely upon
    Angela Duchenes evidence even if it is not confirmed by another witness or
    other evidence, but it is dangerous for you to do so. The placement of this warning
    and its strong language ensured that the jury approached Duchenes evidence,
    including the hearsay excerpts, with the utmost care. Notably, defence counsel
    raised no objection to the charge on this point.

[80]

The Crown at trial abandoned their reliance on two of the three
    excerpts of Duchenes videotaped statement ruled admissible by the trial judge,
    and proceeded to rely only on the portion relating to the appellant asking
    Duchene to distract Lalonde. The respondent submits that notwithstanding her
    memory loss, Duchene was effectively cross-examined and the cross-examination
    filled 130 pages of transcript. In addition, the videotape obtained from the Tim
    Hortons shows Duchene entering the Tim Hortons, and the presence of Lalonde and
    the appellant. Duchene was fully cross-examined with respect to what was on the
    Tim Hortons videotape.

[81]

While Duchene could not remember portions of her statement in
    which she recounted her meeting with Lalonde and going into Tim Hortons,
    entering the washroom, and seeing blood on her hands and washing it away, the Tim
    Hortons videotape evidence tends to support the truth of her statement, notwithstanding
    her loss of memory. More to the point, the cross-examination was conducted by
    defence counsel, who played the videotape for Duchene and the jury frame by
    frame.

Disposition

[82]

I would not give effect to this ground of appeal.

[83]

Factual findings that underpin a trial judges determination of
    admissibility are entitled to deference from appellate courts. Trial judges are
    well placed to assess the hearsay dangers in individual cases and the
    effectiveness of any safeguards to assist in overcoming those specific dangers.
    Absent an error in principle, a trial judges determination of threshold
    reliability is entitled to deference on appeal:
R. v. Youvarajah
, 2013
    SCC 41, [2013] 2 S.C.R. 720, at para. 31;
R. v. Couture
, 2007 SCC 28,
    [2007] 2 S.C.R. 517, at para. 81;
Chretien
, at para. 44.

[84]

In the case at bar, the only issue to be determined by the trial
    judge was the reliability of the statement. Necessity was not an issue because
    Duchene had no memory of the making of her statement. She was, however,
    available for cross-examination.

[85]

As was pointed out by Watt J.A. in
Chretien
, at para.
    50, the reliability analysis refers to threshold, and not ultimate reliability:

Were it otherwise, we would fail to maintain the distinction
    between admissibility and weight or reliance, breaching the divide between the
    role assigned to the trier of law, on the one hand, and the trier of fact, on
    the other. Threshold reliability involves a determination of whether the
    evidence is worth receiving for assessment by the trier of fact. [Citations
    omitted.]

[86]

In
R. v. B (K.G.)
, [1993] 1 S.C.R. 740, at pp. 795-96, the
    Supreme Court of Canada set out three factors relevant to determining the threshold
    reliability of a hearsay statement: (i) the statement is made under oath or
    solemn affirmation after a warning about the consequences of an untruthful
    account; (ii) the statement is videotaped in its entirety; and (iii) the
    opposite party has a full opportunity to cross-examine the witness on the
    statement (see also:
R. v. Zaba
, 2016 ONCA 167, 336 C.C.C. (3d) 91, at
    para. 10;
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para.
    71;
R. v. Kanagalingam
, 2014 ONCA 727, 315 C.C.C. (3d) 199, at para.
    32).

[87]

Duchenes statement was videotaped, thus the jury could see and
    hear her. While the statement was not made under oath, she was available for
    cross-examination at trial.

[88]

In
R. v. Khelawon,
2006 SCC 57, [2006] 2 S.C.R. 787, at
    para. 49, the Supreme Court stated that the [hearsay] evidence, although
    needed, is not admissible unless it is sufficiently reliable to overcome the
    dangers arising from the difficulty of testing it.

[89]

In finding that the evidence was reliable in this case, the trial
    judge cited the case of
R. v. Trieu
(2005), 74 O.R. 3d 481 (C.A.). In
Trieu
,
    two perpetrators of a robbery made police statements inculpating the accused
    then later recanted. The statements were videotaped but not taken under oath. The
    trial judge admitted the statements and this court upheld the decision, holding
    that there were sufficient collateral indicia of reliability to admit the
    statements for the truth of their contents. Moldaver J.A. (as he then was) in
Trieu
stated at para. 78:

In sum, if cross-examination at trial remedies "the most
    important of the hearsay dangers" and videotaping brings the declarant
    before the triers of fact, thereby providing them with "access to the full
    range of non-verbal
indicia
of credibility" and "eliminating
    the danger of inaccurate recording which motivates the rule against hearsay
    evidence," then the role of the oath as a further reliability indicator
    must surely be a modest one. Stated simply,
I believe that when the other
    two indicators are present, the oath has very little burden to shoulder in the
    threshold reliability assessment
. [Emphasis added.]

[90]

Rosenberg J.A. in his concurring judgment, at para. 33, remarked
    on the effectiveness of cross-examination in establishing reliability in the
    face of a witness lack of memory:

As to the lack of contemporaneous
    cross-examination, Lamer C.J.C. held that
the opportunity to cross-examine
    in front of the triers of fact at trial was an adequate substitute
.
    Subsequent cases have made the point that this must be a real opportunity.
    Where the declarant/witness takes the position that he or she knows nothing of
    the events or the taking of the statement the opportunity to cross-examine is
    illusory and does not serve as an adequate substitute. But that was not the
    case here.
Both declarants gave detailed accounts of the planning and
    execution of the home invasion and of the circumstances surrounding their prior
    statements
. [Emphasis added.] [Citation omitted.]

[91]

In this case, Duchene gave detailed testimony at trial concerning
    her involvement in the events leading to the death of Wilson. However, she
    lacked memory of the three items in question, which prompted the ruling
    admitting her previous statement for its truth regarding those items.

[92]

Crown counsel at trial abandoned two of the three items ruled
    admissible by the trial judge, and proceeded to rely only on the evidence
    relating to the appellant allegedly asking Duchene to distract Lalonde.

[93]

Duchene was not a recanting witness alleging that what she had
    said in her previous statement was untrue. She was a witness who simply had no
    memory of having made the statement and was unable to say whether it was true in
    relation to the specific items that she could not remember. Duchene was fully
    cross-examined with respect to the events of the fatal night and a review of
    the cross-examination reveals that she was fully responsive to each and every
    question posed by defence counsel. It would be erroneous to assert that the
    cross-examination was illusory. The fact that defence counsel was unable to
    effect a complete cross-examination relating to the items in question because
    of Duchenes loss of memory should not act as a bar to the admission of the
    prior statement for its substantive use in these circumstances. The jury was
    able to watch videotaped portions of her statement and assess for themselves
    the reliability of the evidence in the light of the strong
Vetrovec
warning
    given by the trial judge.

[94]

In determining that Duchenes statement could be admitted for its
    truth, the trial judge relied on the law as set out in
Khelawon
in to
    assess the issue of threshold reliability.

[95]

A separate issue arises on appeal as to whether the proffered statement
    would be admissible in view of the recent decision of the Supreme Court of
    Canada in
R. v.

Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865,
    which elaborated on the requirements for threshold reliability,

particularly
    with regard to what sort of confirmatory evidence may be used in its
    determination.
Bradshaw
, at para. 27, states that threshold
    reliability is established when hearsay is sufficiently reliable to overcome
    the dangers arising from the difficulty in testing it. These dangers can be
    overcome, and threshold reliability established, by showing that there are
    adequate substitutes for in-court, contemporaneous cross-examination to
    sufficiently test the truth and accuracy of the statement (procedural
    reliability), or that there are circumstantial or evidentiary guarantees that
    the statement is inherently trustworthy (substantive reliability). Procedural
    reliability and substantive reliability are not mutually exclusive and may work
    in tandem to establish threshold reliability (
Bradshaw
, at para. 32).

[96]

In my opinion, the proffered hearsay would be admissible under
    the revised
Bradshaw
test. In addition to the indicia of procedural reliability,
    to which I have already referred, the hearsay statement regarding the distraction
    of Lalonde has substantive reliability.

[97]

Similar to an issue in
Bradshaw
, it could be argued that
    Duchene had a motive to lie and shift the blame in order to reduce her own culpability
    in Wilsons murder. However, her statement is supported by corroborative
    evidence. Duchenes statement is primarily corroborated by the videotape
    evidence from the Tim Hortons surveillance cameras showing Lalonde entering Tim
    Hortons  first followed by Duchene, and a few minutes later by the appellant
    at about 3:00 a.m. The second source of corroboration is in the testimony of
    Lalonde himself, wherein he described his encounter with Duchene and the
    appellant as he walked toward the Tim Hortons. While Lalonde did not recall
    specifically going to Tim Hortons, he did recall a dispute at the restaurant
    over a bagel. Furthermore, Lalonde testified that he walked home using the
    street and not the pathway leading to the train tracks. Once at Tim Hortons,
    the street provided the shorter route home for Lalonde. These three items of
    independent evidence support Duchenes statement that the appellant asked her
    to distract Lalonde and bring him to Tim Hortons.

[98]

Furthermore, in speaking with the police and disclosing that she
    had been asked to distract Lalonde from discovering Wilsons body, Duchene
    directly inculpated herself in the crime. There were no inducements offered at
    the time her statement was made.

[99]

Concerning other reasonable hypotheses regarding this piece of
    evidence, it could be said there was a chance encounter between the appellant,
    Duchene, and Lalonde. In my view that theory is belied by the time the meeting
    occurred (approximately 3:00 a.m.), and the Tim Hortons surveillance video.
    This evidence lends support to the proposition that there was substantive
    reliability to the statement.

[100]

In sum, both procedural and substantive reliability were present.

[101]

Another striking feature of the trial judges charge is that when
    he gave the
Vetrovec
warning to the jury, he told them, as is
    required, that they must look for some confirmation of Duchenes evidence from
    somebody or something other than Duchene in deciding whether Crown counsel has
    proven the case against the appellant beyond a reasonable doubt:
R. v.
    Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104. The trial judge stated: to be confirmatory,
    the testimony of another witness or witnesses or other evidence should help you
    restore your faith in relevant parts of Angela Duchenes evidence. It is
    normal for trial judges to point to evidence capable of being viewed as
    confirmatory when giving a
Vetrovec
warning. In this case, the trial
    judge pointed to no such evidence, thus advantaging the appellant.

[102]

Even if I am wrong in my analysis of the admissibility of the
    statement in question, there is no reasonable possibility the verdict would
    have been different had the trial judge refused the Crowns motion to have the
    statement admitted for its truth and the curative proviso would be appropriate
    to apply in this case.

Issue 3: Did the trial judge err by failing to adequately review and relate
    the evidence to the rolled up charge addressing intoxication and provocation
    and failing to impress upon the jury the admonition that the sane and sober
    inference is permissive and subject to a consideration of the evidence of
    intoxication?

Appellants Position

[103]

The appellant submits that during the pre-charge conference both
    counsel requested that the trial judge provide a rolled up charge to address
    the issues of intoxication and provocation. The Crown suggested that even if
    provocation was not met, the trial judge ought to instruct the jury that they
    had to consider provocation cumulatively with intoxication. While the trial
    judge provided the standard instruction dealing with intoxication and provocation
    in a rolled up charge, he failed to adequately review and relate the relevant
    evidence to the issues in a meaningful manner. For instance, regarding the
    evidence of the appellants intoxication, the trial judge noted that the
    appellant may have been in an intoxicated condition at the time of the alleged
    killing and suggested that the jury refer to the evidence of certain witnesses,
    including Duchene, and some of the police officers as well as the video
    surveillance from Tim Hortons.

[104]

While an exhaustive iteration of the evidence was not required
    during this portion of the charge, it was incumbent upon the trial judge to
    relate the evidence in a meaningful way to the issues of intoxication and
    provocation, and to clearly explain how the two combined to potentially raise a
    reasonable doubt on the issue of intent.

[105]

The appellant submits that the trial judges instructions in this
    case failed to make that critical link and the trial judge ought to have
    clearly connected the common-sense inference and the effects of alcohol on the
    formation of intention. He ought to have told the jury that even though they
    might be of the view that on the facts the appellant was not sufficiently drunk
    to reduce murder to manslaughter, alcohol could nonetheless be a factor that, coupled
    with provocation, could negate the existence of the specific type of intent
    required for a finding of guilt for murder as charged.

Respondents Position

[106]

The respondent states that the trial judges instructions on the
mens
    rea
for murder and his review of the relevant evidence, adequately related
    the evidence to the appellants state of mind. The trial judge instructed the
    jury on the state of mind required for second degree murder and as part of
    those instructions, he told the jury that the Crown must prove the required
    intent beyond a reasonable doubt. He repeatedly directed the jury to consider
    all of the evidence in order to determine the state of mind of the appellant.
    The trial judge then instructed the jury to specifically consider the evidence
    of intoxication, and he reviewed in summary some of the evidence that the
    appellant had been intoxicated, which had been exhaustively reviewed earlier in
    his charge.

[107]

The trial judge then directed the jury to consider evidence that
    the appellant was provoked or angry, which he instructed was also relevant to
    state of mind. The trial judge said:

You should consider this evidence,
    not just by itself on the particular issue to which it relates, but all
    together, and along with any other evidence that might suggest that Kenneth
    Ivall acted instinctively, in the sudden excitement of the moment, without
    thinking about the consequences of what he did, and without either state of
    mind necessary to make the unlawful killing of Edward Wilson murder.

...

[W]hen considered along with the
    other evidence I have described [i.e. intoxication], evidence of anger may
    raise a reasonable doubt whether, when he killed Edward Wilson, Kenneth Ivall
    had either state of mind required for murder.

[108]

Regarding the sane and sober inference, the trial judge
    instructed the jury that they may, not must, draw the inference, and should only
    do so after considering all of the evidence, including that of intoxication.

[109]

There was no objection to the charge on this issue. Defence
    counsel did not request a more detailed review of the evidence regarding the
    appellants anger. It was the appellants position that he had no involvement
    in Wilsons death. A detailed review of the anger evidence would have worked against
    that position since anger and revenge would have provided a motive for the
    appellant to harm Wilson.

Disposition

[110]

In my view, this ground of appeal must fail, substantially for
    the reasons advanced by the respondent.

[111]

In addition, I would note that the trial judge departed from the
    standard specimen jury instructions outlined in
Watts Manual of Criminal
    Jury Instructions
, (Toronto: Carswell, 2005), dealing with how to assess
    the testimony of witnesses, by adding a special warning regarding the consumption
    of alcohol. The trial judge stated:

The ingestion of alcohol and the
    passage of time can exact a toll on the perception and memory of us all. The
    fact that individuals had consumed alcohol does not mean that their trial
    testimony must be discarded. It does mean that their testimony must be examined
    with some care in the context of all the trial evidence led.

[112]

This portion of the charge highlights the fact that the trial
    judge was alive to the issue of intoxication and warned the jury to pay special
    attention to that issue relating to all witnesses on the night in question.

[113]

With respect to provocation, had the trial judge gone further
    than he did when describing the elements of provocation and related the
    evidence to the law, it would have undermined the theory of the defence that it
    was Duchene who killed Wilson. It would have suggested that the appellant had
    the motive to kill Wilson. The appellant was not prejudiced by the rolled up
    charge.

[114]

With respect to the sane and sober inference submission, the
    trial judge took pains to relate the concept to the state of intoxication of
    the appellant and committed no error in that portion of the charge.

Issue 4: Did the trial judge err by failing to adequately relate
    exculpatory evidence to the burden of proof and the presumption of innocence in
    accordance with
R. v. W. (D.)?

Appellants Position

[115]

The appellant submits that the statement made by the appellant to
    the police was exculpatory, and as such, if it were believed or if it raised a
    reasonable doubt, the jury was required to acquit the appellant of murder:
R.
    v. W.(D.)
. The trial judge should have instructed the jury accordingly or
    given a functionally equivalent instruction, but did not do so.

[116]

In his instruction on the essential elements of second degree
    murder, specifically under the heading of whether the appellant caused Wilsons
    death, the trial judge listed the various pieces of evidence that the jury may
    wish to consider in answering the question. The trial judge said: You should
    consider also the evidence of Mr. Ivall himself in his videotaped statement
    where he denied any involvement in the killing of Mr. Wilson. The appellant
    states that this is the only reference in the entire charge to the appellants
    exculpatory statement and that the brief reference to the exculpatory statement
    did not sufficiently or fairly relate the reasonable doubt standard to the
    exculpatory nature of the statement, which undermined the central theme of the
    defence, namely that the appellant was not responsible for Wilsons death.

Respondents Position

[117]

The respondent submits that the trial judges charge as a whole
    adequately explained the burden of proof to the jury. The omission of an
    explicit
W.(D.)
instruction in this case does not constitute an error.

[118]

The focus of appellate review of jury charges is whether the
    trial judge adequately explained the law to the jury. Perfection is not the
    test. The proper approach is to undertake a functional and contextual review
    of the charge as a whole:
R. v. Jacquard,
[1997] 1 S.C.R. 314
; R.
    v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197;
R. v. Araya
, 2015 SCC
    11, [2015] 1 S.C.R. 581, at para. 39. There is no required
W.(D.)
formula which must be followed in every case. Rather, what is required is that
    the jury understand the burden and standard of proof and their application:
R.
    v. Bucik
, 2011 ONCA 546, 274 C.C.C. (3d) 421, at para. 33;
R. v. J.H.S
.,
    2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13.

[119]

Subsequent to
Bucik
and
B.D
., this court in
R.
    v. King
, 2013 ONCA 417, 309 O.A.C. 39, at paras. 13-19, considered the
    absence of an explicit
W.(D.)
formula instruction in the context of an
    accused persons exculpatory statement to the police and found no error.
    Similarly, this court found no error in
R. v. E.H
., 2014 ONCA 622, at
    paras. 9-12, where the accused gave testimony denying the alleged offence.

[120]

The respondent submits that this appeal is similar to the cases
    of
King
and
E.H.
because the charge in this case achieved its
    function. It is replete with passages explaining that the Crown bore the burden
    of proving the appellants guilt beyond a reasonable doubt, that the burden
    never shifted, and that the jury had to consider all the evidence in deciding
    whether the Crown met that burden. The jury was also told that if they were not
    sure of the appellants guilt after considering all of the evidence, they were
    to find him not guilty. Nothing in the charge suggested that the jury was to choose
    between two versions of events.

[121]

The respondent submits that the charge tied the appellants
    statement, and the issue to which it had potential exculpatory value, to the
    standard of proof. In the charge respecting the essential element of causation
    of death, immediately after directing the jury that they should consider the
    appellants denial of involvement in his police statement, the trial judge
    instructed the jury to acquit if they were not satisfied beyond a reasonable
    doubt that the appellant caused Wilsons death. The trial judge stated:

You should consider also the evidence of Mr. Ivall himself in
    his videotaped statement where he denies any involvement in the killing of Mr.
    Wilson.

If you are not satisfied beyond a
    reasonable doubt that Kenneth Ivall caused Edward Wilsons death, you must find
    Kenneth Ivall not guilty. Your deliberations would be over.

[122]

The respondent submits that the error in
Bucik
that led
    to a new trial was based on the very specific factual circumstance in that
    case. In
Bucik
, in addition to the accuseds exculpatory statement,
    there were also exculpatory aspects to the eyewitness identification evidence
    which combined, in a complicated way, to provide potentially fertile ground in
    which to plant the seeds of reasonable doubt:
Bucik
, at para. 38.
    Here, the only exculpatory evidence was the appellants denial. The exculpatory
    significance of the appellants statement was obvious and required no further
    elaboration to connect it with the burden and standard of proof.

[123]

Furthermore, the respondent submits that defence counsel did not
    request a
W.(D.)
instruction in the pre-charge conference, nor did he
    object to this aspect of the charge when the trial judge invited comment
    following it. This demonstrates that the defence was satisfied that the
    instructions left the issues fairly for the jurys consideration.

[124]

The respondent further points out that defence counsel did not
    place great emphasis in his closing address on the appellants denial of
    involvement in his statement as important exculpatory evidence, instead
    focusing primarily on the appellants willingness to provide information.
    Indeed, counsel conceded that maybe the appellant saw more than he had told
    the police about.

Disposition

[125]

I would not give effect to this ground of appeal.

[126]

Throughout his charge, the trial judge accurately set out the
    burden of proof and the presumption of innocence. The trial judge repeated
    verbatim the standard wording from
Watts Criminal Jury Instructions
,
    and in addition, at the conclusion of his charge, following the summation of
    the positions of the Crown and the defence, repeated the instructions about the
    presumption of innocence and the requirement of proof beyond reasonable doubt,
    at all times stating that you must find Kenneth Ivall not guilty of an offence
    unless the Crown satisfies you beyond a reasonable doubt that he is guilty of
    it.

[127]

Significantly, the jury was provided with copies of the trial judges
    charge in writing. There can be simply no issue that the concepts of the presumption
    of innocence and proof beyond reasonable doubt were clearly communicated to the
    jury.

[128]

The appellant submitted that there was only one reference in the
    entire charge to the appellants exculpatory statement. However, at another
    portion of his charge, the trial judge stated:

What another person says may provide a context for
    understanding what Kenneth Ivall said; but only Kenneth Ivalls words, as
    understood in this context, are evidence of what Kenneth Ivall has done or
    intended to do.

[129]

Defence counsel did not request a
W.(D.)
instruction at
    the pre-charge conference nor did he object to this aspect of the charge when
    the trial judge invited comment following the charge. In
King
, this court
    considered the absence of an explicit
W.(D.)
instruction in context of
    an accuseds exculpatory statement to the police. The court found no error on
    the basis that the charge, read as a whole, properly explained the appropriate
    burden and standard of proof: at para. 19. The court noted at paras.16-17:

However, in circumstances such as this, where
W.(D.)
is necessary, the question is not whether the exact words suggested by Cory J.
    can be found. The question is whether the jury was properly equipped by having
    the appropriate burden and standard of proof explained to them. In this case, I
    would answer that question in the affirmative.

The charge was replete with
    passages instructing the jury that the Crown bore the burden of proving the
    appellants guilt beyond a reasonable doubt, that burden never changed and that
    the jury had to consider all of the evidence in deciding whether the crown had
    met this burden.

[130]

The same is true in this case. This appeal is similar to the
    cases of
King
and
E.H
. The charge as a whole adequately
    explained the burden of proof to the jury and related the appellants
    exculpatory evidence to the reasonable doubt standard. The omission of an
    explicit
W.(D.)
instruction does not constitute an error on these
    facts.

Issue 5: Did the trial judge err by permitting the Crown to adduce opinion
    evidence of a police officer regarding the veracity of the appellant?

Appellants Position

[131]

The appellant submits that the trial judge erroneously permitted
    Officer Cooke to express his opinion about whether everything the appellant was
    saying was true in light of the police theory as to his involvement in the
    murder. At trial, Officer Cooke, who took the appellants statement, was
    cross-examined about the objective veracity of aspects of the statement, namely,
    whether things the appellant said were confirmed by physical evidence that was
    discovered by the investigation. In re-examination, and over the objection of
    defence counsel, the Crown adduced evidence that notwithstanding any such
    confirmation, the police were of the opinion that the appellant was not being
    forthcoming about where he went after Tim Hortons because of the police theory at
    that time that he went back to beat the victim and place him on the train
    tracks. Specifically, Officer Cooke testified:

Speaking with Mr. Ivall it was
    very clear to me that he was, he was very willing to speak about what happened
    outside the Tower Motel, what happened with gentlemen chasing another man
    around a corner, and being in Tim Hortons. When I questioned him in regards to
    walking to Tim Hortons he admitted that he had taken the back road. When I
    asked him if he had saw that gentleman that had hit him before he said he
    didnt remember.
It was clear to me during that statement that Mr. Ivall
    didnt want to speak about, or was reluctant to speak about leaving the Tower
    and going to Tim Hortons, and even more more [
sic
] so leaving Tim
    Hortons and going home. [That did not accord with our investigation] because we
    had evidence that Mr. Ivall had contact with, with a gentleman that
punched
him after he left the Tower Motel. He wasnt
    willing to speak to me about that. He had said that he didnt remember that
.
    [Emphasis added.]

[132]

In overruling the objection, the trial judge commented: surely
    [the Officer] can give testimony as to what he believed. He couldnt say what
    Ivall might have believed  but he can say what he believed based on the
    circumstances.

[133]

The appellant submits that the cross-examination was proper and
    adduced admissible evidence, but that the re-examination was improper and
    adduced inadmissible evidence. The appellant submits that Officer Cookes
    belief about whether the appellant was being truthful was irrelevant. This type
    of evidence, especially coming from the officer in charge of the investigation,
    is tainted by the hallmark flaws generally associated with evidence in the form
    of a witness impression of the truthfulness of an accused. The trial judge
    ought to have intervened and halted this prejudicial commentary and immediately
    provided a strong and clear corrective instruction to the jury to ignore the
    officers remarks, and to place no weight on his interpretation of the
    appellants evidence.

[134]

The appellant submits that the jury ought to have been instructed
    that they could not consider Officer Cookes opinion when assessing the
    appellants credibility. Instead, the jury was left with Officer Cookes
    prejudicial opinion evidence, clothed with the additional credibility of an
    experienced police officer who would be seen by the jury as being knowledgeable
    and trained in conducting interviews with accused persons and assessing
    truthfulness and honesty. The jury was left with the impression that they could
    draw an adverse inference from the failure of the appellant to discuss certain
    things in his statement in contravention of his right to remain silent.

Respondents Position

[135]

The respondent submits that Officer Cookes evidence concerned
    the appellants cooperativeness, not his credibility. The appellants
    cooperativeness was an issue raised by defence counsel as part of his trial
    strategy and no unfairness resulted in the re-examination of Officer Cooke. In
    his statement to the police, the appellant denied having any contact with, or
    seeing Wilson after Wilson punched him outside the Tower. The appellant said he
    and Duchene went to Tim Hortons with Lalonde and then walked home.

[136]

In the cross-examination of Officer Cooke, defence counsel
    focused on the appellants alleged cooperativeness during the interview. The
    inference sought was that the appellants cooperation was indicative of his
    innocence, but the cross-examination went well beyond the objective veracity
    of aspects of the appellants statement. Defence counsel repeatedly asked for
    the officers opinion about the eagerness of the appellant to assist the
    investigation by providing pertinent information. In re-examination, Officer Cooke
    clarified this evidence, saying that while the appellant was willing to speak
    about certain events, it was clear he did not want to speak about other events.
    Contrary to the appellants submissions, Officer Cooke did not express an
    opinion about whether the appellant was being truthful, nor did the testimony
    draw an objection from defence counsel at trial.

[137]

The respondent submits that in assessing whether a limiting
    instruction was required, the appellate courts must examine the specific
    circumstances of the case. Tactical decisions of counsel are highly relevant to
    the analysis. Jury instructions must be tailored to the issues raised and the
    positions taken at trial.

[138]

There was no suggestion that the jury could draw an adverse
    inference from the appellants exercise of his right to stay silent (other than
    to rebut the defence claim that he was cooperative).

[139]

In his charge, the trial judge did not include Officer Cooke in
    his listing of the expert witnesses who were permitted to give opinion
    evidence. The jury would have known that Officer Cooke was not entitled to give
    an expert opinion.

[140]

Defence counsel did not object to the evidence elicited from the
    officer. He did not seek a limiting instruction at the pre-charge conference,
    nor did he raise an objection to the charge on this issue.

[141]

The officers opinion that the appellant was reluctant to discuss
    certain events would have been evident to any reasonable juror contrasting the
    appellants statement with the rest of the evidence. Even defence counsel in
    his closing address suggested that maybe the appellant saw more than what he
    told police.

[142]

The respondent submits that in these circumstances no limiting
    instruction was required.

Disposition

[143]

I would not give effect to this ground of appeal.

[144]

During the cross-examination of Officer Cooke, defence counsel
    undertook a strategy attempting to demonstrate that the appellant was
    cooperative with the police. In doing so, he opened the door to the questions
    put to Officer Cooke by the Crown in re-examination. The appellant cannot now take
    issue with evidence adduced from Officer Cooke in explaining the degree of the
    appellants cooperativeness during the police interview.

[145]

This did not amount to opinion evidence with respect to the
    credibility of the accused. The answers of Officer Cooke related directly to
    the issue of cooperativeness which was raised by defence counsel.

[146]

In my view, no limiting instruction was required in these
    circumstances.

[147]

Finally, there is nothing in the trial judges charge which
    suggested that the jury could draw an adverse inference from the appellants
    right to remain silent with respect to certain portions of his interview with
    Officer Cooke.

Issue 6: Did the cumulative effect of the trial judges interjections over
    the course of the trial, in addition to the admission of highly prejudicial
    evidence, undermine the fairness of the appellants trial?

Appellants Position

[148]

The appellant submits that the trial judges
    interjections undermined the fairness of the appellants trial by: improperly
    curtailing cross-examination on the basis that it was repetitive or duplicative
    without giving sufficient latitude to the defence; continually calling on the
    defence to establish the relevance of a line of questioning and suggesting that
    the cross-examination could not stray from the central issues in the case;
    and frequently reprimanding and admonishing defence counsel in front of the
    jury.

[149]

The
trial judge displayed impatience with counsel
    during many of these interruptions, the effect of which would be visited upon
    the accused. Moreover, although these interjections might appear to be
    innocuous standing alone, their cumulative effect undermined the fairness of
    the trial. As noted in
R. v. Snow

(2004), 73
    O.R. (3d) 40 (C.A.), at para. 24, when viewed in the context of the proceedings
    as a whole, the trial judge crossed the difficult line between unnecessary,
    discourteous or erroneous interventions, and interventions that destroy[ed] the
    appearance of fairness.

[150]

In
addition to repeated interjections, the trial
    judge erred by admitting highly prejudicial evidence, which further impaired
    the fairness of the trial.

[151]

The
appellant points to a number of examples of
    such evidence, including evidence relating to a book found in the possession of
    the accused during the search of his premises entitled One Hundred Most
    Infamous Criminals. The Tower bartender testified that she noticed the
    appellant had a book with him about serial killers. The Crown argued that the
    reference was relevant for narrative because the book had been found in the
    possession of the accused. The trial judge permitted the reference to the book
    as part of the narrative and because it had some aspects of relevance to it.

[152]

During
the trial, the appellant noted that one
    of the exhibit boxes in court had the words Homicide Solved written on it.
    Following discussions between defence counsel and the court, the trial judge
    addressed the issue in the presence of the jury and placed all of the items
    from the original exhibit boxes into new boxes.

[153]

Another concern raised by the appellant relates
    to the trial judges instruction to the jury on reasonable doubt following
    defence counsels address, in which defence counsel stated:

The court will
    tell you about what a reasonable doubt is. Im not going to spend a lot of time
    on it. But it is, I think, probably closer to certainty than to not. It is
    something that traditionally we are almost certain that the person is guilty of
    the offence. It does not equate necessarily to innocence.

[154]

The appellant submits that the trial judge
    simply told the jury it is nearly impossible to prove anything with absolute
    certainty and the Crown is not required to do so, and that absolute certainty
    is a standard of proof that is impossibly high. The trial judge did not charge
    the jury on the basis of the wording contained in
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, and did not inform the jury that
    if standards of proof were marked on a measure, proof beyond a reasonable doubt
    would be much closer to absolute certainty than to probable or likely
    guilt.

Respondents
    Position

[155]

In
answer to these submissions, the respondent
    admits that, while another judge may have intervened less, the appellants
    arguments regarding the trial judges interventions, prejudicial evidence, and
    Crown comments in this case did not render the trial unfair, nor did they
    create an appearance of unfairness.

[156]

The
respondent relies on the direction in
Snow
, at para. 24, where this court stated that a trial judge is
    entitled to manage the trial and control the procedure to ensure that the trial
    is effective, efficient and fair to both sides. There is a strong presumption
    that a trial judge conducted himself fairly and impartially. The fundamental
    question is whether the interventions led to an unfair trial. Isolated
    expressions of annoyance by the trial judge as a result of frustration with
    counsel do not in themselves create unfairness. Interventions should not be
    judged in isolation, but in the broader context of the entire trial.

[157]

The respondent submits that due to the length of
    the trial (estimated to last six to eight weeks, and ultimately concluding at
    the end of the eighth week), and additional considerations such as jurors
    staying in hotels and winter driving conditions in Kenora, the trial judge was
    properly concerned with ensuring that the evidence being called was relevant,
    understandable, and not excessively repetitive. The trial judge intervened and
    made comments to this end to all counsel, not only the appellants counsel at
    trial. The trial judges approach to managing the trial was balanced. The
    respondent submits that the trial judges interventions in defence counsels
    cross-examinations were well warranted on many occasions. Defence counsel
    frequently asked questions that were improper or highly repetitive.

[158]

The
appellant has not identified any
    intervention that made it impossible or difficult for him to advance his
    defence. The jury would not have held the trial judges interventions against
    the parties. The high test for establishing an apprehension of bias is not met
    in this case. None of the appellants complaints, alone or in combination,
    resulted in an unfair trial or an appearance of an unfair trial.

[159]

As to the book evidence, it is submitted that
    while a limiting caution regarding the title of the book would have been
    preferable, the book had relevance to the issues as it tied the appellant to
    the room where his bloody clothing was found. Defence counsel did not request a
    caution at the pre-charge conference nor did he object to the charge on the
    basis of the absence of any caution.

[160]

With respect to the trial judges final
    instructions regarding the standard of reasonable doubt, the trial judge
    tracked the wording suggested by Cory J. in
R. v. Lifchus
, [1997] 3 S.C.R. 320.

[161]

With respect to the exhibit boxes, the trial
    judge agreed to follow precisely the procedure requested by defence counsel. As
    a result, no prejudice could have arisen.

Disposition

[162]

I would not give effect to this ground of appeal.

[163]

I agree that while another judge may have
    intervened to a lesser degree, it must be borne in mind that the trial was
    estimated to last six to eight weeks during the winter in Kenora. Many of the jurors
    resided far from Kenora. On occasion during the trial, jurors had to stay in hotel
    rooms. The judge frequently discussed driving conditions with jurors and the
    safety concerns they posed. The trial judge was concerned that the case might
    exceed the eight week limit that counsel had estimated.

[164]

In the absence of the jury, the trial judge
    warned counsel that if they continued to be unduly repetitive, he would
    interrupt them in front of the jury  which he did. A review of his
    interjections convinces me that he was even-handed with all counsel. While he
    interjected with defence counsel more than with Crown counsel, a review of the
    transcript reveals that defence counsel was frequently being highly repetitive
    in his questions. The jury could not have surmised that his impatience was
    directed toward the appellants counsel alone.

[165]

More importantly, there is no basis for
    suggesting that defence counsel was barred from raising relevant matters in
    cross-examination. The record demonstrates that the concern of the trial judge
    related to needless repetition, and ensuring that questioning related to the live
    issues in the trial.

[166]

A trial judge has a duty to manage a trial and
    is responsible for ensuring that it is conducted in an orderly manner according
    to the rules of procedure governing the conduct of criminal trials:
R.
    v. Valley
(1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p.
    230, leave to appeal refused, [1986] S.C.C.A. No. 298;
R. v. Assoun
, 2006 NSCA 47, 207 C.C.C. (3d) 372, at para. 265, leave to appeal
    refused, [2006] S.C.C.A. No. 233.

[167]

The legitimate scope of cross-examination is not
    without its limits. A trial judge has the right and the duty to prevent a trial
    from being unnecessarily protracted by questions directed to irrelevant
    matters:

R. v. John
, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 60. A trial judge is
    entitled to curtail questions by defence counsel that are irrelevant, prolix,
    and repetitive:
Snow
, at para. 25. The right
    to cross-examine a witness is not absolute or limitless:
R. v.
    Cameron
(2006), 208 C.C.C. (3d) 481 (Ont. C.A.), at para.
    21.

[168]

An accused person is entitled to a fair trial,
    not an endless one. Trial judges are entitled to restrict a line of
    cross-examination that would not further the resolution of the issues in the
    case and might only serve to distract or to confuse the jury thereby needlessly
    prolonging the trial. In this case, the trial judge frequently intervened but
    the interventions did not undermine the fairness of the trial.

[169]

With respect to the submission that the trial
    judge should have used the wording regarding the reasonable doubt standard set
    out in
Starr
, no prejudice was occasioned to
    the appellant by the use of the wording employed in
Lifchus
. The jury was clearly informed of the appropriate standard on numerous
    by the trial judge in the following words:

It is not enough
    for you to belief that Kenneth Ivall is probably or likely guilty. In those
    circumstances, you must find him not guilty because Crown counsel would have
    failed to satisfy you of his guilt to that threshold of beyond a reasonable
    doubt. Proof of probably or likely guilt is not proof of guilt beyond a
    reasonable doubt. You should remember, however, that it is nearly impossible to
    prove anything with absolute certainly and Crown counsel is not required to do
    so. Absolute certainty is a standard of proof that is impossibly high.

[170]

At no time during his charge to the jury did the trial judge
    suggest that defence counsels description of reasonable doubt tracking the
    wording in
Starr
was in error. Defence
counsel did
    not object to the trial judges charge on this point, nor did defence counsel request
    any correction. In my view, the jury would have a full appreciation of the appropriate
    standard of proof in these circumstances.

[171]

Regarding the trial judges admission of the
    book, I agree with the respondent that a limiting caution regarding the title
    of the book would have been preferable, but note that defence counsel did not
    request any caution at the pre-charge conference nor did he object to the
    charge on the basis of the absence of any caution. The failure to caution the
    jury on this point was, in the context of all the evidence, of little moment.

[172]

Concerning the exhibit boxes, the trial judge
    immediately acquiesced to defence counsels request that the boxes be replaced
    by unmarked boxes. There is no evidence to suggest that the jury saw what was
    written on the boxes and it was clear from the trial judges charge that they
    could only deal with the evidence before them. The accused was entitled to the
    presumption of innocence and could only be convicted if the Crown proved the
    case beyond a reasonable doubt. As stated earlier, the trial judge repeated
    these instructions on numerous occasions during the course of his charge, and
    again at the conclusion of the charge.

[173]

As I noted earlier, the
focus of appellate
    review of jury charges is whether the trial judge adequately explained the law
    to the jury. Perfection is not the test. The proper approach is to undertake a functional
    and contextual review of the charge read as a whole
: Jacquard
, at paras. 32-33.

[174]

In sum, a contextual analysis of the conduct of the proceedings
    convinces me that the appellant received a fair trial
.

Conclusion

[175]

It is for these reasons that I would dismiss the
    appeal.

Colin
    McKinnon J. (
ad hoc
)

I agree G.R. Strathy C.J.O.

I agree I.V.B.
    Nordheimer J.A.

Released: December 13, 2018

GRS