WARNING

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

An
    order restricting publication in this proceeding under ss. 486.4(1), (2), (3)
    or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)       any
    of the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

(b)       two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in any of
    subparagraphs (a)(i) to (iii).

(2)
In proceedings in
    respect of the offences referred to in paragraph (1)(a) or (b), the presiding
    judge or justice shall

(a)  at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, make
    the order.

(3)
In proceedings in
    respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)
An order made under
    this section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mennes, 2013 ONCA 567

DATE: 20130917

DOCKET: M42590 (C34654)

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emile Marcus Mennes

Appellant

Emile Marcus Mennes in person

Michael Bernstein for the respondent Crown

Motion to reinstate an appeal

Heard: September 11, 2013

BY THE COURT

[1]

The appellant moves for an order to reinstate his appeal against
    conviction and sentence.

[2]

The appellant was convicted of sexual assault, sexual interference, and
    sexual touching on January 25, 1996 and given an indeterminate sentence on
    November 13, 1996.

[3]

The appellant appealed conviction and sentence. This court appointed
    senior counsel to represent the appellant but when that counsel was unable to
    obtain adequate instructions from the appellant, the appointment was rescinded,
    the appeal was converted to an inmate appeal and the same counsel was appointed
    as
amicus curiae
.

[4]

The appellant abandoned the inmate appeal on September 23, 2003.

[5]

In November 2004 the appellant asked to have the appeal reinstated. He
    was given leave to do so, but on certain terms, including filing a factum by
    March 31, 2005. He received two extensions of that date and the court ordered
    that he be provided certain materials. He failed to provide the factum or any
    satisfactory explanation for his failure to do so and, accordingly, his motion
    to reopen the appeal was dismissed by a panel of this court on November 23,
    2005.

[6]

In the motion now before the court, the appellant submits that he should
    be permitted to reopen the appeal on the ground that the Ministry of the
    Attorney General fraudulently concealed relevant case law and that, but for
    that concealment, his appeals against conviction and sentence would have been
    successful.

[7]

In our view, there is no merit to this motion.

[8]

Assuming, without deciding, that we still have jurisdiction at this
    point to reopen the appeal, the appellant has failed to establish grounds that
    would justify granting that relief.

[9]

The contention that the Ministry of the Attorney General fraudulently
    concealed case law is without merit.

[10]

First,
    as we have already indicated, it was for the appellant to take the necessary
    steps to bring his appeal forward. He abandoned the appeal and then failed to
    take the steps he was required to do in order to have it reopened. As the
    appeal was never presented to the court, the matter never reached the stage at
    which it would be for Crown counsel to live up to their well-recognized duty to
    bring relevant authorities to the courts consideration.

[11]

Second,
    the authorities the appellant claims were concealed reflected well known and
    well recognized legal principles of which the court, had it had occasion to
    consider the appeal, would certainly have been aware.

[12]

Finally
    we observe that the appellant referred us to the passage in the trial
    transcript relating to his opening of his defence which he identified as the
    key element to his contention that the judge was biased and that he was denied
    natural justice. The judge invited the appellant to make a brief outline of
    the defense case, but no more. We have reviewed that transcript and we see no
    error on the part of the trial judge, nothing that could give rise to a
    reasonable apprehension of bias and nothing that could constitute a denial of
    natural justice.

[13]

For
    these reasons the motion to reinstate the appeal is dismissed.

Alexandra
    Hoy A.C.J.O

M. Rosenberg J.A.

Robert J. Sharpe J.A.

Released: September 17, 2013


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Minor, 2013 ONCA 557

DATE: 20130913

DOCKET: C55700

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marieanne Minor

Appellant

Ian Carter, for the appellant

Lucy Cecchetto, for the respondent

Heard: June 25, 2013

On appeal from the conviction entered by Justice David J.
    Nadeau of the Superior Court of Justice, sitting with a jury, on May 25, 2012.

Strathy J.A.:

[1]

After deliberating for three days, following a trial lasting nearly
    three weeks, a jury convicted the appellant of second degree murder of her
    husband, Robert Minor. She was sentenced to life imprisonment with no
    eligibility for parole for ten years. She appeals her conviction on the ground
    that the trial judge failed to conduct an independent review of the evidence in
    the course of his jury instructions. Instead, she says, he simply read to the
    jury prepared statements of the positions of the Crown and the defence.

[2]

For the reasons that follow, I would allow the appeal.

A.

BACKGROUND FACTS
[1]

[3]

On January 11, 2002, at about 3:30 p.m., the appellants husband was
    found dead in the basement of their home in Mattawa, Ontario. Firefighters made
    the discovery while responding to a call that the appellant had discovered soot
    and black smoke when she arrived home from work that afternoon. The victim died
    as a result of a puncture wound to the chest. He had defensive cuts and bruises,
    indicating a struggle.

[4]

The police interviewed the appellant twice on January 11 and again on
    January 24, but no charges were laid at the time. Some seven years later, after
    being re-interviewed, the appellant was arrested and charged with second degree
    murder of her husband.

Events of January 10, 2002

[5]

There was evidence at trial from several witnesses, who said they
    observed nothing unusual in the conduct of the appellant and her husband on the
    day before he was killed. The victims mother testified that she had seen him
    late in the afternoon and he appeared to be in good health. She agreed that the
    appellant and her son seemed to have a good marriage and that she got along
    well with the appellant.

[6]

The appellants co-worker at Walmart in North Bay testified that she
    telephoned the appellant during the early evening of January 10. She heard the
    deceased joking in the background. The next day at work the appellants
    demeanour appeared to be normal, she had no marks or bruises, and she did not
    appear overly fatigued.

[7]

The family doctor testified that he saw both the appellant and her
    husband on January 10, 2002, and observed nothing out of the ordinary in their
    behaviour.

Events of January 11, 2002

[8]

A neighbour testified that in the early hours of January 11, between
    1:00 and 1:30 a.m., she saw the deceased come out of the house and go to a
    trailer parked in the driveway. A few minutes later he returned to the porch. He
    was wearing a white t-shirt and sweatpants or dark jeans. She saw him leave and
    return to his house at least twice and possibly three times. She testified that
    she would have been able to hear shouting from the house if there had been any,
    but she heard nothing that night. The appellant and her husband appeared to her
    to be a happy couple.

[9]

Another neighbour, Judy Sarrazin, testified that while out for a morning
    walk on January 11 she passed by the appellants house at about 8:00 a.m. She
    smelled soot or smoke, like a fire that was smouldering or not burning
    properly. She could not see smoke coming from the house. The windows looked
    dark, but she could not tell whether it was because the curtains were drawn or
    because there was something on the windows. She agreed on cross-examination
    that the smell she noticed was like a fire that was not burning very well  a
    fire that was burning, but struggling to maintain itself.

Injuries to the Deceased

[10]

The
    deceased was found in the basement, lying on his back, wearing boxer shorts. He
    had a puncture wound to his chest and multiple blunt force injuries to various
    parts of his body. It appeared that rigor mortis had set in. His right arm was elevated
    above his chest and his left leg was flexed. Expert evidence at trial indicated
    that his body was likely in this position at death, that rigor mortis had
    developed within two to twenty hours after death, and that the deceased had
    been moved after rigor mortis had developed.

The Condition of the Residence

[11]

The
    house was a single storey home with a basement. First responders found
    extensive fire damage on the main floor. The windows were covered with a layer
    of soot. Neither of the two entrance doors to the residence showed any sign of
    damage, but the latch on the basement door was broken.

[12]

Inside
    the house, drawers in the kitchen and cupboards in the basement were found open.
    Dresser drawers were also open in the master and spare bedrooms, with clothes
    pulled out. The deceaseds wallet, containing twenty dollars and credit cards,
    and his house and car keys, were found in a pair of jeans on the floor of the
    master bedroom. There was also a pile of clothing on a chair in the master
    bedroom, including a pair of womens sweatpants.

[13]

There
    were no signs of blood on the main floor of the house, but the deceaseds blood
    was found in the basement and on both ends of a crowbar in the basement.

[14]

Investigators
    found a palm print on the top of a dehumidifier in the basement, but they were
    unable to identify whose print it was. They ruled out the appellant and her
    husband as the source of the print.

[15]

Investigators
    were unable to determine from the blood stains the precise sequence of events
    leading up to Mr. Minors death.

The Timepieces

[16]

Ten
    timepieces, six clocks and four watches, were found in the house. All were
    stopped. Six were found in the bedroom:

(a) a battery-operated clock on a night table was badly damaged
    by fire and no time could be ascertained;

(b) a womans battery-powered wrist watch on the master bedroom
    dresser was stopped at 12:27. There was evidence that a portion above the
    battery might have been damaged;

(c) a battery-powered pocket watch in a closed case on the
    dresser was stopped at 9:45;

(d) a battery-powered wristwatch on the dresser was stopped at
    4:11. Although it had some damage, there was no damage to the moving parts or
    internal components. The battery was intact;

(e) a decorative clock was found on the dresser. A police
    officer testified that the clock showed a time of 4:10 when he viewed it. A
    fire investigator testified that clock could have said 4:10 or 5:10. He also
    agreed that it was hard to tell the length of the hands, so that it could have
    read 2:20. When the clock was subsequently taken out of police storage, the
    hands were loose and the time read 2:10;

(f) a battery-operated Mickey Mouse wristwatch on the dresser
    was stopped at 8:45.

[17]

Four
    more timepieces were found at various locations in the house:

(a) a clock in the basement was unplugged and showed a time of
    12:32. It started to operate, once plugged in;

(b) a battery-operated clock on a radio cabinet in the living
    room had no battery in it, and was showing no time;

(c) a travel clock on a coffee table in front of the couch in
    the living room, where the deceased often slept, and where the appellant said
    he was sleeping the night before his death, was stopped at 4:10. There was evidence
    it was working, but the hands had fused due to heat from the fire; and

(d) a clock in the kitchen had fallen from the wall onto the
    ground. Witnesses variously recorded the time as between 4:10 and 4:15 and as
    4:22.

[18]

The
    timepiece evidence played a central role in the Crowns theory of the case  a
    role that was emphasized in the trial judges instructions to the jury.

Forensic Evidence

[19]

There
    was a considerable body of expert evidence at trial. Ten experts testified: two
    forensic pathologists; a forensic toxicologist; three witnesses from the Office
    of the Fire Marshal concerning the origin and cause of the fire, fire dynamics
    and burn rates; an expert from the Centre of Forensic Sciences on DNA analysis
    and body fluid interpretations; a fingerprint expert; a second fingerprint and
    palm print expert; and an expert on bloodstain pattern analysis. In addition,
    expert medical evidence, from a surgeon with expertise in trauma and critical
    care, was read into the record, describing how and over what period of time the
    deceased probably died.

[20]

The
    evidence indicated that fires had been intentionally started in three locations
    in the house, probably by an open flame being applied to the living room couch,
    the mattress or bedcovers in the master bedroom, and a tissue box in the spare
    room. The expert witnesses testified that the polyurethane in the mattress and
    the couch caused the fire to develop rapidly and to burn intensely. It burned for
    no longer than about 10 or 10.7 minutes before it extinguished itself due to
    lack of oxygen. They testified that it would have continued to smoulder after
    being extinguished. Soot continued to circulate through the house because the
    forced air furnace was operating.

[21]

A
    pathologist testified that the deceased had died as a result of a sharp force
    injury  a stab wound  to the chest. The deceased suffered numerous other
    injuries, including blunt force injuries to the forehead and scalp, the right
    shoulder and upper right arm, the left arm and the back of the left shoulder,
    the back, the buttocks, the left knee, the lower right leg, the right ankle, and
    the back of the right thigh and knee. There were defensive sharp force wounds,
    caused by a knife, and bruising on the hands.

[22]

Forensic
    specialists testified that the victim had expired at the time the fires were
    set, because there was no evidence of soot in his lungs or of carbon monoxide
    in his blood. As noted above, they testified that rigor mortis usually takes
    between two and twenty hours to become established and the position of the
    deceased indicated that he had been moved after rigor mortis had set in.

[23]

The
    sweatpants found with other clothing on a chair in the bedroom were seized by
    police but were not sent for DNA testing until the fall of 2007. Analysis
    showed the DNA of both the appellant and her husband on the waistband of the
    pants. As well, small spots of the deceaseds blood were found in several
    locations on the front of the pants.

The Appellants Statements

[24]

The
    appellant did not testify at the trial. Nor did the defence call any evidence. However,
    the statements the appellant had given to the police were admitted in evidence.

[25]

When
    firefighters and paramedics arrived on the scene, they observed the appellant was
    upset and crying, although others noted she was calm and she even joked at one
    point. She was interviewed by a police constable at the scene and told him she
    had left for work at 4:00 a.m., arriving at Walmart at 5:30 a.m.

[26]

Later
    that day, she was interviewed by the police. She said she went to sleep the
    previous evening after taking medication at 7:15 p.m., while her husband stayed
    up. This was not unusual, as he often slept in the spare room or the couch in
    the living room. She did not give a specific time for when she woke up in the
    morning, but said she usually got up between 3:00, 3:30 and 4:00 a.m. She said
    she did not see her husband when she woke up. It was not clear where she
    thought he was sleeping.

[27]

She
    was interviewed again on January 24, 2002. She said she went to bed about 7:45
    or 8:00 p.m., set her alarm for 3:15 a.m. and left for work around 3:45 or 4:00
    a.m. Again, she said she did not see her husband when she got up, but assumed
    he was on the couch in the living room, because she did not see him in the
    spare bedroom when she checked. She said she stopped for coffee on the way to
    work and got there around 5:30 a.m.

[28]

The
    appellant was interviewed seven years later, on February 25, 2009, for about
    two hours. She said her husband had come to bed while she was sleeping. He got
    up during the night and was sleeping on the couch when she rose in the morning.
    She said she left for work around 4:30 a.m. The interviewing officer ultimately
    suggested the evidence pointed to her having murdered her husband, a suggestion
    she vehemently denied.

[29]

The
    appellant worked a 6:00 a.m. to 3:00 p.m. shift at Walmart in North Bay. The
    trip from the appellants home to Walmart was estimated to take about 40
    minutes and the appellant told police she usually left for work about 4:30 or
    4:45 a.m. It was agreed that on the morning of January 11, 2002, the appellant
    arrived at work at 5:38 a.m., as evidenced by a video record from the store.

B.

THEORIES OF CROWN AND DEFENCE

[30]

The
    Crowns theory was that in the early morning hours of January 11, 2002, the
    appellant stabbed her husband in the chest and left him to die on the basement
    floor. She started three fires in order to conceal the evidence, but once
    started, the fire quickly burned themselves out, leaving most of the evidence
    intact. The Crown said that instead of eliminating evidence, the fire left
    tell-tale evidence  three or four timepieces, all stopped around 4:10 or 4:11
    a.m., establishing conclusively that the fire must have been started around
    4:00 a.m., when the appellant was the only person with the opportunity to start
    it.

[31]

The
    defence theory was that the facts bore all the hallmarks of a break and enter
    gone wrong. It said that the Crown theory that the appellant brutally murdered
    her husband of 26 years was totally out of character. The couple had a normal
    and happy relationship. There was no history of violence, drug or alcohol
    issues, or marital difficulties and no signs of impeding separation or divorce.
    The defence argued that the Crowns case, founded on circumstantial evidence,
    was full of holes.

[32]

There
    was evidence of several witnesses that the day before his death the deceased
    was behaving normally. He was observed by the neighbour, dressed and moving
    about, between 1:00 and 1:30 a.m., so he was obviously alive at that time. The
    neighbour heard no unusual noises that evening. On the Crowns theory, the
    killing must have occurred before 2:00 a.m. because rigor mortis takes at least
    two hours to set in. If the fire started at about 4:00 a.m., he must have been
    dead by about 2:00 and certainly no later than 2:10 a.m.

[33]

The
    defence said that on the Crowns theory, there was a very narrow window of
    opportunity for the appellant to commit a murder, particularly one using a
    sharp object and a crowbar, and to move the deceased from some other location
    to the place where he was found. The defence argued that, considering the
    nature of his injuries, there must have been a significant struggle, likely
    involving more than one person. The unexplained palm print on the dehumidifier
    was consistent with an intruder.

[34]

The
    defence argued that the circumstances suggested that more than one assailant
    was involved and that the killing must have occurred as a result of a botched
    robbery, after the appellant had left the house to go to work. Defence counsel pointed,
    in particular, to the evidence of Ms. Sarrazin, the neighbour who walked by the
    house the next morning, whose evidence suggested that the fire could have been
    burning at that time. If that was the case, and if the fire self- extinguished
    in about ten minutes, the death must have occurred much later than the Crown
    theorized.

C.

THE JURY INSTRUCTIONS

[35]

During
    the pre-charge conference, the judge had provided counsel with only a broad
    outline of the instructions he proposed to give, but he did not give them a
    draft of his charge.

[36]

The
    judge instructed the jury in just over two hours, with a twenty minute break in
    the middle. In many respects, the charge followed
Watts Manual of Criminal
    Jury Instructions

(Toronto: Thomson Carswell, 2005)
.

[37]

The
    judge did not provide the jury with a copy of his instructions, but he gave
    them a one page outline and a decision tree on second degree murder and
    manslaughter.

[38]

In
    the course of his overview of what he would be covering in his instructions
    with the jury, the trial judge told jurors that he would be reviewing the
    evidence:

Then,
I will discuss the issues that you need to decide and
    review for you the evidence that relates to those issues
. By doing this, I
    hope I can help you recall the evidence and understand how it relates to the
    issues that you will be asked to decide. You must always keep in mind, however,
    that to decide this case, you rely on what you remember the evidence was, not
    what counsel or I say it was. [Emphasis added.]

[39]

The
    judge proceeded to instruct the jury on the duties of jurors, the general
    principles of law applicable to the case (including the presumption of
    innocence, the burden of proof and reasonable doubt), the principles of
    evidence (including direct and circumstantial evidence), and the rules of
    evidence. Most of these instructions were standard.

[40]

Under
    the first heading of the outline he gave to the jurors, entitled Duties of
    Jurors, there were nine subheadings, one of which was entitled, Judges
    Review and Comments on Evidence. Here, the judge again told the jury that he
    would be reviewing the evidence and relating it to the issues. He said:

It is my duty to review what I think are the important
    parts of the evidence, and to relate it to the issues that are yours to decide
.
In doing that, I may overlook evidence you think important, or mention
    evidence you think is insignificant. I may make a mistake about what a witness
    said while testifying.

My references to the evidence are only to help you remember it,
    and to show you how it relates to the issues in this case. If my memory of the
    evidence is different from yours, it is yours that counts. You find the facts
    and base your decision on your memory of the evidence, not mine, not that of
    counsel.

Our law also permits me to comment or express opinions about
    issues of fact. If I do that, however, you do not have to reach the same
    conclusion. You, not I, decide what happened in this case, if you are able.  [Emphasis
    added.]

[41]

The
    appellant asserts that, although the judge told the jury that he would be
    reviewing the evidence in relation to the issues, he failed to do so.

[42]

At
    an early stage of his instructions, when discussing the presumption of
    innocence, the burden of proof, and the requirement of proof beyond a
    reasonable doubt, the judge explained that the Crown was required to prove the
    essential elements of an offence beyond a reasonable doubt. He then said that
    he was going to explain this instruction for this particular case and referred
    the jury to Crown counsels closing address. In his closing address, Crown
    counsel had stated that although [t]he Crown is not obliged to prove every
    piece of evidence beyond a reasonable doubt, he was prepared to go out on a
    limb here and set the bar higher for the Crown than it really has to be. Crown
    counsel had told the jury that to convict they should be satisfied beyond a
    reasonable doubt that the timepiece evidence proved that the fires were burning
    at 4:10 a.m. and caused several timepieces to stop at the same time.

[43]

The
    trial judge endorsed this approach by telling the jury:

This is what [Crown counsel] told you, and I want to make it
    clear on this instruction about reasonable doubt and proof beyond a reasonable
    doubt how critical the timepieces are in the Crowns view and why they asked me
    and asked you to apply that criminal standard of proof to that evidence
    specifically.

The reason he stated that, and
I am going to use my own
    words here, my own view, is the critical role these timepieces play for the
    critical timeline that he submitted to you
.

For Marieanne Minor to
    have the exclusive opportunity to commit an alleged offence, the position of
    the Crown is that she set these three fires before she left for work in North
    Bay, and we know she is photographed at the Walmart at approximately 5:28 a.m.
    that morning
Therefore, it is clear on this evidence during the trial
    that the Crown must also satisfy you beyond a reasonable doubt that these fires
    caused three, perhaps four, timepieces to stop at approximately 4:10 a.m. that
    morning and that was the time these fires were burning
.

But
    as I will explain later, there is more for you to consider. I want to make it
    very clear on that one particular instruction to tell you what your duty is
    with respect to that issue.

To make your decision, you should consider carefully, and with
    an open mind, all the evidence presented during the trial. It will be up to you
    to decide how much or little you will believe and rely upon the testimony of
    any witness. You may believe some, none, or all of it. [Emphasis added].

[44]

Later
    in the instructions he mentioned the fact that some 21 persons had testified in
    the trial, including a total of 10 expert witnesses on:

·

fingerprint analysis;

·

DNA analysis;

·

fingerprint and palm print identification;

·

causes, origins and circumstances of fires;

·

fire modelling;

·

blood stain pattern analysis;

·

forensic pathology; and

·

forensic toxicology.

[45]

Apart
    from listing the names of the experts and their areas of expertise, the trial
    judge did not review any of the expert evidence. Nor did he review any of the numerous
    exhibits filed at trial, which included over 200 photographs of the crime
    scene.

[46]

The
    trial judge summarized for the jury the evidence as to the appellants good
    character and gave them a standard instruction concerning that evidence. He
    also identified the statements given by the appellant to the police, explained
    the use the jury could make of them, and gave a
W.D.
instruction with
    respect to the evidence of the appellant as contained in the statements. Further,
    he discussed the submissions of counsel on motive, briefly commenting on the
    evidence and giving a standard instruction with respect to motive.

[47]

After
    the morning break, the trial judge discussed tape recordings of messages left by
    the appellant for her husband on her home telephone on January 11, 2002 as well
    as videotapes of some of the appellants statements to the police. He also
    mentioned that several charts, summaries, photographs and schedules were filed
    as exhibits.

[48]

Shortly
    thereafter, the trial judge turned to what he described in his outline as the Summary
    of the Positions of the Crown and the Defence. He simply read verbatim from
    summaries provided by counsel, describing them as the theories of each party.

[49]

The
    Crown theory, as read by the trial judge to the jury, focused on the time of
    death and the time the timepieces stopped, to establish that the appellant had
    the exclusive opportunity to commit the crime. It referred to the eyewitness
    evidence that the deceased was seen entering his home in the early morning
    hours of January 11, the evidence that some of the timepieces had stopped at
    about 4:10 a.m., the pathology evidence that it would have taken at least two
    hours for rigor mortis to set in, and the appellants statement to the police
    that she left her home shortly after 4:00 a.m. for her 6:00 a.m. shift at
    Walmart. The Crown submitted that on this chronology, the appellant was the
    only person who could have committed the crime. It also pointed to the presence
    of the deceaseds blood on her sweatpants found on a chair in her bedroom,
    supporting the theory that she was responsible for his death.

[50]

The
    defence position, as read by the judge to the jury, was that the timepiece
    evidence was neither uniform nor conclusive and, most important, a fire at 4:10
    a.m. was inconsistent with the eyewitness evidence of Ms. Sarrazin, who
    testified that she stopped in front of the residence at 8:00 a.m. because she
    smelled soot, like a fire that was not properly burning. Given the expert
    evidence that the fire would have snuffed itself out due to lack of oxygen
    within about ten minutes of being started, this evidence, the defence told the
    jury, introduced reasonable doubt into whether the fire was actually burning at
    4:10 a.m. or began much later, after the appellant had left for work

[51]

The
    judge referred to other aspects of the defence position, including:

·

the very narrow time frame that would have been available, under
    the Crowns theory, for a dispute to escalate to a violent killing, in which
    the deceased bled to death over an indeterminate period of time;

·

the defence theory of a break and enter gone bad;

·

the inconclusiveness of the evidence of the deceaseds blood on
    the sweatpants, which also bore traces of his DNA on the waistband;

·

the statements of the appellant to the police which were
    suggestive of her innocence;

·

the absence of any visible injuries to the appellant and her
    apparently normal behaviour on the day of the fire.

[52]

Having
    summarized the positions of the parties, the trial judge instructed the jury on
    second degree murder and the included offence of manslaughter. With reference
    to the decision tree he had prepared, he described the essential elements of
    the offence and identified the questions that the jury was required to answer.

[53]

In
    discussing the central question for the jury, Did Marieanne Minor
cause
Robert Minors death?, the judge said:

To answer this question, you must consider all the evidence. Do
    not limit your consideration only to the opinion of the expert Dr. Toby Rose
    about what caused Robert Minors death. Take into account, as well, the testimony
    of any witness who described the events that took place around the time that
    Robert Minor was hurt and died. Use your common sense.

Robert Minor died from a single stab wound to his chest in the
    presence of multiple blunt force injuries. As to who caused his death,
    according to the Crowns exclusive opportunity theory, Robert Minor would have
    had to die sometime between 1:30 and 2:10 a.m. on January 11, 2002.

[54]

He
    added:

If you are not satisfied beyond a reasonable doubt that
    Marieanne Minor caused Robert Minors death, you must find Marieanne Minor not
    guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Marieanne
    Minor caused Robert Minors death, you must go on to the next question.

[55]

Apart
    from this, and except as he recounted the theories of the Crown and the
    defence, the trial judge did not review any of the other evidence on the issue
    of whether the appellant caused her husbands death or the issues identified by
    the defence that might have cast doubt on the Crowns theory.

[56]

Nor
    did the judge refer to any other evidence bearing on the other elements of
    second degree murder or manslaughter, other than the generic description of
    these elements and the definitions contained in the standard jury charges
    relating to these offences.

[57]

The
    judge then gave his largely standard, concluding instructions to the jury about
    how they should carry out their task.

D.

THE JURY QUESTIONS

[58]

The
    jury began deliberating at about noon on May 22 and the judge adjourned their
    deliberations at about 9:00 p.m. The following morning, the jury delivered a
    note, asking if they could have a copy of Ms. Sarrazins evidence. In response,
    the judge provided them with a copy of the DVD recording of her evidence and told
    them that a transcript of the evidence was being prepared and would be provided
    to them.

[59]

The
    trial judge then raised with counsel the question of whether the jury should be
    instructed that they should not give Ms. Sarrazins evidence particular weight
    just because they received a transcript. He mooted with counsel an instruction
    that they were not being provided with the evidence of any other witnesses and
    should not focus exclusively on [Ms. Sarrazins] evidence or overemphasize it
    just because you have a transcript. You must decide this case based on all of
    the evidence. In response to this, defence counsel raised the concern that Ms.
    Sarrazins evidence went directly to the time the fire began and was the only
    piece of independent evidence that conflicted with the timepiece evidence. He pointed
    out that when contrasted with the weight given to the timepiece evidence, the
    instruction being discussed by the trial judge might downplay the significance
    of Ms. Sarrazins evidence, to the detriment of the appellant.

[60]

Defence
    counsel stated that when he heard the trial judge reading the statement of the
    Crowns position to the jury, he was concerned that the jury would regard the
    timepiece evidence as determinative of his clients guilt or innocence:

[M]y concern when I first thought  first heard that was that
    the jury is going to think that thats the only issue that they really have to
    decide and once its decided, either way  for example, if they decide beyond a
    reasonable doubt that fire caused the timepieces to stop at 4:10, then its
    over and you dont have to worry about
W.D.
, you dont have to worry
    about anything else in the case.

[61]

He
    expressed the concern that if the trial judge gave a further instruction to the
    jury, he should repeat his instructions about the burden of proof on the Crown,
    proof beyond a reasonable doubt and the application of
W.D.
with
    respect to the versions of the appellants evidence in the police statements.

[62]

Ultimately,
    the trial judge determined that no further instruction was required.

[63]

The
    jury deliberations continued on May 23, and with no verdict reached by 7:49
    p.m., the jury was sent to the hotel for the evening.

[64]

The
    following morning, May 24, the jury sent additional questions to the judge. The
    first note asked for clarification on three issues: (a) the weight of
    character versus evidence; (b) the evidence concerning the palm print on the
    dehumidifier; and (c) the definition of exclusive opportunity and
    opportunity. In a follow-up question relating to the palm print, the jury
    said that they would like to have the portion of the testimony from the palm
    print identification expert dealing with the palm print on the dehumidifier in
    the basement and asked How much weight is a juror to place on an unidentified
    print? Later in the morning, as the trial judge was still conferring with
    counsel concerning the response to these questions, there was an additional
    question from the jury. They asked for the definitions of absolute certainty
    and reasonable doubt, referred to during the judges charge.

[65]

After
    discussing the questions and the appropriate responses with counsel, the trial
    judge gave further instructions to the jury at about mid-afternoon on May 24.
    On the issue of character evidence, he reminded the jury that there was no
    evidence of bad character in relation to the appellant, and he discussed the
    evidence of the deceaseds mother, the appellants co-worker and the
    appellants family doctor. He explained that they should consider the character
    evidence along with all the evidence in determining whether the Crown had
    discharged its burden.

[66]

He
    then spoke to opportunity and motive, explaining that the Crown had no
    obligation to prove motive, but that if the jury concluded that the appellant had
    no motive to commit the offence it would be an important fact to consider and
    it might raise a reasonable doubt as to whether the Crown had proven its case.
    He reviewed the position of the Crown and the defence on this issue, and
    explained that motive or lack thereof was only a factor that might persuade
    them, one way or the other, whether the appellant was guilty or not guilty.

[67]

The
    trial judge then turned to the question of opportunity and exclusive
    opportunity, explaining that evidence of exclusive opportunity could be
    sufficient, in and of itself, to prove identity. He repeated his instruction
    concerning direct and circumstantial evidence and cautioned the jury that
    before finding the appellant guilty on the basis of circumstantial evidence,
    they must be satisfied beyond a reasonable doubt that the appellants guilt was
    the only rational inference to be drawn from the proven facts.

[68]

He
    then responded to the jurys question about the palm print on the dehumidifier,
    reviewing the evidence and reminding the jury that they were required to
    consider whether it was a recent print of some other person.

[69]

The
    judge then turned to the last question asked by the jury, having to do with
    absolute certainty and reasonable doubt. This presumably related to the
    standard portion of the judges charge in which he instructed the jury that [t]he
    standard of proof beyond a reasonable doubt falls much closer to absolute
    certainty than to probably or likely guilty, but that it is nearly impossible
    to prove anything with absolute certainty.

[70]

In
    response to this question, the trial judge essentially repeated verbatim

the
    instructions that he had given to the jury concerning the presumption of
    innocence, the burden of proof and reasonable doubt. He continued, however, by
    repeating to the jury, again almost verbatim, the instruction he had given to
    them with respect to the submission of the Crown concerning the timepieces and
    the undertaking of the Crown to set the bar higher by accepting a burden of
    proof beyond a reasonable doubt with respect to the timepiece evidence. He
    repeated his observation as to the critical role these timepieces play for the
    critical timeline that [Crown counsel] submitted to you. He also repeated his
    instruction that it is clear on this evidence during the trial that the Crown
    must also satisfy you beyond a reasonable doubt that these fires caused three,
    perhaps four, timepieces to stop at approximately 4:10 a.m. that morning and
    that was the time these fire were burning.

[71]

The
    judges re-instruction was completed at 4:01 p.m. The jury returned at 10:51
    a.m. the next morning with a verdict of guilty.

E.

THE POSITION OF THE PARTIES ON APPEAL

Appellants Position

[72]

The
    appellant says that the trial judge recognized he had a duty to review the
    evidence, promised the jury that he would, but failed to do so. Instead, he simply
    read the summaries of the position of the Crown and defence, prepared by
    counsel. Most of the charge, she submits, was generic and did not fulfill the
    judges responsibility to distill, simplify and organize the evidence, and to
    relate it to the issues and elements of the offence. In particular, she says
    that he failed to review: (a) the evidence going to the identity of the killer
    and whether the appellant had exclusive opportunity to commit the offence; (b)
    the evidence as to the appellants lack of motive; (c) the evidence that might support
    the defence theory of a break and enter; and (d) the evidence capable of
    supporting the included offence of manslaughter.

[73]

The
    appellant also submits that the trial judge erred by instructing the jury that
    they should submit the evidence concerning the stopped timepieces to a
    reasonable doubt standard, thereby elevating the significance of this
    evidence and diverting jurors from their obligation to consider all the
    evidence.

[74]

The
    appellant says that the failure of trial counsel to object to the charge, or to
    request the jury be given further instructions, is not fatal to the appeal.

Respondents Position

[75]

The
    respondent submits that the central issue at trial was the identity of the
    killer. This was established by the timing of the fires and by when the
    deceased died in relation to the fires, and was largely based on inferences to
    be drawn from undisputed evidence. Crown counsel submits that the adequacy of
    the charge and the answers to the jurys questions must be viewed in context.
    In this case, the judges instructions and his answers to the jurys questions
    equipped the jurors to deal with the evidence and the issues. The failure of
    defence counsel to object is telling, she submits. While she acknowledges that
    the trial judge has a duty to ensure that the jury understands the significance
    of the evidence to the issues in the case, reference to counsels positions is
    also necessary and there is nothing wrong with weaving together the review of
    the evidence and the statements of the parties positions. The respondent
    submits that the charge fully and fairly set out the defence position.

F.

ANALYSIS

[76]

Before
    turning to the legal principles applicable to this appeal, I remind myself of
    the approach to be taken by an appellate court in reviewing a jury charge.

[77]

It
    has been emphasized by this court that a functional approach should be taken to
    jury instructions, having regard to their purpose in the circumstances of the
    case. The purpose of the functional approach is to organize and clarify the
    issues and the applicable evidence for the jury, as it is for them to decide
    the guilt or innocence of the accused:
R. v. Maugey

(2000),
    146 C.C.C. (3d) 99 (Ont. C.A.), at para. 25; see also
R. v. Garon
, 2009
    ONCA 4, 240 C.C.C. (3d) 516, at para. 65.

[78]

As
    Watt J.A. stated in
R. v. P.J.B.
, 2012 ONCA 730, 298 O.A.C. 267, at
    paras. 48-50:

Appellate review of the adequacy of jury instructions requires
    a functional approach in which we test the instructions against their ability
    to fulfill the purposes for which final instructions are given:
Jacquard
,
    at paras. 32 and 41; and
MacKinnon
, at para. 27.

Jury charges do not take place in isolation, but in the context
    of the trial as a whole. Appellate review of the adequacy of jury charges must
    acknowledge this reality, especially where the complaint is about the extent to
    which the trial judge has reviewed the evidence in final instructions.
    Appellate review on this issue includes consideration of the complexity and
    volume of the evidence adduced at trial, the extent of its review by counsel in
    their closing addresses, the length of trial proceedings, the issues to be
    resolved by the jury, the effect of a more complete and balanced review of the
    evidence, and whether counsel objected to the charge on the ground advanced on
    appeal. The test is one of fairness:
Daley
, at para. 57. Provided the
    evidence is left to the jury in a way that will permit the jurors to fully appreciate
    the issues raised and the defences advanced, the charge will be adequate:
Daley
,
    at para. 57.

A consequence of the functional approach to jury instructions
    and their review by appellate courts is the absence of any requirement that the
    instructions conform with or follow a specific structure. Substance prevails,
    not form. That said, it is hard to controvert the principle that organized
    instructions are more likely to inform the understanding of the jury than are
    unorganized or disorganized directives. Final instructions that display an
    overall organization, as well as an organized approach to individual parts,
    seem inherently more likely to fulfill the purposes for which instructions are
    given. [Footnote omitted.]

The Duty of the Trial Judge

[79]

In
    all but the rarest of cases, a trial judge has a duty to review with the jurors
    the issues to be resolved and the evidence they may consider in resolving those
    issues. In
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 54,
    Bastarache J., giving the judgment of the majority, adopted what he described
    as [o]ne of the classic statements describing the trial judges duty to review
    the evidence in the charge from
Azoulay v. The Queen
, [1952] 2 S.C.R.
    495, at pp. 497-98:

The rule which has been laid down, and consistently followed is
    that in a jury trial the presiding judge must, except in rare cases where it
    would be needless to do so,
review the substantial parts of the evidence, and give the jury the
    theory of the defence, so that they may appreciate the value and effect of that
    evidence, and how the law is to be applied to the facts as they find them.

[80]

Bastarache
    J. noted, at para. 57, that the extent of the review of the evidence will
    depend on the circumstances of the case. He added that the duty was succinctly
    put by Scott C.J.M. in
R. v. Jack

(1993), 88 Man. R. (2d) 93
(C.A.), at p. 102; affd
[1994] 2 S.C.R. 310
:
    the task of the trial judge is to explain the critical evidence and the law
    and relate them to the essential issues in plain, understandable language.

[81]

He
    also pointed out, at para. 58, that the judges duty cannot be considered in
    isolation:

Finally,
    it should be recalled that the charge to the jury takes place not in isolation,
    but in the context of the trial as a whole. Appellate review of the trial
    judge's charge will encompass the addresses of counsel as they may fill gaps
    left in the charge: see Der, at p. 14-26. Furthermore, it is expected of
    counsel that they will assist the trial judge and identify what in their
    opinion is problematic with the judge's instructions to the jury. While not
    decisive, failure of counsel to object is a factor in appellate review. The
    failure to register a complaint about the aspect of the charge that later
    becomes the ground for the appeal may be indicative of the seriousness of the
    alleged violation.

[82]

The
    issue was thoroughly canvassed by this court in
P.J.B.
At para. 44 of
    that case, Watt J.A. stated:

The responsibility of the trial judge to relate the evidence to
    the issues raised by the defence involves two components. The first is a
review
of the evidence. The second is a
relation
of the evidence to the
    position of the defence. Except in rare cases, where it would be unnecessary to
    do so, a trial judge must review the substantial parts of the evidence and give
    the jury the position of the defence so that the jury appreciates the value and
    effect of that evidence:
Azoulay v. The Queen
,
[1952] 2 S.C.R. 495
,
    at pp. 497-498. Typically, trial judges review the evidence in the context of
    the various issues and indicate what parts of the evidence support the
    positions of the respective parties on those issues:
MacKinnon
, at
    para. 29. Judicial
review
of the evidence refreshes the jurors' memory
    of the evidence given. Judicial
relation
of the evidence to the issues
    improves jurors' understanding of the particular aspects of the evidence that
    bear on their decision on each essential issue in the case.

[83]

He
    concluded that the charge in that case lacked a focussed reference in relation
    to each count to the factual issues to be resolved, a statement of the parties
    positions, and a review of the significant features of the evidence related to
    the parties position on each count.  This failure to properly instruct the
    jury deprived the accused of a fair adjudication of the case and warranted a
    new trial.

Counsels Closing Submissions

[84]

The
    fact that counsel have reviewed the evidence in the course of their closing
    submissions, or that the judge has read summaries of the positions of the Crown
    and the defence to the jury, does not relieve the trial judge of the duty to
    perform an
independent
review of the evidence.
    Counsel are advocates. Their positions are argument. The jury is entitled to
    look to the trial judge to separate reason from rhetoric.

[85]

The
    point was well made by McClung J.A. of the Alberta Court of Appeal in
R. v.
    Selbie
, 2002 ABCA 58, 361 A.R. 202. In that case, in a brief oral judgment,
    the Court of Appeal ordered a new trial in a second degree murder case. The
    grounds of appeal rested on what McClung J.A. described, at para. 2, as
    bedrock principles of jury practice. One of these was the failure of the
    trial judge to summarize the evidence on the key issue of the identity of the
    deceaseds assailant. Instead, the judge provided the jury with copies of the
    written positions of the Crown and the defence. McClung J.A. stated, at para.
    3, that these partisan summaries were no substitute for the entitlement of the
    jury to a trained, authoritative and independent review by the judge of the
    critical evidence touching the real issues in the case.

[86]

The
    same point was made by Watt J.A. in
P.J.B.
, at para. 47:

The obligation to review the substantial parts of the evidence
    and to relate it to the issues raised by the parties is that of the trial
    judge, not counsel, whether prosecuting or defending. The closing addresses of
    counsel cannot relieve the trial judge of the obligation to ensure that the
    jury understands the significance of the evidence to the issues in the case,
    although the judge can consider the closing addresses of counsel in deciding
    how to discharge his or her obligations:
MacKinnon
, at para. 32;
Royz
,
    at para. 3; and
R. v. Garon
,
2009 ONCA 4
,
240 C.C.C. (3d) 516
,
    at para. 84.

[87]

As
    Doherty J.A. explained in
R. v. MacKinnon

(1999), 43 O.R. (3d)
    378 (C.A.), at p. 387:

The trial judges failure to relate any of the evidence to
    Crooks position that he was not a party to any robbery was not inadvertent. As
    the trial judges response to counsels objection indicates, he was satisfied,
    based on counsels effective closing address, that the jury had a sufficient
    appreciation of the evidence relevant to that issue. Counsels closing cannot
    relieve the trial judge of his obligation to ensure that the jury understands
    the significance of the evidence to the issues in the case. Certainly, the trial
    judge can consider counsels closing arguments in deciding how to discharge his
    or her obligation. Reference to, or incorporation by reference to, counsels
    submissions are techniques which may be used by a trial judge to assist in
    relating the evidence to the positions of the parties on the contested issues.

[88]

The
    rule that trial judges must generally review the substantial parts of the
    evidence in their charge to the jury is not absolute and in rare cases an
    independent review may not be required: see
R. v. Dwyer

(1977),
    35 C.C.C. (2d) 400 (Ont. C.A.), at p. 406-7;
R. v. A.B.
, 2009 ONCA 180,
    242 C.C.C. (3d) 195, at para. 10. For example, an independent review may not be
    necessary when the issues are so clear-cut, the facts are so relatively
    simple and the trial judge is satisfied that counsel has satisfactorily
    summarized the facts in their closing addresses: see
Dwyer
, at p. 407.
    The extent to which the evidence must be reviewed ultimately depends on the
    circumstances of each particular case: see
Daley
, at para. 57.

Absence of Objection by Counsel

[89]

It
    is well-settled that while lack of objection by counsel to the judges charge
    does not bar an appeal based on misdirection, it is a factor to be taken into
    account. As Binnie J. noted in
R. v. Royz
, 2009 SCC 13, [2009] 1 S.C.R.
    423, at para. 3, trial counsel are well positioned to determine whether the
    trial judge has adequately reviewed the evidence in relation to the defence
    theory. Moreover, counsel may have made a tactical decision not to request
    further instructions out of concern that in so doing the judge might re-emphasize
    damaging evidence.

[90]

In
R. v. Jacquard
, [1997] 1 S.C.R. 314, Lamer C.J., giving the judgement
    of the majority, stated, at paras. 37-38:

To point this out is not to say that a party waives its right
    of appeal on a jury charge misdirection by failing to raise the issue
    contemporaneously with the making of the charge. In
R. v. Arcangioli
,
[1994] 1 S.C.R. 129
,
    this Court made it quite clear that defence counsel's failure to object to a
    jury charge is not determinative, at least in the context of the applicability
    of the
Criminal Code
's curative provision. Although such a rule would
    act as a strong incentive for counsel to scrutinize the charge carefully and
    would inhibit counsel from deliberately failing to object to the charge as a
    matter of strategy, the Court has not lost sight of the fact that the jury
    charge is the responsibility of the trial judge and not defence counsel. Such a
    rule might also unequivocally prejudice an accuseds right of appeal in cases
    where counsel is inexperienced with jury trials.

Nevertheless, defence counsels
    failure to comment at the trial is worthy of consideration. In
Thériault v.
    The Queen
,
[1981] 1 S.C.R. 336
,
    although I dissented on unrelated grounds, Dickson J. (as he then was)
    expressed the proper view at pp. 343-44: [a]lthough by no means determinative,
    it is not irrelevant that counsel for the accused did not comment, at the
    conclusion of the charge, upon the failure of the trial judge to direct the
    attention of the jury to the evidence. In my opinion, defence counsels
    failure to object to the charge says something about both the overall accuracy
    of the jury instructions and the seriousness of the alleged misdirection.

[91]

On
    the other hand, in
R. v. Pintar

(1996), 30 O.R. (3d) 483
    (C.A.), Moldaver J.A. stated, at p. 519:

That is not to say, however, that counsels silence will prove
    fatal in all such cases. Failure to object does not relieve trial judges from
    their obligation to relate the evidence to the issues. In the final analysis,
    regard must be had to the importance of the issue; the significance of the
    evidence in relation to that issue and the prejudicial effect occasioned by the
    inadequate instruction. For reasons already stated, I am of the view that by
    reason of the trial judges failure to instruct the jury on the relevance of
    the appellant's background knowledge of Ross, the jury may not have appreciated
    its significance in assessing the appellants claim to self-defence under s.
    34(2). Accordingly, in spite of defence counsels failure to object, I would
    give effect to this ground of appeal.

Application of these Principles

[92]

In
    my view, this was not one of those rare cases in which the judge was entitled
    to forego a meaningful review of the evidence. Nor were the closing statements
    of counsel a substitute for such a review. The trial was reasonably lengthy
    almost three weeks. It involved a significant body of expert evidence bearing
    on the DNA and blood spots found on the sweatpants, the wounds to the victim, the
    length of time it took the victim to expire, the time of death, whether he was
    moved before or after he died, when and how he sustained his injuries, when the
    fires were started and how long it took before they self-extinguished. The
    trial judge did not review any of the evidence of the ten expert witnesses
    concerning these issues. Given the Crowns theory that the appellant had the
    exclusive opportunity to kill her husband, this evidence was crucial to the
    threshold question for the jurys consideration  did the appellant cause her
    husbands death?

[93]

On
    this question, the trial judge did not do anything other than refer to the stab
    wound, the multiple blunt force injuries, and the Crowns theory that the
    victim would have had to die between 1:30 and 2:10 a.m. for the appellant to
    have had the exclusive opportunity to commit the offence. He made no review of
    the other evidence bearing on the issue, instead simply instructing the jury to
    consider all the evidence. He told them:

To answer this question, you must consider all the evidence. Do
    not limit your consideration only to the opinion of the expert Dr. Toby Rose
    about what caused Robert Minors death. Take into account, as well, the
    testimony of any witness who described the events that took place around the
    time that Robert Minor was hurt and died. Use your common sense.

[94]

By
    failing to conduct an independent review of the evidence, the trial judge
    inadvertently downplayed the defence theory and gave disproportionate weight to
    the Crowns theory.

[95]

The
    judge did not even discuss the evidence of the neighbour, Ms. Sarrazin, who
    walked by the appellants house in the morning and noticed the smell of a fire
    burning or smouldering. It is not insignificant that the first question asked
    by the jury, the morning after they were instructed, was for a copy of the
    transcript of Ms. Sarrazins evidence. Even then, the trial judge simply gave
    them the DVD and transcript of Ms. Sarrazins testimony, without attempting to
    summarize her evidence or to relate it to the other parts of the evidence.

[96]

There
    was other evidence, critical to the defence theory of a robbery, that the judge
    also failed to review such as: the evidence that might have supported the
    possibility of more than one assailant; the damage to the basement door; the
    unidentified palm print; and the nature and extent of the injuries to the
    deceased. Nor did the trial judge discuss the evidence bearing on the time that
    it would have taken to commit the offence and for the victim to expire and
    whether these events could have occurred in the window of opportunity relied
    upon by the Crown.

[97]

In
    my view, these deficiencies were substantially exacerbated by the judges emphasis
    on the timepiece evidence, both in his original instructions and in his answers
    to the questions from the jury.

[98]

I
    set out earlier the judges instruction concerning the significance of the
    stopped timepieces and the Crowns request that this evidence be assessed on a
    reasonable doubt standard.

[99]

In
    response to questions from the jury, including the question concerning the
    definition of reasonable doubt, the judge repeated, unsolicited and verbatim, most
    of the comments about the timepiece evidence he had made earlier, referring
    again to the critical role these timepieces play for the critical timeline
    suggested by the Crown. While the trial judge went on to comment that jurors
    should consider all the evidence presented during the trial, the jury was left
    with the repetition of his comments on the significance of the timepiece
    evidence and the application of the reasonable doubt standard to this
    particular piece of evidence.

[100]

In my view, coupled
    with the judges failure to undertake any meaningful independent review of the
    evidence, his focus on the timepiece evidence in the early part of his
    instructions invited the jury to determine the guilt or innocence of the appellant
    by applying the reasonable doubt standard to a single piece of evidence. As the
    Supreme Court of Canada stated in
R. v. Morin
, [1988] 2 S.C.R. 345, at
    p. 354, this was a clear error:

[I]t is a misdirection to instruct the jury to apply the
    standard of reasonable doubt to individual pieces of evidence.

[101]

As the Supreme
    Court noted in the later decision of
R. v. White
, [1998] 2 S.C.R. 72,
    at para. 49, such an instruction runs the risk of confusing the jury and
    inviting them to short-circuit their deliberations. If the jury in this case
    found beyond a reasonable doubt that the fire caused the timepieces to stop at
    4:10 a.m., there was a real risk that they would jump to the conclusion that
    the appellant was guilty and would fail to consider evidence that might be
    exculpatory. The failure to systematically review any of the other evidence, including
    the extensive forensic evidence, likely had the effect of enhancing the
    significance of the timepiece evidence in the minds of the jurors.

[102]

Considered on
    its own, the error was serious. Considered together with the judges failure to
    review the other evidence or to relate it to the key issues and elements of the
    offences, the two errors are over-riding and the verdict is unreliable.

[103]

While the trial
    judge did review some of the evidence in reading what he referred to as the
    positions or theories of the defence and the Crown, these were no more than
    summaries provided by counsel. The jury was entitled to have a dispassionate,
    organized and independent analysis of the evidence.

[104]

This is not a
    case in which the failure of defence counsel to object to the charge should be
    regarded as an acknowledgment of the suitability of the instructions and to
    preclude a subsequent challenge. The trial judge did not provide counsel with
    the full charge at the pre-charge conference. Counsel could reasonably have
    expected, however, that the trial judge would review the evidence with the jury
    because he gave them his outline at the conference, indicating that he intended
    to do so, entirely separate from his summary of the positions of the Crown and
    the defence. Having failed to do so, and having elevated the importance of the
    timepiece evidence, it would have been difficult and confusing in any case to
    correct the deficiency by starting all over again, attempting to revisit all
    the evidence relating to the issues.

[105]

In the final
    analysis, an accused person is entitled to a properly charged jury and while
    the failure of counsel to object is a factor to be considered, it is not a
    determinative factor in this case.

Failure to Instruct on Manslaughter

[106]

The appellant
    also asserts that although the trial judge properly instructed the jurors on
    the elements of the included offence of manslaughter, he did not review any of
    the evidence in support of that position. This was particularly important, she
    submits, because neither the Crown nor the defence addressed manslaughter in
    the statements of their positions that the judge read to the jury. Nor had they
    addressed manslaughter in their closing submissions.

[107]

The appellant
    acknowledges that defence counsel may not have wanted to touch manslaughter
    with a ten foot pole, but says she was entitled to a proper instruction on
    manslaughter so that the jury could carry out their duties. The appellant
    refers to the British Columbia Court of Appeals decision in
R. v. West

(1995), 59 B.C.A.C. 135 (C.A.), at paras. 26 and 50, and this courts
    decision in
Maugey
, at para. 25, in which Feldman J.A. stated:

Furthermore,
    it is no answer, as suggested by the Crown, that a full review of the evidence
    would have hurt the appellants, so that the trial judges failure to do so
    enured to their benefit. The purpose of the functional approach is to organize
    and clarify the issues and the applicable evidence for the jury, as it is for
    them to decide the guilt or innocence of the accused. The appellants were
    entitled to a proper instruction so that the jury could carry out their
    function in a fair manner.

[108]

The Crown
    contends that the trial judge told the jury not to limit themselves to the
    evidence of the pathologist, who referred to the stab wound being the cause of
    death, and to take into account the testimony of any witnesses who described
    the events that took place around the time that Robert Minor was hurt and
    died. The Crown submits that the adequacy of the charge is reflected in the
    fact that the appellant made no objection.

[109]

In view of the
    conclusion I have reached on the charge on second degree murder, it is
    unnecessary to deal with this issue.

Application of the Proviso

[110]

The Crown made
    no submissions with respect to the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
.
While the case against the appellant was very
    strong, I cannot say that a properly instructed jury would have arrived at a guilty
    verdict. Nor can I say that the evidence was so overwhelming that no
    substantial wrong or miscarriage of justice has occurred: see
R. v.
    Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505.

Summary

[111]

Adopting a
    functional approach to my review of the jury charge, I am persuaded that the
    appeal should be allowed. Except in the rarest of cases, a trial judge has a
    duty to review the issues the jury must resolve and the evidence it may
    consider in resolving those issues. While the extent of this review depends on
    the circumstances of each case, in my view, the trial judge in this case failed
    to provide any sort of meaningful review for the jury. The closing statements
    of Crown and defence counsel and the summary of their respective positions in
    the jury charge did not serve as a substitute for the judges review and
    relation of the evidence to the issues. The trial judges failure to review key
    evidence bearing on the elements of the offences and the threshold question for
    the jurys consideration, namely whether the appellant caused her husbands
    death, is fatal.

[112]

This error was
    exacerbated by the emphasis placed on the timepiece evidence and the
    instruction that the jury could subject that evidence to a reasonable doubt
    standard.

[113]

While defence
    counsel raised no objection to the charge at trial, the failure to object is
    not determinative and does not bar an appeal based on misdirection.

[114]

When the emphasis
    of the timepiece evidence is coupled with the failure to review and relate the
    evidence to the key issues and elements of the offences, the verdict, in my
    view, cannot stand. This is not a case where the evidence against the appellant
    was so overwhelming, or where it can be safely said the legal error was
    harmless because it could have had no impact on the verdict.

G.

CONCLUSION

[115]

For these reasons,
    I would allow the appeal, set aside the conviction and order a new trial.

Released:

SEP 13 2013                                    G.R.
    Strathy J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree M. Tulloch J.A.

[1]
There is no dispute as to the facts and I have relied extensively on the
    appellants statement of facts, which is generally accepted by the respondent.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2013
    ONCA 588

DATE: 20130926

DOCKET: C53007 and C53008

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thuy Thi Nguyen and Xuan Hoa Le

Appellants

Gordon Akilie, for the appellants

Michael Perlin, for the respondent

Heard: September 19, 2013

On appeal from the conviction entered on July 28, 2010 by
    Justice H.L. Fraser of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellants raise two grounds of appeal.

[2]

The first is that the trial judge erred in his application of the
    doctrine of recent possession by applying the reasonableness analysis to items
    of evidence (such as the break and enter tools) that were not directly the
    explanation for the possession of the stolen goods.

[3]

We do not agree that the trial judge made an error in this regard.  He
    applied the law as set out in para. 12 of the decision of the Supreme Court of
    Canada
R. v. Kowlyk
1988 2 SCR 59.  That law requires the trial judge
    to consider all the circumstances to decide if the inference of knowing
    possession or theft or both is available.

[4]

The second argument is that the trial judge misapplied
W.D.
and
    did not properly apply the second step in the analysis.  Again, we do not
    agree.  The trial judge considered the evidence of the appellant in the context
    of all of the evidence and rejected it.  It is clear that he concluded that it
    did not raise a reasonable doubt.  He was satisfied on the evidence he did
    accept that the three offences had been proven beyond a reasonable doubt.

[5]

The appeal is therefore dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
Pizzurro
, 2013
    ONCA 584

DATE: 20130927

DOCKET: C55284

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Hugo
Pizzurro

Respondent

Jameson W.
Clow
, for the
    appellant

Brady Cunningham,
amicus curiae

Hugo
Pizzurro
, appearing in
    person

Heard: May 27, 2013

On appeal from the judgment of Justice George Beatty of
    the Ontario Court of Justice dated January 30, 2012, allowing the appeal from
    the conviction entered by Justice of the Peace Susan Evans on July 14, 2011.

Goudge J.A.:

[1]

On February 14, 2011, the respondent was driving
    southbound on Highway 11.  He was
    observed by a police officer to have a cell phone in one hand.  It appeared to the officer that the
    respondent was either typing or reading the information on it.

[2]

The respondent was charged with a breach of s.
    78.1(1) of the
Highway
    Traffic Act
R.S.O. 1990, c. H.8 as amended by S.O. 2009, c. 4, s. 2
    (the
HTA
).  It reads:

Wireless
    communication devices

78.1(1) No person shall drive a motor vehicle on a
    highway while holding or using a hand-held wireless communication device or other
    prescribed device that is
capable of
receiving or
    transmitting telephone communications, electronic data,
mail
or text messages. [Emphasis added.]

[3]

The trial court rejected the respondents
    argument that there was no evidence that what the officer observed him using was
    an operating cell phone, and that this was required in order to convict
    him.  The respondent was found guilty and
    fined $125.00.

[4]

On appeal to the Ontario Court of Justice, the appeal
    judge allowed the appeal and dismissed the charge.  He concluded that an essential element of the
    offence under s. 78.1(1) of the
HTA
is that the cell phone be capable of receiving or transmitting telephone
    communications, electronic data,
mail
or text
    messages. He held that the burden rests upon the prosecutor to prove the
    essential elements of the offence, and in this case the prosecutor had failed
    to do so.

[5]

The Crown, represented by the District
    Municipality of
Muskoka
, appeals with leave to this
    court.

ANALYSIS

[6]

The respondent has never disputed that the cell
    phone he was observed to have in his hand while driving was a hand-held
    wireless communication device.  The sole
    issue is whether the Crown must prove that the cell phone was capable of
    receiving or transmitting in order to convict him under s. 78.1(1) of the
HTA.

[7]

For the following reasons, I conclude that the
    Crown need not do so.

[8]

Section 78.1(1) applies to two kinds of devices:
    hand-held wireless communication devices (that is, cell phones) and other
    devices prescribed by regulation.  Section 78.1(7) gives the Minister the power to make regulations
    prescribing devices for the purposes of s. 78.1(1).

[9]

In my view, the requirement that the device be
    capable of receiving or transmitting telephone communications, electronic data,
mail
or text messages applies to prescribed devices
    but not to cell phones.  In its ordinary
    meaning, the wording of s. 78.1(1) provides that it is prescribed devices that
    must have that capability.  This
    constitutes the legislatures direction to the Minister to ensure that, in
    future, the devices prescribed by regulation be of a kind that have this
    capability.  On the other hand, cell
    phones are well known as a kind of device that
are
capable
    of receiving or transmitting.  No similar
    requirement is needed for them.

[10]

Moreover, to impose the requirement that a cell
    phone held by a driver while driving was capable of receiving or transmitting
    would be unreasonable both for enforcement and for prosecution.  The legislature could not have intended that
    result.

[11]

The significant challenge for law enforcement is
    readily apparent.  There can be no doubt
    that s. 78.1(1) was targeted principally at cell phones.  Observing a driver holding or using a cell
    phone while driving would not be enough if this requirement existed.  For each case, the police would also have to
    find ways to immediately acquire and test the cell phone in order to determine
    that it was capable of receiving or transmitting.  I do not think that the legislature would
    have intended such a burden to be imposed by a section that is otherwise
    designed to operate in a simple and straightforward way.

[12]

It would also be unreasonable for
    prosecution.  Where for example the
    charge is using a cell phone while driving, to require the Crown, once it has
    proven the use of a cell phone to communicate, to also prove that the cell
    phone that was being used to communicate is capable of doing so is
    unnecessary.  It would be unreasonable to
    read s. 78.1(1) to impose such a burden.

[13]

Finally, the legislative purpose of s. 78.1(1)
    must be considered.  In
R. v.
Kazemi
,
    (issued simultaneously with these reasons) this court described that purpose as
    ensuring road safety and driver attentiveness to driving.  It is best served by applying the requirement
    that the device be capable of receiving or transmitting only to prescribed
    devices, but not to cell phones. Road safety and driver attentiveness to
    driving are best achieved by entirely prohibiting a driver from holding or
    using a cell phone while driving.  To
    hold out the possibility that the driver may escape the prohibition because the
    cell phone is not shown to be capable of communicating, however temporarily, is
    to tempt the driver to a course of conduct that risks undermining these
    objectives.

[14]

For these reasons I conclude that s. 78.1(1) of
    the
HTA
does not require that the cell phone held or used by a driver while driving be
    shown to be capable of receiving or transmitting telephone communications, electronic
    data,
mail
or text messages.

[15]

I would therefore allow the appeal and restore
    the conviction.

Released: September 27, 2013 (J.L.)

S.T. Goudge J.A.

I agree John Laskin J.A.

I agree David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rae, 2013 ONCA 556

DATE: 20130911

DOCKET: C56392

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryl Adam Rae

Applicant/Appellant

Robert Sheppard, for the appellant

Katie Doherty, for the respondent

Heard and released orally: September 6, 2013

On appeal from the conviction entered on August 1, 2012
    and the sentence imposed on October 5, 2012 by Justice Alan W. Bryant of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by Bryant J. of the Superior Court
    of Justice for robbery while armed with an offensive weapon and carrying a
    concealed weapon.

[2]

The appellant contends that the trial judge erred in his analysis of the
    reliability of the identification evidence relating to the appellant.
    Specifically, the appellant submits that the trial judge did not take
    sufficient account of the fact that both identification witnesses, the
    appellants neighbour, Ms. Fitzsimmons, and the police officer involved in a
    previous robbery case, Constable Racher, were informed about the possibility
    that the appellant was the convenience store robber before they identified him
    as the person in the convenience store video.  In short, the appellant suggests
    that the Fitzsimmons and Racher identification evidence was tainted by
    pre-suggestion and, therefore, should have been discounted as the principal
    basis on which the trial judge convicted the appellant.

[3]

We do not accept this submission.  The trial judge was clearly aware of
    the pre-suggestion factor.  However, Ms. Fitzsimmons had lived across the
    street from the appellant for about two years and had regular personal contact
    with him.  Constable Racher had spent 15 to 20 minutes visiting the appellant
    in an interview room following a robbery of a gas station; this visit took
    place approximately two weeks before she identified the appellant as the person
    shown in the convenience store video.

[4]

In these circumstances, the trial judge did not err by labelling
    Fitzsimmons and Rachers evidence as recognition evidence.  Nor did he err
    by relying on it to establish the appellants guilt beyond a reasonable doubt
    in the robbery of the convenience store.

[5]

The appellant also submits that the trial judge, who saw the appellant
    in court throughout the trial and viewed the convenience store video, erred by
    not expressing his own opinion about the reliability of the identification
    evidence.

[6]

We disagree.  The leading case in this area,
R. v. Nikolovski
,
    [1996] 3 S.C.R. 1197, permits, but does not require, a trial judge to make
    observations along these lines.  In the present case, the trial judge was
    entitled to rely on the strong identification evidence of the two witnesses,
    without supplementing it with his own opinion based on his viewing of the video
    and comparison with the appellants appearance in the courtroom.

[7]

The appeal is dismissed.

John Laskin J.A.

J.C. MacPherson J.A.

David Watt J.A.