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    the complainant or a witness shall not be published in any document or broadcast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. T.S., 2012 ONCA 289

DATE: 20120503

DOCKET: C49472

Laskin, Sharpe and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. S.

Appellant

James Lockyer and Zachary Kerbel, for the appellant

Elise Nakelsky, for the respondent

Heard:  October 19, 2011

On appeal from the conviction entered by Justice G.F.
    Hearn of the Ontario Court of Justice on June 23, 2008.

Watt J.A.:

[1]

In the fall of 2006, the marriage of the appellant and complainant
    disintegrated. First, in early October, the appellant moved out of their
    basement apartment. He returned to the main floor of the house where he rejoined
    the rest of his family. Then, in late January 2007, the complainant called
    police to report an incident involving the appellant that caused her to fear
    for her and her daughters safety. The complainant left the house occupied by
    the appellant and his family, and moved into a shelter with her daughter.
    Neither returned to the matrimonial home.

[2]

The complainant accused the appellant of forcing her to participate in
    acts of oral, vaginal and anal intercourse against her will over two years of
    their five-year marriage.

[3]

The appellant denied the allegations. Pure fiction, he said, motivated
    by the complainants desire to get sole custody of their two young children and
    return with them to her family in British Columbia.

[4]

The trial judge heard both sides of the story. He rejected the appellants
    claim of fabrication. He found the complainants allegations proven beyond a
    reasonable doubt. He convicted the appellant of sexual assault.

[5]

The appellant says that the trial judges reasons demonstrate errors in
    his analysis of the evidence adduced at trial. He asks us to admit fresh
    evidence of the complainants post-conviction conduct as well as evidence that was
    not disclosed by the Crown prior to trial.

[6]

These reasons explain why I have concluded, on the basis of the fresh
    evidence introduced here, that this appeal should be allowed and another trial
    of the complainants allegations held.

THE BACKGROUND FACTS

[7]

The grounds of appeal advanced render unnecessary any forced march
    through the specifics of the allegations made by the complainant. The chronology
    of events that unfolded warrants brief recapture.

The Early Years of the Marriage

[8]

The arranged marriage of the complainant and the appellant took place in
    British Columbia on July 21, 2001. The complainant and her family resided in
    British Columbia at that time. The appellant and his family lived in Ontario.

[9]

After their marriage, the couple moved to Kitchener where they lived
    with the appellants grandparents, parents and sibling. Both the appellant and the
    complainant worked outside of the home. In the beginning, the couples
    relationship and their living arrangements were satisfactory to both of them.

[10]

In
    June, 2004 the complainant became pregnant with their first child.

The Deterioration of the Marriage

[11]

Soon,
    the complainant began to notice her husbands controlling nature. She found him
    jealous and insecure. He questioned her constantly about her activities, her
    whereabouts and her companions. At the same time, their living arrangements,
    sharing the main floor of the home with all the other occupants, began to
    unravel.  In 2005, the couple moved into a separate living unit in the basement
    of the family home.

The First Pregnancy

[12]

During
    her first pregnancy, the complainant was frequently nauseous, constantly tired
    and trying to cope with her changing body.  According to the complainant, the
    appellant had a hard time adjusting to these changes, particularly, her lack of
    interest in sexual activity.

[13]

During
    the complainants first pregnancy, the appellant continued to demand that she
    participate in oral, vaginal and anal intercourse. He reinforced his demands with
    threats, including mention of the Burnaby massacre, in which a husband and father
    killed his entire family. He also underscored his superior status as her husband,
    the one with the penis in his pants.

[14]

According
    to the complainant, the appellant ignored her objections to sexual activity and
    repeatedly subjected her to unwanted oral, vaginal and anal intercourse. After
    the birth of their first child on March 30, 2005, the appellant forced her to
    participate in acts of anal intercourse because surgical stitches put in place
    after a Caesarean delivery made vaginal intercourse far too painful.

The Return from India and the Second Pregnancy

[15]

The
    appellant travelled to India in February, 2006. He stayed there for three or
    four weeks and returned with typhoid fever. He wanted to have sexual
    intercourse with the complainant almost immediately. When the complainant said
no, the appellant removed her clothing, held her down by getting
    on top of her and forced intercourse upon her.  He told her that she had to
    prove to him that she had not been intimate with anyone in his absence.

[16]

The
    appellant accused the complainant of giving him a sexually transmitted disease
    that carried typhoid into his body. This controlling and intimidating behaviour
    continued until the fall of 2006.

[17]

In
    the fall of 2006, the complainant was about six or seven months pregnant. She
    attributed her pregnancy to one of the many instances of unwanted intercourse. The
    appellant did not want a second child. He wanted the complainant to have an
    abortion. The complainant refused.

The Separation

[18]

On
    October 2, 2006, the complainant left the apartment to walk to a nearby store.
    When she returned home a few minutes later, she discovered that the appellant
    had moved his belongings out of the basement and moved back to the main floor
    with his family.

[19]

The
    complainant continued to live in the basement with the couples first child until
    January 26, 2007.

The
Ex Parte

Order

[20]

On
    January 10, 2007, a judge of the Superior Court of Justice made an order that
    prohibited the complainant from taking the couples daughter out of the Waterloo
    region. The order was granted on the
ex parte
application of the
    appellant.

The Events of January 26-27, 2007

[21]

According
    to the complainant, the appellant arrived at the door to the basement unit at
    about 11:30 p.m. on January 26, 2007. He demanded to see his daughter who was
    sleeping at the time. The complainant refused to admit the appellant to the
    apartment. He yelled, swore, and shook the door with such force that she called
    the police.

[22]

Police
    responded to the 911 call.  With their help, the complainant and her daughter
    were escorted to a local hotel where they stayed the night. The following
    morning, the complainant called the police again. She expressed her fear that the
    appellant would find her and their daughter at the hotel and cause them harm.

The Meeting with P.C. Chapman

[23]

P.C.
    Steve Chapman, a uniformed officer, responded to the call from the hotel and spoke
    with the complainant.  He testified as a defence witness at trial. The
    complainant asked him questions about an existing court order preventing her
    from removing the couples daughter from the Waterloo region and seemed
    preoccupied with an upcoming custody hearing. She also made a series of
    allegations against her husband, the most serious being rape. The complainant
    appeared fearful and P.C. Chapman arranged for her and her daughter to be
    placed in a shelter.

The Family Law Motion of February 8, 2007

[24]

On
    February 8, 2007, the complainant asked a judge to permit her to leave the Waterloo
    region with her daughter. She wished to travel to British Columbia to have her
    second child and recuperate with the support of members of her family. In the
    alternative, she sought to relocate with the child to Brampton where she had
    job opportunities and a support system. The judge permitted the complainant to
    leave the Waterloo region, but required her to obtain the appellants written
    consent if she wished to take their daughter with her. If consent was not
    obtained and the complainant wished to leave, the child would have to remain
    with the appellant.

The Police Statement of
    February 15, 2007

[25]

One
    week after the family law motion was heard the complainant went to the police
    station and provided a videotaped statement to investigators alleging that she
    had been sexually abused by the appellant during their marriage. By
    pre-arrangement, the couple met later that day to exchange property. Two days
    later, the appellant was charged with sexual assault and released on a promise
    to appear.

The Appellants Version

[26]

The
    appellant denied any non-consensual sexual contact with the complainant. During
    an interview with investigators, he denied having had anal intercourse with the
    complainant. Later, he said that they had tried anal intercourse once during the
    complainants pregnancy, but had discontinued when she complained of pain. He
    had no idea why she called the police, and later left with them, on January 26,
    2007. He initiated divorce proceedings and sought custody of their daughter.

The Positions of the Parties at Trial

[27]

At
    trial, Crown counsel (who was not counsel on the appeal) contended that the
    complainant was a truthful and credible witness. She provided an accurate
    description of a pattern of sexual abuse that began during her first pregnancy
    and included acts of forced oral, vaginal and anal intercourse. Crown counsel
    rejected any suggestion that the complainant had fabricated her allegations to
    obtain sole custody of the children and decamp to British Colombia depriving
    the appellant of any meaningful access.

[28]

Crown
    counsel pointed out that the complainant never asked P.C. Chapman to override,
    or permit her to disobey, the
ex parte
order preventing her from
    leaving the Waterloo region with her daughter. The complainant had never wavered
    from the position that she wanted the children to have a relationship with, and
    to grow up knowing, their father, particularly as she herself grew up without
    one.

[29]

Counsel
    for the appellant at trial (who was also not counsel on the appeal) submitted
    that the complainant, driven by her desire to get sole custody of the children
    and relocate to British Columbia, fabricated the allegations.

[30]

Trial
    counsel argued that the timing of the complainants allegations established her
    motive. The allegations of January 26, 2007 were made about two weeks after the
    appellant had begun divorce proceedings and obtained the
ex parte
order preventing the complainant from taking their daughter out of the Waterloo
    region.  The complainant tested the waters with Chapman about how to get around
    the order, and then began to allege increasingly serious misconduct by the
    appellant. When her motion of February 8, 2007 failed, she went to the police
    and falsely accused the appellant of the conduct that formed the basis of the
    prosecution. Her actions formed a neat, tidy, but prefabricated package.

the grounds of appeal

[31]

Setting
    aside for the moment, the grounds of appeal based on the proposed fresh
    evidence, the appellant advances three complaints about the adequacy of the
    trial judges reasons and his findings of fact:

i.        that
    the trial judge failed to consider the evidence of P.C.  Chapman as supportive
    of the defence position that the     complainants allegations were fabricated;

ii.       that
    the trial judges finding that the appellant was a         controlling person
    was unreasonable; and

iii.      that
    the trial judge erred in rejecting the appellants evidence.

[32]

Consideration
    of the grounds that depend on the admission of fresh evidence follows
    determination of the grounds advanced in connection with the trial judges
    findings of fact and the adequacy of his reasons for conviction.

The Grounds of Appeal Relating to the Reasons of
    the Trial Judge

Ground #1: Failure to Consider the Evidence of P.C.
    Chapman

[33]

The
    appellants first complaint faults the trial judge for failing to consider
    those parts of P.C. Chapmans testimony that supported the defence position
    that the complainant had fabricated the allegations of sexual assault.

The Background

[34]

P.C.
    Chapman was called as a witness for the defence. Over the objection of the
    Crown (that his evidence was irrelevant and hearsay), the trial judge admitted his
    testimony, apparently as proof of a prior inconsistent statement by the
    complainant.

[35]

P.C.
    Chapman testified that the complainant wanted permission to take her daughter
    outside the Waterloo region, even though a court order barred her from doing
    so.  She was concerned for her well-being. Chapman explained to her that she had
    to abide by the court order and that he had no authority to permit her to
    disobey it.

[36]

P.C.
    Chapman also recounted a series of allegations the complainant made against her
    husband, starting with verbal abuse, moving to emotional abuse and ultimately
    to an allegation of rape that resulted in her pregnancy. P.C. Chapman contacted
    the Major Case Branch of the police force when he heard the allegation of rape.

[37]

P.C.
    Chapman couldnt recall why he wrote in his notes that the complainant seemed
    very preoccupied about custody issues, although he did remember that she
    asked several questions about custody. The complainant told Chapman that she threatened
    the appellant that she would get him thrown in jail because they always
    believe the woman.

[38]

In
    cross-examination, P.C. Chapman agreed that the complainants preoccupation was
    with an impending custody hearing that was scheduled for February 8, 2007.

The Reasons of the Trial Judge

[39]

In
    his overview of the evidence adduced at trial and in his summary of the
    positions of the parties, the trial judge summarized the evidence of the
    complainant and P.C. Chapman about their discussion on January 27, 2007 and the
    defence position that the complainant had fabricated her allegations of sexual
    assault against the appellant to gain sole custody of their children.

[40]

In
    a later part of his reasons, The Analysis of the Law and Facts, the trial
    judge described his findings about the discussion between the complainant and P.C.
    Chapman.  He concluded:

I find that her conversation with Constable Chapman in the
    hotel the next day was as she described. The opinion of Constable Chapman with
    respect to Ms. [S.s] preoccupation with custody is simply that, i.e. his
    opinion, but even Constable Chapman acknowledged and accepted there was emotional
    upset to the point where he made arrangements to have Ms. [S.] moved to a
    shelter where she remained for a further two months. Further, the
    cross-examination of Ms. [S.] in my view is not inconsistent with the evidence
    of Constable Chapman in that regard.

The Arguments on Appeal

[41]

For
    the appellant, Mr. Lockyer submits that the trial judge discounted P.C.
    Chapmans conclusion that the complainant was preoccupied with custody issues
    without critical analysis and without any explanation for its rejection. He
    failed to deal with this evidence completely. And, he failed to recognize that,
    properly evaluated, the evidence was supportive of the appellants position and
    testimony. Further, the trial judge failed to even mention the complainants
    comment they always believe the woman, let alone assess its impact on the strength
    of her evidence.

[42]

For
    the respondent, Ms. Nakelsky says that the trial judge made no error in his
    evaluation of P.C. Chapmans evidence.

[43]

Ms.
    Nakelsky points out that trial counsel for the appellant adduced this evidence
    for a very limited purpose: to establish that the complainant had made a prior
    statement inconsistent with her trial testimony on the same subject matter.
    The trial judge expressly mentioned the evidence of P.C. Chapman, but, as he
    was entitled to do, rejected the defence position in support of which it was
    offered: that the complainant fabricated her evidence to gain sole custody of
    their children. The trial judge also assigned an appropriate place for the
    remark they always believe the woman.

The Governing Principles

[44]

This
    ground of appeal involves a challenge to the adequacy of the trial judges
    reasons as they relate to the evidence of P.C. Chapman.

[45]

Arguments
    of the kind advanced here require us to take a functional, substantive approach
    to the trial judges reasons, to read them as a whole, in the context of the
    evidence, arguments, and the live issues at trial, with an appreciation of the
    purposes or functions for which reasons are given. The reasons must establish a
    logical connection between the verdict and the basis upon which it was
    rendered:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16,
    35 and 55. The objective of reasons is to show why the judge reached his or her
    conclusion. This purpose is fulfilled when the reasons, read in context, show
    why the judge decided as she or he did:
R.E.M.
, at para. 17.

[46]

A
    trial judge is under no obligation to record and recite his or her findings on
    each and every item of evidence adduced at trial:
R.E.M.
, at para. 20.
     Where a case falls to be decided largely on determinations of credibility, we
    must consider the sufficiency of the reasons in the light of the deference
    afforded to trial judges on credibility findings. Only rarely will deficiencies
    in a trial judges credibility analysis warrant our intervention. That said,
    failure to sufficiently articulate how credibility concerns have been resolved
    may rise to the level of reversible error:
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 26;
R. v. Braich
, 2002 SCC 27, [2002] 1
    S.C.R. 903, at para. 23. The real issue is whether the reasons are so deficient
    as to preclude meaningful appellate review:
R. v. D. (J.J.R.)
(2006),
    215 C.C.C. (3d) 252 (Ont. C.A.), at para. 35.

The Principles Applied

[47]

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

[48]

First,
    the appellants complaint that the trial judge failed to consider P.C.
    Chapmans evidence about the complainants preoccupation with custody, is
    betrayed by a review of the reasons.

[49]

The
    trial judge considered and rejected P.C. Chapmans evidence that the
    complainant was very preoccupied with custody issues when they spoke on
    January 27, 2007. He rejected this evidence because it was an opinion proffered
    by Chapman about what motivated another person, who was for all practical
    purposes an emotionally overwrought, complete stranger fleeing from her spouse
    and seeking refuge in a shelter with her daughter, to complain about various
    kinds of abuse. Indeed, it is open to question whether P.C. Chapman was even
    entitled to express his opinion on the subject.

[50]

Second,
    the conclusion expressed by P.C. Chapman in examination-in-chief lacked an
    articulable foundation. He couldnt say specifically what prompted him to
    conclude as he did, apart from several questions the complainant asked about
    custody. The questions related to a court hearing about custody to take place
    about ten days later. Chapman believed that the complainant needed assistance
    and drove her to a shelter for abused women.

[51]

Third,
    the reasons of the trial judge not only provide a valid basis for his rejection
    of P.C. Chapmans evidence, but also an adequate foundation for meaningful
    appellate review. The failure of the trial judge to refer to the complainants comment
    to Chapman, that she had told her husband they always believe the woman,
    affords no basis for us to interfere.

Ground #2:
    Unreasonable finding that the appellant was a controlling person

[52]

The
    appellant contends that there was no evidentiary basis to support the trial judges
    finding that the appellant was a controlling individual. The finding was
    therefore unreasonable.

The Background

[53]

The
    complainant testified at trial that the appellant was a very controlling,
    jealous and insecure person throughout most of their marriage. The appellant
    denied this characterization.

[54]

The
    complainant explained that the appellant would accuse her of having an
    extra-marital affair if she returned home late after work or threw tissues in
    the garbage. When the appellant returned home from a trip to India, he forced the
    complainant to have sexual intercourse with him to prove that she had not
    been unfaithful in his absence.

The Reasons of the Trial Judge

[55]

In
    his evidentiary overview, the trial judge referred to the complainants
    description of the appellant as very controlling, very jealous and very
    insecure, but made no definitive finding in this respect.

[56]

Later
    in his reasons, the trial judge noted three concerns about the appellants
    evidence.  Among the concerns was this:

(3)  Mr. [S.] states that he moved upstairs on October the 2
nd
,
    2006 and then obtained an
ex parte
order against the wife on January
    the 10
th
, 2007 with respect to his alleged concerns about her
    removing herself from the province. None of the material in support of that order
    is in front of the court but given the fact that Ms. [S.] was continuing to
    live in the basement with her one child, was seven months pregnant and quite
    readily available one can only wonder why she was not given notice with respect
    to that particular application. She had in fact lived in the basement since
    October the 2
nd
on all of the evidence on her own with the child.
    In any event, the obtaining of the order as well as the conduct during the
    course of the meeting after in the parking lot where a note was demanded are in
    my view consistent with the controlling nature of Mr. [S.] as testified to by
    Ms. [S.] in her evidence in-chief.

[57]

Despite
    the concerns he identified about the appellants evidence, the trial judge was
    not prepared to reject the appellants testimony viewed on its own.  The
    trial judge concluded:

Notwithstanding such concern about Mr. [S.s] evidence the
    court, while not in a position to accept his evidence, would not be on its own
    in a position to reject it outright.

The Arguments on Appeal

[58]

For
    the appellant, Mr. Lockyer acknowledges that, as the trier of fact, the trial
    judge was entitled to draw inferences from the evidence adduced at trial.  But
    inferences are permissible only if they can be reasonably and logically drawn
    from the evidence adduced at trial. Inferences that do not follow reasonably
    and logically from the evidence adduced at trial are impermissible. They are not
    inferences at all, rather condemned as conjecture and speculation. That, Mr.
    Lockyer says, is what happened here.

[59]

Mr.
    Lockyer submits that the two incidents identified by the trial judge, obtaining
    the
ex parte
order and requiring a receipt for surrendered property,
    considered alone or together, are incapable of sustaining the inference that
    the appellant was a controlling individual as the complainant claimed. The
ex
    parte
order was sought and obtained by counsel. It imposed an obligation
    on the moving party  to make full, fair and frank disclosure of all material
    facts. And, it was granted by a judge.  Similarly, the requirement of a receipt
    for surrendered property occurred in the context of family law litigation.

[60]

For
    the respondent, Ms. Nakelsky says that, alone or in combination, both events
    were factors the trial judge was entitled to consider in assessing the
    credibility of the appellant and the reliability of his evidence. The trial
    judge considered neither event dispositive, only a factor in assessing the
    appellants evidence.  Neither caused the trial judge to reject the appellants
    testimony.

The Governing Principles

[61]

Two
    principles warrant brief mention.

[62]

A
    trier of fact may draw inferences of fact from evidence adduced at trial. An
    inference is a deduction of fact that may be logically and reasonably  drawn
    from another fact or group of facts established in the proceedings.  Absent an
    objective evidentiary basis from which to infer the facts a party seeks to
    establish, no inference is  available, only impermissible speculation and
    conjecture:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at
    p. 209.

[63]

The
    obligation on applicants for
ex parte
orders is to make full, fair and
    frank disclosure of all material facts:
R. v. Araujo
, 2000 SCC 65, [2000]
    2 S.C.R. 992, at para. 46.

The Principles Applied

[64]

Despite
    what I regard as a finding contaminated by legal error, I would not set aside
    the appellants conviction on this ground.

[65]

The
    trial judge inferred that the appellant was a controlling person, as the
    complainant had described him, on the basis of two events that occurred after
    matrimonial litigation had begun between them. When both events occurred, the
    appellant was represented by counsel.  Absent any evidence to the contrary, it
    is reasonable to infer that counsel decided to move
ex parte
for an
    order to prohibit the complainant from removing their daughter from the Waterloo
    region. Nothing in the evidence adduced at trial could support the inference
    that the order was granted on any basis other than full, fair and frank
    disclosure of all material facts. Likewise, it scarcely seems remarkable, that
    during litigation, one party would insist on a written acknowledgement of
    delivery of property to, or receipt of property by, another.

[66]

Whether
    considered individually or together, the two findings crossed the boundary from
    permissible inference to impermissible speculation, and thus reflect legal
    error.

[67]

But
    in the end, the error did not taint the trial judges conclusion that the
    appellants guilt had been proven beyond a reasonable doubt. The trial judge
    did not reject the appellants denials on this basis. He expressly found that
    his itemized concerns about the appellants testimony were not sufficient to
    warrant a rejection of his evidence when it is viewed on its own. His
    rejection of the appellants account was based on a considered and reasoned acceptance
    beyond a reasonable doubt of the truth of the complainants conflicting
    credible evidence.  Such a course was open to the trial judge:
D. (J.J.R.)
,
    at para. 53.

[68]

This
    ground of appeal fails.

Ground #3: Unexplained Rejection of Appellants
    Testimony

[69]

The
    final error upon which the appellant relies is the trial judges failure to
    adequately explain why he rejected the appellants testimony. This ground of
    appeal requires some reference to the trial judges reasons, but no repetition
    of the appellants sworn denials of the complainants allegations.

The Reasons of the Trial Judge

[70]

The
    trial judge organized his reasons under several headings. He began with an
    overview of the evidence adduced at trial, then summarized the positions of the
    parties as advanced by counsel. He concluded his reasons with an analysis of
    the governing legal principles and his crucial findings of fact, including his
    findings on credibility.

[71]

The
    trial judge made it clear that, although he had several specific concerns
    about the appellants version of events, he was not prepared to reject it on
    its own. The trial judge found the appellants guilt was established on the
    basis of the overwhelming force of the complainants testimony.

The Arguments on Appeal

[72]

For
    the appellant, Mr. Lockyer says that the trial judge provided no basis for his
    rejection of the appellants evidence, other than his acceptance of the
    testimony of the complainant. The trial judge did not properly evaluate the
    appellants testimony in the context of the evidence as a whole. He made no
    negative findings about the appellants demeanour or the manner in which he
    testified, nor did he describe the appellant as evasive or dishonest. His
    reasons are conclusory, not reasoned, and provide no basis for meaningful
    appellate review.

[73]

Ms.
    Nakelsky, for the respondent, contends that the trial judge was entitled to
    reject the appellants denials on the basis of his considered acceptance of the
    complainants compelling version of events. He recited and applied the analysis
    described in
W. (D.)
and rejected the defence position that the
    complainant had fabricated her evidence to advance her case for sole custody in
    the family law proceedings.

[74]

Ms.
    Nakelsky points out that the trial judge itemized several concerns about the
    appellants testimony, including the generality of his denials, the
    inconsistency in his responses about anal intercourse, the absence of any real
    explanation for the arrival of the police on January 26, 2007, and his asserted
    fear of the complainants flight from the jurisdiction when she was living in
    the basement of his parents home. The trial judge rejected the appellants
    version because of the compelling nature of the complainants evidence.  It was
    a finding that was legally available and well documented in his reasons.

The Governing Principles

[75]

The
    complaint here warrants brief reference to several principles.

[76]

First,
    on a review of reasons for sufficiency, we start from a deferential stance
    towards the trial judges perceptions of the facts. He was there.  We were not.
    He was in the best position to determine issues of fact, including, but not limited
    to, credibility. In the absence of evidence to the contrary, we must also
    presume that the trial judge knows the governing legal principles:
R.E.M.
,
    at para. 54.

[77]

Second,
    when a complaint is made about the adequacy of a trial judges reasons, we must
    determine whether those reasons, considered in the context of the evidence
    adduced at trial, the live issues that emerged at trial, and the submissions of
    counsel, deprived the appellant of meaningful appellate review:
R.E.M.
,
    at para. 57;
D. (J.J.R)
, at para. 35; and
R. v. Gagon
, 2006
    SCC 17, [2006] 1 S.C.R. 621, at para. 14.

[78]

Third,
    any inquiry into the sufficiency of reasons must be directed at whether the reasons
    respond to the live issues in the case. The truthfulness of the principals was at
    the forefront of this case. What we must ask and determine is whether the trial
    judges reasons seized the substance of the critical issues at trial:
Dinardo
,
    at para. 31; and
R.E.M.
, at para. 55.

[79]

Fourth,
    as a matter of law, reasoned acceptance of a complainants evidence is a basis
    upon which a trial judge can reject the evidence of an accused and find guilt
    proven beyond a reasonable doubt. A reasoned and considered acceptance of the
    complainants evidence is as much an explanation for rejecting the contrary
    evidence of an accused as are problems inherent in an accuseds own testimony:
D.
    (J.J.R.)
, at para. 54.

[80]

Finally,
    where the alleged inadequacy or insufficiency has to do with findings on
    credibility, we must be mindful that such findings are notoriously difficult to
    articulate:
Dinardo
, at para. 23; and
R.E.M.
, at paras.
    50-51.

The Principles Applied

[81]

This
    allegation of error does not carry the day for the appellant. At bottom, the
    reasons of the trial judge for rejecting the appellants denials permit meaningful
    review by this court.

[82]

The
    trial judge approached his task mindful of the governing legal principles. His
    reasons do not betray his fidelity to, and unerring application of, those
    principles.

[83]

The
    trial judge gave careful consideration to the appellants testimony. He
    considered first whether there were any problems inherent in the appellants
    evidence that warranted its rejection. He expressed several concerns about
    the appellants testimony, but was not prepared to reject it on those bases.

[84]

In
    the end, the trial judge found the appellants guilt established on the basis of
    his considered and reasoned acceptance beyond a reasonable doubt of the
    complainants evidence. He was entitled to do so:
D. (J.J.R.)
, at
    para. 53.  He explained why he rejected the defence claim that the complainant
    had fabricated her evidence to gain sole custody of the children of the
    marriage.

[85]

The
    reasons of the trial judge were responsive to the live issues in the case as
    raised by the parties and furnished an adequate explanation for the findings of
    fact he made. The trial judge was under no obligation to turn over every
    evidentiary leaf.

[86]

This
    ground of appeal fails.

The fresh evidence grounds

[87]

The
    principal basis upon which the appellant seeks a new trial depends upon the
    outcome of his application to introduce fresh evidence on the hearing of the
    appeal. The evidence proposed for admission comes from different sources: the
    appellant and his three sisters; the complainant; undisclosed police reports
    and notes; and the appellants counsel at trial.

[88]

To
    facilitate discussion, the proposed fresh evidence may be collected under two
    headings:

·

Post-conviction events

·

Undisclosed evidence

The Post-Conviction Events

[89]

On
    this appeal, the appellant seeks to adduce evidence of the complainants
    conduct after his conviction and sentencing. This evidence, which consists of
    the complainants allegations that the appellant sexually interfered with their
    older daughter and the complainants conduct in the ongoing family law
    proceedings, is offered to impeach her trial testimony and therefore the
    reliability of the verdict  based on that testimony.

The Allegations of Sexual Interference

[90]

On
    June 25, 2008, two days after the appellants conviction, the complainant
    contacted Family and Childrens Services to report her suspicions that the
    appellant had sexually interfered with their daughter, E.S. The allegations
    were based on observations made and reported to the complainant by staff at the
    childs daycare who had observed blood in her diapers and inflammation or
    irritation of her vaginal area. A medical examination of E.S. revealed the symptoms
    were caused by constipation and labia fusion, a common and benign condition of
    children of similar age.

[91]

Family
    and Childrens Services closed their file the same day the complainant made the
    report. The complainant did not contact the police about her allegations.

[92]

About
    three and one-half months later, within a week of the appellants sentencing
    and two days before his application for release pending appeal, the complainant
    called the police to report different allegations about E.S. This time the
    allegations were that E.S. was making inappropriate references to her own
    genitalia, as well as to those of the appellant, when she saw various unrelated
    images in books.

[93]

Police
    and Family and Childrens Services workers tried to interview E.S. shortly
    after receiving the complaint about E.S.s conduct.  Due to E.S.s emotional
    state and developmental delays in her speech, the interviewers were unable to
    determine whether E.S. had been abused. Police investigators considered abuse
    highly unlikely. During this period, the complainant ignored emails from the
    appellants sisters, who sought to make arrangements for the appellant to have
    his court-ordered access with E.S.

[94]

Family
    and Childrens Services telephoned the appellant to tell him about the
    allegations. He denied any impropriety but agreed with their suggestion about
    management of future visits.

The Family Law Proceedings

[95]

About
    three weeks after the appellant had been sentenced and while he was on bail
    pending appeal, the complainant brought a motion in the family law proceedings
    for an order terminating the appellants access to both children, permitting
    her to take the children out of the Waterloo region for cultural events and
    family visits in Peel region and Toronto, and seeking the involvement of the
    Childrens Lawyer.

[96]

In
    her supportive affidavit, the complainant expressed fear for the safety of herself
    and the children. She repeated her allegations of sexual interference (omitting
    reference to the refusal of the police or Family and Childrens Services to
    take proceedings) and claimed that the appellant had repeatedly breached court
    orders requiring her consent to take the children out of the Waterloo region.

[97]

On
    December 8, 2008, a judge of the Superior Court of Justice dismissed the
    complainants application in its entirety and granted the appellant the
    equivalent access to his younger daughter.  With the consent of the other
    parent, either party could remove either child from Waterloo region for trips
    and vacations. The complainant denied access to either child pending her motion
    for leave to appeal from the order of December 8, 2008.  When leave to appeal
    was refused on December 24, 2008, regular access resumed.

[98]

The
    Childrens Lawyer refused to become involved in the family law proceedings.

The Undisclosed Evidence

[99]

Prior
    to the appeal being listed for hearing, Ms. Nakelsky disclosed  police reports
    and related notes about two incidents in which police were called to the
    residence occupied by the complainant and the appellant.  The complainant made
    both calls and gave evidence about both events at trial.

The Kick: July 14, 2005

[100]

The complainant
    called the police on July 14, 2005.  She complained that the appellant had
    kicked at her head, but had struck her arm because of her reaction to the
    anticipated blow.

[101]

The newly
    disclosed material consists of the notes and reports prepared by P.C. Bairos
    and P.C. Nahrgang, the two officers who responded to the 911 call. Each
    concluded that there had been a verbal argument but no actual assault, only a
    pretend kick.  No charges resulted.

[102]

In his report,
    P.C. Bairos noted that the complainant only called police so that if they do
    break up, there will be something on file for court orders to have custody of
    the child. No similar note appears in P.C. Nahrgangs notes or report.

[103]

In her
    cross-examination, the complainant denied that she was thinking of custody of
    her daughter when she called 911. She said that she either didnt make or
    couldnt remember making the remark attributed to her by P.C. Bairos.

The Door: January 26, 2007

[104]

Around 11:30
    p.m. on January 26, 2007, P.C. Yeowell responded to the complainants 911
    call.  The complainant told the officer that she called police because she was
    afraid the appellant was going to knock down the door to her basement
    apartment.  The complainant did not allege any assault or threat.  She told the
    officer that she was leaving with her daughter to go to a hotel for the night, and
    would then move out permanently.

[105]

P.C. Yeowell
    noted that the complainant was aware that she could not leave the city with her
    daughter or withhold the child.  He added custody battle beginning.

[106]

In
    cross-examination in this court, the complainant was equivocal about whether
    she had said anything about child custody to the police: I dont think so. I
    dont know.  If they say that I did, then I may have.  I dont know.

The Evidence of Trial Counsel

[107]

Trial counsel
    for the appellant filed an affidavit to be considered on the ground of appeal
    relating to failed disclosure.  The trial Crown had provided him with a DVD and
    transcript of the police interview of the complainant. He did not ask for any
    further statements or reports about either incident, although both had been
    described in the complainants statement to police.  He had no reason to think that
    the complainant would have told the responding officers anything different than
    what she said about the incidents at trial.

[108]

Trial counsel, a
    practitioner of three decades experience largely as defence counsel in criminal
    cases, objected to the relevance and admissibility of evidence about the kick
    incident and chose not to cross-examine the complainant about it.  He did
    cross-examine the complainant on the substance of P.C. Chapmans notes.

The Arguments on Appeal

[109]

For the
    appellant, Mr. Lockyer submits that the fresh evidence should be admitted and a
    new trial ordered on the basis that this evidence demonstrates the
    unreliability of the conviction and the unfairness of the trial proceedings
    that led to it.  The proposed evidence is admissible, cogent and either could
    not have been obtained by the exercise of due diligence at trial or should not
    be rejected on this ground.

[110]

Taking first the
    evidence about post-conviction events, Mr. Lockyer says this evidence relates
    to a potentially decisive issue at trial, the credibility of the complainant,
    in particular, the truth of her denial of the motive to fabricate.  The
    evidence demonstrates a course of conduct, beginning as early as 2005, that calls
    into question her denial of a motive to fabricate, and thus the reliability of
    a conviction grounded substantially on the absence of such a motive. The fresh
    evidence has both impeachment and substantive value.  It confirms the testimony
    of P.C. Chapman and is credible because it is put forward in affidavits filed
    in family law proceedings.

[111]

Mr. Lockyer
    submits that the undisclosed evidence fell within the prosecutors disclosure
    obligations and impaired the appellants right to make full answer and defence
    by limiting the basis upon which he could challenge the complainants denial of
    a motive to fabricate her evidence. The undisclosed evidence also affected the
    overall fairness of the trial because it foreclosed lines of inquiry that
    should have been open to the appellant. The appellant, Mr. Lockyer says, has
    demonstrated that there is a reasonable possibility that the non-disclosure affected
    the outcome or the overall fairness of the trial, thus he is entitled to a new
    trial.

[112]

For the
    respondent, Ms. Nakelsky submits that the proposed fresh evidence concerning
    subsequent events should not be received.  It founders, she says, on the grounds
    of relevance and cogency. This evidence, she argues, does not bear on a
    decisive issue, is not reasonably capable of belief and could not, when taken
    with the rest of the evidence adduced at trial, have reasonably affected the
    result. In the end, the complainant maintained the position she adopted at
    trial and did not waver from her denial that she was fabricating her evidence
    in an attempt to get sole custody of the children.

[113]

In connection
    with the undisclosed police reports and notes, Ms. Nakelsky acknowledges that
    the materials fall within the Crowns
Stinchcombe
disclosure
    obligations, but denies that their non-disclosure impaired the appellants
    ability to make full answer and defence. Counsel for the appellant was aware of
    the nature of the allegations, their investigation by the police and the
    inevitability of police notes and reports about each incident.  He underlined
    the references in the complainants statement, decided that one was irrelevant
    and chose not to seek further disclosure in connection with the other. The
    narrative aspects of the notes or reports are not properly admissible.  But
    more importantly, none of the undisclosed material had any effect on the
    decision to convict or impaired trial fairness.

The Governing Principles

[114]

Appellate courts have the broad discretion to receive
    further evidence on appeal when the court considers it in the interest of
    justice to do so. This statutory discretion involves a context-sensitive
    inquiry into all the circumstances of the case:
Truscott (Re),
2007
    ONCA 575, 225 C.C.C. (3d) 321, at para. 81;
R. v. Snyder
, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44. In
    the exercise of this discretion, we are bound to take cognizance not only of
    the appellants interests in fully pursuing his appellate remedies, but also of
    the broader long-term interests of the administration of justice:
Snyder
, at para. 44.

[115]

The exercise of our
    statutory discretion to receive further evidence on appeal requires an answer
    to three questions:

i.        Is the proffered evidence admissible under
    the rules of evidence applicable to criminal trials? [the admissibility
    requirement]

ii.       Is the evidence sufficiently cogent that it
    could reasonably be expected to have affected the verdict? [the cogency
    requirement]

iii.      What is the explanation offered for the
    failure to produce the evidence at trial and how should that explanation affect
    its admissibility on appeal? [the due diligence inquiry]

Snyder
,
    at para. 45;
Truscott
,
    at para. 92. See also,
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775.

[116]

Evidence
    tendered for reception on appeal may impeach the reliability of a verdict
    reached at trial in different ways.  It may cast doubt on a theory of liability
    advanced by the Crown, impeach the credibility of a crucial Crown witness or
    the reliability of his or her testimony, or diminish the confirmatory potential
    of evidence advanced as supportive of the testimony of a
Vetrovec
witness:
R. v. Hurley
, 2010 SCC 18, [2010] 1 S.C.R. 637, at paras. 17-19.

[117]

The cogency
    requirement directs an appellate court to weigh, to some extent, the potential
    probative value of the proposed evidence.  Of necessity this weighing must be
    contextual, taking into account the evidence adduced and the positions advanced
    at trial:
R. v. Reeve
, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras.
    72;
Truscott
, at para. 100.

[118]

The cogency
    criterion  requires an appellate court to ask three questions:

·

Is the evidence relevant in that it bears upon a decisive or
    potentially decisive issue at trial?

·

Is the evidence credible in that it is reasonably capable of
    belief?

·

Is the evidence sufficiently probative that it could reasonably,
    when taken with the other evidence adduced at trial, be expected to have
    affected the result?

Truscott
, at para. 99.

[119]

In the end,
    evidence proposed for admission on appeal targets the reliability of the
    verdict reached at trial.

[120]

Sometimes, the
    fresh evidence takes aim at a finding of fact that was material to the ultimate
    finding of guilt. By producing evidence that the appellant argues would remove
    or render unreliable one of the factual underpinnings of the trial verdict, the
    reliability of that verdict is called into question:
Truscott
, at
    para. 82.

[121]

At other times,
    the further evidence is not concerned with relitigation of factual findings
    made at trial. Instead, this evidence assails the fairness of the trial process
    itself - the process that produced the unfavourable findings.  The verdict is
    unreliable because something that happened at trial, materially interfered with
    the appellants right to make full answer and defence. An unreliable verdict
    produced by a fatally flawed process causes a miscarriage of justice:
Truscott
,
    at para. 85.

[122]

The admission of
    evidence on appeal of facts that were litigated at trial is exceptional:
Snyder
,
    at para. 44.

[123]

Where the
    evidence proposed for admission on appeal has to do with information that was
    not disclosed prior to trial, an appellant must first establish that the
    undisclosed information meets the
Stinchcombe
threshold.  Satisfaction
    of this burden establishes a breach of the appellants constitutional right to
    disclosure:
R. v. Dixon
, [1998] 1 S.C.R. 244, at para. 31.

[124]

Provided the
    undisclosed information satisfies the
Stinchcombe
threshold, the
    appellant must next establish that the failure to disclose impaired the
    appellants right to make full answer and defence. The standard of proof
    required is proof on a balance of probabilities:
Dixon
, at para. 33.

[125]

Where an
    appellant seeks a new trial as a result of the impairment of his or her right
    to make full answer and defence because of a violation of his or her right to
    disclosure, he or she must persuade the appellate court of the reasonable
    possibility that the non-disclosure affected either the outcome or the overall
    fairness of the trial process:
Dixon
, at para. 35.

[126]

To assess the
    reliability of the trial result, we must consider the impact the undisclosed
    information might have had on the decision to convict:
Dixon
, at para.
    36.  The issue is not whether the undisclosed information
would
have
    made a difference in the trial outcome, but rather whether it
could
have made a difference:
R. v. Illes
, 2008 SCC 57, [2008] 3 S.C.R. 134,
    at para. 25.  To be more specific, we must decide whether there is a reasonable
    possibility that the undisclosed evidence could have created a reasonable doubt
    in the mind of the trier of fact:
Illes
, at para. 25;
R. v.
    Taillefer
, 2003 S.C.C. 70, [2003] 3 S.C.R. 307, at para. 82.

[127]

To assess the
    impact of the undisclosed evidence on the overall fairness of the trial, we
    must assess whether the appellant has shown a reasonable possibility that the
    overall fairness of the trial was impaired by the failure to disclose. This
    inquiry examines not only the content of the undisclosed information, but also
    the
realistic
opportunities to use the undisclosed information for
    purposes of investigation or gathering other evidence:
Dixon
, at para.
    36. A relevant consideration is the diligence of trial counsels pursuit:
Dixon
,
    at paras. 37 and 38; and
R. v. McAnespie
, [1993] 4 S.C.R. 501, at pp.
    502-503.

[128]

Also worth
    mention in the circumstances of this case is our obligation not to examine the
    undisclosed information, item by item, to assess its probative value, but
    rather to reconstruct the overall evidentiary tableau that would have been
    presented to the trier of fact had it not been for the trial Crowns failure to
    disclose the relevant evidence:
Taillefer
, at para. 82;
Illes
,
    at para. 26.

[129]

An appellant can
    discharge the burden of establishing a reasonable possibility that a failure to
    disclose impaired the overall fairness of the trial process by showing that the
    undisclosed evidence could have been used to impeach the credibility of a
    witness for the Crown, or could have helped the defence in its pre-trial
    investigations and preparations, or in its tactical decisions made at trial:
Taillefer
,
    at para. 84.;
Illes
, at para. 27; and
R. v. Skinner
, [1998] 1
    S.C.R. 298, at para. 12.

The Principles Applied

[130]

For reasons that
    I will develop, I would admit the fresh evidence and order a new trial on the
    information.

[131]

In this case,
    the evidence proposed for admission attacks the reliability of the guilty
    verdict rendered at trial and the fairness of the trial proceedings that
    resulted in that verdict.

[132]

The overarching
    principle that controls the admission of all evidence offered on appeal is the
    interests of justice in s. 683(1) of the
Criminal Code
:
Truscott
,
    at para. 81. Our obligation in this, as in every case, is a context-sensitive
    inquiry into the totality of the circumstances of the case. Our discretion to
    admit the evidence is informed by the criteria adumbrated in
Palmer
:
    admissibility, cogency and due diligence.  We cannot receive evidence that is
    not admissible under the usual rules of evidence that apply in criminal cases,
    nor evidence that is not sufficiently cogent to potentially affect the verdict:
Truscott
, at para. 93.

[133]

The principal
    purpose for which the proposed evidence is offered is its impeachment value, and
    not any substantive use.  It is offered to impeach the credibility of the
    witness on whose testimony the appellants conviction is grounded - a
    legitimate purpose for fresh evidence:
Hurley
, at para. 18.

[134]

The complainant
    portrayed herself at trial as someone who continued to love her husband and
    wanted him to remain a vital part of their childrens lives.  She denied
    fabricating her allegations in order to obtain sole custody of the children and
    leave the Waterloo region to return to British Columbia.  Among other things,
    the trial judge found that the complainant had no motive to make up her claims
    of unwanted sexual intercourse.

[135]

The evidence of
    the post-conviction conduct of the complainant includes steps taken and
    allegations made by the complainant immediately after the appellants
    conviction and sentence that amounted to allegations of sexual interference
    with the couples daughter, E.S.  She invoked the assistance of Family and
    Childrens Services and of the police.  Nothing substantiated her claims.
    Neither agency pursued them. The allegations surfaced contemporaneously with the
    complainants attempts in family law proceedings to get sole custody of, and
    terminate the appellants access to, the children.

[136]

The undisclosed
    evidence included police notes and occurrence reports about an alleged incident
    in 2005 as well as that of January 26, 2007. The nature of the earlier
    complaint differed from the complainants trial account of the incident.  More
    significantly, however, the complainant explained her motive for calling
    police: in the event of a marital breakup, there will be something on file for
    court orders to have custody of the child. To some extent the undisclosed
    notes about the incident on January 26, 2007 reveal a different account of the
    evenings events and the complainants inquiries about custody and removal.

[137]

In the end, I am
    satisfied that the proposed evidence is relevant and reasonably capable of
    belief to the extent required for impeachment purposes.  The trial judge faced
    a difficult task.  He did not reject the appellants denials out of hand,
    rather found guilt established because of the nature and extent of his belief
    of the complainant. An important component of that belief was the trial judges
    conclusion that the complainant had no motive or interest in fabricating her
    allegations.  The further evidence, including the undisclosed evidence, raises
    a reasonable possibility of a contrary conclusion had this evidence been
    available for impeachment use at trial.

CONCLUSION

[138]

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

Released: May 3, 2012 JL                          David
    Watt J.A.

I
    agree John Laskin J.A.

I
    agree Robert J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Vivian, 2012 ONCA
    324

DATE: 20120516

DOCKET: C53086 and C53303

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devon Vivian

Appellant

and

Anthony Grant

Appellant

Peter Copeland, for the appellant Devon Vivian

Michael Lacy, for the appellant Anthony Grant

Robert Gattrell, for the respondent

Heard: April 11, 2012

On appeal from the convictions entered on July 6, 2010 by
    Justice W. Brian Trafford of the Superior Court of Justice, sitting with a
    jury.

MacPherson J.A.:

A.

introduction

[1]

The appellants Devon Vivian and Anthony Grant were each charged with one
    count of first degree murder and four counts of attempted murder relating to a
    shooting in Toronto on June 9, 2007.  The trial proceeded in the Superior Court
    of Justice before Trafford J. sitting with a jury.  On July 6, 2010, the jury
    returned verdicts of guilty of first degree murder and guilty of four counts of
    attempted murder against both men.  The appellants were sentenced to life in
    prison without eligibility for parole for 25 years.

[2]

On these appeals, the appellants do not challenge anything about the
    seven-week trial up to the time the jury began its deliberations, including the
    trial judges
voir dire
and trial rulings and jury charge.
[1]

[3]

However, the appellants submit that the trial judge made two serious
    errors during the jury deliberations, which lasted six days.  First, the
    appellants submit that the trial judge erred in his third exhortation to the
    apparently deadlocked jury, specifically by misapprehending a question from a
    single juror and then improperly singling her out for critical commentary.
    Second, the appellant contends that the trial judge erred by summoning the same
    juror to the courtroom to advise her of a health concern relating to her
    husband.  The appellants contend that the summons introduced extraneous
    considerations into the jurors deliberations with the potential consequence of
    putting undue pressure on her to return a quick verdict of guilty.

B.

FACTS

(1)

The trial generally

[4]

In light of the grounds of appeal, it is only necessary to set out a
    brief description of the events leading to the murder charges against the
    appellants.

[5]

On June 9, 2007, a blue Honda Civic with five occupants was shot at 13
    times while driving on John Garland Boulevard in northwest Toronto.  Three of
    its passengers were wounded by the bullets while one passenger, Jose
    Hierro-Saez, was killed.  None of the surviving victims could identify who shot
    them.  However, several eyewitnesses stated that the perpetrators were driving
    a silver Mercedes sport utility vehicle (SUV).

[6]

Prior to the shooting, the victims group attended a nearby flea
    market.  While there, they got into an altercation with the appellants that was
    broken up by flea market security.  The appellants arrived at and departed from
    the flea market in a silver Mercedes SUV.  Moreover, cell phone records
    suggested that the appellants were in the vicinity of the crime scene at the
    time of the shooting.

[7]

A police investigation revealed that the appellant Grant was associated
    with a 1999 silver Mercedes SUV.  On June 10, 2007, the police issued a news
    release asking for the assistance of the public in locating a silver Mercedes
    SUV that may have been at the crime scene.  On June 12, 2007, both appellants
    flew to Jamaica.  On June 13, 2007, the silver Mercedes SUV was seen parked in
    an industrial area of Brampton but then disappeared and was not found
    thereafter.

[8]

The appellants did not return to Toronto on their scheduled return
    flight.  The lead police officer, Detective Daniel Sheppard, took steps to
    locate the appellants in Jamaica.

[9]

On August 26, 2007, Detective Sheppard received information that the
    appellant Grant was in police custody in Jamaica.  Detective Sheppard travelled
    to Jamaica to take custody of Grant and brought him back to Canada.

[10]

In
    April 2009, Detective Sheppard began to prepare a public appeal in Jamaica for
    information concerning the appellant Vivian.  On April 6, 2009, Detective
    Sheppard received information that Vivian had voluntarily surrendered to the
    Jamaican authorities.  Vivian was returned to Canada.

[11]

The
    appellants trial unfolded over about seven weeks, starting in the spring of
    2010.  After the rulings on the final
voir dires
were delivered, the
    accused were arraigned before the jury on May 31.  The Crown called its evidence;
    the defence called no evidence.  On June 29, counsel made their closing
    submissions.  On June 30, the trial judge delivered his charge to the jury,
    orally and in writing, and the jury began its deliberations.

(2)

Jury deliberations: June 30  July
    5, 2010

[12]

On
    the evening of July 3, the jury sent a note to the court:

We have come to an impasse on the
    issue of Devon Vivians hair, the testimony of Fazel Baksh, and the security
    video tape evidence.  We are unable to agree on this evidence being exculpatory
    or not, and there is no reasonable expectation of resolving this impasse.  We
    require your assistance and guidance on this matter.

[13]

In
    response, the trial judge, with the agreement of all counsel, delivered a
    standard exhortation, encouraging the jury to do their best to reach a verdict
    in accordance with their oaths.

[14]

In
    mid-afternoon on July 5, the jury sent another note to the court:

We have reached an impasse, we have made progress from a 9-3
    vote to a 11-1 vote yesterday.

We do not feel further discussion will
    change this result.  All jurors have reviewed their position multiple times.
    One juror has a question which is submitted separately.  We are awaiting
    further direction before proceeding.

[15]

In
    a separate note, juror No. 11 stated:

Your Honour

As you know from the foreman we are at an impasse.

In an effort to get past the impasse perhaps you could help me
    decide whether it is possible to be too objective, or to attach too much
    significance to presumption of innocence and to benefit of the doubt.

I.E. if I discount the presumption of innocence and give no
    benefit of the doubt and choose to apply a cultural aspect to activities that
    drove the situation and discount one witness account then it might be possible
    to feel something more than the present state of feeling that the Crown has
    only satisfied me that they could have done it.

I have agonized over this as I abhor the waste of the Courts
    time as well as the time and effort of my fellow jurors.

If your speaking to me would help (or even be possible) I would
    be very happy to do so.  I have reviewed your instructions in the binder and do
    believe I am following the directions.

Please note: these
    questions/concerns were put to the group and they felt you should hear them.

[16]

After
    an extensive discussion with counsel, both before and after drafting a
    potential response, the trial judge, with the agreement of all counsel, called
    the jury into the courtroom and re-read his original charge concerning
    impartiality and the presumption of innocence.

[17]

The
    trial judge, again with the concurrence of counsel, then made comments directed
    at the single jurors note:

[T]he third paragraph of the second
    note speaks of discounting the presumption of innocence, giving no benefit
    of the doubt and choos(ing) to apply a cultural aspect to activities that
    drove the situation.  All of these phrases are erroneous.  Do not discount the
    presumption of innocence.  The defendants are entitled to a
reasonable
doubt, not
any
doubt.  There is no evidence of any cultural factors
    that may be considered in your deliberations.  Limit your deliberations to the
    evidence in this case.      [Emphasis in original.]

[18]

The
    trial judge also told the jury not to be concerned about wasting the courts
    and fellow jurors time and resources if they failed to reach a verdict.  He
    concluded by, once again, giving a standard exhortation to the jury.

[19]

The
    jury resumed its deliberations at 5:55 p.m. and continued until court was
    adjourned at 7:00 p.m.

(3)

Jury deliberations: July 6, 2010

[20]

During
    the previous days of jury deliberations, the husband of juror No. 11 had sent
    various notes to his wife.  He also demanded to speak to her, but was not
    permitted to do so.  Court staff described him as rude and belligerent, calling
    court staff names and threatening to call the police.  The trial judge, with
    the agreement of counsel, decided not to bring his messages to the attention of
    juror No. 11 nor to interrupt the jury deliberations.

[21]

On
    July 6, the picture changed.  When court opened at 9:26 a.m., the trial judge
    informed counsel that juror 11s husband had called court staff to report that
    he was in a hospital with a cardiac condition and wanted his wife to come to
    the hospital.  Court staff turned the telephone over to the trial judge who
    spoke to the husband and some hospital staff members for about 10 minutes at
    about 8:30 a.m.  The trial judge said that the husband was agitated and angry
    and demanded that his wife be present at the hospital immediately.  The trial
    judge informed the husband that he would not release his wife from the jury
    without further information about his medical condition.  The trial judge also
    spoke to a nurse who said that she would ask the husbands treating physician
    to call the judge.

[22]

The
    trial judge then advised counsel that just as he was about to walk into the
    courtroom, he received a note from the jury stating:

After re-examination of our
    positions and a fresh discussion of the case, there is no reasonable
    expectation we will reach a unanimous verdict.

[23]

Immediately
    after bringing these developments to the attention of counsel, the trial judge
    said:

Now, let me say this.  I anticipated that today I would have
    another note from them saying that they are not able to resolve this case.  It
    was my expectation that they would be exhorted one more time to make an
    appropriate effort to resolve this difference.

This juror has not understood principles of reasonable
    doubt.  Thats clear from her note to the Court.  She has deliberated for six
    days under an incorrect understanding of what principles of reasonable doubt
    are.  It will take some time to disabuse her of that erroneous interpretation
    and cause her to fix on a correct interpretation of what she is supposed to be
    doing in this jury.
So my expectation was that it was going to take one
    more exhortation to make sure that she was fixed on a correct definition of
    principles of reasonable doubt, and could otherwise decide the case as she sees
    fit.

If I am satisfied that she has a correct understanding of those
    principles and she has applied herself diligently and chooses, as she is
    empowered to, to decline to reach a verdict, then I will declare a mistrial in
    this case, but I think it is premature to do that at this stage.  They were
    given the correct definition of reasonable doubt directed specifically at her
    last night at about 6:30 p.m.  They left at 7:00 p.m.  That gives them one-half
    hour to deliberate on the whole case with a correct understanding of those
    principles in mind.

They were back here at 9:30, thereabouts, and they had a note
    shortly afterwards.  Thats not a diligent application of the principles of
    reasonable doubt in the circumstances of the case that this supports, in my
    view, so they will be exhorted one more time at least.  I will not declare a
    mistrial at this stage in those circumstances, so the notes relating to her
    become a live issue at this stage.

My instinct is that she should be
    told what the situation is.  If her husbands life is seriously at risk, as it
    may be for all I know  I suspect it isnt, but it may be  she should know
    about it.  If it is her preference to leave and go to be with her husband, then
    we have to decide whether I should discharge her at this time.  [Emphasis
    added].

[24]

This
    disclosure by the trial judge of his initial instincts about both issues was
    followed by a brief discussion with all counsel.  All three counsel recommended
    that the trial judge not inform juror No. 11 of her husbands medical condition
    without better medical information.  The trial judge said that he would try to
    reach the husbands physician and that he would draft an exhortation that was
    more pointed than it has been for counsel to consider.

[25]

Court
    resumed at 11:25 a.m.  The trial judge reported that he had spoken to the
    husbands cardiologist who has been treating him for many years.  As described
    by the trial judge, the cardiologist reported that:

[The husband] has been in tears
    because his wife is not around him... this is a stress-related condition.  The
    presence of his wife would likely be helpful from a medical perspective.
    However, [the husband] is being properly cared for at the Trillium Health
    Centre.  He does not regard his life being at risk in these circumstances.

[26]

The
    trial judge then provided counsel with a draft copy of his proposed
    exhortation.  Both defence counsel strongly objected to it on the basis that
    the trial judge was wrong in saying that juror No. 11 did not understand the
    concept of reasonable doubt and wrong to instruct the other jurors to correct
    her misunderstanding.

[27]

The
    trial judge did not accept defence counsels objections or suggestions about
    possible wording of the exhortation.  The court recessed at 11:57 a.m. and
    reconvened at 12:07 p.m. with the jury present.  The trial judge provided this
    instruction and exhortation to the jury, which I set out in full:

Members of the jury, this morning around 9:30 a.m. I received a
    note from your foreperson advising me that you were still at an impasse and,
    further, that at this stage of the trial there is no reasonable prospect of a
    verdict.

This note is a troubling one for the Court, for several
    reasons.

First, you were exhorted last night in terms that I will not
    now repeat, to resume your deliberations in accordance with your oath or
    affirmation.  The exhortation was completed around 6:30 p.m.

Second, you advised the court staff that you would end your
    deliberations for the day at 7 p.m.  Im assuming that you did, thus deliberating
    for an additional 30 minutes on a case that took four weeks to present to you,
    with one additional day for the addresses of counsel and one additional day for
    the charge to the jury.

Third, your deliberations began this morning around 8:30 a.m.,
    meaning you deliberated for a further period of about 60 minutes on this case.
    So, in effect, you have deliberated for an additional 90 minutes after the last
    exhortation.  That additional 90 minutes is not acceptable to the Court.

It is not acceptable to the Court because the one juror who
    disagrees with the rest of you clearly had an incorrect understanding of the
    onus on the Crown to prove its case beyond a reasonable doubt.  She regarded
    the burden as proof beyond any doubt.

There is a huge difference between proof beyond a
    reasonable doubt and proof beyond any doubt.  Proof beyond a reasonable
    doubt, as previously given to you, involves reason and common sense in the
    context of the evidence as a whole.

If the burden on the Crown was to prove its case beyond
    any doubt, few, if any, people would be convicted of any crime, including
    serious crimes, where the case for the Crown is based upon circumstantial
    evidence, especially if you could consider any part of the evidence in
    isolation from the rest of it.  That is not the law of Canada, nor is it the
    law of any other free and democratic society like Canada.

This error by the one juror is so fundamental that in my
    view it can only be corrected by a comprehensive review of the entire case as a
    whole, not isolating any one part of it from the rest of it in deciding the
    value of the one part.

It is for this reason that it is my view that a further
    deliberation of about 90 minutes is not an appropriate response to the last
    exhortation by the Court.

It is important for the one juror, with the assistance of
    the rest of you, to disabuse her mind of her erroneous understanding of the
    burden on the Crown, to firmly fix her mind on a correct understanding of it,
    and to review the entire case.
It is
    of critical importance to the administration of justice that you do so with
    intelligence and integrity, honouring your oath of office, and respecting all
    of the legal principles and values at play in this case.  For these reasons,
    you will not be discharged now.

As I have said, my objective is not to convince you to change
    your minds, but rather to focus on your process in the deliberations.  Each of
    you must present your own view of the evidence to your fellow jurors. Ensure
    that everyones opinion has been duly considered.

While you may have already formed an opinion as to the proper
    verdict, I would ask that you still keep an open mind and carefully consider
    your colleagues viewpoints. However, in reconsidering your position, I remind
    you that, at the beginning of the trial each of you took an oath or affirmation
    to return a true verdict according to the evidence.

It is crucial that no one betray their oath or affirmation.
    Therefore, your verdict must be based on the evidence alone.
You must not
    allow yourselves to be influenced by any extraneous considerations, including
    any erroneous interpretation of the burden on the Crown to prove its case
    beyond a reasonable doubt.

The essence of the jury system is the process of reasoning
    together by exchanging views and deliberating with one another: depersonalize
    your deliberations; be polite and constructive in your exchanges with other
    jurors; listen carefully to the views of the others; make sure you understand the
    opinions of the others and the reasons they hold them; examine them
    thoughtfully and objectively; be reasonable.

Do not be intimidated by the task at hand. There is real
    strength in the collective wisdom of the 12 of you. Sometimes, the majority of
    the jurors is correct; sometimes, the majority of the jurors is incorrect.  I
    must emphasize that this does not mean that you should subordinate your own
    genuinely held view of the evidence for the sake of reaching a consensus. Cast
    aside your pride.

If you are satisfied you were incorrect, admit it and move on
    in your deliberations.  A unanimous verdict would be desirable, but you may be
    unable to reach one in this case. You are only required to make an honest and
    diligent effort to try the case to the best of your abilities, based upon a
    correct understanding of the burden of the Crown to prove its case beyond a
    reasonable doubt, not beyond any doubt.

Therefore, I would ask you try once again to reach a verdict.
    This is the time to reflect further on the evidence, to see if, by listening to
    each other, by carefully considering the various positions, and by reasoning
    together, you can come to an agreement and render a unanimous verdict.

Obey your own conscience and your oath or affirmation. If you
    want to ask any questions that further describes the nature of your stalemate,
    I will, with the assistance of counsel, be able to help you more.

Thank you.  [Emphasis added.]

[28]

Having
    heard this exhortation, the jury retired at 12:18 p.m.  The court recessed to
    await the jury verdict.

[29]

At
    3:25 p.m., the court reconvened and both defence counsel applied for a mistrial
    on,
inter alia
, the basis that the emphasized portion of the
    recharge/exhortation set out above was improper.  As expressed by Grants
    counsel in his submission on the application for a mistrial:

It is our position that your exhortation re-charge that was
    done earlier this morning, along with a specific criticism of one particular
    member, a particular member of the jury, was not proper, and, in effect, acted
    to suggest to the juror that she change her vote and find the accused guilty.

...

It is our position that your exhortation/re-charge advising the
    other jury members to act as a group to correct and disabuse her of her point
    of view and certain alleged understandings of the law was not proper.

...

And that the result of this
    exhortation, the way it was phrased to the jury, will be to place significant
    tremendous pressure, unfair pressure, on that jury member to change her mind.

[30]

Crown
    counsel requested a recess before responding to the mistrial application.  The
    court recessed at 4:12 p.m. and resumed at 5:56 p.m.

[31]

Upon
    resumption, the trial judge stated:

Further developments in relation to the juror; 5:08 tonight,
    her daughter called, and said she respects the court system.

The court officers that she has spoken to over the last few
    days have been helpful.  However, it is an emergency and her mother should come
    home immediately.  Asked what the emergency was, she responded that the whole
    situation is very stressful to the family, and it is affecting her fathers
    heart condition.  He is now in hospital and she needs to be home....  That was
    at 5:08 p.m.

At 5:15 p.m. the juror herself has
    approached the staff wanting to know if any of her family have contacted her
    and why she hasnt heard from them....

[32]

Both
    defence counsel took the position that there was no new medical information
    and, therefore, juror No. 11 should not be told about her husbands condition
    and behaviour.  Crown counsel submitted that the daughters communication
    changed the picture and that juror No. 11 should be apprised of her husbands
    situation.

[33]

The
    trial judge agreed with the Crown position.   All counsel agreed that the trial
    judge should be the person to inform juror No. 11 of the family situation, that
    the court reporter should be present and a record made, and that the
    conversation between the trial judge and the juror should take place
in
    camera
, outside the presence of the accused and all counsel.

[34]

At
    6:35 p.m., juror No. 11 met the trial judge in the courtroom.  He began by
    saying Your husband is fine and then reviewed all of the messages from her
    husband and family.  Juror No. 11 thanked the trial judge for the information,
    expressed confidence that the doctors and her daughters could handle the
    situation, voluntarily stated that she was fine and could continue to
    participate in the jury deliberations which were falling into place, and that
    the news about her husband is not going to affect the speed with which I
    address anything.  Juror No. 11 returned to the jury room at 7:02 p.m.

[35]

The
    trial judge summarized for counsel his meeting with juror No. 11.  Crown
    counsel then made submissions on the application for a mistrial.  Defence
    counsel made brief replies.  No counsel said anything about the trial judges
in
    camera
meeting with juror No. 11.  The trial judge reserved his decision
    on the application for a mistrial.

[36]

The
    court recessed at 7:32 p.m.  At 8:12 p.m., court resumed and the trial judge
    announced that the application for a mistrial was dismissed, with written
    reasons to be released in the near future.

[37]

The
    jury returned and rendered verdicts of guilty on all counts against both
    accused.

[38]

On
    July 9, 2010, the trial judge released his reasons for dismissing the
    application for a mistrial.  He said: I disagree with the characterization of
    the impugned exhortation, and the legal analysis of its significance advanced
    by the defence.... The exhortations by the Court were measured and appropriate
    in the circumstances of the case.

[39]

Both
    appellants appeal their convictions.  They do so on two grounds, both of which
    relate to the events described above that unfolded during the jury
    deliberations.

C.

Issues

[40]

The
    issues are:

(1) Did the trial judge
    deliver an improper recharge/exhortation to the jury on July 6, 2010?

(2) Did the trial judge err by
    summoning juror No. 11 to the courtroom to apprise her of her family situation
    on July 6, 2010?

D.

analysis

(1)

The third exhortation

[41]

The
    jury reported, for the third time, that it had reached an impasse on the
    morning of July 6, 2010, its sixth day of deliberations.

[42]

The
    first time the jury reported an impasse, on July 3, the trial judge, with the
    agreement of counsel, provided a standard exhortation.

[43]

The
    second time the jury reported an impasse, on July 5, the trial judge, again
    with the agreement of counsel, re-read his original charge concerning
    impartiality and the presumption of innocence.

[44]

The
    jurys second report of an impasse was coupled with the separate note from
    juror No. 11 that provided an insight into both her reasoning process and her
    current position, namely leaning towards an acquittal of the accused.  The
    trial judge and counsel worked together and agreed on an appropriate response
    to juror No. 11s note, including an instruction to the jury not to discount
    the presumption of innocence and not to apply cultural factors to their
    analysis.  As part of this instruction, the trial judge said: The defendants
    are entitled to a
reasonable
doubt, not
any
doubt.

[45]

The
    trial judges first two exhortations were exemplary.  They were careful,
    sensitive, general in the sense of being directed at all jurors, yet
    simultaneously responsive to the specific concerns of juror No. 11.  Defence
    counsel, properly, agreed with them at the time.  Appellate counsel, properly,
    do not challenge them.

[46]

When
    the jury reported an impasse for the third time, on July 6, they were in their
    sixth day of deliberations.  Obviously, this was a sensitive time, calling for
    the trial judge and counsel to continue to display the same focus and care they
    had brought to formulating a proper response to the two previous reports of
    impasse.  As explained by Cory J. in
R. v. R.M.G.
, [1996] 3 S.C.R. 362,
    at para. 15:

The importance and significance of
    the instructions or exhortation to an apparently deadlocked jury cannot be
    overemphasized. The jurors at this stage are tired, probably frustrated and
    certainly disgruntled. They have given so much of their time and laboured so
    hard with the difficult issues that they are entitled to a careful and balanced
    instruction.

[47]

The
    appellants contend that the trial judges third exhortation was not a careful
    and balanced instruction for two reasons: (1) it proceeded on the basis of a
    misconception that a single juror did not properly understand the principle of
    reasonable doubt; and (2) it improperly pitted the single juror against the
    majority.

[48]

I
    agree with both of these submissions.

[49]

On
    the first point, it is important to note that the trial judge did more than
    provide a third exhortation when the jury reported an impasse for the third
    time.  He also returned to juror No. 11s note from the previous day and
    expressly linked her misunderstanding, as he saw it, of reasonable doubt to the
    continuing impasse.  In doing this, the trial judge characterized juror No.
    11s question as indicating her belief that the burden of proof on the Crown
    was proof beyond any doubt.

[50]

With
    respect, there is nothing in juror No. 11s question to suggest such a belief
    on her part.  Although she used the words benefit of the doubt in her note,
    this does not mean that she was inserting the word any instead of
    reasonable in her thinking.  The trial judge had used the words reasonable
    doubt more than 100 times in his charge.  In her note, the juror said that she
    had reviewed the written charge in the binder, which was identical to the oral
    charge. Moreover, the contents of the note  if I discount the presumption of
    innocence and give no benefit of the doubt... then it might be possible to feel
    something more than the present state of feeling that the Crown has only
    satisfied me that they could have done it  suggest that the juror was aware
    of the relevant principles and was analyzing them in a proper context.

[51]

In
    addition, I observe that although the trial judge usually used the words
    reasonable doubt in his charge, in several places he employed the exact words
    used by juror No. 11 in her note, namely, benefit of the doubt.

[52]

Finally,
    and of particular importance, it needs to be recalled that in his second
    exhortation the trial judge specifically addressed juror No. 11s separate
    note.  In doing so, he said explicitly: The defendants are entitled to a
reasonable
doubt, not
any
doubt.  A fair inference is that juror No. 11, who had
    written a reasonably long note, would have listened carefully to the trial
    judges direct response to her question.

[53]

Nevertheless,
    the trial judge insisted that juror No. 11 continued to misapprehend the concept
    of reasonable doubt even after his second exhortation.  His insistence led him
    to conclude that the relatively short time of further deliberations signified
    that juror No. 11 still had an incorrect understanding of the Crowns onus.  He
    did not pause to consider that his second exhortation might have caused the
    short deliberation time.  Juror No. 11s note asked if she could discount the
    presumption of innocence [and] apply a cultural aspect to activities that
    drove the situation so that it might be possible [for her] to feel something
    more than the present state of feeling that the Crown has only satisfied [her]
    that they could have done it.  Having been told by the trial judge in the
    second exhortation that she was not to discount the presumption of innocence
    and that there was no evidence of any cultural factors that may be considered
    in [her] deliberations, a real possibility is that juror No. 11 maintained her
    opinion to acquit, leading to the continuing impasse.

[54]

For
    these reasons, I conclude that the trial judges immediate response to the
    jurys report of a continuing impasse on July 6  This juror has not
    understood principles of reasonable doubt.  Thats clear from her note to the
    Court.  She has deliberated for six days under an incorrect understanding of
    what principles of reasonable doubt are  was, with respect, incorrect.  The
    day before, the trial judge had responded properly, with the assistance of all
    counsel, to juror No. 11s note.  On July 6, over the strenuous and proper
    objections of both defence counsel, he misconceived juror No. 11s
    understanding of the law.

[55]

On
    the appellants second point, the starting point is Martin J.A.s caution in
R.
    v. Littlejohn
(1978), 41 C.C.C. (2d) 161 (Ont. C.A.), at p. 168:

The trial Judge equally must avoid
    the use of language which is likely to convey to a juror that, despite, his own
    doubts, genuinely entertained, he is, none the less, entitled to give way and
    agree with the majority of his colleagues in the interest of achieving
    unanimity.

[56]

In
    a similar vein, in
R.M.G.
at para. 40, Cory J. stated that it would
    be preferable for a trial judge to avoid putting the situation in confrontational
    terms of opposing sides.

[57]

With
    respect, I do not think that the trial judge heeded these cautions.  In his
    third exhortation, he said that further deliberations of only 90 minutes after
    the second exhortation are not acceptable because the one juror who disagrees
    with the rest of you clearly had an incorrect understanding of the onus on the
    Crown to prove its case beyond a reasonable doubt.  In his third exhortation,
    the trial judge went on to state that it was important for the one juror, with
    the assistance of the rest of you, to disabuse her mind of her erroneous
    understanding of the burden on the Crown, to firmly fix her mind on a correct
    understanding of it, and to review the entire case.

[58]

In
    my view, the likely interpretation of this by all members of the jury is fairly
    clear: juror No. 11 is wrong in her understanding of the crucial legal
    principle in this trial; the other jurors have a proper understanding of the
    principle; juror No. 11 must disabuse her mind of her error; and the other
    jurors should assist her in doing this.  Since the court knew from a previous
    note that the tentative vote was 11-1, with only juror No. 11 leaning towards
    acquittal, the language chosen by the trial judge in his third exhortation,
    read in a common sense way, did pit the majority and minority against each
    other.  The trial judge was saying, quite bluntly, that 11 jurors were right
    and juror No. 11 was wrong.

[59]

The
    Crown contends that, even if the components of the third exhortation discussed
    above were wrong, there were other elements of the exhortation and the
    surrounding context that offset the error.  The Crown argues, as Cory J. said
    in
R.M.G.
,
at para.
    50: Not every improper reference in an exhortation will lead to a new trial.  Instead,
    the exhortation must be viewed as a whole and in the context of the
    proceedings.

[60]

The
    Crown points out that the jury was given the correct legal test with respect to
    reasonable doubt throughout the jury charge and the various exhortations, that
    the jury continued its deliberations for about seven hours after the third
    exhortation before returning their verdicts, that the jury charge and the first
    two exhortations were exemplary, and that the words in the third exhortation
    after the impugned words  namely, a return to the words in the standard
    exhortation  cured the problem.  The Crown adds that, fortuitously, there was
    a meeting later that afternoon between the trial judge and juror No. 11 in
    which the juror said that she was fine, the jury deliberations were falling
    into place, and the news about her husband would not affect the speed with
    which I address anything.  The Crown submits that these factors, taken
    together, belie any suggestion that the challenged words in the exhortation,
    even if improper, actually affected the integrity of the jury deliberations.

[61]

I
    do not accept this submission.  The Crowns submission that later events go to
    show that juror No. 11 was not actually affected, even if accepted, misses the point.
    The question to be asked is not whether the words used by the trial judge
    actually affected the jurors decision; rather, the question is whether the
    words used had a real potential to do so.  In my view, they clearly did.  The
    singling out of juror No. 11, the misconception by the trial judge about her
    understanding of reasonable doubt, and the strong instruction to her to
    disabuse her mind do not constitute, in the language of
R.M.G.
, a
    careful and balanced instruction.  The trial judges error in the wording he
    chose in the third exhortation is simply too substantial to pass by.

[62]

For
    these reasons, I would allow the appeal on the first ground of appeal.

(2)

The meeting between the trial judge and juror No. 11

[63]

In
    light of my conclusion on the first ground of appeal, it is not necessary,
    strictly speaking, to consider the second ground of appeal.  However, because
    it was raised and argued, and in the interest of completeness, I will address
    it briefly.

[64]

The
    appellants submit that the trial judge erred by summoning juror No. 11 to the
    courtroom in the late afternoon of July 6, 2010 to apprise her of her family
    situation, namely, that her husband was in hospital with a potential cardiac
    issue.  I note, parenthetically, that the appellants do not suggest that the
    structure (
in camera
in the courtroom with the trial judge and a court
    reporter) or contents of the communication between the trial judge and juror
    No. 11 were inappropriate.  Indeed, all counsel agreed with these aspects of
    handling a tricky issue at a sensitive time.

[65]

I
    do not accept the appellants submission on this issue.  In my view, the trial
    judge handled this unusual issue well from start to finish.  He spoke to the
    family cardiac physician and was assured that the jurors husband was receiving
    good care and was not in any danger.  Accordingly, he decided not to inform
    juror No. 11 of her husbands situation.  However, many hours later, the
    message from one of the jurors daughters saying that there was now a family
    emergency, inclined him to a different view:

My sense is that this is an
    explosive situation at this stage from the familys perspective, and that it is
    a prudent step to advise her of everything at this stage.

[66]

I
    cannot say that it was unreasonable for the trial judge to exercise his
    discretion in this fashion.  Moreover, in a sense, the proof is in the pudding.
      The trial judge handled the conversation with juror No. 11, from his opening
    Your husband is fine to his assurance near the end This is not meant to put
    any pressure on you at all in impeccable fashion.  And juror No. 11 was
    grateful to receive the information, confident that her daughters could handle
    the situation, and completely content to stay on the jury.  Finally, after the
    trial judge reported to counsel the tone and content of his discussion with the
    juror, none of the counsel objected.

[67]

For
    these reasons, I would reject this ground of appeal.

E.

disposition

[68]

I
    would allow the appeals and order a new trial.

Released: May 16, 2012 (D.D.)

J.C. MacPherson J.A.

I agree Doherty J.A.

I agree Robert J. Sharpe
    J.A.

[1]
In their Amended Notices of Appeal and in their joint factum, both appellants
    submitted that the trial judge erred by failing to instruct the jury on the
    legal defence of provocation.  At the oral hearing of the appeals, the
    appellants abandoned this ground of appeal.