CITATION: R. v. Rowe, 2011 ONCA 753

DATE:  20111201

DOCKET: C51150

COURT OF APPEAL FOR ONTARIO

Doherty, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joacquin Rowe

Appellant

Joseph Wilkinson and Bradley Greenshields, for the appellant Andreea Baiasu, for the respondent

Heard:  October 19, 2011 On appeal from the conviction entered by a jury, presided over by Justice Horkins of the Superior Court of Justice, dated August 8, 2008 and the sentence imposed on March 17, 2009. Doherty J.A.:

I

[1]              The appellant was charged with five offences:

·        robbery while armed with a firearm;

·        assault with a weapon (pepper spray);

·        administering a noxious substance (pepper spray);

·        aggravated assault; and

·        unlawful confinement.

[2]              The jury convicted on all counts.  The trial judge imposed prison sentences totalling seven years, but credited the appellant with 490 days based on his 245 days in pre-trial custody.  The appellant appeals conviction and sentence.

[3]              The Crown’s case depended largely on the evidence of two witnesses who were facing the same charges as the appellant when they testified for the Crown at the appellant’s preliminary inquiry and again at his trial.  One of those witnesses, David Andrade, recanted his preliminary inquiry testimony and testified at trial that the appellant had nothing to do with the robbery.  The trial judge correctly told the jury that the inculpatory portions of Andrade’s preliminary inquiry testimony could be considered by the jury for the truth of their contents.  However, she erred in law in her instructions as to the manner in which the jury should assess and potentially use the inculpatory and exculpatory portions of Andrade’s testimony.  Those errors, in the circumstances of this case, require that the appeal be allowed, the convictions quashed, and a new trial ordered. 

 II

(a)   The victim’s evidence

[4]              On November 24, 2006, the victim, Abbas Al-Ali, and David Andrade had a telephone conversation about the possible sale to Andrade of two PlayStation III videogame consoles.  Andrade wanted Mr. Al-Ali to bring the consoles to his apartment.  Mr. Al-Ali was hesitant to do so, but eventually drove to the basement apartment on Shaw Street with his brother. 

[5]              Mr. Al-Ali and his brother went to the apartment, but returned to the car when Andrade was not available.  Andrade came to the car a short time later and after a brief discussion he and Mr. Al-Ali went back into the residence.  The brother remained in the car with the videogame consoles.

[6]              When Mr. Ali-Ali entered the apartment, he saw an older gentleman lying on the couch.  This person was introduced to Mr. Al-Ali as Andrade’s father.  In fact, it was Michael Acker, the tenant of the apartment.  A short time later, a black man wearing a bandana over his face and a cap approached Mr. Al-Ali and put a gun to his head.  The gunman moved behind Mr. Al-Ali, stuck the gun in his back and said, “[w]here is the fucking shit mother fucker?”

[7]              Mr. Al-Ali tried to leave the apartment but the door was closed.  A number of people, at least two in addition to the gunman, attacked him from behind.  He was pepper sprayed and temporarily blinded.  Mr. Al-Ali was struck several times.  He believed that the gunman hit him across the head with the butt of the pistol.  Mr. Al-Ali fell to the floor and pretended to be unconscious.  His attackers went through his pockets, stealing some change, his cell phone and his driver’s licence. 

[8]              The attack on Mr. Al-Ali subsided and he ran for the door.  A struggle ensued and Mr. Al-Ali was again hit on the head.  He managed to get out of the apartment and ran to his car.  He and his brother called the police and went to the hospital.  Mr. Al-Ali suffered significant head injuries.

[9]              Mr. Al-Ali could not identify the gunman or the other persons who attacked him. 

(b)  Acker’s evidence

[10]         The Crown alleged that the appellant was the gunman.  That allegation rested entirely on Michael Acker’s testimony. 

[11]         Acker lived in the apartment on Shaw Street.  He was 60 years old, had a lengthy criminal record and was addicted to alcohol and crack cocaine.  Acker was charged with robbery and other offences in connection with the attack on Mr. Al-Ali.  He was awaiting trial when he testified for the Crown both at the preliminary inquiry and at the appellant’s trial. 

[12]         According to Acker’s testimony, the appellant, Andrade, and a woman showed up unannounced at his apartment on November 24, 2006.  Acker knew the appellant because the appellant had visited a former roommate of his on several occasions.  Acker did not know Andrade or the woman.  Acker later picked the appellant out of a photo line-up.

[13]         When Andrade and the appellant arrived at Acker’s apartment, they explained that they were interested in buying some videogame consoles and reselling them on the Internet.  They wanted to use Acker’s apartment to make the purchases.  Andrade called a prospective seller (Mr. Al-Ali) from Acker’s apartment.  The appellant and Andrade asked Acker to speak to the person and identify himself as Andrade’s father.  Andrade and the appellant told Acker that the prospective seller would feel more comfortable about coming to the apartment if he thought an older person lived there.  Acker did as he was asked. 

[14]         Mr. Al-Ali arrived at the apartment shortly after the telephone conversation.  He left the apartment, but returned a few moments later.  Acker testified that he was lying on the couch and not paying much attention to the conversation between Mr. Al-Ali and Andrade.  He had consumed six beers earlier in the evening. 

[15]         Acker indicated that after Mr. Al-Ali returned to the apartment for a second time, the appellant, who was wearing a bandana over his face, put a gun to Mr. Al-Ali’s head.  Acker had seen the appellant showing the gun to his female companion in the apartment earlier that evening.

[16]         Acker testified that he became very frightened when he saw the appellant point the gun at Mr. Al-Ali.  A struggle ensued involving Mr. Al-Ali, the appellant and Andrade.  According to Acker, apart from himself and Mr. Al-Ali, the appellant and Andrade were the only other male persons in the apartment.  In the ensuing melee, someone used pepper spray.  Acker had difficulty breathing and eventually made his way to the kitchen.  He locked the door and remained in the kitchen. 

(c)  Andrade’s evidence

[17]         Like Acker, Andrade, who was 19, was charged with various offences arising out of the attack on Mr. Al-Ali and was awaiting trial when he testified for the Crown at the preliminary inquiry and at trial.  Andrade also had a criminal record. 

[18]         At trial, Andrade testified that he decided to rob Mr. Al-Ali.  He planned to offer Mr. Al-Ali a small amount of money for the videogame consoles and when Mr. Al-Ali rejected the offer, Andrade intended to “take them off him.”  To effect his plan, Andrade needed to get Mr. Al-Ali to come to the apartment.  He had Acker pose as his father, believing that this would give Mr. Al-Ali a false sense of security in going to the apartment.  Andrade also had the appellant accompany him to the apartment.  Andrade believed that if any trouble developed, the appellant would be available to help him. 

[19]         Andrade denied telling the appellant about his plan to rob Mr. Al-Ali.  He testified that the appellant had no idea of what was going to happen at the apartment and did not participate in any way in the robbery of Mr. Al-Ali.  According to Andrade, he was the only person who attacked Mr. Al-Ali.  He struck Mr. Al-Ali on the head with a teapot causing the injuries suffered by Mr. Al-Ali.  The appellant was standing against a nearby wall as this struggle unfolded.  Andrade testified that he did not use or have a firearm when he attacked and robbed Mr. Al-Ali.

[20]         Andrade’s trial testimony was inconsistent in several material respects with his preliminary inquiry testimony.  After cross-examining Andrade on those inconsistencies pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, the Crown successfully moved to have parts of Andrade’s preliminary inquiry testimony admitted for the truth of their contents under the principled exception to the rule excluding hearsay evidence. 

[21]         At the preliminary inquiry Andrade gave several answers that incriminated the appellant.  He resiled from that testimony at trial.  The potentially incriminatory parts of Andrade’s preliminary inquiry evidence included the following:

·        Andrade told the appellant of his intention to rob Mr. Al-Ali before Mr. Al-Ali arrived at the apartment;

·        Andrade told the appellant that he had asked Acker to pretend to be his father;

·        Andrade told the appellant he had mace that could be used, if necessary;

·        Andrade saw the appellant struggling with Mr. Al-Ali; and

·        After the pepper spray went off, Andrade fled upstairs leaving Mr. Al-Ali with the appellant.

[22]         Andrade did, however, testify at the preliminary inquiry, as he did at trial, that a gun was not used at any time during the robbery. 

(d)  The live issues at trial

[23]         The appellant did not testify. 

[24]         By the end of the evidence, it was common ground that Andrade had formed a plan to rob Mr. Al-Ali when he arrived at the apartment to sell the videogame consoles to Andrade.  It was accepted that Mr. Al-Ali was attacked and beaten in the apartment.  The defence also acknowledged that the appellant was present in the apartment with Andrade prior to and during the attack on Mr. Al-Ali.  Finally, while not conceded, Mr. Al-Ali’s evidence that his attackers went through his pockets while he was lying on the ground was not seriously disputed.  Setting aside the charges arising out of the use of pepper spray (counts 2 and 3), the jury had two essential issues to consider – did the appellant participate in the robbery and, if so, did he have possession of a firearm at that time?

[25]         In his closing submissions, counsel for the appellant argued at length that Acker’s testimony should be rejected as incredible.  He also argued that the jury should not rely on the extracts from Andrade’s preliminary inquiry that implicated the appellant.  Counsel submitted that, prior to the preliminary inquiry, Andrade was pressured by the police to implicate the appellant and was encouraged to use the disclosure material provided to him to supplement his actual recollection of the events.  Counsel also urged the jury to consider Andrade’s express admission in his trial testimony that he alone was responsible for the attack on Mr. Al-Ali.

III

[26]         Counsel for the appellant advanced numerous grounds of appeal.  Several focussed on the trial judge’s instructions concerning Andrade’s evidence.  By Andrade’s evidence, I mean both his trial testimony and the parts of his preliminary inquiry testimony admitted at trial for the truth of their contents. 

[27]         Counsel for the appellant argued that the trial judge should have drawn a clear distinction between the exculpatory portions of Andrade’s evidence (his trial testimony) and the inculpatory portions (his preliminary inquiry testimony) when giving the jury a “Vetrovec” instruction in relation to his evidence.  Counsel submitted that instead the trial judge effectively told the jury that it should approach all parts of Andrade’s evidence in the same way, and that it must look for confirmatory evidence of both the inculpatory and the exculpatory portions of Andrade’s evidence. 

[28]         In a closely related second submission, counsel contended that the trial judge failed to relate the presumption of innocence and the reasonable doubt standard of proof to Andrade’s exculpatory trial testimony.  They argued that the jury should have been expressly instructed that if Andrade’s trial evidence that he alone was involved in the robbery left the jury with a reasonable doubt as to the appellant’s guilt, the jury must acquit him. 

[29]         Counsel further contended that the trial judge erred in effectively instructing the jury that it should consider the preliminary inquiry testimony of Andrade and his trial testimony on the same footing.  Counsel submitted that the jury should have been alerted to the difficulty inherent in assessing the credibility of the preliminary inquiry testimony given that the jury did not see the witness give that evidence. 

[30]         Next, counsel argued that the trial judge unfairly summarized Andrade’s evidence.  They maintained that by focusing almost exclusively on the inconsistencies between Andrade’s trial testimony and his preliminary inquiry testimony, and by denigrating Andrade’s explanation for those inconsistencies, the trial judge put the weight of her office on the side of the Crown insofar as the assessment of Andrade’s evidence was concerned. 

[31]         Finally, counsel submitted that in setting out the evidence that could potentially confirm Andrade’s evidence, the trial judge left the jury with evidence that was peripheral and insignificant and could not, therefore, provide confirmatory evidence.  Counsel submitted that this error was compounded when the trial judge misstated a significant portion of Andrade’s testimony in setting out the potentially confirmatory evidence.  In her summary of the potentially confirmatory evidence, the trial judge told the jury that Andrade had testified that he saw a person with a gun.  The Crown concedes that Andrade gave no such evidence.  He denied seeing a gun both in his preliminary inquiry evidence and in his trial testimony.

IV

[32]         Andrade was clearly an unsavoury witness.  Part of his testimony, specifically the excerpts from his preliminary inquiry testimony, implicated the appellant.  Other parts of his testimony, specifically his evidence at trial, exculpated the appellant.  For the purpose of determining whether a Vetrovec instruction should be given, Andrade was what this court has come to refer to as a “a mixed witness”, that is, an unsavoury witness called by the Crown whose testimony in part supports the accused’s defence:  see R. v. Gelle, 2009 ONCA 262, 244 C.C.C. (3d) 129, at para. 16; R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 27-28; and R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, leave to appeal to S.C.C. requested [2011] S.C.C.A.  No. 270, at para. 215. 

[33]         The above-cited cases indicate that a Vetrovec caution will often be appropriate in respect of the testimony of a “mixed witness”.  The specifics of that caution and the format of the instruction are left very much in the discretion of the trial judge.  The jury instruction will be sufficient if, considered in its entirety, that instruction makes clear to the jury both that it is dangerous to rely on the inculpatory portion of the Vetrovec witness’s evidence without confirmatory support, and that the jury must acquit if the exculpatory portions of that witness’s evidence, alone or taken in combination with the rest of the evidence, leave the jury with a reasonable doubt.  In upholding an instruction directed at a witness much like Andrade, this court said in Tran, at para. 28:

The jury would have been aware of the conflicting statements made by these witnesses.  The evidence they gave at trial was essentially exculpatory while their pre-trial statements implicated the accused.  It would have been apparent to the jury that the trial judge’s Vetrovec warning amounted to an instruction to exercise considerable caution before convicting the appellants on the basis of the inculpatory evidence given by these witnesses and upon which the Crown relied.  The exculpatory evidence was simply the flip side of the same coin.  Reading the charge as a whole, I am entirely satisfied that the jury would have understood that if that “mixed” evidence left them with a reasonable doubt they would have to acquit the appellants.  [Emphasis added.]

[34]         Where, as in this case, the inculpatory portions of the witness’s testimony are easily demarcated from the exculpatory portions, the best course is to specifically refer the jury to the exculpatory portions and to instruct the jury that with respect to those portions, the question is not whether the evidence is confirmed by other evidence, but rather whether the evidence alone or in combination with the other evidence heard in the case leaves the jury with a reasonable doubt. 

[35]         In her instructions, the trial judge did not draw any clear distinction between Andrade’s trial evidence and his testimony at the preliminary hearing.  Instead, she presented the two as part of a single whole.  For example, in explaining the need to treat Andrade’s evidence with caution, the trial judge referred to the fact that he was awaiting trial when he testified.  Andrade was awaiting trial both when he testified at the preliminary inquiry and at the appellant’s trial. 

[36]         The closest the trial judge came to distinguishing between Andrade’s exculpatory trial evidence and his inculpatory preliminary inquiry evidence for the purposes of the Vetrovec warning appears in the following extract:

Accordingly, you should look for some confirmation of Mr. Andrade’s evidence from somebody or something other than Mr. Andrade before you rely on his evidence in deciding whether Crown counsel has proven the case against Mr. Rowe beyond a reasonable doubt.  [Emphasis added.]

[37]         If this instruction stood alone, it might suffice.  Unfortunately, other portions of the Vetrovec instruction sent a different message to the jury.  Immediately before giving the instruction quoted above, the trial judge said:

At the same time, it is important to remember that this caution has no application to the case against Mr. Rowe and he is entitled to the benefit of the presumption of innocence and the right to have the Crown prove the case against him beyond a reasonable doubt.  [Emphasis added.]

[38]         The trial judge’s reference to “this caution” is a reference to the Vetrovec instruction.  Contrary to her instruction, the caution applied only to the “case against Mr. Rowe” and has no application to the case for Mr. Rowe. 

[39]         The trial judge further blended the inculpatory and exculpatory portions of Andrade’s evidence when she told the jury:

Now, as you search for confirmatory evidence for Mr. Andrade, of course, it depends on which evidence you are trying to confirm, the preliminary evidence or the trial evidence, because it would make a difference.

[40]         This instruction clearly implied that the jury should search for confirmation of both the exculpatory trial evidence and the inculpatory preliminary inquiry evidence.  As explained above, when examining Andrade’s trial evidence the jury should have measured that evidence against the Crown’s burden of proof rather than searching for confirmatory evidence of Andrade’s trial testimony.

[41]         The shortcomings in the Vetrovec instruction were not overcome in the other parts of the jury instruction:  see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 55-56.  This was not a case like Shand, at para. 221, where the trial judge told the jury, as part of the reasonable doubt instruction, that it must acquit the accused if the exculpatory statement made by the Vetrovec witness left the jury with a reasonable doubt.  That instruction, tying the Crown’s burden of proof directly to the exculpatory portion of the Vetrovec witness’s testimony, will often overcome a failure to expressly distinguish between the inculpatory and exculpatory portions of the witness’s testimony as part of the Vetrovec instruction.

[42]         The Vetrovec instruction with respect to Andrade’s evidence did not make clear that the search for confirmatory evidence was properly directed at the inculpatory portions of Andrade’s testimony and that the appellant should be acquitted if Andrade’s exculpatory evidence, considered in the context of the entirety of the evidence, left jurors with a reasonable doubt.  To the contrary, I read the Vetrovec instruction as requiring the jury to approach all facets of Andrade’s evidence with caution and to search for confirmatory evidence of Andrade’s testimony before relying on any part of it.  That direction constitutes an error in law.

[43]         Two additional shortcomings in the instructions, while not amounting to reversible errors on their own, exacerbate the errors in the Vetrovec instruction.  First, the trial judge did not highlight an important distinction between the jury’s ability to assess Andrade’s trial testimony and its ability to assess the credibility of his preliminary inquiry testimony.  The jury saw Andrade give evidence at trial and could use its assessment of his demeanour in measuring his credibility.  However, the jury did not see Andrade testify at the preliminary inquiry.  Nor was his testimony videotaped.  The jury was left without the potentially important insights that the ability to observe the witness when testifying can afford to a fact finder in the assessment of that witness’s credibility:  see R. v. B.(K.G.), [1993] 1 S.C.R. 740, at pp. 792-93. 

[44]         It would have been better had the jury been told that the inability to assess Andrade’s demeanour when he gave his evidence at the preliminary inquiry should be considered by the jury when deciding whether it could rely on that evidence, particularly in the face of the conflicting evidence given by Andrade at trial.[1] 

[45]         Secondly, as conceded by the Crown, the trial judge made a factual error in outlining the potentially confirmatory evidence.  She told the jury: 

Andrade said that the guy with the gun had a black hat on.  Abbas said he was wearing a black hat.  [Emphasis added.]

[46]         Andrade never testified that anyone had a gun.  In fact, he consistently denied that a gun was used both at the preliminary inquiry and at the trial.  Andrade did describe the appellant as having a black hat on and Mr. Al-Ali had described the gunman as wearing a black hat. 

[47]         Juries are told to rely on their own recollection of the evidence.  This kind of factual error, which the trial judge was not asked to correct, will not usually, standing alone, warrant appellate intervention.  It too, however, adds some additional weight to the complaints directed at the trial judge’s instructions concerning Andrade’s evidence.

[48]         The errors described above are sufficiently significant in the circumstances to foreclose any application of the curative proviso.  Before leaving the trial judge’s treatment of Andrade’s evidence, however, I will address the contention that she presented that evidence unfairly to the jury.  I disagree with that contention.

[49]         The trial judge assembled Andrade’s evidence for the jury’s consideration by reference to seven factual areas where his preliminary inquiry testimony was directly inconsistent with his trial testimony.  She gave the jury copies of the relevant parts of Andrade’s trial testimony and his preliminary inquiry testimony applicable to each of the seven areas of inconsistency.  The excerpts of the trial transcript provided to the jury did not include Andrade’s explanations for some of the inconsistencies between his trial testimony and the evidence he gave at the preliminary inquiry.  The trial judge did review these explanations in the course of her instructions. 

[50]         The trial judge could have included the excerpts from the trial transcript that contained the explanations for the inconsistencies in the material she gave to the jury.  Her failure to do so, however, was not fatal.  Andrade’s explanations were straightforward and easily understood and recalled by the jury.  Those explanations were far from compelling and in some instances nonsensical.  From the appellant’s perspective, the less said about some of the explanations the better. 

[51]         I would also observe that the trial judge did summarize, albeit briefly, Andrade’s trial testimony apart from the areas where the testimony was inconsistent with his preliminary inquiry evidence.  I see no unfairness in the way the trial judge assembled and presented Andrade’s conflicting versions of events to the jury.  To the contrary, I think it was helpful.    

V

[52]         I would allow the appeal for the reasons set out above.  I will, however, consider one further argument made by the appellant because it raises an important matter of general concern in the conduct of criminal jury trials.  This was a factually and legally straightforward, but by no means easy, case.  The jury instructions were lengthy and, according to the trial judge, “tedious”.  Counsel for the appellant submitted that the charge was unnecessarily complex and contained superfluous instructions that must have confused the jury and distracted it from the real issues in the case.  Counsel contended that the unnecessary complexity of the jury charge constituted a stand alone basis for the reversal of the verdicts:  see R. v. Hebert, [1996] 2 S.C.R. 272, at para. 13.

[53]         As I would allow the appeal on the grounds set out above, I need not decide the ultimate merits of this submission.  However, and with respect to the trial judge who clearly worked very hard on her jury instructions, the charge was unnecessarily complex and confusing. 

[54]         There are two explanations for the confusion and complexity.  First, I think the indictment contained counts which, by the end of the trial, were unnecessary to a fair and full adjudication of the merits.  There were five counts in the indictment.  The trial judge was required to deal with each count and with each element of the offence described in each count.  This necessarily made the jury instruction longer, more complicated, repetitive and inherently confusing. 

[55]         I do not fault the Crown for placing the five charges in the indictment, or proceeding through the trial with those charges.  In my view, however, the Crown should have taken a hard look at the need to instruct the jury on all counts and require that it return verdicts on all counts.  Counts two and three related to the use of pepper spray against Mr. Al-Ali.  One of the two, either one, was redundant.  I see no disadvantage to the Crown had it asked for a verdict on only one of those two counts and relieved the trial judge of her obligation to address the second.[2] 

[56]         I also see no need from the Crown’s perspective for a verdict on the unlawful confinement charge.  There was no chance that a reasonable jury would convict of unlawful confinement if it did not convict on the robbery charge.  If the jury convicted of robbery, an additional conviction for unlawful confinement, while virtually inevitable, would add nothing to the case.  A conviction on the unlawful confinement count was not necessary to accurately reflect the nature and extent of the appellant’s criminal culpability, or to permit the imposition of an appropriate penalty.  Apart from adding another line to the appellant’s criminal record, I see no purpose served by the unlawful confinement charge.    

[57]         I emphasize that I am not suggesting that a trial judge can unilaterally decide to take counts in an indictment away from a jury as a means of facilitating the jury’s deliberations.  Subject to the judge’s power to order severance, and assuming there is an evidentiary basis for the allegation in each count in the indictment, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict. 

[58]         Crown counsel in the exercise of his or her responsibility to further the due administration of justice should consider whether multiple count indictments can be trimmed before the case goes to the jury without compromising the case the Crown seeks to have determined by the jury.  The possibility of not requiring verdicts on all counts in a multiple count indictment should be canvassed with counsel as part of the pre-charge conference.  It is self-evident that the fewer the charges a jury must consider, the less likely it is that confusion will intrude upon the jury’s deliberation, or that the trial judge will fall into legal error.  Jury confusion can lead to a hung jury and legal error can necessitate a new trial.  Neither result serves the Crown’s interest in the due administration of justice.  A properly trimmed indictment serves everyone’s interests in the criminal process. 

[59]         The second source of unnecessary complexity in the jury instruction flows from what this court has described as “over-charging”:  see R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at p. 493.  In Pintar, the appellant complained that the self-defence instruction was so complex as to be incomprehensible.  Moldaver J.A. said:

Unquestionably, trial judges do encounter difficulties in explaining the self-defence provisions to juries for the reasons expressed by the Chief Justice.  In my opinion, these difficulties are compounded by the standards which appellate courts have imposed, or are perceived to have imposed, when assessing the adequacy of self-defence instructions.  Trial judges are often heard to say that 90 per cent of their legal instruction on self-defence is for the Court of Appeal and 10 per cent for the jury.  Expressed somewhat differently, fear of under-charging has led to over-charging. 

Ironically, many trial judges have taken to leaving multiple self-defence provisions with the jury as a means of defending themselves against appellate assault.  This phenomenon, which I describe as “over-charging”, has itself come under attack....

[60]         My former colleague’s comments were directed at the law of self-defence, a notoriously complicated area of the criminal law.  His comments, however, have more general application.  Like him, I think that fear of appellate reversal is one of the causes of “over-charging”.  Trial judges perceive, correctly I think, that legally accurate instructions that are superfluous will seldom lead to reversal, while a failure to instruct on an issue that may have been on the periphery of the trial, but has become central on the appeal, will lead to reversal and a new trial.  Instructions on anything and everything that have any possible relevance are seen as the best defence against the hindsight inherent in appellate review.

[61]         There is a second cause of “over-charging” that is the unfortunate by-product of a recent and beneficial development in the conduct of criminal jury trials.  Counsel and trial judges now engage in detailed pre-charge conferences in which proposed jury instructions are thoroughly vetted.  That vetting generates a written version of the jury instructions that is provided to counsel and to the jurors.  The pre-charge discussions often centre around the model jury instructions found in Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005).  Those instructions provide valuable assistance to judges and counsel in the formulation of appropriate jury instructions:  see R. v. Banwait, 2010 ONCA 869, 265 C.C.C. (3d) 201, rev’d 2011 SCC 55, at para. 173, MacPherson J.A., dissenting. 

[62]         The model instructions are not, however, a “one-size-fits-all” product to be used without modification or variation:  see R. v. McNeil (2006), 84 O.R. (3d) 125 (C.A.), at para. 21.  Watt J.A., author of the model instructions, put it this way in Helping Jurors Understand (Toronto: Thomson Carswell, 2007), at p. 82:

A specimen is a sample.  A specimen instruction is a sample instruction about its subject-matter.  Specimen instructions do not and cannot be expected to provide legally accurate directions for every set of circumstances that fall within their reach.  There are no one-size-fits-all jury instructions.  At best, specimen instructions provide the basic building blocks for finals and other instructions.  The twists and turns of individual cases will dictate the nature and extent of modification required to ensure legal accuracy. [Emphasis in original.]

[63]         In keeping with the purpose of the model instructions, it does not follow that because an accused is charged with robbery it is either necessary or appropriate to read to the jury all of the model instructions referable to the offence of robbery.  Certainly, those model instructions will provide a valuable starting point for discussions between counsel and the trial judge as to the appropriate instructions.  Those discussions should tailor the model instructions to the specific circumstances.  Unfortunately in the present case that tailoring did not occur.  Large parts of the model instructions were used without modification and without regard to the specifics of the case.

[64]         Two examples from the trial judge’s instructions make the point that the model instructions must be tailored to the specifics of the case.  The trial judge spent five pages instructing the jury on the law of theft.  She read most of the model jury instructions on the crime of theft to the jury.  On the evidence, however, the trial judge had only to tell the jury that, as a matter of law, a theft occurred if Mr. Al-Ali’s assailants took anything from his pockets.  On the evidence adduced in this case, it was unnecessary to make any reference to concepts such as colour of right, and the mens rea for theft.  None had anything to do with the issues that arose in this case. 

[65]         The instructions on the law of assault provide a second example.  Once again, the trial judge used the model instructions without regard to the evidence or the positions taken at trial.  It will be recalled that it was conceded by the defence that Mr. Al-Ali was attacked and assaulted in the apartment.  The trial judge had only to tell the jury that if it accepted the unchallenged evidence that Mr. Al-Ali was attacked and/or threatened with a weapon, either or both of those actions constituted an assault in law.  Instructions about the need for the intentional application of force and the absence of consent were unnecessary and could only distract the jury. 

[66]         As explained in Pintar, at pp. 495-96, jury instructions must be shaped by trial judges and reviewed by appellate courts having regard to the purpose those instructions are intended to serve.  A proper jury instruction is one that fully and fairly arms a jury with the information it needs to reach a fair and proper verdict in the circumstances of the particular case.  Trial judges cannot simply cut and paste their charges together using the model instructions in Watt’s Manual.  Nor can appellate courts review the adequacy of jury instructions without regard to the positions taken at trial and the circumstances of the particular case.

[67]         A functional approach to the jury instructions required for count one – robbery with a firearm – would produce something like the following:

(i)          You [the jury] should first decide whether you are satisfied beyond a reasonable doubt that Mr. Al-Ali was attacked by one or more persons while he was in the apartment.  If you are not so satisfied, you should acquit on count one.  If you are satisfied, you should continue to the next stage of your deliberations on count one.

(ii)       Are you satisfied beyond a reasonable doubt that the accused either alone or with others participated in the attack on Mr. Al-Ali by threatening him and/or striking him?  If you are not so satisfied, you should acquit the accused on count one.  If you are, you should move to the next stage of your deliberations on count one.

(iii)     Are you satisfied beyond a reasonable doubt that when the appellant participated in the attack on Mr. Al-Ali he intended to and/or did steal something from Mr. Al-Ali, or alternatively he knew that others participating in the attack intended to and/or did steal something from Mr. Al-Ali?  If you are not satisfied, you will acquit the accused on count one and move on to the aggravated assault charge in count four.  If you are so satisfied, you will move to the next stage in your deliberations on count one.

(iv)     Are you satisfied beyond a reasonable doubt that the accused was armed with a firearm (as I will define it) when he participated in the attack on Mr. Al-Ali?  If you are so satisfied, you will convict on count one as charged, that is, that the accused did rob Mr. Al-Ali while armed with a firearm.  If you are not so satisfied, you will convict him of the included offence in count one of simply robbing Mr. Al-Ali.

[68]         The approach outlined above would, in my view, avoid references to unnecessary legal concepts, focus on the nature of the allegations made against the appellant, and direct the jury to the live issues in the case.

VI

[69]         I would allow the appeal, quash the convictions and direct a new trial.

RELEASED: “DD”  “DEC 01 2011”

“Doherty J.A.”

“I agree “R.G. Juriansz J.A.”

“I agree Paul Rouleau J.A.”