R. v. Hungwe, [2018] O.J. No.

2618
Ontario Judgments

Ontario Court of Appeal

H.S. LaForme, D. Watt and I.V.B. Nordheimer JJ.A.
Heard: May 1, 2018.
Judgment: May 16, 2018.
Dockets: C59259, C59391, C59745, C60311 and C60354

[2018] O.J. No. 2618 | 2018 ONCA 456 | 142 O.R. (3d) 22 | 147 W.C.B. (2d) 552 |
361 C.C.C. (3d) 534 | 2018 CarswellOnt 7612
Between Her Majesty the Queen, Respondent, and Dennis Hungwe, Christian Nkusi, Moussa
Daoui, Richard Issachar Ellis and Geovanni Nicholas Ellis, Appellants

(79 paras.)
Case Summary

Criminal law — Procedure — Trial judge's duties — Charge or directions — Trials — New
trial, grounds for — Appeals by accused from convictions resulting from home invasion
robbery allowed — New trial ordered — Cumulative effect of trial judge's interventions
and comments in his charge prejudiced appellants' right to fair trial — Tenor of trial
judge's questions of defence witnesses could leave reasonable person with no other
impression except that trial judge did not believe defence witnesses — Impression
reinforced by comments during jury instructions — Deficiencies in instructions to jury
panel regarding duties of the triers were not so serious as to warrant new trial —
Instruction on prior consistent statements adequate.

Appeals by the accused from convictions resulting from a home invasion robbery. The appellants argued that the
trial was rendered unfair by certain conduct of the trial judge, that the trial judge gave inadequate instructions to
the triers during jury selection on the challenge for cause process and that the trial judge failed to properly
charge the jury in respect of prior consistent statements made by the complainant. The trial judge extensively
questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory
of the case. While defence counsel did not object to the questioning at the time, they did raise an objection later
and asked that the trial judge include a specific instruction in his jury charge to ameliorate the effect of his
questions. The trial judge refused to provide any such instruction. There were a number of instances where the
trial judge, as he was instructing the jury, departed from the written jury charge that had been reviewed by
counsel. The various extemporaneous comments made by the trial judge, during the course of his charge to the
jury, were all directed against the defence.

HELD: Appeal allowed.

New trial ordered. The cumulative effect of the trial judge's interventions and comments in his charge prejudiced
the appellants' right to a fair trial. The tenor of the trial judge's questions could leave a reasonable person with no
other impression except that the trial judge did not believe the defence witnesses. The biased impression against
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the appellants left by the trial judge was then exacerbated by his various comments to the jury during the course
of his jury instructions. The questions asked by the trial judge, and the manner in which they were asked,
seriously compromised the appearance of a fair and impartial trial. There could be no doubt in the minds of the
jurors, or to an outside reasonable observer, that the trial judge had aligned himself with the Crown in this
prosecution. That impression was only reinforced by the comments offered by the trial judge during the course of
his jury instructions. While there were deficiencies in the instructions that the trial judge gave respecting the
duties of the triers, the trial judge did communicate the essential elements of a trier's duties. A review of the
challenge process did not suggest any misapprehension by the triers in terms of those duties. The deficiencies in
the trial judge's instructions to the jury panel regarding the duties of the triers were not so serious as to warrant a
new trial. Although an instruction on prior consistent statements ought to have been given by the trial judge,
especially after counsel requested one, the trial judge did communicate the essential element of a prior
consistent statement instruction in the portion of his jury charge. While it was not the best way to communicate
the point about prior consistent statements, it was sufficient.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 11(d)

Appeal From:
On appeal from the convictions entered on October 4, 2013 and sentence imposed on January 24, 2014 by
Justice Albert Roy of the Superior Court of Justice, sitting with a jury.

Counsel

Michael Davies and Meaghan McMahon, for the appellant, Dennis Hungwe.

Anthony J. Does, for the appellant, Christian Nkusi.

Howard L. Krongold, for the appellant, Moussa Daoui.

John Hale, for the appellant, Richard Issachar Ellis.

Jonathan Dawe, for the appellant, Geovanni Nicholas Ellis.

Andreea Baiasu, for the respondent.

The judgment of the Court was delivered by

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I.V.B. NORDHEIMER J.A.

1 The five appellants were tried jointly on a multi-count indictment in the Superior Court of
Justice in Ottawa before the trial judge sitting with a jury. The charges all arose out of what was
alleged to have been a home invasion robbery. The charges included robbery; being unlawfully
in a dwelling-house; pointing a firearm; possession of a prohibited firearm; and unlawful
confinement. After a 20-day trial, the jury found each of the five appellants guilty on most of the
charges against them.1

2 The appellants appeal from these convictions on the basis that: (i) the trial was rendered
unfair by certain conduct of the trial judge and (ii) the trial judge erred in his instructions to the
rotating triers with respect to the challenge for cause process during jury selection. The
appellant, Dennis Hungwe, further appeals on the basis that (iii) the trial judge erred in his jury
instructions in respect of the use of prior consistent statements. Finally, the appellant, Richard
Ellis, seeks leave to appeal his sentence in the event his conviction appeal is unsuccessful.

3 The record shows that the trial judge questioned defence witnesses and charged the jury in a
manner that evinced his disbelief in the defence theory of the case. In my view, the cumulative
effect of the trial judge's interventions, and comments in his charge, prejudiced the appellants'
right to a fair trial. I would therefore allow the conviction appeals and order a new trial. As such,
there is no need to address Richard's sentence appeal.

Background facts -- the Crown's case

4 In February 2012, Gilbert Carby, then 46 years old, lived at 300 Glynn Avenue in Ottawa with
his partner and their respective daughters. The house was a bungalow with a finished
basement.

5 Carby testified that he operated his own business promoting music events and parties. The
defence maintained that he was also a drug dealer and pimp. Carby denied this, but
acknowledged that he had previously been "in the business of pimping" and had a prior
conviction for drug importing. He also admitted that he kept marijuana in the house for his own
use, which he shared with his teenaged daughter. He denied that he sold drugs to other people
or that he kept a gun for protection.

6 Carby had a recording studio in his basement that he rented out as part of his music
promotion business. The rest of the basement was "geared for entertainment", with a bar, dance
floor, pool table, large screen TV, and video game consoles. Carby described it as "kind of like a
rec centre, like a drop-in, as it were, for people to come and play games and chill". He frequently
hosted poker games that typically attracted around 18 players and lasted until 3:00 a.m. or 4:00
a.m. He agreed that his guests and the musicians who used his basement studio often drank
and smoked marijuana and sometimes fell asleep and spent the night there. However, Carby
denied selling them alcohol or drugs, or running his poker games for profit.

7 On the night of February 1, 2012, Carby hosted a poker game in the basement of his home.
He testified that, at around midnight, the appellant Christian Nkusi, who Carby knew by the
nickname "Weezy", called to ask whether there was poker game that night. Nkusi was a friend
of the daughter of Carby's partner and had played poker at the house before. Carby told Nkusi
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they were not playing poker that night but that there would be a game the next day. Both of
these things were untrue. Carby explained at trial that he had lied to Nkusi because the game
had already started and he wanted to get him off the phone.

8 Carby testified that on the following night, February 2, 2012, he went to lie down in his
basement bedroom between 9:00 p.m. and 10:00 p.m. He was not sure who else was in the
house besides his partner and the children, but thought that two of his friends were probably in
the basement. At around 11:30 p.m., Carby's partner told Carby that she was going out to visit
her sick mother. Carby fell asleep a short while later.

9 Carby testified that at around 4:00 a.m. on February 3, 2012 he received a phone call from
Nkusi, who asked if there was a poker game that night. Carby said there was no game, and
Nkusi then asked if Carby "had any weed", to which Carby replied "no". A few minutes later,
Carby's partner called and said she would be returning home in about ten minutes. When Carby
heard knocking at the back door a few minutes later, he assumed it was her and went upstairs
to let her in. Carby said that he was only wearing boxer shorts. Instead of his partner, Carby
found "two black guys", both strangers, standing outside. He opened the back door and the men
asked whether he had any weed. Carby replied that he did not. At this point two other men, also
strangers, appeared and entered the kitchen. Carby testified that one of these men was black.
The other looked Lebanese. At trial, Carby identified the first two black men as Dennis Hungwe
and Geovanni Ellis, the third black man as Richard Ellis, and the "Lebanese" man as Moussa
Daoui. However, Carby said that he had never seen any of them before and did not know any of
their names at the time

10 Carby testified that Daoui opened the freezer door and looked inside. Richard said, "It is
what it is" and drew a gun. Daoui then hit Carby in the face with something in his hand. Carby
retreated downstairs to the basement bar area, and the four men followed. They took Carby into
his bedroom and demanded: "Where's all the money at? We know you have money and we
know you have drugs". One of the men tried unsuccessfully to use the belt from Carby's pants to
bind his hands. Richard then put his gun to Carby's head while Daoui held a knife to his throat
and they demanded money again, saying they would not leave without it. When Carby continued
to insist that he had no money or drugs, the four men "beat [him] up for a good ten seconds" and
then took him out to the bar area.

11 At this point, Richard gave his gun to one of the other men to watch Carby while he tore
some phone wire out of the ceiling which he used to tie Carby's wrists. Meanwhile, the other two
men were going around the basement "rounding up equipment, like Xboxes and the big screen
TV" and piling it at the bottom of the stairs. When they moved a couch that blocked the entrance
to Carby's recording studio they discovered one of Carby's friends, who Carby had not
previously realized was in the basement. Carby heard the men shout in surprise and then what
sounded like them beating the friend, and the friend screaming. Carby's friend testified that one
of the black men cut his face with a knife.

12 Carby testified that, shortly after the men brought him to the bar, one of them came down the
stairs and announced that the police were there. At this point, the men "all changed their tone"
and began telling Carby to clean up his face. They addressed him as "Gilly" and "acted like they
knew [him]" even though he did not know any of them. The men went into Carby's bedroom and
tried to climb out the back window, but it was too small. When they returned to the bar, Carby
lied and told them that they could get to an exit by going through the storage room at the back of
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the basement. When the men went into the storage room, Carby went up the stairs and left the
house through the back door.

Background facts -- the defence case

13 Richard and Geovanni Ellis are cousins and close friends. At the time of trial, Richard was
28 years old and Geovanni was 20 years old. They spent the evening of February 2-3, 2012
together at Geovanni's mother's house in western Ottawa until around 1:00 a.m., when a friend
of Geovanni's named Alan came over and picked them up in a silver Honda. They picked up
Richard's friend, Daoui, downtown and then drove to Vanier in east Ottawa to attend a party at
the apartment of another of Richard's friends named Mike. Alan eventually left the party but told
Geovanni he could borrow the Honda to drive home, explaining "[i]t's stolen anyways". It was an
agreed fact that the Honda was stolen from its owner sometime after 7:30 p.m. on February 2,
2012.

14 The Ellis cousins and Daoui spent the next few hours drinking, smoking marijuana, and
listening to music. When the Ellis cousins ran out of marijuana, they asked a friend if he knew
anyone nearby who could sell them more drugs at that time of the night. The friend said he knew
a dealer in the Overbrook area of Vanier who "was always up and always had weed". He made
a phone call and told the person he was calling that he would be sending three friends over. He
then instructed the Ellis cousins to go to 300 Glynn Avenue -- Carby's address -- and knock on
the back door, where "Gilly" would be waiting for them. They had never heard this name before.

15 The Ellis cousins and Daoui drove to Carby's house in the stolen Honda. They parked
outside and Geovanni decided to leave the car running because he had had difficulty starting it.
They were planning to buy half an ounce of marijuana, which they expected would cost between
$80 and $120, and then return to the party. Daoui had money and was going to pay for the
drugs. None of the three men were armed.

16 On arriving at the address, the three men knocked on the back door and Carby, whom they
had never seen before, invited them down to the basement. He was fully dressed, wearing pants
and a collared shirt. The Ellis cousins and Daoui inspected a sample bag of Carby's marijuana
and told him they would buy a half-ounce. Daoui did not speak English fluently so the Ellis
cousins did most of the talking. Carby announced that he was raising the price and that it would
cost them $250, explaining that they had nowhere else to go at that hour, "[s]o it's my price or
nothing". The Ellis cousins objected and protested that this was "bullshit" and that Carby was
trying to extort them. As the discussion became heated, Carby reached to his waistband and
pulled out a handgun. Richard saw the gun in Carby's hand, but Geovanni only saw the hand
movement and concluded that Carby "was going to grab a gun". The Ellis cousins and Daoui all
rushed at Carby and wrestled him to the ground, at which point Geovanni saw the gun on the
floor. Richard kicked it aside before picking it up and putting it in his pocket.

17 Suddenly another man -- Carby's friend -- rushed at them screaming. The Ellis cousins had
not previously known he was in the dimly lit basement and did not know where he came from.
Geovanni saw that Carby's friend was holding something in his hand but could not see what it
was. Daoui, who was closest to Carby's friend, grabbed him in a bear hug and threw him to the
floor. Carby's friend fell face down and did not move. Geovanni went to stand over him to make
sure he did not get up again. Neither Richard nor Geovanni realized that Carby's friend had cut
his face or saw how this happened. However, based partially on a knife that was found by the
police in close proximity to Carby's friend's discarded shirt outside of the house, the defence
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theorized that Carby's friend had been holding a knife and had accidentally cut his own face
when Daoui threw him to the floor. While Geovanni and Daoui were dealing with Carby's friend,
Carby resumed fighting. Richard testified that he took Carby's gun from his pocket and hit Carby
with it a few times. He denied ever pointing the gun at either Carby or his friend. The Ellis
cousins both denied that they or Daoui ever demanded money from Carby or took any of his
property, apart from his gun, and denied taking anything from Carby's friend.

18 The Ellis cousins and Daoui decided to tie Carby up "so they could leave without getting
shot". Richard tore some electrical cable from the ceiling and began tying Carby's hands, with a
view to restraining Carby long enough so they could get away. As he did so, they heard a knock
on the back door. Geovanni went upstairs to look and saw a police car parked outside. He
locked the back door and returned to the basement and reported "the cops are here". Everyone
began to panic, but Carby told them not to worry. He said that he would go talk to the police and
"make them go away". He told them to go hide in the storage room, and they followed his
advice. Geovanni knew that he was in breach of a probation order and did not want to gamble
that the police would believe their story, since they were in Carby's house and had arrived in a
stolen car. Richard hid the gun in the storage room because he did not want to be arrested with
it, and thought that one of the others hid the sample bag of marijuana. A few minutes later, they
heard the police announce that the house was surrounded. The Ellis cousins and Daoui followed
the directions of the police to exit the house one by one.

19 Both Ellis cousins testified that they had never met their co-defendants, Hungwe and Nkusi,
before seeing them in court. They had not realized that Hungwe was in the house that night and
did not know where he had been or what he had been doing. They also did not know how Nkusi
came to be sitting in the back of the stolen Honda they had left parked outside, which was where
the police found him.

20 Nkusi explained in his police statement that he had gone to the house to visit. He called and
knocked on the door but nobody answered. It was a cold winter night, so when Nkusi saw the
car parked out front with its engine running, he got into the back seat to stay warm while he
called a friend to come pick him up. He did not know who the car belonged to or what it was
doing there. He was still sitting in the car when the police arrived.

21 Hungwe, as was his right, did not testify. However, his position was advanced at trial through
his ex-girlfriend's testimony. Hungwe's position was that he knew Carby and was simply
fortuitously present when the events occurred and that he did not participate in the altercation.
He was in the home consistent with the fact that it served as a neighbourhood drop-in centre
and that people often came over and spent the night. His ex-girlfriend contradicted Carby's
evidence that he and Hungwe were strangers. The ex-girlfriend testified that she had grown up
in the area and knew Carby both from the neighbourhood and as a friend of her mother's. She
explained that, during the two years she and Hungwe dated, she had seen Hungwe and Carby
exchange greetings and chat at social occasions in a way that showed that they were
acquainted. She also testified that she had never met the Ellis cousins, Daoui, or Nkusi, and that
Hungwe never mentioned their names.

22 After their arrest, the appellants were searched and transported to the police station. None
had a knife or any other weapons in their possession. Nor did they have any gloves or stolen
items on them. The police did find a knife and Carby's friend's shirt in a snowbank near the
stolen car, which as noted above, formed part of the defence's theory that the knife belonged to
Carby's friend.
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R. v. Hungwe, [2018] O.J. No. 2618

23 In a subsequent search of the house, the police found a loaded .22 calibre handgun in the
basement storage room, hidden behind a mattress that was leaning against the wall. No other
guns, knives, or gloves were found. The gun was tested for fingerprints and DNA but neither
were found. Officers also found three bags of what appeared to be marijuana in the basement
along with some other drugs.

The issues

24 There are three issues raised in these appeals. The first two issues are raised by all of the
appellants. The third issue is raised by the appellant, Hungwe, alone. Those issues are that:

1. The trial judge infringed the appellants' rights to a fair trial by the manner in which
he (a) questioned certain defence witnesses, and (b) made certain comments
during the course of his charge to the jury.
2. The trial judge gave inadequate instructions to the triers during jury selection on
the challenge for cause process.
3. The trial judge failed to properly charge the jury in respect of prior consistent
statements made by Carby.

25 I will deal with each of these issues in turn.

Analysis

1(a) The trial judge's conduct in questioning witnesses

26 The defence called a number of witnesses, three of whom are essential to this issue. One
was Geovanni's mother who gave evidence that Carby had a reputation in the West Indian
community as a drug dealer and a pimp. After counsel completed their examinations of the
witness, the trial judge began to ask questions. In the course of his questions, the trial judge
asked Geovanni's mother about Carby's reputation as a drug dealer and pimp and whether the
police knew about it. The following is but a brief excerpt of the exchange that occurred:

THE COURT: In answering the Crown, you said that you're not aware if your son or your
nephew, here, consume drugs.
A. Yes, I -- I don't know if they do. I really don't.
THE COURT: You don't know if they do?
A. I don't know.
THE COURT: Did anyone tell you that their alleging here that they were going over to buy
drugs from Gilly's when this whole incident happened.
A. I heard that in a bail hearing and preliminary hearing.
THE COURT: You heard that in a bail hearing?
A. Yes.
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THE COURT: And you didn't -- that didn't tweak that they're using drugs, if they're going
up...
A. Well, she's asking me if I'm aware. I've never seen them, I've never been...
THE COURT: You've never...
[...]
THE COURT: Yes. And as far as you're concerned, the police should be aware of that?
A. They should be.
THE COURT: Yes. We just had a police officer testify here earlier, who was working
Overbrook for a number of years, which is the area where he lives...
A. Uh-hmm.
THE COURT: ... and he said the police have no information on that.
A. I don't. ...
THE COURT: You're not?
A. I don't know - I can't answer to what he said. I don't know about that.
THE COURT: No. But you're satisfied that that's what he is?
A. I'm positive, yeah.
THE COURT: So, what you're saying is that the police are -- would appear not to be on
top of things as far as he's concerned?

27 In total, the trial judge's questioning of Geovanni's mother occupied six pages of transcript.

28 The next witness was the appellant, Richard Ellis. Again after counsel had finished their
examinations, the trial judge began questioning Richard. Two areas in particular were
canvassed, that is, that Richard had not seen Hungwe in the basement and that Carby had been
fully clothed when they arrived at the house.

29 On the first topic regarding the presence of Hungwe, the following exchange occurred:

THE COURT: Okay, and you've testified that Mr. Hungwe was not with you when you
went inside the house, is that right?
A. Like, when we went to go...
THE COURT: To buy the drugs, you said...
A. No, he was not with us.
THE COURT: "He was not with us.", he didn't ride in the car with you?
A. No.
THE COURT: He didn't come inside the house with you?
A. No.
THE COURT: You didn't see him downstairs in the house?
A. No.
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THE COURT: You understand that's a problem.

30 On the second topic, that is, the state of Carby's clothing, the following exchange took place:

THE COURT: Okay. You heard the evidence of the police officers that when he ran
outside, he had no pants on and he had no shirt. He had a t-shirt or something on, just
boxer shorts and a t-shirt and his cable around his hand. Some said both hands, I think
some said they weren't sure. You heard that?
A. Yes, Your Honour.
THE COURT: Yes, and you never saw him undress?
A. All I know is that we left him there in the room...
THE COURT: Yes.
A. ... he was still inside the house ...
THE COURT: Yes.
A. ... and we just went in the back room and I don't know how long he was there for.
THE COURT: Yes.
A. I'm not sure, but...
THE COURT: Yes.
A. ... he was fully clothed though.
THE COURT: Yes. You understand that -- how would he get the shirt, a button-down shirt
off if the hands were tied in the front of him? Do you understand what I mean? If he's got
hands...
A. I -- I understand, but, like I said, on -- on the way --when he told us to go to the back
room, he started trying to, like, untangle it. I don't know...
THE COURT: Yes.
A. ... if he successful did that. Maybe -- maybe he took it off, took his shirt off, retied it, I
don't know, but I know for sure that he was trying to unmangle it. Like, he was trying to
take it off before he went outside to go talk to the police.
THE COURT: So, you think that probably what might have happened is that he got the
cables off, undressed, put the cables around his hand again and ran outside?

31 The trial judge's questioning of Richard took up more than five pages of transcript.

32 The next witness was the appellant, Geovanni Ellis. Once again, after counsel finished their
questions, the trial judge questioned Geovanni on the issue of how both Carby, and Carby's
friend, had come to have cuts on their faces. The following exchange took place regarding
Carby:

THE COURT: No re-examination. Mr. Ellis, just to clear up or attempt to clear up a couple
of things here, did you see a knife at all being yielded [sic] by anybody that night?
A. Not at all. No.
THE COURT: No, and did you or anyone else put a knife to the neck of Gilly that night?
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A. No.
THE COURT: You didn't see any of that?
A. No.
THE COURT: Okay. So, maybe we could give the witness Exhibit number -- Madam
Clerk, Exhibit number 8. And if you look at Exhibit number 8, photograph number three
and number four. You see that?
A. Yeah, I see that.
THE COURT: Yes, okay. You heard the evidence of Mr. Gilly saying that a knife had
been put to his neck and these marks there on his neck were caused by knife being put
there. You heard that evidence?
A. That's what -- that's what he said, yes.
THE COURT: Yes, and you didn't do that and you didn't see anyone else do that to him?
A. No, not at all.
THE COURT: Okay. So, do you have any explanation of how he would have injuries or
marks there?

33 Later, the following exchange took place with respect to the cut to the face of Carby's friend:

THE COURT: You didn't see any blood in his face or anything else?
A. No.
THE COURT: Okay. You heard his evidence about the slash that he got, the number of
stitches that he got?
A. Yes, I heard his evidence.
THE COURT: Yes, and if you look at Exhibit number 8, photograph number two, three,
you see the slash on his face and the stitches there?
A. I see a cut. I wouldn't...
THE COURT: Is that -- sorry, what are you...
CLERK REGISTRAR: Exhibit number 8?
THE COURT: It's Exhibit number 12...
CLERK REGISTRAR: Okay.
THE COURT: ... that he should be looking at.
CLERK REGISTRAR: Okay. That's the right one, yes.
THE COURT: Okay. Have you got that...
A. Yeah.
THE COURT: ... Mr. Ellis?
A. Yeah.
THE COURT: Okay. You didn't see any of this?
A. No.
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THE COURT: No?

A. No.
THE COURT: Any explanation how he might have got that?

34 In all, the trial judge's questioning of Geovanni also took up five pages of transcript.

1(b) The trial judge's comments during the jury charge

35 There were a number of instances where the trial judge, as he was instructing the jury,
departed from the written jury charge that had been reviewed by counsel. I do not consider it
necessary to review each and every one of those instances. The following examples will suffice.

36 In his charge to the jury, the trial judge gave a standard instruction to the effect that the
evidence did not have to answer every question in the case. However, he then departed from
his prepared text and said the following with respect to defence counsel's submissions regarding
inadequacies in the police investigation:

And you have heard counsel raise questions about forensic evidence. Where is the DNA?
Where is [sic] the fingerprints? Why didn't the police do this or why didn't the police do
that? No case is perfect. You get the case -- the facts have unfolded. The Crown -- police
investigated, they put the evidence before you, but there is no case -- I have been at this
awhile, you know, I have been before the Courts many years, over 40 years, I have yet to
be in a case where I say, well I think every question has been answered. That is human
nature. This is human nature where, you know, we do not get that. And in this case, when
you heard all the police officers come back and forth in here you -- one could hardly
conclude that the police in this case did not throw enough resources at the investigation
of this case.

37 Another instance occurred when the trial judge was instructing the jury on the use of
demeanour in assessing the evidence of witnesses. In particular, he referred to concerns that
defence counsel had raised about how Carby's friend had given his evidence. The trial judge
said, in part:

And, it is for you to decide, but I would caution you about -- and I think you observed that.
An individual like Mr. Simon, who is jumping all over and reacting and everything else, it
does not mean that his evidence is not reliable or that he is not telling the truth. You have
got to look at the context of what happened, his -- is his evidence consistent with the
evidence of other witnesses, what took place, and as, I think, counsel for the Crown has
pointed out, much of his evidence is corroborated by other independent evidence. So, I
mean, that is one circumstance that you were -- would emphasize a classic case of
where careful [sic] about judging somebody about their demeanour.

38 Another example occurred when the trial judge addressed the issue of whether Carby was
involved in drug activity at the time of the alleged robbery. On this point, the trial judge said to
the jury:

You recall that counsel in their cross-examination and in their -- some in their closing
comments to you, made it sort of appear as though their records were recent and you
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recall that they made accusation [sic] that Mr. Carby was a pimp and was a drug dealer
and so on. And Crown counsel dealt with that. You would consider the evidence whether
there is evidence now to support this. One of the counsel, in his closing comments,
expressed the opinion that Mr. Carby was still involved in criminal activity. And you have
to ask yourself, is there evidence of this? There is some and you consider that evidence.
And -- but he said -- was still involved in criminal activity but at a reduced rate. Again, ask
yourself, is there evidence of this type of activity and at a reduced rate? I don't intend to
deal anymore with that, because Crown has dealt with that evidence.

Propriety of the trial judge's questions and jury charge comments

39 It is a long standing common law principle, and enshrined in s. 11(d) of the Charter of Rights
and Freedoms, that any person accused of a crime is entitled to a fair and impartial trial. Trial
judges are charged with ensuring that, to the degree possible, such a trial will take place. A
critical component of ensuring a fair and impartial trial revolves around the conduct of the trial
judge. As is often said, "justice should not only be done, but should manifestly and undoubtedly
be seen to be done": R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256 (E.W.H.C.), at
p. 259. In that same spirit, a trial judge must be conscious of not only being impartial, but being
seen to be impartial.

40 There is no doubt that a trial judge is entitled to ask a witness questions. However, the right
to ask questions must be exercised with great caution, especially in a jury trial. Questions to
clarify a point, or to ask that an answer be repeated, or the like, are all proper questions.
Questions that suggest that the judge favours one side or the other are not.

41 These are not new principles. They are ones of long standing expression. These general
principles are well-stated in R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), leave to appeal
refused [1986] S.C.C.A. No. 298,2 where Martin J.A. said, at p. 230:

The judge's role in a criminal trial is a very demanding one, sometimes requiring a
delicate balancing of the interests that he is required to protect. The judge presides over
the trial and is responsible for ensuring that it is conducted in a seemly and orderly
manner according to the rules of procedure governing the conduct of criminal trials and
that only admissible evidence is introduced. A criminal trial is, in the main, an adversarial
process, not an investigation by the judge of the charge against the accused, and,
accordingly, the examination and cross-examination of witnesses are primarily the
responsibility of counsel. The judge, however, is not required to remain silent. He may
question witnesses to clear up ambiguities, explore some matter which the answers of a
witness have left vague or, indeed, he may put questions which should have been put to
bring out some relevant matter, but which have been omitted.

42 Justice Martin then made it clear that there are limits on the rights of trial judges to question
witnesses. He gave examples of where questioning by a trial judge had given rise to the
quashing of a conviction. One of those examples was as follows, at p. 231:

Questioning of an accused or his witnesses to an extent or in a manner which conveys

the impression that the judge is placing his authority on the side of the prosecution and
which conveys the impression of disbelief of the accused or defence witnesses...
[Citations omitted.]
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43 Justice Martin then concluded on this subject by stating the standard to be applied when
determining whether interventions by a trial judge had infringed the accused person's right to a
fair trial. He said, at p. 232:

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

44 An isolated intervention by a trial judge would not normally render a trial unfair. Instead, as is
the case here, it is the cumulative effect of multiple interventions that must be considered. As is
also the case here, the interventions must be considered in light of any other conduct by the trial
judge that may magnify the impact of those interventions. The trial judge's extemporaneous
comments in his jury instructions fall into this latter category. As Doherty J.A. said in R. v.
Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320:

Improper questions by the Crown, unfortunate remarks and inappropriate questions made
by a trial judge, and unsubstantiated findings of fact do not per se amount to reversible
error. It is a question of degree. At some point, incidents which, considered in isolation,
may be excused as regrettable but of no consequence, combine to create an overall
appearance which is incompatible with our standards of fairness.

45 The impact of the trial judge's interventions must also be considered in light of two other
factors: R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 66. One factor is whether
the trial judge permitted counsel the opportunity to ask further questions after the trial judge
asked his or her questions. In this case, the trial judge provided that opportunity. However,
providing the opportunity for counsel to ask further questions, when the gravamen of the
concern is that the trial judge is telegraphing his view of the evidence to the jury, has marginal, if
any, rehabilitative prospects. Once the trial judge's opinion is conveyed, there is little that further
questioning by counsel can do to remove the resulting sting.

46 The other factor is whether counsel objected to the trial judge's questioning. In this case,
while defence counsel did not object at the time, they did raise an objection, later in the trial, and
asked that the trial judge include a specific instruction in his jury charge to ameliorate the effect
of his questions. The trial judge refused to provide any such instruction.

47 In my view, the tenor of the trial judge's questions could leave a reasonable person with no
other impression except that the trial judge did not believe the defence witnesses. Indeed, it
appeared that the trial judge viewed their evidence as incredible. For example, the trial judge set
up an inappropriate conflict between the evidence that Geovanni's mother gave about Carby
and what the trial judge said that the police knew. I note that the stated knowledge of the police
was apparently based solely on the evidence of a single police officer. The trial judge also
improperly called upon both of the Ellis cousins to give explanations for the evidence of other
witnesses, undoubtedly leaving the impression that such explanations were not forthcoming
because the other witnesses were telling the truth.
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48 The biased impression against the appellants left by the trial judge was then exacerbated by
his various comments to the jury during the course of his jury instructions. I will say, as a general
proposition, that when a trial judge has provided a draft of his jury instructions to counsel, and
received their comments on that draft, it is generally a risky step for a trial judge to then add
other commentary "on the fly" as s/he delivers her or his instructions. While there may
undoubtedly be occasions when some alteration is necessary, because an error or omission is
discovered as the instructions are given, the addition of unscripted commentary should generally
be avoided.

49 In my view, the questions asked by the trial judge, and the manner in which they were
asked, seriously compromised the appearance of a fair and impartial trial. There could be no
doubt in the minds of the jurors, or to an outside reasonable observer, that the trial judge had
aligned himself with the Crown in this prosecution. That impression was only reinforced by the
comments offered by the trial judge during the course of his jury instructions.

50 On that latter point, I would reiterate that a balanced charge to the jury is essential to a fair
trial. As this court said in R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 114-17 per
curiam:

...we think it important to underscore the significance of the charge to the jury and the
need for trial judges to be fair and balanced in their recitation of the evidence and their
review of the position of the parties.
The charge to the jury is a central feature in any jury trial. In the context of our adversarial
process, its strength lies in its objectivity. In an otherwise partisan atmosphere, the jury is
entitled to look to the charge to guide it safely through deliberations and assist it in
arriving at a true verdict according to law.
[...]
...not all mistakes are alike. Some can be easily avoided. Failing to provide the jury with a
fair and balanced charge is one of them. There is no justification for jury charges that are
not even-handed.

51 A similar point was made in R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561 where Watt
J.A. said, at para. 127:

A jury charge must also be even-handed, the instructions fair and balanced. No sides
should be taken and no editorial comment should intrude...
[Citation omitted.]

See also R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493 at para. 102.

52 In this case, the various extemporaneous comments made by the trial judge, during the
course of his charge to the jury, were all directed against the defence. They all tended to
suggest that any issues that the defence had with the Crown's case were either without
substance or were misguided. These comments would only have served to reinforce in the
minds of the jurors the message that the trial judge had delivered through his questions of the
defence witnesses, that is, that the defence could not answer the Crown's case.
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53 In my view, the trial judge's conduct irretrievably compromised the fairness of the trial.

2. The challenge for cause procedure

54 This trial involved a challenge for cause based upon possible racial prejudice. There was a
single question put to each prospective juror. As part of the challenge for cause process,
defence counsel asked for, and received, permission to use rotating triers as set out in s. 640(2)
of the Criminal Code. Defence counsel also asked for, and received, an order excluding the
prospective jurors from the courtroom while the challenge for cause was determined: see, e.g.,
R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 18; and R. v. Murray, 2017 ONCA
393, 138 O.R. (3d) 500, at para. 60 per Watt J.A.

55 One of the practical disadvantages of using rotating triers, when prospective jurors are
excluded from the courtroom during the challenge process, is that the trial judge is required to
repeat any instructions to the triers as many as 12 or 14 times.3 To avoid that practical
inconvenience, some trial judges will choose to give the instructions for the triers to the entire
jury panel, prior to the challenge process commencing. That is what the trial judge chose to do
in this case. Counsel did not object to this.

56 The trial judge told the entire jury panel what the challenge for cause question would be. He
also told the jury panel about the process of using triers and that the triers would determine
whether a prospective juror was acceptable or not acceptable after he or she answered the
question. Specifically, the trial judge said:

They listen to the question, they listen to the answer, they can confer with each other,
and they decide after the answer whether the person who has answered the question, the
candidate, is acceptable or not acceptable as a juror in this case.

57 The trial judge then went on to explain how a prospective juror would be determined to be
acceptable or not acceptable. An acceptable juror was described as someone "who would likely
approach his or her duty with an open mind and decide the case on the evidence given at trial,
and the legal instructions given by the trial judge."

58 The challenge process then began. No further instructions were given to any of the triers
until the point where 11 jurors had been sworn. The jury panel was exhausted by that time and a
new jury panel had to be brought in. In the course of addressing this second jury panel, the trial
judge gave slightly fuller instructions regarding the challenge for cause process and the duties of
the triers. It is the process utilized with the first panel that is the focus of the appellants'
complaint.

59 The appellants submit that the trial judge failed to instruct the first jury panel on the
importance of the challenge for cause process, that is, the desire to find impartial jurors. The
appellants also complain that the trial judge did not instruct the triers, as the process proceeded,
that for any prospective juror to be acceptable, both triers had to agree that the prospective juror
was acceptable, but also that they had the right to disagree on that issue. Finally, the appellants
complain that the triers were not told that they had the right to retire to a separate room to
consider their decision.

60 It is incontrovertible that there were deficiencies in the instructions that the trial judge gave
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R. v. Hungwe, [2018] O.J. No. 2618

respecting the duties of the triers. While there is nothing wrong with a trial judge giving those
instructions to the jury panel as a whole (especially with the agreement of counsel), the trial
judge should make it very clear to the jury panel why he or she is doing this, and the importance
of the instructions: R. v. Douglas (2002), 62 O.R. (3d) 583 (C.A.), at paras. 19-22 per Moldaver
J.A. Among other things, the trial judge should make it clear to the jury panel that they must
listen carefully to the instructions because each of them may be called upon to be a trier at
some point.

61 The instructions should then cover each of the following areas:4

1. The process is designed to give each side the fairest trial possible.
2. Each prospective juror will be sworn or affirmed to tell the truth in answering the
question.
3. Every jury panel member will be asked the same question. He or she will give an
answer. The triers' job is to listen to the answer each person gives and decide,
based on the answer, whether that person is acceptable or not acceptable.
4. An acceptable juror is a person who would likely approach jury duty with an open
mind and decide the case on the evidence given at trial and the legal instructions
given by the trial judge.
5. The acceptability of a prospective juror is determined on a balance of probabilities.
6. Just because a person has a prejudice or bias against a racial or ethnic group
does not mean, by itself, that the person is not acceptable as a juror to try the
case. However, before finding anyone who has a prejudice or bias against a racial
or ethnic group acceptable as a juror, the triers must find that that person would
likely put that prejudice or bias aside in deciding the case.
7. The role of the triers is to examine the impartiality of any prospective juror based
on their attitudes towards matters of race and whether their ability to decide the
case solely on the evidence will be affected by their attitudes.
8. For anyone to be acceptable as a juror, both triers must agree that the person is
acceptable. However, they do not have to agree on the acceptability of any
person. Before they give their decision, they should discuss the matter between
themselves in the jury box. They also have the right to retire to a room to consider
their decision, if they wish.

62 As an aside, on the last point, I appreciate that there are often practical difficulties that would
be encountered if the triers actually did wish to retire to a separate room to consider their
decision. I see nothing wrong with a trial judge adding a comment to his or her instruction to the
effect that it would probably not be necessary for the triers to do so in normal circumstances.
What is important is that the triers know that the option exists.

63 If a trial judge does decide to instruct the entire jury panel at once with respect to the role of
a trier, then it is also desirable that the trial judge should ask each trier, as they are sworn, if
they heard the instructions and whether they have any questions. In this way, the trial judge can
be satisfied that the jury panel member was actually listening when the instructions were given.
A trial judge may also wish to give the triers a written copy of the instructions, for their reference,
while they are performing their duties as triers.
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R. v. Hungwe, [2018] O.J. No. 2618

64 There is no absolute rule regarding how these instructions should be communicated to the
triers. Different judges will express the instructions in different ways. The point is to ensure that
the various topics are covered so that the triers understand their role. If it becomes apparent, as
the challenge process unfolds, that any trier does not understand his or her role, then the trial
judge should reinstruct them.

65 While not perfect by any means, the trial judge in this case did communicate the essential
elements of a trier's duties. A review of the challenge process does not suggest any
misapprehension by the triers in terms of those duties. Indeed, at one point, two triers initially
disagreed on the acceptability of a prospective juror. The trial judge told them to talk about it and
the triers then agreed on the acceptability of the juror. This incident clearly shows that the triers
understood that they had the right to disagree.

66 The appellants rely principally on the statement made in R. v. Li (2004), 183 C.C.C. (3d) 48
(Ont. C.A.) where Borins J.A. said, at para. 32, that the deficiencies in the instructions in that
case were "fatal". I do not view that decision, especially when read in the context of other
decisions of this court, as standing for the proposition that deficiencies in the instructions on the
challenge for cause process will always render the conduct of the trial so defective as to require
it to be redone. Rather, the extent of the deficiencies, and their potential impact, will have to be
evaluated on a case by case basis. As this court said in R. v. Brown (2005), 194 C.C.C. (3d) 76,
at para. 33 per Simmons J.A.:

As other decisions of this court have illustrated, the fact that a trial judge may not have
recited the precise words used in Hubbert, [1975] O.J. No. 2595 or may have omitted one
or more of its recommended elements, does not necessarily give rise to reversible error.
Rather, the issue to be determined is whether the circumstances of the particular case
reveal a reasonable likelihood that the triers misunderstood the nature of their task and
the procedure they were to follow.
[Footnote omitted.]

67 In my view, the deficiencies in the trial judge's instructions to the jury panel regarding the
duties of the triers were not so serious as to warrant a new trial. In reaching that conclusion, I
would observe that the importance of an impartial trial, and the concern that racial prejudice
could play in that regard, would not be matters that would be lost on ordinary members of the
public who are called for jury duty. They would readily understand the need to inquire into such
matters. Despite some of the antiquated aspects of the overall jury selection process, the
importance of the challenge for cause process is not one that ordinary members of the public
would not be able to grasp as the process played out. I would also note that none of the defence
counsel raised any objection, during the course of the challenge process, as to the manner in
which it was conducted.

68 I would not give effect to this ground of appeal.

3. The prior consistent statement issue

69 As I noted earlier, this issue is raised by the appellant, Hungwe, alone. It deals with the use
of certain statements made by Carby in various Facebook messages. This issue arises out of
Carby's evidence that he did not know any of the four males who tried to rob him, including
 Page 18 of 20
R. v. Hungwe, [2018] O.J. No. 2618

Hungwe. Hungwe called his ex-girlfriend to dispute Carby's evidence that he did not know
Hungwe.

70 The ex-girlfriend knew both Hungwe and Carby. Carby acknowledged that he and the ex-
girlfriend were "Facebook friends". The ex-girlfriend gave evidence that she had seen Carby and
Hungwe exchange greetings and engage in small talk at social events in a fashion that led her
to believe that they knew each other.

71 During the Crown's cross-examination of the ex-girlfriend, the Crown began to ask her about
Facebook messages between her and Carby. The messages were a conversation between
Carby and the ex-girlfriend between September 2011 and September 2012. These messages
had only come into the Crown's possession during the trial, just prior to the Crown closing its
case, and after Carby had given evidence.

72 In the messages between them, Carby tells the ex-girlfriend, among other things, that he did
not know any of the men who committed the robbery. The specific message read, "All I know
there was 4 black and a white ... I don't know none of them soo. U know what I mean." He also
told her that he had no recollection of meeting and talking to Hungwe at a particular time.

73 During this questioning, counsel for Hungwe raised an objection. Counsel asked the trial
judge to give a mid-trial instruction to the jury on the use of prior consistent statements. The trial
judge said that he planned to give such an instruction "at some point". No such instruction was
ever given.

74 The issue arose again in the Crown's closing submission. Crown counsel said, in part:

You'll recall that she [the ex-girlfriend] even tried to persuade Mr. Carby, via those
[Facebook] messages, that he had met Mr. Hungwe at Paris'. Why? Because she wanted
to bait Mr. Carby. Despite all her efforts, Mr. Carby told her he did not remember. Mr.
Carby was consistent and unshaken. That means he didn't change, he didn't waiver, he
didn't hesitate when he told [defence counsel] he did not recall Ms. -- meeting [the ex-
girlfriend] and Mr. Hungwe at Paris'.

75 After the Crown's closing, defence counsel again asked for an instruction on the use of prior
consistent statements. The trial judge said that he would provide an instruction but referred to
providing an instruction on prior inconsistent statements instead. In the end result, no specific
instruction was provided on prior consistent statements. The trial judge, however, did reference
the issue about the Facebook statements in his jury charge. In doing so, he said:

Now, let me deal with what we referred to as prior statement or prior inconsistent
statement [...] You recall that [the ex-girlfriend] and [...] the daughter of Mr. Carby who
testified, they were cross-examined about their text messages and -- I think it was text
messages mostly and I do not know if there was Facebook involved in that as well, but
they were examined about something they exchanged with others and they said in their
texts and so on. And so, those are some of the statement that I am talking about and I
want to discuss with you here.
[...]
In other words, again, what is important is the evidence of what the witness said here.
The earlier statement, and you will notice we do not make the earlier statement exhibits
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because we want you to rely on the evidence under oath in the witness box here. And so
the earlier statement is not evidence unless the witness says "Yes, I accept that. I agree
with that."

Carby, of course, had not accepted the Facebook statements because this issue arose after he
had completed his evidence. He was not recalled to address it.

76 There can be no debate that an instruction on prior consistent statements ought to have
been given by the trial judge, especially after counsel requested one. The trial judge did,
however, communicate the essential element of a prior consistent statement instruction in the
portion of his jury charge excerpted above. While it was not the best way to communicate the
point about prior consistent statements, it was, in my view, sufficient. I note that inadequacies in
an instruction on prior consistent statements are not necessarily fatal: Murray, at para. 155.

77 Justice Doherty also dealt with the failure to give a jury instruction on prior consistent
statements in R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562. He said, at para. 38:

Certainly, the [prior consistent statement] instructions could have been given and, in a
perfect jury charge, would have been given: e.g. see R. v. Austin (2006), 214 C.C.C. (3d)
38 (Ont. C.A.), at paras. 32-34. However, perfection is not the standard: R. v. Ellard, 2009
SCC 27, [2009] 2 S.C.R. 19, at paras. 41-42. I am satisfied that the failure to give these
instructions in this case did not constitute a legal error.

78 That conclusion applies with equal force in the instant case. I would not give effect to this
ground of appeal.

Conclusion

79 Given my concerns regarding the trial judge's interventions and the comments he made
during the course of giving the jury charge, I am not satisfied that the appellants received a fair
trial. Consequently, the appeals must be allowed, the convictions set aside, and a new trial
ordered.

I.V.B. NORDHEIMER J.A.

H.S. LaFORME J.A.:— I agree.
D. WATT J.A.:— I agree.

1 The appellants were variously convicted of offences under ss. 87(2), 95(2), 266, 268, 279(2), 344(1), 349(1), 355(b),
and 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

2 Justice Martin's analysis in Valley has been repeatedly affirmed by this court, including most recently in R. v. John,
2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 47-51.

3 Indeed, theoretically, if there were a jury of 14 selected plus two alternates, the instructions might have to be given 16
times.

4 All of these requirements are set out in The Honourable Justice David Watt, Watt's Manual of Criminal Jury Instructions,
2nd ed. (Toronto: Carswell, 2015), at Preliminary 12-B and 12-C.
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