R. v. Walker, 2019 ONCA 806

JURY CHARGE - RIGHT TO FAIR TRIAL

Background

The Appellant, Nicholas Walker, appeals his conviction for first-degree murder. The shooting took place in a bar and was captured by a security camera. A key factual issue at trial was other security footage taken before the murder that depicts two men speaking in a stairwell int he bar. Both parties accept that one of the people is Mr. Coore. The Crown’s position at trial was that the other person was the appellant and he was holding a gun.

In his charge to the jury, the trial judge opined that the object in the video looked like a gun (“it looks to me like the person … has a handgun in his right hand… but that is something for you to decide”).

Issue on Appeal

While appellate courts owe significant deference to a trial judge’s jury charge, the trial judge’s summary of the evidence must as a whole be fair and balanced. A trial judge is permitted to comment on evidence adduced at trial subject to particular limitations. In R v John, 2017 ONCA 622, Watt JA described these boundaries as: “a trial judge is entitled to express his or her own view of the facts or of the credibility of witnesses and to express that opinion in strong terms. But sometimes, even where a judge has told the jury that it is not bound by the judge’s views on the evidence, a judge may go too far by expressing an opinion that is far stronger than the facts warrant or by expressing the opinion so strongly that the jury is likely to be overawed by it.”

The overarching principle governing these boundaries is fairness. The comments by a trial judge cannot unfairly undermine the position of the defence. Ultimately, the jury must remain the trier of fact. 

The ONCA is satisfied that that the judge’s opinion related to the gun would not give a reasonable juror the impression that the opinion was binding. The opinion offered was brief and was identified by the judge as only that: an opinion. An opinion, however, is impermissible if it prejudices an accused’s right to a fair trial. Throughout the trial, the Crown took the position that the gun was not visible in the video. After the judge’s comment in the jury charge, however, the Crown changed its position in closing that the video depicted a gun. The ONCA concluded that this compromised the Appellant’s right to a fair trial.

The presence of the gun in the video was a key factual issue at trial. If the jury concluded that the second person in the video was the Appellant and he was in fact holding a gun, this could have significant weight in establishing the Appellant’s guilt beyond a reasonable doubt.

What you Need to Know

WHEN A JUDGE OPINES IN A JURY CHARGE ON A KEY FACTUAL ISSUE THAT CAUSES THE CROWN TO CHANGE ITS POSITION, THE OPINION IS IMPERMISSIBLE AS IT IRREPARABLY PREJUDICES THE ACCUSED’S RIGHT TO A FAIR TRIAL.

Hourigan JA, writing for the court, allowed the appeal and ordered a new trial.