Her Majesty the Queen (respondent) v. Sheldon Stubbs (appellant) (C51351; 2013 ONCA 514) Indexed As: R. v. Stubbs (S.)

Her Majesty the Queen (respondent) v. Sheldon Stubbs (appellant) (C51351; 2013 ONCA 514) Indexed As: R. v. Stubbs (S.) Ontario Court of Appeal Sharpe, Gillese and Watt, JJ.A. August 12, 2013. Summary: A jury convicted the accused of a number of offences, including attempted murder, for allegedly shooting his ex-girlfriend in the head. He appealed the convictions, arguing that the trial judge erred in admitting evidence of his prior discreditable conduct, charged the jury in an unfair and unbalanced way, and answered a jury question improperly. The accused also appealed the sentences, arguing that the sentences imposed were too long, outside the range of sentence appropriate in such cases, and reflected errors in principle. The Ontario Court of Appeal dismissed both the appeals from conviction and sentence. Criminal Law - Topic 1265.3 Murder - Jury charge - Attempted murder - The accused was convicted of, inter alia, attempted murder, for shooting his ex-girlfriend in the head - The accused appealed, arguing that the jury charge was so unfair and unbalanced that it deprived him of his right to a fair trial - The Ontario Court of Appeal dismissed the appeal - The court noted that the case was not complicated - The judge was under no obligation to discuss every piece of circumstantial evidence and recite the entire catalogue of inferences that might be available from it - The trial judge clearly explained the defence position and it was a reasonable inference that the jury understood that position - This was not a case of competing or contradictory accounts of the same events - Counsel did not object to the charge at trial - See paragraphs 140 to 146. Criminal Law - Topic 4336.5 Procedure - Jury - The law - Questions by jury - The Ontario Court of Appeal reviewed the principles that governed judges' responses to jury questions and the use of casespecific examples to illustrate or explain the principle of reasonable doubt - See paragraphs 94 to 103. Criminal Law - Topic 4336.5 Procedure - Jury - The law - Questions by jury - The accused was convicted of, inter alia, attempted murder, for shooting his ex-girlfriend in the head - During trial, the jury had asked the trial judge to "re-explain what constitutes reasonable doubt... Please provide examples" - The trial judge reiterated his earlier instructions on reasonable doubt and then provided some case-specific examples - The accused appealed - He claimed that the trial judge was wrong to reiterate his earlier instructions when it was clear from the jury's question that they did not understand those instructions - Further, the trial judge erred in giving examples about reasonable doubt drawn from the case being tried - That mistake

was compounded by the substance of the instructions that effectively left the accused as the only logical candidate for the shooter - Finally, he argued that the manner in which the trial judge responded to the question discouraged jurors from asking any further questions about the standard of proof - The Ontario Court of Appeal examined the judge's answer and held that while the trial judge erred in his response to the jury's question, the error could not have affected the verdict (i.e., did not cause any miscarriage of justice to the accused) - The court, therefore, applied the curative proviso (Criminal Code, s. 686(1) (b)(iii) - See paragraphs 78 to 124. Criminal Law - Topic 4350 Procedure - Charge or directions - Jury or judge alone - General - The Ontario Court of Appeal reviewed the principles respecting how an appellate court determined the adequacy of final instructions to the jury in a criminal case - The court stated that it tested final jury instructions according to a functional approach that assessed their ability to fulfill the purposes for which they were given, not by reference to whether any particular formula or approach was followed - The court stated that considered as a whole, a charge should leave the jury with an understanding of the factual issues to be resolved, legal principles that governed those issues and the evidence adduced at trial, the positions of the parties, and the essential features of the evidence relevant to the positions of the parties on the issues - See paragraph 134. Criminal Law - Topic 4350 Procedure - Charge or directions - Jury or judge alone - General - The Ontario Court of Appeal stated that it was fundamental that a jury charge did not take place in isolation, but in the context of the trial as a whole - Appellate review of the adequacy of a jury charge encompassed the closing addresses of counsel - The court stated that those addresses could fill in some of the gaps, especially of evidentiary references, left in the charge - See paragraph 137. Criminal Law - Topic 4350 Procedure - Charge or directions - Jury or judge alone - General - The Ontario Court of Appeal stated that the failure of counsel to object to a charge was a factor in appellate review of a jury charge - Failure to object was not dispositive on appeal; however, a failure to object about an aspect of the charge that later became a ground of appeal could be indicative of the seriousness of the alleged violation and of the overall fairness of the charge - See paragraph 138. Criminal Law - Topic 4350 Procedure - Charge or directions - Jury or judge alone - General - The Ontario Court of Appeal stated that "in some cases, evidence that tends to show an accused committed an offence far exceeds the evidence to the contrary. A balanced charge does not require a trial judge to ignore evidence that implicates an accused. Nor is a trial judge obliged to spin a web of exculpatory inferences, turning each piece of circumstantial evidence every which way to reveal its every possible inference. This proposition is all the more applicable where the defence position appears to be that the cumulative effect of all the evidence falls short of proof beyond a reasonable doubt" - See paragraph 139.

Criminal Law - Topic 4351 Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - [See both Criminal Law - Topic 4336.5]. Criminal Law - Topic 4352 Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Ontario Court of Appeal stated that the extent to which the trial judge must review the evidence and relate it to the issues so that the jury appreciated its value and effect depended on the circumstances of each case - The fundamental obligation of the trial judge, except in rare cases in which it would be needless to do so, was to review the substantial parts of the evidence, and give the jury the position of the defence, so that the jury could appreciate the value and effect of the evidence and how the law was to be applied to the facts as they found them - See paragraph 135. Criminal Law - Topic 4352 Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The Ontario Court of Appeal stated that a trial judge need not review all the evidence upon which an accused relied - Non-direction on a matter of evidence constituted reversible error only where the omission was of a single item of evidence that constituted the sole evidentiary support for a defence - See paragraph 136. Criminal Law - Topic 4376 Procedure - Charge or directions to a jury - Directions regarding the law and case law - [See both Criminal Law - Topic 4336.5]. Criminal Law - Topic 5041 Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See second Criminal Law - Topic 4336.5]. Criminal Law - Topic 5045 Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - [See second Criminal Law - Topic 4336.5]. discreditable conduct) - The Ontario Court of Appeal reviewed the principles applicable to the admissibility of evidence of prior discreditable conduct and the requisite limiting instructions - The court noted that the general rule was that evidence of misconduct beyond that charged in an indictment, which did no more than portray an accused as a person of general bad character, was inadmissible - However, there was an exception to the general exclusionary rule, where the Crown could establish, on a balance of probabilities that the probative value of the evidence exceeded its prejudicial effect - See paragraphs 52 to 56.

discreditable conduct) - The Ontario Court of Appeal reviewed the principles applicable to the admissibility of evidence of prior discreditable conduct and the requisite limiting instructions - The court stated that in prosecutions for domestic homicide, evidence could be admitted of other discreditable conduct of the accused that showed or tended to show the nature of the relationship between the principals, or animus or motive on the part of the accused - That evidence was relevant to prove the identity of the victim or deceased's killer and the state of mind that accompanied the unlawful killing - As a threshold requirement, the evidence of other discreditable conduct had to be capable of establishing animus or motive - The court noted that the same principles applied to domestic attempted homicides - When evidence of discreditable conduct was admitted because it showed or tended to show animus or motive on the part of an accused, limiting instructions usually required for that evidence were not necessary - See paragraphs 57 and 59. discreditable conduct) - The Ontario Court of Appeal reviewed the principles applicable to the admissibility of evidence of prior discreditable conduct and the requisite limiting instructions - The court stated that when evidence of discreditable conduct was excluded under the general rule, or admitted by exception, the standard applied on appellate review was deferential - That is, appellate courts would defer to the trial judge's assessment of where the balance fell between probative value and prejudicial effect unless an appellant could demonstrate that the result of the analysis was unreasonable, or was undermined by a legal error or a misapprehension of material evidence - See paragraph 58. discreditable conduct) - The Ontario Court of Appeal opined that where evidence of other discreditable conduct was ruled admissible at trial, the substance of the evidence could be incorporated in an agreed statement of facts and filed as a formal admission under s. 655 of the Criminal Code - The court stated that "... such a practice would reduce the risk associated with the spontaneity and unpredictability of viva voce testimony from witnesses more interested in skewering the accused than obeying judicial constraints" - See paragraph 69. discreditable conduct) - The accused was convicted of, inter alia, attempted murder, for shooting his ex-girlfriend in the head - The accused appealed, arguing that the trial judge erred in admitting evidence of prior discreditable conduct, which revealed previous acts of violence toward the victim, a breach of recognizance, guilty pleas respecting charges of possession of marijuana and obstruction and sentences for the offences - The Ontario Court of Appeal held that while the evidence respecting discreditable conduct towards the victim was admissible, the evidence respecting the other guilty pleas and the sentences

should have been redacted - However, there had no substantial wrong or miscarriage of justice suffered by the accused - The appeal was dismissed - See paragraphs 34 to 77. Criminal Law - Topic 5831.9 Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5881]. Criminal Law - Topic 5881 Sentence - Murder (incl. attempts) - The accused allegedly broke down the door of his ex-girlfriend's apartment - She ran out to the balcony and called 911 on her cell phone - She was shot in the head at close range - She survived - The accused was convicted and sentenced to a total of 22 years as follows: 16 years for attempted murder; 16 years concurrent for break and enter to commit attempted murder; 4 years consecutive for use of a firearm while committing an indictable offence; 1 year consecutive for possessing a firearm while prohibited from doing so; and 1 year consecutive for disobeying a court order - The accused appealed, claiming that the sentence was disproportionate - The Ontario Court of Appeal dismissed the appeal - The 16 year sentence fell within the range of sentences established for attempted murder committed in the context of a domestic relationship - The trial judge correctly considered the aggravating factors - See paragraphs 147 to 150. Cases Noticed: R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 54]. R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 2009 ONCA 645, refd to. [para. 54]. R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 2009 ONCA 543, refd to. [para. 54]. R. v. P.S. (2007), 223 O.A.C. 293; 2007 ONCA 299, refd to. [para. 57]. R. v. Johnson (K.) (2010), 267 O.A.C. 201; 2010 ONCA 646, refd to. [para. 57]. R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 58]. R. v. James (B.T.) (2006), 216 O.A.C. 27; 213 C.C.C.(3d) 235; 80 O.R.(3d) 227 (C.A.), refd to. [para. 58]. R. v. Jackson (1980), 57 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 59]. R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 46 O.R.(3d) 161 (C.A.), refd to. [para. 59]. R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 59]. R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 2008 ONCA 554, refd to. [para. 59]. R. v. Jesse (L.W.), [2012] 1 S.C.R. 716; 321 B.C.A.C. 49; 547 W.A.C. 49; 2012 SCC 21, refd to. [para. 70]. R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 95]. R. v. Layton (C.A.), [2009] 2 S.C.R. 540; 390 N.R. 340; 245 Man.R.(2d) 26; 466 W.A.C. 26; 2009 SCC 36, refd to. [para. 97]. R. v. Bisson (Y.), [1998] 1 S.C.R. 306; 222 N.R. 365, refd to. [para. 98]. R. v. Palmer, [1970] 3 C.C.C. 402, refd to. [para. 100]. R. v. Stavroff, [1980] 1 S.C.R. 411; 29 N.R. 68, refd to. [para. 101]. R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C.

51; 2005 SCC 27, refd to. [para. 102]. R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 109]. R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 114]. R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 117]. R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 134]. R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 134]. R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 135]. R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 135]. R. v. Demeter (1976), 25 C.C.C.(2d) 417 (Ont. C.A.), affd. [1978] 1 S.C.R. 538; 16 N.R. 46; 34 C.C.C.(2d) 137, refd to. [para. 136]. R. v. Lawes (D.) (2006), 207 O.A.C. 354; 80 O.R.(3d) 192 (C.A.), refd to. [para. 139]. R. v. K.G. (2010), 266 O.A.C. 334; 2010 ONCA 177, refd to. [para. 148]. R. v. Tan (C.) (2008), 268 O.A.C. 385; 2008 ONCA 574, refd to. [para. 148]. R. v. Boucher (R.) (2004), 187 O.A.C. 378; 186 C.C.C.(3d) 479 (C.A.), refd to. [para. 148]. Statutes Noticed: Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 113]. Counsel: John Norris, for the appellant; Megan Stephens, for the respondent. This appeal was heard on April 11, 2013, before Sharpe, Gillese and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court, by Watt, J.A., on August 12, 2013. Editor: Elizabeth M.A. Turgeon Appeal dismissed. Criminal Law - Topic 4351 Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - The Ontario Court of Appeal reviewed the principles that governed judges' responses to jury questions and the use of case-specific examples to illustrate or explain the principle of reasonable doubt - See paragraphs 94 to 103. Criminal Law - Topic 4351 Procedure - Charge or directions - Jury or judge alone - The accused was convicted of,

inter alia, attempted murder, for shooting his ex-girlfriend in the head - During trial, the jury had asked the trial judge to "re-explain what constitutes reasonable doubt... Please provide examples" - The trial judge reiterated his earlier instructions on reasonable doubt and then provided some case-specific examples - The accused appealed - He claimed that the trial judge was wrong to reiterate his earlier instructions when it was clear from the jury's question that they did not understand those instructions - Further, the trial judge erred in giving examples about reasonable doubt drawn from the case being tried - That mistake was compounded by the substance of the instructions that effectively left the accused as the only logical candidate for the shooter - Finally, he argued that the manner in which the trial judge responded to the question discouraged jurors from asking any further questions about the standard of proof - The Ontario Court of Appeal examined the judge's answer and held that while the trial judge erred in his response to the jury's question, the error could not have affected the verdict (i.e., did not cause any miscarriage of justice to the accused) - The court, therefore, applied the curative proviso (Criminal Code, s. 686(1)(b)(iii) - See paragraphs 78 to 124. Criminal Law - Topic 4376 Procedure - Charge or directions to a jury - Directions regarding the law and case law - The Ontario Court of Appeal reviewed the principles that governed judges' responses to jury questions and the use of case-specific examples to illustrate or explain the principle of reasonable doubt - See paragraphs 94 to 103. Criminal Law - Topic 4376 Procedure - Charge or directions to a jury - Directions regarding the law and case law - The accused was convicted of, inter alia, attempted murder, for shooting his ex-girlfriend in the head - During trial, the jury had asked the trial judge to "re-explain what constitutes reasonable doubt... Please provide examples" - The trial judge reiterated his earlier instructions on reasonable doubt and then provided some case-specific examples - The accused appealed - He claimed that the trial judge was wrong to reiterate his earlier instructions when it was clear from the jury's question that they did not understand those instructions - Further, the trial judge erred in giving examples about reasonable doubt drawn from the case being tried - That mistake was compounded by the substance of the instructions that effectively left the accused as the only logical candidate for the shooter - Finally, he argued that the manner in which the trial judge responded to the question discouraged jurors from asking any further questions about the standard of proof - The Ontario Court of Appeal examined the judge's answer and held that while the trial judge erred in his response to the jury's question, the error could not have affected the verdict (i.e., did not cause any miscarriage of justice to the accused) - The court, therefore, applied the curative proviso (Criminal Code, s. 686(1)(b)(iii) - See paragraphs 78 to 124. Criminal Law - Topic 5041 Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - The accused was convicted of, inter alia, attempted murder, for shooting his ex-girlfriend in the head - During trial, the jury had asked the trial judge to "re-explain what constitutes reasonable doubt... Please provide examples" - The trial judge reiterated his earlier instructions on

reasonable doubt and then provided some case-specific examples - The accused appealed - He claimed that the trial judge was wrong to reiterate his earlier instructions when it was clear from the jury's question that they did not understand those instructions - Further, the trial judge erred in giving examples about reasonable doubt drawn from the case being tried - That mistake was compounded by the substance of the instructions that effectively left the accused as the only logical candidate for the shooter - Finally, he argued that the manner in which the trial judge responded to the question discouraged jurors from asking any further questions about the standard of proof - The Ontario Court of Appeal examined the judge's answer and held that while the trial judge erred in his response to the jury's question, the error could not have affected the verdict (i.e., did not cause any miscarriage of justice to the accused) - The court, therefore, applied the curative proviso (Criminal Code, s. 686(1)(b)(iii) - See paragraphs 78 to 124. Criminal Law - Topic 5045 Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - The accused was convicted of, inter alia, attempted murder, for shooting his ex-girlfriend in the head - During trial, the jury had asked the trial judge to "re-explain what constitutes reasonable doubt... Please provide examples" - The trial judge reiterated his earlier instructions on reasonable doubt and then provided some casespecific examples - The accused appealed - He claimed that the trial judge was wrong to reiterate his earlier instructions when it was clear from the jury's question that they did not understand those instructions - Further, the trial judge erred in giving examples about reasonable doubt drawn from the case being tried - That mistake was compounded by the substance of the instructions that effectively left the accused as the only logical candidate for the shooter - Finally, he argued that the manner in which the trial judge responded to the question discouraged jurors from asking any further questions about the standard of proof - The Ontario Court of Appeal examined the judge's answer and held that while the trial judge erred in his response to the jury's question, the error could not have affected the verdict (i.e., did not cause any miscarriage of justice to the accused) - The court, therefore, applied the curative proviso (Criminal Code, s. 686(1)(b)(iii) - See paragraphs 78 to 124. Criminal Law - Topic 5831.9 Sentencing - Considerations on imposing sentence - Domestic violence - The accused allegedly broke down the door of his ex-girlfriend's apartment - She ran out to the balcony and called 911 on her cell phone - She was shot in the head at close range - She survived - The accused was convicted and sentenced to a total of 22 years as follows: 16 years for attempted murder; 16 years concurrent for break and enter to commit attempted murder; 4 years consecutive for use of a firearm while committing an indictable offence; 1 year consecutive for possessing a firearm while prohibited from doing so; and 1 year consecutive for disobeying a court order - The accused appealed, claiming that the sentence was disproportionate - The Ontario Court of Appeal dismissed the appeal - The 16 year sentence fell within the range of sentences established for attempted murder committed in the context of a domestic relationship - The trial judge correctly considered the aggravating factors - See paragraphs 147 to 150.