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CRIMINAL CODE OFFENCES - Homicide - First degree murder

Friday, November 22, 2019 @ 6:24 AM  

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Appeal by Walker from his conviction, by a jury, of first degree murder. The shooting of the victim inside a bar was captured on a security camera. Security camera footage taken moments before the murder showed two men speaking in a stairwell in the bar. One of the men was Coore. The other man, who Coore testified was the appellant, held a dark object. Coore denied seeing a gun that night. The defence argued the appellant was not the second man in the video and the dark object was not identifiable as a gun. The Crown initially agreed it was not clear from the stairwell video that the dark object was a gun. In its closing submissions, the Crown insinuated the appellant unplugged a security monitor. The trial judge told the jury in his charge that he believed the dark object in the stairwell video looked like a gun. He declined to instruct the jury to disregard the Crown’s submission about the security monitor.

HELD: Appeal allowed; new trial ordered. The trial judge erred in offering his opinion about the stairwell video in circumstances where he ought to have known that it would unfairly undermine the defence on a critical factual issue. Due to the trial judge’s comment, the appellant was denied a fair trial. By offering a stronger opinion than the one he knew the Crown was prepared to advance, the trial judge profoundly impacted the course of the argument on a critical piece of evidence. The frailties in Coore’s evidence were sufficiently explained to the jury to enable them to properly evaluate their impact on his credibility and reliability. The trial judge erred in declining to instruct the jury to disregard the Crown’s submission that the appellant unplugged a security monitor as absent supportive evidence, there was no basis to invite the jury to draw that inference. The appellant was prejudiced by the submission as it went to both his culpability for the murder and the issue of premeditation.

R. v. Walker, [2019] O.J. No. 5071, Ontario Court of Appeal, C.W. Hourigan, D.M. Brown and D. Paciocco JJ.A., October 8, 2019. Digest No. TLD-November182019010