R v Walker (ONCA)
[October 8/19] Judicial Comments about Evidence in Jury Trials - 2019 ONCA 806 [Reasons by C.W. Hourigan J.A., with David Brown J.A., and David M. Paciocco J.A. concurring]
AUTHOR’S NOTE: In jury trial instructions, judges have to walk a tightrope to explain the law. They must explain the law in words and then show which evidence a jury should consider to apply the law in the particular context of the case before them. However, they cannot put their thumb on the scales by expressing their opinion of the application in the particular case on issues that are clearly contested in the trial. Here, Justice Hourigan, on behalf of the ONCA, determined that the trial judge went too far. This case illustrates circumstances in which defence counsel can seek correcting jury instructions or make objections to preserve the record for appeal after a trial judge goes too far with the jury.
 Nicholas Walker appeals his conviction for first-degree murder in the fatal shooting of Clifenton Ford. The shooting of Mr. Ford took place inside a bar and was captured on a security camera. Of critical importance at trial and on appeal is other security camera footage taken moments before the murder, in which two men are shown speaking in a stairwell in the bar. It was common ground that one of the people in that footage was Lester Coore. The Crown’s position at trial was that the other person in the stairwell video was the appellant, and that the dark object he is seen holding was a gun. The defence argued that the appellant was not in the footage and that the object was not identifiable as a gun.
 Mr. Coore’s evidence was that he recognized himself in the stairwell video and that the man standing next to him holding the dark object was the appellant, whom he was acquainted with. However, Mr. Coore denied seeing a gun that night.
 In his charge to the jury, the trial judge opined that it looked to him that the dark object in the stairwell video was a gun:
In looking at the videotape, you may wish to consider the following. There is the image of the man in the black leather jacket talking to Mr. Coore in the back stairs. I have that as being on camera 4 at 2:20:50. And ask yourself whether or not he has a gun in his right hand and whether or not, while his back is to the camera, he is loading the weapon. Now, at 21:33, it looks to me like the person in the leather jacket has a handgun in his right hand and it moves towards Mr. Coore and back, but that is something for you to decide.
Instructing Juries How to Apply the Law to the Particular Case
 ... Despite the deference paid to trial judges in crafting jury charges, it is essential that a trial judge’s summary of the evidence and the charge as a whole be fair and balanced: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at paras. 114-18.
 Beyond summarizing the evidence, a trial judge is permitted to opine on the evidence adduced at trial subject to certain limits. Watt J.A. reviewed the law regarding the permissible bounds for a judge commenting on evidence, in R. v. John, 2017 ONCA 622 (CanLII), 350 C.C.C. (3d) 397, at paras. 108-10:
 The parties share common ground that a trial judge is entitled to express opinions on issues of fact, as strongly as the circumstances permit, provided that what is said amounts to advice, not direction, and the judge makes it clear that the jury is not bound by the judge’s views on these issues.
 A significant limitation is that a trial judge’s opinion can only be expressed as strongly as the circumstances permit. 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 judge must not use such language as leads the jury to think that they must find the facts in the way the judge has indicated. And the charge must not deprive the accused of a fair presentation of the defence case to the jury. In each case, it is a question of degree and of fairness. [Citations omitted, emphasis original.]
 In R. v. Lawes (2006), 2006 CanLII 5443 (ON CA), 80 O.R. (3d) 192 (C.A.), at para. 23, leave to appeal refused,  S.C.C.A. No. 175, Rouleau J.A. summarized the jurisprudence as follows:
What can be drawn from all of these cases is that, in this area, everything is a question of degree. The overarching principle is fairness. Within this principle of fairness is the recognition that the jury must remain the arbiter of the facts and that any comments made by the trial judge cannot amount to a rebuttal of the defence address to the jury or unfairly denigrate or undermine the position of the defence.
 As noted, a trial judge’s opinion on the evidence in a jury charge will be rendered impermissible if it prejudices the accused’s right to a fair trial. The appellant argues that the comment about the gun was highly prejudicial. In earlier submissions to the court, the Crown took the position that the gun was not clearly visible in the stairwell video but that an inference could be drawn that it was a gun based on certain circumstantial evidence. However, after becoming aware of the trial judge’s opinion, the Crown argued in closing that the stairwell video showed a gun. According to the appellant, the trial judge inappropriately intruded into the adversarial process on an issue that he was no better position in to opine on than the jury.
 In my view, the trial judge’s comment compromised the appellant’s right to a fair trial. The proof of the prejudice is found in the changing position of the trial Crown on what the stairwell video shows. During pre-charge submissions counsel addressed the issue of whether Mr. Ford, the victim, was shown to be in possession of a gun at the time of the shooting. In the course of those submissions, the Crown urged that there is no air of reality to the suggestion that the video showed a gun in Mr. Ford’s hand, and then stated as follows:
Well, I will compare it to Mr. Coore. You know, what I do in my closing and what I say and what I would say is that there’s an object that seems apparent that moves between the two men on the screen. You know, you can’t completely make out clearly that it’s a gun, but there are a number of circumstantial factors that point to the fact that it is a gun. Ultimately, perhaps the most glaring of which, is if you accept that Mr. Walker goes out and shoots Mr. Ford, you can infer that what he was displaying to Mr. Coore was a gun. So there’s evidence there upon which the inference can be drawn.
 This was a significant concession by the Crown relating to whether, in the stair case video, a gun could be seen in the hand of the man Mr. Coore identified as the appellant. It meant that both the defence and Crown agreed that it was not clear from the stairwell video that the dark object was a gun. Given these submissions, the trial judge was aware that this was the state of play regarding whether a gun was visible in the stairwell video.
 Thus, despite knowing that the Crown was taking the position that the stairwell video was unclear, the trial judge determined that he would offer his opinion that the gun was identifiable. The Crown, now armed with the knowledge that the trial judge would be offering this opinion, took a much more aggressive position in his closing than he had previously articulated.
 The alleged presence of the gun in the stairwell video was significant, especially since defence counsel was not strenuously contesting that the man seen in the video shooting Mr. Ford was not the same man shown in the stairwell video. If the jury concluded that a gun was indeed present in the stairwell video and accepted Mr. Coore’s evidence that the appellant was the person next to him, this would go a long way toward establishing the appellant’s guilt beyond a reasonable doubt. In short, this was a critical factual issue.
 Appellate courts are obliged to ensure that an accused person receives a fair trial and that justice is not only done but that it “be manifestly and undoubtedly be seen to be done”: Brouillard Also Known As Chatel v. The Queen, 1985 CanLII 56 (SCC),  1 S.C.R. 39, at p. 13. As this court stated in R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, leave to appeal refused,  S.C.C.A. No. 298, a case about judicial intervention in questioning:
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 the original.]
 Trial judges must be alive to the dangers of intervention in the circumstances of the case before them. They must act judiciously and consider whether the exercise of an available discretion, including opining on evidence, is appropriate or whether there is a danger it will impair the accused’s rights to a fair trial. Where such a danger is apparent, we expect trial judges to proceed with caution and decline to intervene. It is not just a question of whether an opinion can be offered but whether it should be, recognizing that a trial judge has an overriding duty to ensure that the accused receives a fair trial.
 In the case at bar, it would have been apparent to the trial judge that he was taking a more definitive position than the parties on whether a gun was identifiable in the stairwell video. There was an obvious danger that the Crown would be emboldened, or might feel obligated, to take a more aggressive position on this critical piece of evidence and withdraw his concession that the gun was not clearly identifiable in the stairwell video. This, in fact, was what happened in this case.
 In the circumstances, the trial judge’s comment rendered the trial unfair because he intervened when he should not have and, in so doing, he undermined the defence’s position. By offering a stronger opinion than the one he knew the Crown was prepared to advance, he profoundly impacted the course of the argument on a critical piece of evidence. He removed a concession and strengthened the Crown’s position. When the trial judge advised counsel that he would opine on the evidence because he could, he erred in not considering whether he should offer an opinion that was stronger than the Crown’s position. This was fundamentally unfair to the appellant.
 [A new trial was ordered]
R v Delellis (BCCA)
[October 8/19] Dangerous Driving Causing Death - Factors Relevant to the Modified Objective Test of the Reasonable Person - 2019 BCCA 335 [Reasons by DeWitt-Van Oosten J.A. with Newbury J.A., and Griffin J.A. Concurring]
AUTHOR’S NOTE: Many dangerous driving causing death (or bodily harm) cases focus on the mental element of the offence from the perspective of "could this have been an accident any reasonable person could have been in?" This case is different, the factors affecting the analysis of the mental intent of the accused in this trial should have focused on the deceased and other peoples actions and how they would have effected the circumstances under which the vehicle was being operated by the accused. Unfortunately, the trial judge removed those considerations from the analysis of the jury by an incorrect instruction. The BCCA also outlined how a prior threat by the deceased was relevant to the marked departure test for mental intent in respect of dangerous driving.
 During a heated altercation, the appellant drove into a driveway at a townhouse complex and struck someone known to him. That person later died after suffering a cardiac arrest while undergoing surgery for injuries sustained in the accident.
 Following a jury trial in March 2017, the appellant was found guilty of two offences: dangerous driving causing death and failing to stop at the scene of an accident, knowing bodily harm had been caused to another person (ss. 249(4) and 252(1.2) of the Criminal Code, R.S.C. 1985, c. C-46). He appeals from conviction on both offences.
 On the day in question, the appellant and Ms. Rowe drove to the complex to retrieve their GST rebate cheques. The appellant was driving....The appellant parked his vehicle on the road near one of the shared driveways. He was on the wrong side of the road, facing oncoming traffic. A Crown witness described the vehicle as blocking traffic.
 The appellant exited his vehicle, approached one of the townhouses and became involved in an argument with its occupant, Chris Bekkering. The argument led to a physical altercation between the two men back at the appellant’s vehicle.
 Among other things, Mr. Bekkering punched the appellant through the driver’s side window. The appellant opened the door and knocked Mr. Bekkering over. At one point, the appellant was outside his vehicle while dealing with Mr. Bekkering. He then returned to the driver’s seat. Ms. Rowe was in the passenger seat while this was occurring.
 Dwayne McCormick (the deceased victim) and another individual from the complex approached the appellant’s vehicle during the altercation with Mr. Bekkering. Mr. McCormick was yelling. He hit the vehicle with a large steel pipe. Witnesses said Mr. McCormick started to walk away, up one of the driveways.
 The appellant backed up his vehicle and then drove forward into that driveway. At least one witness described him as accelerating toward Mr. McCormick. The driver’s side of the vehicle hit Mr. McCormick. He rolled on to the hood and fell to the ground, landing on one of his shoulders. The appellant put the vehicle in reverse and left the scene.
 When police arrived, Mr. McCormick was lying in the driveway. A steel pipe was approximately three feet away from him. He had sustained numerous fractures in the incident. While undergoing surgery for his injuries, he suffered a cardiac arrest and later died. The evidence established that he had been suffering from severe lung disease at the time of his death.
 Ms. Rowe testified for the defence. She described Dwayne McCormick as a drug dealer and said he “bootlegged” for the townhouse complex. She said Mr. McCormick had supplied drugs to the appellant, resulting in a “big debt” payable each month by the appellant and Ms. Rowe while they lived at the complex. Mr. McCormick and others demanded that the appellant commit crimes in lieu of payment, including theft. At the time of the accident, the appellant still owed money to Mr. McCormick.
 Ms. Rowe told the jury about a conversation she once had with Mr. McCormick in which he explained a tattoo on his hand as a “gang tattoo”. The appellant may have been present for that conversation. Ms. Rowe understood that Mr. McCormick was associated with “some heavy duty people”. She also described him as “freaking out all the time”....
 Ms. Rowe testified that when she and the appellant moved out of the complex, Ms. Rowe had a disagreement with Mr. McCormick’s roommate and Mr. McCormick said he was going to kill them.
 Ms. Rowe said Dwayne McCormick approached their vehicle a second time. He was carrying a “great big pipe”. It looked like a tire iron. Mr. McCormick hit the front of the vehicle. Ms. Rowe described the situation as “very traumatic”. The appellant pulled into the driveway. She thought it was to enable them to get out of the area. Ms. Rowe thought the persons around the vehicle were trying to prevent them from leaving. At one point, Mr. Bekkering was standing behind the vehicle; the neighbour who had come over to the vehicle was “holding on the car and punching with one hand”; and Mr. McCormick was “hitting the car with a pipe”. From the passenger seat, she could see him “kicking [the vehicle], jumping at [them], punching at [them], like it was too much commotion”. Mr. McCormick was “freaking out, just freaking out”.
 Ms. Rowe said she did not see the vehicle hit Mr. McCormick. She only knew that the appellant pulled into the driveway and then drove off, heading in the opposite direction from how they arrived. Ms. Rowe testified that Mr. McCormick did not walk away from the vehicle after he hit it with a pipe. Instead, he “got closer” and was by the driver’s side of the vehicle when it began to move. The people around her and the appellant were “still hitting [them] through the car as [they] were pulling the car inside” the driveway.
 After the appellant and Ms. Rowe left the complex, video footage from a business 350 metres down the road showed them pulling over and looking at the front of the vehicle. Ms. Rowe said they did this because the vehicle had been “hit with a pipe”. After that, they drove to Chilliwack. Neither she nor the appellant offered assistance to the deceased victim. Ms. Rowe said they “were in panic”. The appellant turned himself in to police the following day.
The Trial Judge's Instruction on the Mental Element of Dangerous Driving
 The mens rea for dangerous driving is addressed in the second of the three components. The jury was told it must determine whether the Crown had established that the appellant’s driving was “a marked departure … from the standard of care that a reasonably prudent driver would observe in the same circumstances”. In assessing this issue, the jury was directed to consider:
• the fact that the driving occurred in a residential area;
• the “particular and maybe somewhat unique circumstance of the [townhouse] units themselves, the front yards, the driveways”;
• whether it was “likely or not likely” that there would have been residents “in or about the location of the units”;
• the time of day the incident occurred;
• the manner of driving as the appellant’s vehicle “moved forward into the driveway”, including its speed and “other actions of the vehicle that were testified to by witnesses”; and,
• what “may, or as importantly may not, have been visible from the driver’s seat of this vehicle as it moved into the driveway”.
 The circumstances listed as relevant to the marked departure analysis did not include evidence relating to the appellant’s state of mind while driving; the behaviour surrounding his vehicle immediately prior to the driving and as it unfolded; the potential impact of this behaviour on the appellant’s perception of events and ensuing conduct; or the dynamics between the appellant, Ms. Rowe, and Mr. McCormick prior to and on the day in question.
Elements of Dangerous Driving
 As noted, the appellant contends that the instructions on dangerous driving causing death contain reversible error. Significantly, he submits that when explaining the mens rea requirement for this offence, the judge did not adequately direct the jury’s attention to the appellant’s personal circumstances, including his state of mind while driving and his perception of the events surrounding the vehicle.
 The actus reus and mens rea of dangerous driving were succinctly stated by Fitch J.A. in R. v. Griffith, 2019 BCCA 37 (CanLII):
 … the actus reus of dangerous driving is operating a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances. The mens rea is whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable driver would have exercised in the same circumstances.
 Citing R. v. Roy, 2012 SCC 26 (CanLII), the judge correctly noted that it was incumbent on the Crown to prove that the driving conduct constituted a marked and substantial departure from the standard of care expected of a reasonable person in the accused’s circumstances: RFJ at para. 57. He noted that the offence allows for exculpatory defences where a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger: RFJ at para. 58.
[Emphasis in the original.]
 In Griffith, the appellant advanced a mens rea challenge not unlike the one put forward in this case, albeit within the context of a trial by judge alone. Mr. Griffith was charged with criminal negligence causing death, an offence that is a step higher on the scale of seriousness than dangerous driving causing death, but also involves the application of a modified objective test for mens rea (a “marked and substantial” departure from the reasonable person standard). The driving that caused the death occurred while Mr. Griffith was attempting to “extricate himself from a confrontation”: at para. 1. Self-defence was therefore a live issue at trial. Mr. Griffith also sought to excuse his driving conduct on grounds of necessity.
 On the appeal from conviction, it was argued that the trial judge failed to apply a modified objective test in deciding whether the Crown proved mens rea. As I understand the submission, Mr. Griffith contended that in concluding that his driving amounted “plainly and clearly [to] a marked and substantial departure from the conduct of a reasonable driver”, the trial judge failed to consider the circumstances surrounding self-defence and necessity: at para. 33. Instead, they were considered separately, exclusive to the defences, and only after the judge had already reached a decision on a marked and substantial departure: Griffithat paras. 33–35.
 Mr. Griffith submitted that because of the approach taken, the mens rea analysis for criminal negligence causing death failed to consider his “subjective appreciation of what he thought he needed to do to extricate himself and his passenger from the confrontation”: at para. 51. Like the appellant in this case, Mr. Griffith argued that this amounted to reversible error.
 On a review of the reasons for conviction, the Court found no error in the application of the mens rea standard for criminal negligence causing death. Justice Fitch wrote:
 I see no merit in the first ground of appeal. Read as a whole, the reasons for judgment leave no room for doubt that the judge understood his obligation to evaluate the fault component of the offence of criminal negligence from the perspective of a reasonable person in the accused’s circumstances.
 The judge clearly recognized that the fault element of criminal negligence could only be established following a consideration of the surrounding circumstances, upon which the availability of the defences likewise turned. Although he momentarily “[left] aside” the defences when characterizing the manner of driving as a marked and substantial departure from the standard of a reasonable person, he clearly appreciated their significance to the issue: RFJ at para. 66. He then turned to consider the defences, rejected both, and concluded that the fault element was established. I see no error in the judge’s approach to this issue.
Application to the Case
 However, whether the elements of the offence, justifications, and/or lawful excuses are analyzed under one framework (as done here) or sequentially (the approach taken in Griffith), it is imperative the jurors understand that they must consider all the evidence in deciding whether the Crown has proved mens rea beyond a reasonable doubt, including evidence relevant to state of mind at the time of driving.
 In fact, this is what CRIMJI encourages. After suggesting a three-part framework for assessing dangerousness, CRIMJI notes that when explaining the second component of that framework, a marked departure from the standard of care expected of a reasonable driver in the circumstances, it is important to “spell out for the jury what constitutes “similar circumstances” in the context of the case … including the accused’s actual state of mind at the time, but not his/her personal traits”: at 6.24.13 (emphasis added). Personal traits such as the age, experience, or education of the accused are not relevant to the mens rea analysis unless they relate to an incapacity to appreciate or avoid risk: Roy at 38.
 Then, on completion of the “lawful justification, excuse, or explanation” component of the framework, trial judges are encouraged to “give details of the explanation” and “[s]et out, as much as required, the essential elements for [the defence identified as applicable to the case], the burden of proof for that defence, and relate the evidence to those requirements”: CRIMJI at 6.24.14. Logically, this would again include the circumstances surrounding the accused’s conduct and evidence relevant to state of mind while driving.
 The trial judge did not take this approach when instructing on the marked departure standard. Instead, he focused the jury’s attention on evidence relevant to the appellant’s state of mind and his perception of the surrounding events only when instructing on the third component of the framework, limited to the “lawful excuse[s]” of self-defence and accident. That evidence included the testimony of Ms. Rowe about prior threats made by the deceased; the dynamics of the pre-existing relationship between the appellant, Ms. Rowe, and Mr. McCormick; and the “traumatic” nature of what was occurring around the vehicle, immediately prior to the driving and as it unfolded. This was the principal evidentiary foundation from which the appellant sought to have the jury draw inferences about his state of mind while driving and his perception of, and reaction to, what was happening outside of the vehicle when he drove into the driveway and had contact with Mr. McCormick.
 Then, critically, after instructing on the defences, the trial judge moved the jury’s attention “back” to the elements of dangerous driving and again referred to the marked departure standard, identifying the evidence that the jurors should consider in that regard. However, he referred to only objective factors.
 Based on the manner in which the charge on dangerous driving causing death was structured, I agree with the appellant that in the particular circumstances of this case, the charge did not adequately equip the jury for a “meaningful” modified objective enquiry on mens rea: Roy at para. 44. Instead, it had the effect of compartmentalizing the jury’s consideration of the evidence relevant to that issue, potentially depriving the appellant of its capacity to raise a reasonable doubt on the marked departure standard even if the jury rejected the “lawful excuse[s]”, as defined by the trial judge.
 In my view, the absence of reference to evidence relevant to state of mind under the second component of the three-part framework raises a realistic possibility that once the jury rejected self-defence and accident (which it must have done to convict), subjective factors surrounding the appellant’s driving were not considered in reaching the ultimate determination on mens rea.
 Unlike Griffith, where the reasons for conviction demonstrated a full appreciation of the entirety of the circumstances relevant to mens rea (at para. 42), there is a realistic possibility in this case that the jurors inferred a marked departure from the mere fact that the appellant’s driving, viewed objectively, was dangerous to the public: Roy at para. 44. The problem with this, of course, is that “proof of dangerous driving, per se, is not enough to convict an accused”: R. v. Chung, 2019 BCCA 206 (CanLII) at para. 30. “The driving must be so dangerous as to take it outside of the realm of mere negligence, momentary inattention, or an understandable misjudgment”: Chung at para. 30 (emphasis added).
 Here, the appellant did not testify. As such, there was no evidence of “actual state of mind”. However, it was open to the jury to draw inferences about the appellant’s state of mind from the evidence as a whole, including the testimony of Ms. Rowe. This could have included inferences about his perception of the danger or risk presented by persons on the outside of the vehicle, including Mr. McCormick, as well as his assessment of the options available to him in responding. At trial, Crown counsel acknowledged that inferences about the appellant’s state of mind could be drawn on the “totality of the evidence”.
 In Griffith, the trial judge found the appellant guilty of criminal negligence causing death after rejecting self-defence and necessity. On appeal, the Court held that if the “appellant’s conduct was neither excused (necessity) nor justified (self-defence), the inference of fault could be drawn from the manner of driving”: at para. 41. I do not understand this to mean, as a matter of law, that once justifications and/or lawful excuses have been rejected, proof of mens rea for criminal negligence or dangerous driving is a fait accompli. Instead, there continues to be room for reasonable doubt on this essential element of the offences, given the Crown’s ultimate burden. In Griffith, the trial judge made specific findings that the appellant’s response to the threat of force in that case was “starkly disproportionate” and “unreasonable in the extreme”: at para. 43. These findings provided a solid grounding for the ultimate determination on the fault requirement for criminal negligence.
 Proof of a marked departure requires more than showing that the driving was not objectively reasonable (the third constituent element of self-defence); rather, the Crown bears the onus of proving that the impugned conduct markedly (or “significantly”) departed from what would be expected of a reasonable person in all the circumstances: R. v. Macillivray, 1995 CanLII 139 (SCC),  1 S.C.R. 890 at para. 13. There is a difference between the two. In Beatty (at para. 7), it was made clear that “[i]t is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind”.
 I am satisfied, in this context, that there is a realistic possibility the jurors did not consider all the circumstances in their ultimate determination of mens rea. The charge compartmentalized the evidence in a way that may have left the impression that evidence relevant to the appellant’s state of mind was only open for consideration in respect of the defences. The error necessitates a new trial. As made clear in Roy, “dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy”: at para. 30.
Use of the Prior Threat by the Deceased
 This ground of appeal also requires comment. Evidence of Mr. McCormick’s violent tendencies, as manifested on the day of the offences or known to the appellant at the time of driving, played a significant role at trial.
 Appellant’s trial counsel did not object to including the instruction and it was incorporated by the judge:
Because of these limitations, the statement allegedly made by Mr. McCormick to Ms. Rowe is not on the same footing as the statements of witnesses in this trial who appeared in court, gave evidence under oath, and were examined by counsel. Therefore, you should examine, consider it carefully, before giving Mr. McCormick’s statement to Ms. Rowe the weight you think it deserves....
Even if you find that Ms. Rowe accurately reported the statement made to her by Mr. McCormick, you must still determine whether Mr. McCormick was being truthful at the time.
 In my view, the trial judge erred in treating the evidence of prior threats as evidence admitted for the truth of its content. This evidence was not tendered for that purpose; rather, it was elicited and admitted as evidence relevant to the state of mind of Ms. Rowe and the appellant on July 11, 2014.
 In this context, it was the fact of the prior statement(s) that mattered, not whether Mr. McCormick was being truthful when he said the things relayed by Ms. Rowe in her testimony and actually intended to cause Ms. Rowe and the appellant death or physical harm.
 As noted in R. v. Emms, 2010 ONCA 817 (CanLII) at para. 24, aff’d on other grounds 2012 SCC 74 (CanLII): “Out-of-court statements tendered to show an accused's belief, assuming that belief to be relevant, are not hearsay and are admissible” (citing R. v. Smith, 1992 CanLII 79 (SCC),  2 S.C.R. 915).See also R. v. Dean (1987), 1997 CanLII 3669 (BC CA), 39 B.C.L.R. (3d) 287 (C.A.) at para. 12 and R. v. Khelawon, 2006 SCC 57 (CanLII) at para. 36.
 In Subramaniam v. Public Prosecutor,  1 W.L.R. 965 (P.C.) at 970, it was explained that:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
[Cited with approval in Smith at para. 20. Emphasis added.]
 In light of the purpose for which the evidence of prior threats was before the jury, a hearsay instruction of the nature provided by the trial judge was not appropriate. A less limiting instruction was required. See, for example, the instruction for “Statements of Declarant Not Called as Witness (Non-Hearsay Purpose)” in D. Watt,Watt’s Manual of Criminal Jury Instructions, 2d ed (Toronto: Carswell, 2015) at 193, and “Non-Hearsay Purpose” in the Canadian Judicial Council, Model Jury Instructions at 7.12A.
 In telling the jurors they could only use this evidence “in favour of Mr. Delellis” if satisfied that Mr. McCormick was being truthful at the time he made the threats, the judge unfairly restricted its availability to the jury.
The appeal was allowed (Para 133)
R v Eyre (BCCA)
[October 4/19] – Possession of a "Replica" Firearm - Elements of Offence – 2019 BCCA 333 [Reasons by. Frankel J.A., with Willcock J.A., and Fenlon J.A. Concurring]
AUTHOR’S NOTE: The irony in this case is palpable. An accused, defending themselves from the offence of possession of a replica firearm while under a prohibition (s.109 or 110 CCC) can successfully defend themselves by causing a doubt as to whether the item they possessed was actually a firearm rather than a replica. Continue reading to find out how...
 Following a trial before Justice Blok of the Supreme Court of British Columbia, Robert Campbell Hartley Eyre was convicted of possessing a prohibited device—a “replica handgun”—while prohibited from doing so. The subject matter of the charge is a pellet gun that closely resembles a Beretta semi-automatic pistol. Mr. Eyre now appeals that conviction.
 The following provisions of the Criminal Code are relevant to the resolution of the issues raised on this appeal:
Part III Firearms and Other Weapons
s. 84(1) In this Part,
“replica firearm” means any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm, and that itself is not a firearm, but does not include any such device that is designed or intended to exactly resemble, or to resemble with near precision, an antique firearm;
 A member of the Royal Canadian Mounted Police arrested Mr. Eyre on outstanding warrants. In searching Mr. Eyre incidental to arrest, the officer found an Umarex Px4 Storm pellet gun tucked into the left side of Mr. Eyre’s waistband. That pellet gun was seized and led to Mr. Eyre being charged that he:
[O]n or about the 3rd day of May, 2017, at or near Wynndel, in the province of British Columbia, did possess a prohibited device, a replica handgun, while he was prohibited from doing so by any order under this Act or any other Act of Parliament, contrary to s. 117.01(1) of the Criminal Code.
 At trial, the Crown’s case was presented by way of a statement of admissions which was marked as an exhibit. The pellet gun was also marked as an exhibit. It has the following stamped on its side:
Not a toy. Misuse or careless use may cause serious injury or death.
Before using read owner’s manual available free from Umarex U.S.A.,
Fort Smith, AR. Beretta Trademarks licensed by Beretta Italy.
 Corporal Reid’s report concludes as follows:
Cpl. REID’s opinion is that:
The Umarex Px4 storm pellet gun was designed to very accurately replicate the Beretta Px4 handgun in appearance. If the pellet gun (Exhibit 1) was used in the commission of an offence, it is unlikely that the public or police would be able to differentiate between the two.
Case Law Regarding Replica Firearms
 R. v. Dunn, 2013 ONCA 539 (CanLII), 305 C.C.C. (3d) 372, aff’d 2014 SCC 69 (CanLII),  3 S.C.R. 490, involved a Crown appeal from acquittal on charges arising from Mr. Dunn having pointed a pellet gun at someone. The appeal turned on the interpretation of the terms “firearm” and “weapon” in the Criminal Code, i.e., whether an object that falls within the definition of “firearm” must also meet the definition of “weapon”. Speaking for the Court of Appeal for Ontario, Justice Rosenberg answered that question in the negative; his reasons were adopted by the Supreme Court of Canada.
 The pellet gun in Dunn had a muzzle velocity of 261.41 feet per second (“ft./s.”) (79.67 meters per second (“m./s.”)). A firearms examiner testified with respect to a scientific study done to determine the muzzle velocity needed for pellets to penetrate the human eye, known as the pig’s eye test, because pigs’ eyes are similar in size and composition to human eyes. That study found that a muzzle velocity exceeding 214 ft./s. (65.22 m./s.) is capable for causing serious injury to a human eye. At 246 ft./s. (74.98 m./s.), a pellet would penetrate the human eye 50% of the time, referred to as the “V50 standard”: paras. 7–8, 40.
 Both before and after Dunn, the pig’s eye test has been used to determine whether a pellet gun is a firearm. To prove a particular pellet gun is a firearm the Crown will often tender evidence from an expert who test-fired that gun to establish that it has a muzzle velocity sufficient to cause serious bodily injury or death: see R. v. Sather, 2008 ONCJ 98 (CanLII) at paras. 12–13; R. v. Goard, 2014 ONSC 2215 (CanLII) at para. 45–48, 121, 310 C.C.C. (3d) 491; R. v. Crawford, 2015 ABCA 175 (CanLII) at para. 24, 322 C.C.C. (3d) 528; R. v. Wainwright, 2016 ONSC 1963 (CanLII) at para. 13; R. v. Asmann (May 13, 2015), Barrie (Ont. S.C.J.) at paras. 15, 16, 23, aff’d 2017 ONCA 659 (CanLII).
 It is open to the Crown to prove a pellet gun is not capable of causing serious bodily injury or death other than by tendering opinion evidence from an expert who test-fired that gun. In the present case the Crown sought to prove that fact by means of a report from an expert who based his opinion solely on information in the FRT. The Crown accepts that Corporal Reid did not opine on the pellet gun’s actual muzzle velocity or on its capability to cause harm.
 As is evident from paras. 59 and 60 of the trial judge’s reasons, his finding that the pellet gun is a replica firearm, as opposed to a firearm, was based on Corporal Reid’s statement that,
This pellet gun is classified as exempt from being a firearm in Canada due to the muzzle velocity of the pellets.
However, this statement does not address whether the pellet gun is or is not a firearm as defined in s. 2 of the Criminal Code.
 ... As discussed in Dunn at para. 45, a pellet gun exempted under s. 84(3)(d) can still be a firearm for other purposes. Indeed, the FTR excerpt for the Umarex pellet gun supports the view that the pellet gun seized from Mr. Eyre is a firearm as defined in s. 2.
 Given that Corporal Reid’s report is silent with respect to the capability of the pellet gun seized from Mr. Eyre to cause harm, the trial judge’s finding that it is a replica firearm is unsupported and unreasonable. As a result, Mr. Eyre’s conviction cannot stand.
 As the foregoing analysis is dispositive of this appeal, I need not address the mens rea issue.