R. v. Ponce; R. v. Tavares, 2012 MBCA 87

Citation: R. v. Ponce; R. v. Tavares, 2012 MBCA 87 Date: 20120920 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Docket: AR 10-30-07351 BETWEEN : HER MAJESTY THE QUEEN ) ) Respondent ) ) - and - ) ) Z. I. Garber NORRIS ERIC PONCE ) for the Appellant N. E. Ponce ) (Accused) Appellant ) A. L. Sansregret ) for the Appellant C. D. Tavares - and - ) ) A. G.

Bowering Docket: AR 10-30-07360 ) for the Respondent ) BETWEEN : ) ) Appeals heard: HER MAJESTY THE QUEEN ) June 14, 2011 ) Respondent ) Judgment delivered: ) September 20, 2012 - and - ) ) CARLOS DANIEL TAVARES ) ) (Accused) Appellant ) MONNIN J.A. 1 Ming Huynh died from stab wounds he suffered outside a Winnipeg nightclub. Three individuals were charged with his murder. After a jury trial, one, Glen Monkman (Monkman), who admittedly stabbed the victim, was convicted of second degree murder.

Two others, Carlos Daniel Tavares (Tavares) and Norris Eric Ponce (Ponce), the appellants in this case, who had driven with Monkman to the nightclub and were seen driving off with him, were both found guilty of manslaughter. 2 The critical witness for the Crown was Danny Simao (Simao), Tavares’s cousin, who had been in the vehicle with the three others. There were numerous issues with his testimony, which was spread over many days. As a result, the trial judge felt it necessary to include a strong Vetrovec warning in her charge.

That the jury convicted the accused notwithstanding the warning and the allegation that such verdicts were unreasonable form the main thrust of the appeals. 3 Upon conviction, Monkman was sentenced to life imprisonment with no parole for a period of 12 years. Ponce received a sentence of four years’ incarceration less credit for time served, and Tavares was sentenced to seven years less credit for time served. 4 Tavares appeals his conviction and Ponce appeals his conviction and sentence.

Factual Background 5 The evidence as presented to the jury was that in late April 2006, Simao, a resident of Ontario, arrived in Winnipeg to

visit with his cousin, Tavares. On April 30, 2006, Tavares, driving a Navigator SUV, drove Simao to a comedy club and then to theFreehouse bar. They were accompanied by two individuals, one nicknamed “Chucky” (later identified as Ponce) and the other named“Sonny” (later identified as Monkman). 6 Shortly after 2:00 in the morning, the four were seen leaving the Freehouse bar on video camera.

Simao testified thatthey left after Monkman received a phone call and told him something to the effect that somebody they were interested in was to befound at “a rave.” Simao later admitted that the use of the word “rave” was his, not that of Monkman. Evidence was tendered at trialthat approximately one month prior, Tavares was admitted to a hospital suffering from what was likely a stab wound. 7 Simao testified that on the way from the bar to their next destination, he heard some whispered conversation in thevehicle between Monkman, Tavares, and Ponce.

The trial judge summed it up for the jury as “we’re going to fix him up” or “get it doneand we’ll fix you up.” Simao testified that he was sitting in the back seat with Monkman, who produced a knife and made the commentthat he was going to “juk him.” The trial judge, in her summation, explained that while Simao had never heard the expression before, heknew it meant to stab someone. 8 When they arrived at their destination, which was a nightclub, all four got out of the vehicle. Simao testified that hewent to get a hotdog from a street vendor just outside the front door of the club.

He testified that Ponce and Monkman confronted thevictim on the stairs of the nightclub, yelling “you’re the fucking guy” and making punching motions at him, after which the victimstarted to bleed profusely. 9 Evidence from other witnesses differs from Simao’s version, placing the actual stabbing some distance away from thesteps, with some witnesses stating that Ponce was either inviting the victim to fight with him or backing away from him.

However, therewas no evidence to contradict that Monkman was the one who made striking motions at the victim’s neck, where the fatal stab woundoccurred. 10 After Monkman’s attack, with the victim still yelling and belligerent, all four ran back to the vehicle. Simao testifiedthat Monkman yelled “it’s fucking done.” The vehicle quickly left the scene, driven by Tavares. According to Simao, the vehiclestopped on a bridge, at which time both Tavares and Ponce directed Monkman to get rid of the knife, which he threw in a river.

Simaotestified that he saw a significant cut in Monkman’s hand and that there was blood in the vehicle. He further stated that he and Monkmanwere dropped off alone in a park, where they had a conversation about what had taken place. They were subsequently picked up andtaken to a close confidant of Tavares, where Monkman was told to shower and a discussion was held about getting him out of town. Simao left Winnipeg the next day. 11 The vehicle was located by the Winnipeg police at a body shop a few days later. Blood was found in the back seatwhich matched Monkman’s.

When arrested, Monkman had a small cut on his right hand. 12 Approximately 13 months later, members of the Winnipeg Police Homicide Division travelled to Simao’s home inOntario to interview him. Simao testified that he was physically assaulted by one of the officers when he made a gesture which wasinterpreted as threatening, and that he was told that he could either give a statement at the local police station or be taken to Winnipegand possibly charged with murder.

As well, he was prevented from saying goodbye to his wife before being taken to the local policestation. 13 All of this was denied by the officers, except that they confirmed he was asked to accompany them to the local policestation, which he did voluntarily. After speaking with the police officers at the police station for a number of hours, he then provided avideotaped statement, essentially setting out the facts which I have just recited.

Judge’s Charge and Simao’s Testimony 14 The trial judge concluded that given a number of concerns with respect to Simao’s testimony, she should provide in hercharge what is known as a Vetrovec ( (SCC), [1982] 1 S.C.R. 811) warning. At the outset of reviewing Simao’stestimony, she advised the jury: “This is a special witness warning.” She then stated as follows: Common sense tells you that there is good reason to look at Danny Simao’s evidence with the greatest care and caution.

You shouldlook for some confirmation of Danny Simao’s evidence from somebody or something other than Danny Simao before you rely upon it indeciding whether Crown counsel has proven the case against Glen Monkman, Carlos Tavares and Norris Ponce beyond a reasonabledoubt. You had the benefit of watching Danny Simao testify over the course of several weeks and no doubt have formed an opinion as to thereliability or lack of reliability of his evidence.

There were a number of areas in his testimony that, in my view, should cause yousignificant problems in accepting much of his evidence. …. 15 She then proceeded to review in detail problems with his evidence: .... Firstly, without going through them in great detail, there were numerous significant contradictions between what Simao told thepolice when he first met with them in May 2007, and what he said at the preliminary inquiry in September 2008, and also between whathe said on those two occasions and what he described before you, even between his testimony on direct examination and on cross-

examination. Next, in my view, he lied outright on certain areas. He denied that he had ever sold marihuana, despite numerous wiretap interceptions suggesting otherwise. While these lies do not involve the specifics of his testimony in this case, they should give you cause for concern because if he would lie on that issue, could he be lying on other matters? Next, the Crown discussed the possibility of perjury charges being laid against Simao. That was with respect to his testimony on whether or not he had sold marihuana.

Although the decision was made not to proceed with perjury charges, when Simao was questioned as to the discussion he had just had with the Crown attorneys on this subject, he could not remember and relate the specifics of that conversation. That may be an indication of his overall inability to recall and accurately recount details of conversation, of particular importance when much of his evidence purports to be of comments attributed to one or more of the accused. Next, remember that Mr. Simao was not spoken to for 13 months after the incident in question.

He obviously did not take notes of what was said and what he heard at the time. He conceded that he did not know Ming Huynh had died until 2007. How reliable are his recollections of what was said and done by everyone he was with that night, particularly when much of his evidence relates to what the persons in the vehicle are alleged to have said that night. Next, Mr. Simao was a notorious user of marihuana, by his own admission. He testified that he uses marihuana on a daily basis, at one point consuming up to seven or eight joints per day.

You should decide whether or not that has affected his ability to recall the details of the night in question. It certainly cannot be helpful. Next, Mr. Simao repeatedly indicated that he had no reason to lie, but you should bear in mind that that may not be accurate. He admitted that the police advised him that if he did not talk to them at Peel Regional, he would have been taken back to Winnipeg by the police. Both Detective Sergeant Mirwaldt and Bessason denied that this conversation took place. Mr.

Simao also testified that he was threatened with being charged with murder if he did not cooperate, although again both detective sergeants deny that. Was that part of the reason, in Mr. Simao’s mind, that he decided to cooperate with police? According to Danny Simao, all of that conversation took place before he gave the videotaped statement. Mr. Simao also admitted that he knew the video statement was taken after he was advised that he could be charged with a number of criminal offences if he changed his version of events at a later date. Next, you will recall, I am sure, the frequent breaks we took because Mr.

Simao either was vomiting or on the verge of it. He has some medical issues that lead to that, but sometimes it appeared that his illness flared up when cross-examination of his testimony was particularly intense. He did say that his stomach acted up when he was in stressful situations. Finally, it is also important to remember that Mr. Simao’s testimony, where it can be contrasted with that of independent witnesses, is frequently contradicted.

For example, his version of the confrontation, punching motions and stabbing on the steps of the nightclub, is contradicted by every other independent witness, as well as the photos which indicate where the blood was found. None of the numerous independent witnesses at the scene saw Chucky punching at Ming Huynh. No one saw any confrontation on the steps of the nightclub. No one saw any physical contact at all between Chucky and Ming Huynh.

And Ming Huynh certainly drew the attention of numerous people outside because of his bizarre intoxicated behaviour and because his shirt was off. 16 She then concluded as follows: Danny Simao, and the circumstances in which he testified, might well make you wish that somebody or something else confirmed what he said. You may believe Danny Simao’s testimony, however, if you find it trustworthy, even if no one or nothing else confirms it. When you consider it, however, keep in mind who gave the evidence and the circumstances under which he testified.

In my view, it would be dangerous to rely on Danny Simao in the absence of some evidence that supports what he relates. You may find that there is some evidence in this case that confirms or supports some parts of Danny Simao’s testimony. It is for you to say whether this or any evidence confirms or supports his testimony and how that affects whether or how much you will believe of or rely upon his testimony in deciding this case.

As I proceed through my instructions, I will indicate where I believe there may be confirmatory evidence of Danny Simao’s testimony. There is no confirmatory evidence of the conversation that Danny Simao relates in the car on the way to the scene, so you should be very cautious of putting much, if any, weight on that, but that is your decision. Mr.

Simao did say that Glen Monkman produced [a] knife in the car, and we know he was at the scene a short time later with a knife that was seen by two witnesses. [emphasis added] 17 The trial judge then proceeded to review eyewitness evidence of individuals who were at the Freehouse bar and at the nightclub. In doing so, she took care to identify where that evidence was possibly confirmatory of Simao’s evidence. 18 Firstly, she noted that one of the bartenders at the Freehouse bar, who knew Monkman from before, was able to identify him on the video from that location.

She stated: “This is an area where Danny Simao’s evidence can be confirmed as to the people he was with on Saturday night.” 19 One of the witnesses at the nightclub, Michael Laurin (Laurin), made a positive identification of Monkman when shown a photo pack by police and made a positive identification of Ponce at the preliminary inquiry, although that took place in September 2008, two and one-half years later. While counsel for Monkman conceded that he was on the scene that night, no such concessions were given by the other accused.

The trial judge, in her summation, noted Laurin’s identification of Ponce as “the smaller guy” in the confrontation with the victim. She stated: ….

No one else at the scene identified Danny Simao or Carlos Tavares, however, again, we know that the four of them were together at the Freehouse minutes before and you may find that as confirmation that Simao is correct as to the people he was with. 20 Later she noted: “It should not be too difficult to conclude that Danny Simao is correct with respect to being at the scene with people he is seen with at the Freehouse.” 21 The trial judge, when giving instructions in the context of Monkman’s state of mind, noted that, with respect to the knife, Simao said that he was shown the knife by Monkman in the vehicle and was told by Monkman that he was going to “juk him.” Within minutes of the conversation, Monkman stabbed the victim. 22 She went on as follows: As well, Mr.

Simao said that when Glen Monkman got back in the car he said, quote, “It’s done. It’s fucking done.” Some of the witnesses heard nothing to this effect, but Michael Embury described him as laughing as he got back in the SUV. Anthony Raposo did not hear any laughing but did hear him say, “I fucking got him”, and that he was cheering himself on. James Wakefield described him as performing a touchdown dance.

This is independent evidence that might be confirmation of what Danny Simao said was related by Glen Monkman after the stabbing. 23 When giving the jury directions on the issue of whether the murder of the victim was planned and deliberate, the trial judge stated as follows: The evidence in this area is largely dependent on the testimony of Danny Simao, and therefore should be very carefully scrutinized. Danny Simao talked about a conversation in the car on the way to Desire nightclub, where he said that Carlos Tavares and Chucky [Ponce] said, “We’re going to fix you up” or “We’re going to fix him up”.

He said Glen Monkman showed him the knife and said he was going to “juk him”. This was shortly after a telephone call where Danny Simao was told that, “Buddy’s at the rave”. He conceded, finally, that rave was his word but not “buddy”, although it is a term he tends to use. He was told this was the guy who had stabbed his cousin sometime before. . . . . . There really is nothing that confirms Danny Simao’s testimony as to this conversation in the car on the way to Desire. There is nothing to confirm Danny Simao’s testimony as to Carlos Tavares receiving a phone call at the Freehouse.

Certainly he changed his testimony repeatedly as to why they were leaving the Freehouse. It went from, “Buddy’s at the rave”, which appear to be his words attributed to Glen Monkman, to other versions of that, to, “Come on, we’re leaving”.

[emphasis added] 24 The trial judge then turned to Tavares and Ponce and instructed on the law of aiding and abetting, also stating that “[t]he Crown does not allege that either Carlos Tavares or Norris Ponce was the person who actually caused the death of Ming Huynh, but there are other ways that a person may be found liable for an offence.” 25 She reviewed the evidence that the jury should consider in dealing with the charges against Tavares and Ponce.

She confirmed that “much of the evidence comes from Danny Simao.” In particular, she noted the conversation Simao said he overheard between Ponce, Tavares and Monkman about “going to fix you up,” or words to that effect. 26 The trial judge further reviewed the evidence with respect to Tavares driving the SUV to the scene with the others. She noted as follows: …. No one other than Danny Simao identifies Carlos Tavares as being there at all, however, a licence plate was obtained in one of the 911 calls of FLO 159, which does not exist.

When a substitution was made of numbers commonly mistaken, a plate of ELD 159 was found that was a 2006 rental Lincoln Navigator. This vehicle was rented April 26th, 2006 by Andrea Melnyk and John Dacamara, but Carlos Tavares was present at the time of the rental. This may be some confirmation of Danny Simao’s evidence that the four of them were at the scene. In addition, the four of them left the Freehouse together some 20 minutes before the stabbing. Danny Simao really knows no one in the city, so if he was in the vehicle that night, it is a reasonable assumption that Carlos Tavares was with him.

Just being at the scene, without more, is not enough. If you have decided that Carlos Tavares knew that Glen Monkman intended to cause bodily harm that was likely to cause death and that he drove him to the scene before the stabbing and away from the scene after, this is some evidence that he was present at the scene for the purpose of helping him commit the offence. 27 With respect to Ponce, the trial judge directed the jury with respect to the issue of whether he knew that Monkman intended to cause bodily harm that was likely to cause death: ….

I do not wish to repeat the comments I made under this question as regards Carlos Tavares, as the same comments apply here. It would be reasonable to conclude that Norris Ponce had the same information available to him as Carlos Tavares as to what Glen Monkman intended to do. Carlos Tavares and Norris Ponce were in the front seat, according to Danny Simao. They had the same opportunity to see and hear. Based on all the evidence that you accept, are you satisfied beyond a reasonable doubt that Norris Ponce knew that Glen Monkman intended to cause bodily harm that was likely to cause death? …. . . . . . ....

The Crown contends that Norris Ponce offered encouragement to Glen Monkman by offering to fix him up. This is highly dependent on the reliability and believability of Danny Simao in recounting the comments. I’ve already made much comment on Danny Simao. . . . . . ….

You will need to put some reliance on Danny Simao’s testimony. .... 28 She made reference to the alleged post-offence conduct and how it could be used with respect to these two accused: You have heard evidence from Danny Simao that after the stabbing took place, the SUV left the scene quickly, that Carlos Tavares and Norris Ponce told Glen Monkman to throw the knife away and that there was an attempt to clean the car of blood that was in it. He also related conversation about a “grand” and “Carlos’ Lexus”.

What a person says or does after a crime is committed may help you decide whether it was that person who committed it. It may help, it may not. The conduct may indicate that Carlos Tavares or Norris Ponce committed the crime. On the other hand, the conduct may be that of an innocent person who simply wants to avoid involvement in a police investigation.

The first thing to decide is whether Carlos Tavares or Norris Ponce actually said or did these things. If you find that Carlos Tavares or Norris Ponce did not do or say these things, you must not consider this evidence in reaching your verdict. If you find that Carlos Tavares or Norris Ponce did, in fact, do or say these things, you should consider next whether this was because Carlos Tavares or Norris Ponce committed the offence charged or for some other reason.

If you find that what Carlos Tavares or Norris Ponce said or did afterwards is consistent with his being conscious of having done what is alleged against him and not for some other reason, you may consider this evidence, together with all the other evidence, in reaching your verdict. If you do not or cannot find that Carlos Tavares or Norris Ponce said or did those things for that reason, you must not consider this evidence in this way. Again, everything about the post-offence conduct in this case comes from Danny Simao, other than the fact that the car left the scene quickly, by most accounts.

You have to rely on his evidence alone that Carlos Tavares, or Norris Ponce or both told Glen Monkman to throw the knife away in the river. The fact that no knife was found is not confirmation of this conversation. As well, any conversation about a “grand” or “Carlos’ Lexus” was very general. You have to rely solely on Danny Simao for the fact that it was said, let alone what it meant. 29 The trial judge then went on at some length to discuss what the Crown and defence positions were. With respect to the Crown, she set out its view that Simao’s evidence was sufficiently corroborated for the jury to rely upon it.

That evidence, according to the Crown, showed that the three accused with Simao, left the Freehouse bar together. On the way to the nightclub Monkman indicated that he was going to stab the individual who had stabbed Tavares and showed Simao a knife. The vehicle driven by Tavares parked near the nightclub. At some time in the drive over, Tavares and Ponce engaged in a conversation with Monkman, offering assistance. At the scene, Ponce was attempting to distract the victim when Monkman stabbed him.

They all ran to the vehicle, with Monkman making a statement to the effect that he had done what he had set out to do. On the ride away from the scene, Tavares and Ponce discussed ways to help Monkman get away and stopped the vehicle to allow him to dispose of the knife. They all fled to a friend of Tavares, after which steps were taken to get rid of the car. 30 The trial judge then set out the position of the defence.

As to Monkman, while his counsel admitted that he had stabbed the victim at the nightclub, the evidence of any planning was only that of Simao, which was unreliable and inconsistent with that of independent witnesses at the scene. The presence of the accused at the nightclub was not for a planned retribution, but because it was open late and the other bar was closing.

It is only when Huynh made threatening gestures towards the smaller Ponce that Monkman intervened, a regrettable error, not a planned or deliberate revenge. 31 As to Tavares, the only evidence of his driving to the scene was that of Simao, an unreliable witness due to his alcohol and marihuana consumption. Simao was motivated to lie to avoid being charged with murder and a trip to Winnipeg. Once he had provided a false story he was stuck with it. His evidence was replete with inconsistencies and was not credible. 32 As to Ponce, his position was that he did nothing to assist or encourage Monkman.

His conduct at the nightclub was not to act as a decoy, but to back away when confronted by the angry and belligerent Huynh. Simao’s evidence as to what occurred was inconsistent with that of everyone else and could not be believed. There was no evidence of his being involved in the disposal of the vehicle. Verdicts 33 Monkman’s counsel conceded that his client had wielded the knife which had been used to stab the victim. His position to the jury was that the stabbing was intentional, but not intended to cause death. He argued that his client should be found guilty only of manslaughter.

The jury found him guilty of second degree murder, thereby indicating that they accepted the Crown’s position that he had gone to the nightclub with the intention of attacking the victim. 34 As to Tavares and Ponce, their position was there was no credible evidence linking them to anything suggesting an intention to help or encourage Monkman’s attack. The jury, however, found them guilty of manslaughter, thereby indicating an acceptance of the Crown’s position that there was some assistance or encouragement of Monkman’s attack.

Points in Issue 35 The appeals are predicated on two main arguments. 36 Firstly, both appellants argue that the verdict was unreasonable in the circumstances given that the primary Crown witness, Simao, was the subject of a strong Vetrovec warning, which should have led a reasonably instructed jury to discount, if not dismiss, his evidence. Without his evidence, the convictions cannot stand. 37 Secondly, the appellants challenge the trial judge’s charge to the jury as follows:

a) both argue that her direction to the jury respecting utterances made by one or more accused amounted to a misdirection;

b) both argue that she erred when she instructed the jury that in order to convict, they would have to put some reliance on the evidence of Simao;

c) both argue that she erred when she elected not to reinstruct the jury on drawing inferences;

d) Tavares argues that the trial judge erred in her direction to the jury that the case against him depended partially on eyewitnesstestimony; and

e) Ponce argues that to instruct the jury that the presence of a knife at the scene could be considered by the jury asconfirmatory evidence was a misdirection. Standard of Review 38 Whether or not a verdict is unreasonable will be reviewed by an appellate court using a test of whether the verdict isone that a properly instructed jury, acting judicially, could reasonably have rendered. See R. v. Yebes, (SCC), [1987] 2S.C.R. 168, R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, and R. v.

Coutu (K.S.), 2008 MBCA 151, 231 Man.R. (2d) 275. 39 As to the jury charge, assuming that the judge is applying the appropriate legal principles, an appellate court is toreview the charge, not to a degree of perfection, but only to assess whether it had the effect of instructing the jury as to what wasexpected of them. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, Bastarache J. put it as follows (at paras. 30-31): When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind thefollowing.

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind ofthe jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequencefollowed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge asa whole. The standard that a trial judge’s instructions are to be held to is not perfection.

The accused is entitled to a properly instructedjury, not a perfectly instructed jury: see Jacquard [ (SCC), [1997] 1 S.C.R. 314], at para. 2. It is the overall effect of thecharge that matters. 40 As well, in R. v. Grant (I.M.), 2009 MBCA 9, 236 Man.R. (2d) 54, leave to appeal to S.C.C. denied, [2009] S.C.C.A.No. 94 (QL), my colleague Chartier J.A. had this to say with respect to reviewing the charge on a question of confirmatory evidence (atpara. 57): Furthermore, it must be remembered that when reviewing the charge on a question of confirmatory evidence, the appellate court is toshow deference.

This court adopted, in R. v. Sanderson (R.K.) (2003), 2003 MBCA 109 , 177 Man.R. (2d) 260; 304 W.A.C.260; 2003 MBCA 109, the reasoning of the Ontario Court of Appeal in R. v. G.G. (1995), (ON CA), 80 O.A.C. 12;97 C.C.C. (3d) 362 (C.A.) (at p. 377 [C.C.C.]): ... Where evidence is capable of confirming a witness’s story and a trial judge concludes that the evidence is confirmatory, an appellatecourt should not interfere simply because it would have drawn a different conclusion. ... Unreasonable Verdict Legal Principles 41 A verdict may be set aside as unreasonable pursuant to s. 686(1)(a)(

i) of the Criminal Code (the Code), which states: (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence 42 Two cases of the Supreme Court are viewed as seminal to the

interpretation of that section, namely, Yebes and Biniaris. 43 In Biniaris, Arbour J. began by repeating the now familiar test from Yebes (at para. 36): The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot besupported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever a jury goes beyond a reasonable standard. . . . [T]he test is “whether the verdict is one that a properlyinstructed jury acting judicially, could reasonably have rendered”.

(Yebes, supra, at p. 185 (quoting Corbett v. The Queen, (SCC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).) That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and,within the limits of appellate disadvantage, weigh the evidence.

This latter process is usually understood as referring to a subjectiveexercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency.

The test is therefore mixed,and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test. 44 Arbour J. set out at length the judicial review process to be followed where there are no errors in the charge to the jury(at paras. 38, 40): The exercise of appellate review is considerably more difficult when the court of appeal is required to determine the allegedunreasonableness of a verdict reached by a jury.

If there are no errors in the charge, as must be assumed, there is no way of determiningthe basis upon which the jury reached its conclusion. But this does not dispense the reviewing court from the need to articulate the basisupon which it finds that the conclusion reached by the jury was unreasonable. It is insufficient for the court of appeal to refer to a vagueunease, or a lingering or lurking doubt based on its own review of the evidence.

This “lurking doubt” may be a powerful trigger forthorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis uponwhich to interfere with the findings of a jury. In other words, if, after reviewing the evidence at the end of an error-free trial which led toa conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justifyinterfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner.

In that case, thecourt of appeal must proceed further with its analysis. When an appellate court arrives at that conclusion, it does not act as a “thirteenth juror”, nor is it “usurping the function of the jury”. Inconcluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that theseparticular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only actingdispassionately, applying the law and adjudicating on the basis of the record and nothing else.

It means, in addition, arriving at aconclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by thereviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have cometo the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarrantedconviction. 45 It is clear that a review directed by the Code with respect to an unreasonable verdict is a limited one. As noted byDoherty J.A. in R. v.

Tat (1997), (ON CA), 35 O.R. (3d) 641 (C.A.), “[t]he appellate process is not wellsuited to theassessment of the cogency of evidence led at trial” (at pp. 672-73). 46 Therefore, he concluded as follows (at p. 673): …. Consequently, it is only in the clearest cases where the result at trial can be said to be unreasonable that appellate intervention iswarranted. A verdict is unreasonable only where the appellate court is satisfied that the verdict is one that a properly instructed trier offact acting judicially could not reasonably have rendered: R. v.

Corbett (1973), (SCC), 14 C.C.C. (2d) 385 at p. 389, 25C.R.N.S. 296 (S.C.C.); Yebes v. R., (SCC), [1987] 2 S.C.R. 168 at p. 185, 36 C.C.C. (3d) 417 at p. 430; R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909 at p. 916, 64 C.C.C. (3d) 193 at p. 197. 47 In R. v. Burke, (SCC), [1996] 1 S.C.R. 474, Sopinka J. referred to an unreasonable verdict being onethat rests on “shaky ground.” Albeit in a case before a judge alone, he stated (at para. 6): I acknowledge that this is a power which an appellate court will exercise sparingly.

This is not to say that an appellate court shouldshrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground andthat it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it wasintended as an additional and salutary safeguard against the conviction of the innocent. 48 The mere fact that a witness is disreputable does not in and of itself lead to the conclusion that the jury could not relyupon the evidence of that witness and still act judicially.

It is noted by Sharpe J.A. in R. v. MacDonald (D.S.), 2008 ONCA 778, 242O.A.C. 244, when referring to a witness subject to a Vetrovec warning in that case (at paras. 4-6):

The appellant submits that Melanie Gurnsey’s evidence was so fraught with lies, contradictions and inconsistencies with other evidenceled by the Crown that the conviction cannot survive judicial scrutiny when viewed “through the lens of judicial experience which servesas an additional protection against an unwarranted conviction”: R. v. Biniaris (J.), 2000 SCC 15 , [2000] 1 S.C.R. 381; 252N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, at para. 40. In my view, there is no merit to this submission. There is no question that Gurnsey’s evidence was problematic from a variety ofperspectives.

Those problems were very much the focus of this trial. Gurnsey was subjected to vigorous cross-examination and her liesand inconsistencies were probed in great detail by both defence counsel in their closing addresses. The trial judge reviewed thosepositions in his instructions and the jury was given a strong Vetrovec warning. I am not persuaded that there is any principled basis to distinguish this case from countless others that turn on the credibility andreliability of a disreputable witness.

It was up to the twelve ordinary men and women on the jury who sat through the trial to assess herevidence and to decide whether the Crown had proven its case beyond a reasonable doubt. Analysis 49 In this case, the appellants argue that the only evidence implicating them came from Simao, who was the subject of aspecial witness warning and whose evidence, by the judge’s own estimation, was unreliable.

It is therefore argued that had the juryacted judicially and heeded the warning that it would be dangerous to rely on his evidence in the absence of evidence in support of it, thejury should not have convicted the appellants. 50 They raise a number of issues with respect to Simao’s evidence, which can be summarized as follows:

a) he was first approached by Winnipeg police almost 13 months after the event and would have had plenty of time to obtaininformation with respect to what occurred at the nightclub from other sources;

b) his evidence was replete with contradictions as between his evidence at trial and earlier testimony in a manner which shouldhave negatively affected his credibility;

c) he lied with respect to his drug dealing;

d) he confirmed that he was better at recalling what he saw than what he heard, yet what he claimed to have seen was directlycontradicted by a number of witnesses;

e) his recollection of conversations was found to be deficient. For example, he finally had to admit that some of the words usedin what he alleged the accused had said were his own fabrications; and

f) he was warned by the Crown as to the possibility of being charged with perjury. 51 There is no doubt that the Crown’s case as against Ponce and Tavares on second degree murder was a difficult one tomake. The trial judge instructed on both second degree murder and manslaughter. The jury returned verdicts of manslaughter, therebyindicating that they were not satisfied beyond a reasonable doubt that Ponce and Tavares knew that Monkman intended to cause bodilyharm likely to cause death, but were satisfied beyond a reasonable doubt that he was likely to cause bodily harm to the victim.

Theverdicts of manslaughter mean that the jury was also satisfied that Ponce and Tavares aided or abetted Monkman. I am of the view, forthe reasons that follow, that those verdicts were open to the jury, acting judicially on the evidence before them. 52 There was evidence that while Tavares did not rent the vehicle involved that evening, he was seen on the video cameraleaving the Freehouse bar and was identified by individuals at that location as having been there that evening in the company of theothers. All four were caught on the video leaving at approximately the same time together.

There was evidence from Simao thatTavares drove to the nightclub. 53 While there is no direct evidence (other than Simao’

s) placing Tavares at the scene, Ponce and Monkman were at thenightclub shortly after the time they left the Freehouse bar in the company of Simao and Tavares. The jury could reasonably infer thatthey were in the vehicle as well. 54 The conversations which Simao says took place in the vehicle on the way are not confirmed by any other evidence, noris there a confirmation of Monkman’s comment that he would “juk” (stab) or of his displaying of the knife in the vehicle.

However,within minutes of arriving at the scene, Monkman had done precisely that with a knife and made celebratory comments, verified byindependent witnesses, when he rushed back to the vehicle. 55 Four individuals were seen rushing back to the vehicle and leaving the scene in a hurry.

Ponce was seen by anindependent witness conducting himself in a manner which could be interpreted as enticing the victim into a fight or distracting himwhile Monkman attacked him. 56 It is clear that Monkman did attack the victim with a knife shortly after arriving at the scene and fled in a vehicleaccompanied by individuals that had been with him at the previous location.

57 The attempt to clean up the vehicle and to dispose of it is consistent with the comments allegedly made by Tavares andPonce that they would assist Monkman. 58 The trial judge was correct in giving a strong Vetrovec warning, but after doing so and raising the various reasons whythe jury should exercise caution with respect to Simao’s evidence, she properly instructed them that it was up to them to decide. Therewas no motion to withdraw a verdict from the jury with respect to Ponce and Tavares.

It is unlikely that such a motion would have beensuccessful given that there was some evidence which a jury could consider, albeit cautiously. 59 In the circumstances of this case, I have concluded that there was evidence by which a jury acting judicially could haveproperly found that the two appellants aided and abetted Monkman in carrying out his attack on the victim. 60 For these reasons, I find that the verdicts are not unreasonable and would dismiss this ground of appeal.

The Jury Charge Legal Principles with Respect to Vetrovec Warning and Confirmatory Evidence 61 The trial judge concluded that a Vetrovec warning was required with respect to Simao’s evidence.

That this wasappropriate in the circumstances was never an issue, although the Crown questioned the scope and extent necessary. 62 In Vetrovec, Dickson J. (as he then was) explained that in some circumstances, a cautionary instruction to a jury isrequired to the effect that it is dangerous to convict an accused based on the testimony of a potentially unreliable witness, unless thatevidence is corroborated by other evidence (at pp. 831-32): ….

What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to therisks of adopting, without more, the evidence of the witness. .… All of this applies equally in the case of an accomplice, or adisreputable witness of demonstrated moral lack, as for example a witness with a record of perjury.

All this takes one back to thebeginning and that is the search for the impossible: a rule which embodies and codifies common sense in the realm of the process ofdetermining guilt or innocence of an accused on the basis of a record which includes evidence from potentially unreliable sources such asan accomplice. 63 In R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, the court held that the importance of the witness’s testimony to theCrown’s case is an important factor to decide whether a warning is necessary. In R. v.

Sauvé (J.) et al. (2004), (ONCA), 182 O.A.C. 58, the Ontario Court of Appeal, reviewing the use of Vetrovec warnings, stated as follows (at para. 82): The cases establish four characteristics of a proper Vetrovec warning: (1) the evidence of certain witnesses is identified as requiring special scrutiny; (2) the characteristics of the witness that bring his or her evidence into serious question are identified; (3) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and (4) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness withrespect to whom the warning has been given. 64 What may or may not be considered as confirmatory evidence has been the subject of commentary at the SupremeCourt level, as well as in legal journals.

See R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, and an annotation thereto, (2004), 19 C.R.(6th) 49 at 50, Nikos Harris, “Vetrovec Cautions and Confirmatory Evidence: A Necessary Complex Relationship” (2005), 31 C.R. (6th)216, and finally, R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. 65 In Kehler, the accused was convicted of armed robbery as a result of the evidence of an accomplice subject to aVetrovec caution. The evidence able to support the evidence of the accomplice confirmed the fact of the robbery and his owninvolvement, but did not implicate the accused.

The defence’s position was that the witness’s evidence was fabricated with respect to theaccused’s involvement. It took the position that the evidence required to confirm must relate to “the disputed portion” of theaccomplice’s testimony that the accused was a participant in the robberies.

66 The Supreme Court did not accept such a limitation. It held that confirmatory evidence need not implicate an accused, but that it should be capable of restoring faith in the relevant aspects of the Vetrovec witness’s account. 67 In Khela a few years later, the court again addressed the sufficiency of a Vetrovec warning and the defence’s contention that a trial judge’s instructions must advise a jury that, to be confirmatory, evidence must be both independent and material.

Fish J., for the majority, began by explaining the purpose of the Vetrovec warning as follows (at para. 11): The central purpose of a Vetrovec warning is to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony. In appropriate cases, the trial judge should also draw the attention of the jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence. 68 He confirmed that not all evidence is capable of being confirmatory.

Referring to Dickson J. in Vetrovec , he stated (at paras. 31-33 ): This Court, in Vetrovec , changed the law in relation to unsavoury witness warnings in two important ways. First, the Court held that trial judges, rather than attempting to “pigeonhole” witnesses as an “accomplices”, ought instead to consider all of the factors that might impair their credibility and decide on that basis whether a special instruction is necessary.

Second, the Court relieved triers of fact from applying the technical definition of corroboration and directed them instead simply to determine whether the “evidence properly weighed overcame its suspicious roots” ( Brooks , at para. 69 ). Dickson J. held that there was no magic in the word corroboration, “or indeed in any other comparable expression such as confirmation and support” ( Vetrovec , at p. 831). Dickson J. adopted this “common sense” approach having found the law of corroboration “unduly and unnecessarily complex and technical” (p. 830).

This approach, while unburdening judges and juries of the technical requirements of corroboration, was not meant to imply that any and all evidence is capable of confirming the testimony of a potentially untrustworthy witness. As Major J. noted in Brooks , [t]his new approach, while a change, was not intended to prejudice the accused. It would not lessen the protection afforded the accused when faced with unsavoury witnesses.

Equally, it was intended that the jury could view that evidence with more ease but not less scepticism than previously required. [para. 69] The relaxation of the corroboration rules in Vetrovec was not a signal that juries should be set “loose upon the evidence without any assisting analysis as to whether or not a prudent finder of fact can find confirmation somewhere in the mass of evidence” ( Vetrovec , at p. 831).

The trial judge retains the role of providing the jury with “the proper framework within which that credibility can be evaluated” ( Brooks , at para. 130 , per Binnie J.). 69 He then discussed “the kind of evidence that is capable of confirming the suspect testimony of an impugned witness” (at para. 38) (at paras. 39-41): Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth.

Where evidence is “tainted” by connection to the Vetrovec witness it can not serve to confirm his or her testimony (N. Harris, “ Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship” (2005), 31 C.R. (6th) 216 , at p. 225 ; R. v. Sanderson , 2003 MBCA 109 , 180 C.C.C. (3d) 53 , at para. 61 ). Materiality is a more difficult concept. In Vetrovec , the Court did away with the requirement that corroborating evidence implicate the accused. As Dickson J. noted, such evidence is not the only type capable of convincing a jury that a witness is telling the truth.

In Kehler , the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused. We maintain that position here. Individual items of confirmatory evidence need not implicate the accused. As Dickson J. explained in Vetrovec : The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth.

Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. [p. 826]

70 While there is an obligation on the trial judge to guide the jury to evidence that is capable of being confirmatory, it isup to the jury to decide whether the confirmatory evidence relates to important or merely peripheral points. In R. v.

Thomas (E.T.), 2008MBCA 75, 228 Man.R. (2d) 289, a decision of this court, although pre-Khela, Freedman J.A. stated (at para. 61): As to the last objection under this heading, that the examples of potentially confirmatory evidence given by the judge did not relate tomaterial points in issue, I will reiterate that the judge has a wide discretion in her determination of how best to assist the jury. She made itexplicitly clear that it was important for the jury to consider whether or not the evidence confirmed material points in issue, and she thengave them examples of potentially confirmatory evidence.

It was for the jury to decide the extent to which the potentially confirmatoryevidence tended to support Hocaluk’s credibility on the key elements in the case. 71 Even weak confirmatory evidence is properly left with a jury. See R. v. Dhillon (S.) (2002), (ONCA), 161 O.A.C. 231 at para. 26. 72 The decision in Khela has attracted some judicial commentary on whether it requires a trial judge to do more than wasoriginally contemplated by Dickson J. in Vetrovec. In R. v.

Reierson (B.E.), 2010 BCCA 381, 291 B.C.A.C. 205, Newbury J.A. said asfollows (at para. 35): Whether or not this requires that a finer line be drawn than was drawn in Vetrovec (where Dickson, J., rejected a technical approach tocorroboration and said it would have been sufficient to have told the jury they should view the impugned witnesses’ testimony “withgreat caution, and that it would be wise to look for other supporting evidence before convicting” (at 832)) is not, with respect, clear tome.

I therefore take the more stringent approach that seems indicated by Khela and ask whether the jury was adequately instructed tolook for evidence from another source that when considered as a whole, gives comfort or confidence that the accused committed theoffence. (Khela, para. 37.) 73 Common sense suggests that the more problematic the evidence of the Vetrovec witness, the greater the need for thetrial judge to highlight the need to find evidence capable of “restoring the trier’s faith in relevant aspects of the witness’s account”(Kehler at para. 34).

This has been referred to as a form of proportionality principle. See Harris; and R. v. Malik, 2005 BCSC 350 (QL). 74 In short, the important elements with respect to the characteristics of confirmatory evidence are:

a) individual items of confirmatory evidence need not implicate the accused;

b) the materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trierof fact that the Vetrovec witness can be trusted in his or her assertion that the accused committed the offence charged;

c) the confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’s account and, where theonly issue is whether the accused committed the offence, the trier of fact must be comforted that the witness is telling the truth in thatregard before convicting on the strength of that witness’s testimony; and

d) the confirmatory evidence must relate to an important and relevant aspect of the witness’s testimony. 75 In conclusion, two things should be noted with respect to confirmatory evidence. Firstly, the presence of confirmatoryevidence does not remove the obligation of the trial judge to tell the jury that it should consider the evidence of the Vetrovec witnesswith caution. See R. v. Fraser (G.) et al. (1997), (NL SC), 151 Nfld. & P.E.I.R. 141 at para. 10 (Nfld. S.C. (T.D.)).

Secondly, confirmatory evidence is not necessary for the jury to accept the Vetrovec evidence as long as there has been a proper Vetrovecwarning. See R. v. Sanderson (R.K.), 2003 MBCA 109, 177 Man.R. (2d) 260, and R. v. Roks (A.), 2011 ONCA 526, 281 O.A.C. 235. Analysis 76 The special warning given by the trial judge in this case as to Simao’s evidence can be described as one of the strongestwarnings possible using language consistent with the jurisprudence. She identified Simao’s evidence as requiring special scrutiny. Sheexplained the reasons why that was so.

She cautioned the jury about the dangers of acting upon it without more. Finally, she advisedthem to look for confirmatory evidence and directed them as to the nature of that type of evidence and specifically identified some whichmay have been open to them to consider. She concluded her warning by saying: .… There is no confirmatory evidence of the conversation that Danny Simao relates in the car on the way to the scene, so you should bevery cautious of putting much, if any, weight on that, but that is your decision. Mr.

Simao did say that Glen Monkman produced a knifein the car, and we know he was at the scene a short time later with a knife that was seen by two witnesses. 77 Counsel for Ponce submits that reference to the knife as confirmatory evidence was an error. He asserts that Simao’sevidence at trial on the type of knife that he allegedly saw with Monkman was inconsistent with his statement and his evidence at the

preliminary inquiry. As well, he argues it was inconsistent with descriptions of the knife given by individuals at the nightclub. He says that the use of a knife at the nightclub was not confirmatory of the presence of the knife in Monkman’s hands in the vehicle or that it was shown to Simao, noting that the fact that a knife was used could have been ascertained by Simao through other sources. It was therefore not the type of evidence which can be used for confirmation. 78 The issue for the jury was whether Ponce and Tavares aided or abetted Monkman in stabbing the victim.

Crucial to their decision was the conversation Simao testified took place in the vehicle. There was no other evidence that the conversation occurred. The trial judge highlighted this.

By referring to the knife she was simply noting that this was evidence that could be considered by the jury as they assessed Simao’s evidence. 79 While it is unfortunate that the trial judge referred to the presence of the knife immediately after indicating that there was no confirmatory evidence with respect to the conversations on the way to the nightclub, I see no error in doing so when the charge is viewed as a whole and with a functional approach ( see Daley ). 80 Monkman’s counsel admitted to his using a knife to stab the victim.

The fact that a knife was used to carry out the attack shortly after all of the four men arrived at the scene is a piece of evidence which could be viewed by the jury as consistent with Simao’s evidence that he was shown a knife by Monkman in the back of the vehicle a few minutes before. It is independent of Simao, and it is with respect to a material and relevant point. The fact that it does not implicate either Tavares or Ponce directly does not take away from its ability to be confirmatory of Simao’s testimony as a whole. 81 The trial judge referred to other evidence as being capable of confirming Simao’s:

a) Laurin identified Ponce as the smaller guy at the confrontation;

b) there was independent evidence of the four of them being together at the Freehouse bar minutes before the events at the nightclub;

c) Monkman’s comments upon returning to the vehicle after the stabbing were confirmed in general respects by eyewitnesses at the scene, at least in the celebratory nature of his actions and comments; and

d) there was evidence of Monkman’s blood in the back seat of the vehicle consistent with having injured his hand, although not necessarily to the same extent as described by Simao. The appellants take no issue with those instructions to the jury. 82 I am satisfied that those pieces of evidence are independent and relevant to important aspects of the evidence before the jury. They were capable to be used as confirmatory evidence according to the jurisprudence set out in Kehler and Khela.

Charge with Respect to Utterances and Statements Utterances and Statements 83 In her charge, the judge made the following comment: In deciding whether Mr. Monkman, Mr. Tavares or Mr. Ponce said these things or any of them, you should use your common sense. Take into account the condition of Mr. Monkman, Mr. Tavares or Mr. Ponce and of the witness or witnesses at the time of the conversation. Consider the circumstances in which the conversation took place. Bear in mind anything else that may make the witness’ story more or less reliable.

Whether a witness has recorded a conversation or taken notes about it does not, in itself, determine how reliable that witness’ testimony may be. It is, however, one of the things that you may consider in deciding whether or how much of the witness’ testimony to believe. Unless you decide that Glen Monkman, Carlos Tavares or Norris Ponce made a particular remark or statement, you must not consider it in deciding this case. Some or all of the statements may help Glen Monkman, Carlos Tavares or Norris Ponce in his defence. You must consider those remarks that may help Mr. Monkman, Mr. Tavares or Mr.

Ponce along with all of the other evidence unless you are satisfied that he did not make them. …. You may give anything you find that Glen Monkman, Carlos Tavares or Norris Ponce said as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything you find Mr. Monkman, Mr. Tavares or Mr. Ponce said, however, is only part of the evidence in this case.

You should consider it along with and in the same way as all the other evidence. 84 The appellants argue that given the importance of the comments that Simao says were made by Ponce and Tavares in the vehicle on the way to the nightclub, the trial judge should have instructed the jury more specifically as to how those comments could be used, namely, that they were not necessarily admissible against all accused, and that the trial judge misdirected the jury since none of the comments could have been considered helpful to any of the accused.

85 In the context of this case, there was little in the form of material utterances or statements by each of the accused other than the words Simao testified Ponce and Tavares said during the conversation in the vehicle on the way to the nightclub. I am not aware of any statements which would have been helpful to them in their defence.

That does not mean that the charge is erroneous or misdirects the jury in a material respect. 86 Tavares also argues that the comment in the charge “[i]f you accept what Danny Simao says, his cousin received a call on his cell phone and thereafter Glen Monkman commented that, ‘Buddy’s at the rave’, or ‘going down to the rave’” related to a conversation which was not admissible against Tavares for reasons of hearsay. 87 As well, Tavares raises the concern that the utterance made by Monkman upon re-entering the vehicle, while evidence against Monkman, did not constitute evidence against Tavares. 88 One must be careful in analyzing a jury charge to remember that it is the totality of the charge which must be considered.

On a review of a trial judge’s charge, an appellate court takes a functional approach and does not dissect the charge, seeking errors. 89 The trial judge’s references to Monkman’s comments at the Freehouse bar were with respect to a discussion of the evidence concerning the presence of the four individuals at the Freehouse bar and why they had left at the time that they did. It was evidence that the jury could consider in seeking confirmation of elements of Simao’s testimony. The same applies to the utterances of Monkman upon re-entering the vehicle.

It could be used as confirmation of the reliability or trustworthiness of Simao’s evidence as it was consistent with the evidence of other witnesses. It was not being put forward by the trial judge as evidence to be used of Monkman’s or Tavares’s guilt. 90 Taking the trial judge’s instructions as a whole, I do not find an error in that part of the charge with respect to utterances and statements.

Response to Questions from the Jury 91 Both appellants also argue that the trial judge erred when she elected not to reinstruct the jury on the mechanics of drawing inferences after they made that inquiry of her. 92 After a day of deliberation, the jury asked a question with respect to drawing inferences from direct and circumstantial evidence. In response, the trial judge provided them a copy of her charge.

Both appellants argue that given the lack of direct evidence of their participation, the case against them hinged upon the jury drawing inferences that they had encouraged or participated; therefore, a redirection on the issue was necessary. 93 I disagree. In the first instance, there was direct evidence, although minimal, of comments made in the vehicle which would have amounted to encouragement and there was also direct evidence from Simao of events occurring afterwards which would have been able to be used by the jury.

The need for the jury to draw inferences was not as critical to their reasoning, as suggested by defence counsel. 94 More importantly and decisive is the fact that whether or not to reinstruct a jury is always a matter of discretion, which the trial judge must exercise judicially in light of all of the circumstances and facts of the case. She responded to the jury’s request by providing them with a copy of her jury charge and advising them that: ... [I]t talks about direct and circumstantial evidence. ….

I want to just assure you that if it doesn’t answer your questions, please feel free to come back with something more specific .... 95 The jury did not come back for further explanation. I see no error in the decision of the trial judge not to provide further instructions other than giving a copy of her charge to the jury. See R. v. Layton , 2009 SCC 36 at para. 23 , [2009] 2 S.C.R. 540 , Rothstein J. Conclusion 96 For these reasons, I would dismiss the appeals of both appellants as to conviction.

Sentence appeal by Ponce 97 The trial judge sentenced Tavares to a period of incarceration of seven years. 98 As to Ponce, she was not satisfied beyond a reasonable doubt that he acted deliberately to distract the victim. Therefore, while Tavares was guilty of manslaughter by both aiding and abetting Monkman in his actions, Ponce was guilty of manslaughter only by abetting. She accepted that his youth, lack of criminal record, and the fact that he was the least involved of all of the accused should be considered. As well, she was of the view that he offered a good prospect for rehabilitation.

She concluded that although he was less involved than the two others, his moral culpability remained relatively high. She imposed a period of four years’ incarceration less credit for time served. 99 Appellate courts must show great deference when reviewing sentencing decisions. I see nothing in the trial judge’s decision which would suggest that the sentence was arrived at as a result of an error in principle, nor, given the factors that she considered, would I be able to conclude that the sentence was demonstrably unfit.

100 Therefore, I would grant leave, but dismiss the sentence appeal of Ponce. J.A. I agree: J.A. I agree: J.A.