R. v. Miller

R. v. Miller Court Court of Appeal Date 2009-06-23 Citation 2009 NSCA 71 Docket CAC 298630 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. Miller - 2009 NSCA 71 - 2009-06-23 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. Miller, 2009 NSCA 71 Date: 20090623 Docket: CAC 298630 Registry: Halifax Between: Evan Miller Appellant v. Her Majesty the Queen Respondent Judges: Bateman, Saunders and Hamilton, JJ.A. Appeal Heard: June 2, 2009, at Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Bateman and Hamilton, JJ.A. concurring. Counsel: James Lockyer, for the appellant Peter Rosinski, for the respondent Reasons for judgment: [1] On January 15, 2006, Ryan MacInnis was wounded as a result of going through the glass window of a door at a bar called Pat’s Place in Antigonish. This event occurred as he was being ejected from the establishment by the appellant, Evan Miller and his fellow off-duty security guard, Joshua Paddon. [2] Messrs. Miller and Paddon were subsequently charged with aggravated assault. On February18, 2008, their trial commenced in the Supreme Court of Nova Scotia before The Honourable Mr. Justice C. Richard Coughlan sitting with a jury in Antigonish. On February 27, 2008, both men were convicted as charged. On June 17, 2008, both appellants were sentenced to 12 month conditional sentences. [3] Messrs. Miller and Paddon both appeal from conviction. The appellants argue the same issues and request the same relief. They say the trial judge erred in law in his charge to the jury and in the answer he gave to the jury’s question. In the circumstances they argue that the curative proviso set out in s. 686(1)(b)(iii) is not applicable. Each asks that the conviction be quashed and a new trial ordered pursuant to s. 686(2). [4] The two appeals were heard on the same day. Miller v. The Queen, CAC No. 298630 (cited as R. v. Miller, 2009 NSCA 71) was argued first, followed by Paddon v. The Queen, CAC No. 300475 (cited as R. v. Paddon, 2009 NSCA 72), based on the date each notice of appeal was filed. After counsel for each appellant made their submissions, the Crown offered its response to both. While separate reasons will be filed in each matter, we considered these two appeals as companion cases. [5] For the reasons that follow I would dismiss each appeal. I will begin with a brief summary of the circumstances leading to the charges against the appellants, and then turn to my analysis of the issues on appeal. Background [6] On the night in question Ryan MacInnis and other friends gathered at an apartment in Antigonish. In the space of about three hours many beers were consumed. Mr. MacInnis drank as many as eight or nine. The men left the apartment about 11:30 p.m., arriving at Pat’s Place at midnight. There they met some girls Mr. MacInnis knew from school. Mr. MacInnis had four or five more beers as well as six or seven “shooters” (being one ounce alcoholic drinks) at the bar. [7] About an hour after arriving an argument ensued. A man – whose identity was unknown and did not testify – bumped into Ryan MacInnis causing him to spill his drink. Words were exchanged. Things quickly escalated into a physical confrontation with the two men grabbing and then wrestling each other to the floor. Jeff Connors, a bus boy who was working nearby, saw the fracas and tried to break it up. He waved for assistance. [8] The appellants, Joshua Paddon and Evan Miller, both worked as security at Pat’s Place. Neither man was on duty that night. They were there as patrons, socializing with friends. Mr. Miller had consumed one rum and coke with dinner. Mr. Paddon had finished a glass of wine with dinner, and a vodka with water at the bar. [9] Mr. Miller noticed Jeff Connors waving for help. Mr. Connors was obviously trying to deal with two patrons who were now wrestling on the ground. Messrs. Miller and Paddon intervened. Their actions in ejecting Mr. MacInnis from the bar formed the basis of the charge of aggravated assault against each accused. The central controversy was what happened between Messrs. Miller, Paddon and MacInnis inside the foyer or vestibule when they were in the process of ejecting him from the premises. [10] The actual events were captured “on tape” by a security camera on the premises. The jury had the opportunity to study the video as well as still photographs made from the tape. These exhibits afforded a remarkable “instant replay” into the actions and reactions of those involved. [11] The Crown’s position at trial was that while the appellants did not intend to injure Mr. MacInnis as such and were attempting to remove him from the premises for legitimate reasons, they acted recklessly thereby causing Mr. MacInnis’s head and face to crash through the glass window in the door. In her closing address to the jury, Crown counsel put it this way: Really, the issue for you to decide is whether this was intentional, and I'm going to talk to you a little bit about intention and recklessness because you've heard those terms used, and you'll hear much more about them from His Lordship. So was it reckless conduct or was it an accident? That's really the heart of the issue. That's the central issue here for you to decide. And so in deciding that what you really need to decide is whether the accused deliberately shoved Mr. MacInnis towards that door. I'm not for a moment suggesting that the accused intended to shove his head through the window. I don't think that's what they intended to do. But they certainly intended to shove him towards that door. That’s the Crown’s respectful submission to you on the evidence. [12] Both appellants testified in their own defence. Both were students at St. Francis Xavier University in Antigonish. The appellants said that in the course of lawfully removing the complainant from the bar, they and the complainant accidentally crashed into the door and the glass shattered causing injuries to both Mr. MacInnis and themselves. The defence position was that Mr. Paddon had tripped or stumbled inside the foyer and that this then caused he and Mr. Miller to lurch forward, thereby causing Ryan MacInnis, whose hands were held behind his back by Messrs. Paddon and Miller, to collide head first with the outside door, shattering the window and causing his wounds. Issues [13] Each appellant argues these issues on appeal: (i) The trial judge erred in his explanation to the jury of the elements of the offence of aggravated assault, and the defences to it; (ii) The trial judge erred in giving a Browne v. Dunn instruction to the jury; (iii) The trial judge erred in the manner in which he told the jury to proceed in separate stages in their deliberations; and (iv) The trial judge erred by not fully answering the jury’s question on what constituted a reasonable doubt. Standard of Review [14] Each of the four issues on appeal arises from the trial judge’s directions to the jury. In charging a jury, the trial judge is engaged in providing appropriate instructions on the law. Legal principles are explained so that the jury will understand how to apply the law to the facts as they find them. The judge’s directions on the law must be right. Correctness is the standard of review we apply in our assessment of a judge’s charge to the jury. [15] Questions from the jury must be assumed to be of significance and importance, and the trial judge’s answer must be “correct and comprehensive”. See for example R. v. N.J.B., 2004 NSCA 23, [2004] N.S.J. No. 48 (Q.L.) where at para. 13, Oland, J.A., for this Court, referred to the decision of Cory, J. for the majority in R. v. W.D.S., [1994] 3 S.C.R. 521. [16] Before addressing each of the discrete issues on appeal, I wish to begin by referring to certain additional general principles applicable to jury charges. [17] An accused is entitled to a properly instructed jury, not a perfectly instructed jury. A functional approach should be used to assess whether this standard has been met. See for example R. v. Jacquard, [1997] 1 S.C.R. 314, where Chief Justice Lamer observed at para. 32: Moreover, I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury. An accused is entitled to a jury that understands how the evidence relates to the legal issues. This demands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given. .... And further at para. 62: As I discussed at the outset of my reasons, appellate courts must adopt a functional approach to reviewing jury charges. The purpose of such review is to ensure that juries are properly - not perfectly - instructed. [18] In Jacquard, Chief Justice Lamer went on to observe that the more an issue does not require special expertise or intellectual sophistication, the more likely simple logic will prevail over any potential misdirection which might be alleged to have confused a reasonable juror. To similar effect Bastarache, J., writing for the majority, in R. v. Daley, 2007 SCC 53, stated at paras. 30-31: 30 When considering the adequacy of a trial judge's charge ..., it is important for appellate courts to keep in mind the following. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. 31 In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge's instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard, at para.2. It is the overall effect of the charge that matters. [19] While not determinative, counsel’s acquiescence, or failure to object is clearly a relevant factor in our review of a trial judge’s jury instructions, or answers given to a jury’s question. Bastarache, J. put it this way in Daley at para. 58: 58 Furthermore, it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge's instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. See Jacquard, at para. 38: 'In my opinion, defence counsel's failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirections.' [20] Keeping these general principles in mind, I will now turn to the four issues raised by the appellants in their facta which I will recast as questions. Issue #1 - Did the trial judge err in his explanation of the essential elements of aggravated assault? [21] In his charge to the jury, Coughlan, J. set out of the elements of the offence of aggravated assault as requiring proof of the following: (i) the identity of the accused (ii) the time and place of the offence (iii) that force was applied directly or indirectly by one or both of the accused (iv) the intention to assault (v) the lack of consent to the assault (vi) the accused’s knowledge of the lack of consent (vii) the wounding of the complainant (viii) that the assault caused the wounds (ix) an objective foreseeability of harm on the part of the accused. [22] The appellants agree that the trial judge provided adequate instructions to the jury concerning (i) the identity of the accused; (ii) the time and place of the offence; (iii) that force was applied directly or indirectly by the appellant; (vii) the fact that Mr. MacInnis had been wounded; and (viii) that it was the assault that had caused his wounds. [23] In their facta each appellant argues that the trial judge erred in his explanation of the remaining four elements of the offence, they being (iv) the intention to assault; (v) the lack of consent to assault; (vi) the accused’s knowledge of the lack of consent; and (ix) the objective foreseeability of harm on the part of the accused. [24] Before considering these alleged misdirections related to the elements of the offence, I will begin by commenting upon the position taken on this first issue by Mr. Lockyer at the hearing. He began his submission with the assertion that trial counsel for both appellants, and the Crown Attorney, and the trial judge had all missed the mark in understanding and applying what he described as “the proper legal framework” in this case. [25] In oral argument Mr. Lockyer said the case should have been defended as if it were an “excessive use of force case”, and that all counsel and the trial judge mistakenly treated it as being a trial where the defence of accident was advanced to negate intention shown by recklessness. Had the lawyers and the judge not been entirely misguided in their assessment they would – in Mr. Lockyer’s submission – have seen this case as one where the essential question was whether the level of force employed by Messrs. Miller and Paddon to eject Mr. MacInnis from the premises, was justified. [26] At the hearing Mr. Lockyer conceded that this submission was entirely different than the approach taken in his factum, where what I will call the accident vs. intention theme was the centerpiece of the argument on the first issue. Mr. Lockyer told us that the about-face in his approach had only come to mind a short time ago when he was preparing his oral remarks for the hearing. As a courtesy he had alerted Crown counsel the day before the hearing of the entirely different tack he intended to take. [27] With respect, I do not accept counsel’s submission. [28] There are at least two flaws in the appellant’s new position. First, it is neither fair nor accurate to say that all counsel and the judge failed to appreciate that this case featured a consideration of the degree of force used to remove Mr. MacInnis from the premises and whether the appellants truly intended the consequences of their actions. Much evidence was presented concerning the means by which the appellants forcibly removed the complainant; by what authority they presumed to do so; and how bystanders viewed the degree of force used. In addition, there was never a suggestion that the two appellants intended to throw Mr. MacInnis through the glass window of the door. The Crown Attorney made this very clear in her closing address to the jury when she said: I’m suggesting to you that what they were thinking at that time is the door is going to open, out he goes, they’ve done their job and it’s over. And that’s not what happened because they threw him with such force and with his head forward so that he had no ability to do anything but have his head come in contact with glass, that the glass shattered. They didn’t expect that. I’m not suggesting for a moment that they either intended that or that they expected that was going to happen. It probably took them by surprise too. But what shouldn’t have taken them by surprise was that there could have been some injury caused when with that degree of force they shove him towards that door thinking the door is going to open and out he’s going to go. It’s not unreasonable to say that they should [have] known that they could have caused him some harm. And that’s essentially what we’re talking about when we speak of recklessness. They were reckless about that. You know, they were intent on doing what they set out to do right from the beginning, and that is to exercise their authority as bouncers, even though they weren’t on duty, to exercise their authority as bouncers and eject this guy. They wanted him out of the bar. And the force that you see them use initially when they dealt with him, and that is they lift him up, they immediately pin his hands, take him towards the door, that continues right up to the point at which they get to the door. And it supports the fact that they were intent on getting him out of the bar. And in doing so they used an excessive force in terms of pushing him towards that door. So that is what we mean by recklessness. Could they see a risk of some harm to him in doing what they did? And my submission to you is, of course they could have. Anyone could have. Anyone pushing someone towards a glass door, two people with that degree of force, with his hands pinned behind his back and his head forward had to have known there could be some risk of some injury and they proceeded and did it anyway. [29] A close review of the closing addresses of counsel for both appellants, as well as the trial judge’s charge, shows that everyone appreciated the fact that whether the appellants were justified in their actions or whether the force they used was excessive under the circumstances, were questions the jurors were invited to consider during their deliberations. It bears repeating that it was Mr. Maurice Smith, a senior and very experienced member of the criminal defence Bar who, as counsel to Mr. Paddon, asked the judge to include a reference to s. 30 of the Criminal Code in his charge to the jury. [30] Further, in his closing address to the jury, Mr. Smith said: The fact that Mr. Paddon, who was in the bar as a customer that evening and not as a staff member, went over to assist, is not anything that you should you (sic) consider to be not an appropriate reaction by him. Anyone of us has the right to intervene to stop a breach of the peace when we see it happening. And that’s basically what he was doing here. He doesn’t have to be on duty. He doesn’t have to be a bouncer. He doesn’t have to be a staff person there. Anyone can intervene in those circumstances. And His Lordship I believe will tell you that as a matter of law a person who witnesses a breach of the peace is justified in interfering to prevent the continuation of that breach as long as he doesn’t use more force then was necessary. Here the force that they were using, that Mr. Paddon was using, was what one does in the normal course of events to remove a drunken, brawling patron from a bar. [31] In her closing address, Ms. Morrow, counsel to Mr. Miller said that: On the night in question Evan and Josh were at Pat’s Place. You’ve heard that and probably remember that. Now they were not on duty and I’d suggest nothing turns on that in deciding the law in this case. ... But at any rate, ladies and gentlemen, it is the position of defence that Evan acted appropriately in intending to take Ryan MacInnis right outside the bar that night. [32] The second obvious flaw to the appellant’s submission on this first issue is that experienced defence counsel grounded their whole theory in representing their respective clients on the defence of accident. The record is replete with such references. I need only mention a few. This is what Mr. Smith, trial counsel for the appellant Joshua Paddon said to the jury in his opening address: He ah, as they came through the door and were struggling, Mr. Paddon was on the left hand side where Mr. Jeff Connors was standing and he tripped over Mr. Connors’ feet and was propelled forward. He too went into the door. He had a gash on his head. He had a cut on his biceps and had received some injuries as well. What happened was an accident. He stumbled. They were pulling on this fellow to try to get him out and they went into the door. ... Mr. Paddon will tell you that this happened very quickly. That it was a period of no more then between three and five seconds from the time they went through the first door to the time they got to the second door. ... You will be able to put that together and it will show clearly to you, I suggest, that what happened there that evening was not deliberate, was not intentional. It was a pure accident. Based on that I’m sure you will be able to find that Mr. Paddon is not guilty of this charge. [33] Precisely the same position was taken by Ms. Morrow, trial counsel for Mr. Miller. This is what she told the jury in her opening address: Now, Evan will tell you that he is 23 years old and that he was 21 years old at the time of the incident. He’s going to tell you that what happened on the night of January 15th, 2006, was an accident. ... Evan Miller will tell you that he was shocked when Ryan MacInnis’ face went through that glass. He had expected it to be a routine eviction. He will tell you that he was cut, as was Josh Paddon, and that he came to learn that Ryan certainly had the, the worst of it. He had the worst cuts. But he will tell you that he never intended in any way to hurt Ryan MacInnis. He will tell you that he was not careless in his eviction. And he will tell you that he was, that he was not reckless. [34] These very same positions were emphasized by defence counsel at the pre-charge conference with Justice Coughlan on the record. For example, when the trial judge and defence counsel reviewed those points which ought to be canvassed in his charge to the jury, we see this exchange: THE COURT: Okay. It’s the essential elements of ah, of aggravated assault. Is there much dispute as to whether that has been made out? It seems to me that the big thing here is the defence of accident. MR. SMITH: Yes. ... MR. SMITH: The assault, to have any assault you have to have an intention to, to carry it through. Now, yes, they laid hands on him. And , yes, they escorted him into the door but there was not (sic) intention to have caused an aggravated assault here. So that’s very much an issue. That’s the heart of it. And of course the defence is that, that this was an accident. ... MR. SMITH: ... There is an intention to put him out of the bar. There’s not an intention to wound him. And ah, and what happened is that it was accident ... and the accident happened within two seconds, three seconds. ... Later in the exchange Mr. Smith confirms that the appellants’ position and their reliance upon the defence of accident, was first made known to the trial judge at the pre-trial. [35] Further, at the pre-charge meeting on the record, Coughlan, J. invited counsel for the appellants and the Crown Attorney to provide him with a written statement of their respective theories of the case so that he might then include those theories in his charge to the jury. They did precisely that. This, in part, is what Justice Coughlan said when charging the jury: The Crown must prove beyond a reasonable doubt that the defence of accident cannot succeed. The accused does not have to prove anything. Keep in mind three things. One, if you accept the evidence in support of the defence of accident you must return a verdict of not guilty. Two, if you do not accept the evidence in support of the defence of accident but you are left in a reasonable doubt by it you must also return a verdict of not guilty. Three, even if you are not left in a reasonable doubt by the evidence in support of accident you must still go on to determine whether or not, on the basis of all the evidence, either Joshua Matthew Paddon or Evan Alexander Miller is guilty. When deciding whether the accused is guilty or not guilty you should not weigh the theory or position of the Crown against the theory or position of the accused, since it is always the duty of the Crown to prove the guilt of the accused beyond a reasonable doubt before he can be convicted. The theory of the Crown is as follows. It is the theory of the Crown in this case that the accused intended to physically eject Ryan MacInnis out of the bar in the manner in which they did and that this was not an accident caused by Mr. Paddon stumbling on Jeff Connors’ feet causing a chain reaction that also effected Mr. Miller. Just before the exit door the accused pushed Ryan MacInnis toward the door intending for Ryan MacInnis’ body to cause the unlocked door to open which would have resulted in him being thrown out of the bar. They pushed him forward while pinning his hands behind his back and with a degree force that propelled him headfirst through the glass. It is the theory of the Crown that the accused did not intend the actual injuries caused to Ryan MacInnis but they assumed a risk of causing some bodily harm to Ryan MacInnis by pushing him out of the door in the manner in which they did. That risk of some bodily harm objectively assessed was reasonable (sic) apparent to them. In taking that risk they were reckless in dealing with Mr. MacInnis. And recklessness is sufficient to prove beyond a reasonable doubt that the accused intentionally applied force to Ryan MacInnis thereby committing an assault. As Ryan MacInnis suffered facial lacerations that constitute a wounding, the Crown has proven that the assault upon him was an aggraded assault. The theory of Joshua Matthew Paddon is as follows. ... The defence theory is that the events that occurred on January15th, 2006 at Pat’s Place were an unfortunate accident while Mr. Paddon was assisting in evicting Ryan MacInnis from the bar. Mr. MacInnis started struggling and in the three seconds following that all three person crashed into the outer door. This was caused by the increased momentum needed to move Mr. MacInnis forward in the coat check area and by Mr. Paddon’s immediate tripping and his stumble forward. The theory of Evan Alexander Miller is as follows. There was a fight at Pat’s Place. Evan Miller went to the assistance of a busboy who was trying to, trying to break it up. Miller and the co-accused, Josh Paddon, preceded to escort Ryan MacInnis out of the bar. Evan was trained and experienced on how, on how this is done and had done it many times without incident. There was an accident and all three were injured, Ryan the worst. Evan Miller could not have foreseen that Ryan would be injured. You are not bound by the theory of the Crown when you consider the evidence and the law. Nor, are you bound by the theories of the defence. The Crown is not bound to prove the theory that it advances in order to secure conviction. Rather, it must prove the necessary elements of the offence beyond a reasonable doubt. ... [36] Had the trial judge not structured his charge to account for the manner in which the case was defended, I suspect this “failing” would have formed a principal ground of appeal were the result to turn out badly for the two accused individuals. [37] Having now explained in some detail my reasons for rejecting the entirely new position adopted by Mr. Lockyer at the hearing, I will return to my assessment of the appellants’ joint written submissions by addressing their specific allegations of misdirection concerning certain elements of the offence. (iv) the intention to assault [38] Here the appellants complain that the trial judge erred because he gave the jury no instructions as to the intention the Crown had to prove that Messrs. Miller and Paddon had when pushing Mr. MacInnis towards the outside door (whereas the judge did refer to the earlier intentional grabbing hold of Mr. MacInnis by the appellants inside the bar). [39] In charging the jury concerning intention, Justice Coughlan said: The fourth ingredient the Crown must prove is that Evan Alexander Miller indented (sic) to apply force to Ryan MacInnis. When people intend to do things they do them deliberately. It is different when people are careless and do things accidentally. When people do things accidentally they do not intend to do them. . . . You will have no difficulty in deciding Evan Alexander Miller intentionally applied force to Ryan MacInnis. Evan Alexander Miller testified he pulled Ryan MacInnis off the floor and put Ryan MacInnis’ hands behind his back. (Italics mine) [40] Mr. Miller complains that this instruction could only have confused the jury because the judge’s reference was to what occurred inside the bar when Mr. Miller first came to the assistance of Jeff Connors in attempting to stop the two men from wrestling on the floor, instead of directing the jurors’ attention to the critical period surrounding their actions in the front foyer. [41] I am not persuaded by the appellant’s submission. The trial judge was correct to tell the jury that they would have “no difficulty deciding” that Messrs. Miller and Paddon intended to apply force directly to Ryan MacInnis, because they need only be satisfied that the appellants had “touched Ryan MacInnis”. The judge reminded the jury that both appellants had grabbed hold of Mr. MacInnis inside the bar in order to restrain him. [42] I think the trial judge was merely stating the obvious in relation to what happened inside the bar, before the men got to the foyer. Having regard to the uncomplicated circumstances of the case and the whole of the judge’s charge to the jury, no reasonable juror could have been confused by the trial judge’s initial suggestion that they would have no difficulty in deciding that the appellants intended to apply force to Ryan MacInnis when they grabbed him and hustled him towards the door. The appellants continued to apply force to Mr. MacInnis as they entered the foyer. More importantly, and central to the charge against these men, was whether the thrusting of Ryan MacInnis into the door was intentional on their part, or simply accidental. Justice Coughlan made it very clear to the jury that this was the pivotal issue to be decided in this case. (v) the lack of consent to assault [43] Here, the appellants complain that the trial judge erred in instructing the jury in relation to whether Ryan MacInnis consented to the application of force by Messrs. Paddon and Miller inside the bar, or that their grabbing of Mr. MacInnis may have been justified by s. 30 of the Criminal Code, without carefully relating this essential element of the offence to the evidence of what transpired in the foyer when Mr. MacInnis’ head smashed through the window. [44] I respectfully disagree. Once the trial judge instructed the jury that any intentional application of force to the person of Ryan MacInnis could be an assault, it made sense for him to also explain the essential element of lack of consent, and how the jury might wish to consider that issue from the point at which Messrs. Miller and Paddon grabbed Mr. MacInnis inside the bar. The fact that the trial judge referred to consent from that point forward was not incorrect. Neither do I think his directions or particular point of reference would be confusing to the jury. The judge’s concern may have been prompted because Mr. MacInnis had testified that he had initially consented to leaving Pat’s Place. He was entirely compliant until the moment it appeared to him that he might go head first into the door leading to the foyer of Pat’s Place, and then the second door leading to the outside. [45] In any event, the issue was dealt with squarely by the trial judge when he told the jury: You should have no difficulty in finding Ryan MacInnis did not consent to his head being put through the glass in the door at Pat’s Place. [46] In my opinion no reasonable juror could have been confused by the trial judge’s instructions regarding lack of consent. (vi) the accused’s knowledge of the lack of consent [47] As to whether Mr. Miller and Mr. Paddon knew that Mr. MacInnis did not consent to the application of force which put his head through the glass at Pat’s Place, the trial judge noted: Proof that Joshua Matthew Paddon knew that Ryan MacInnis did not consent can be establish (sic) by actual knowledge or by recklessness. Proof that Evan Alexander Miller knew that Ryan MacInnis did not consent can be established by actual acknowledge (sic) or by recklessness. A person is reckless when he or she knows that his or her conduct may result in criminal harm but goes ahead and acts anyway. In other words, he or she takes a chance. In considering whether Joshua Matthew Paddon or Evan Alexander Miller knew or was reckless whether Ryan MacInnis consented to the application of force, Joshua Matthew Paddon testified that when Ryan MacInnis was being taken out of Pat's Place, when he, Evan Alexander Miller and Ryan MacInnis got to a foot from the inside door he felt a surge of power backwards from Ryan MacInnis. Mr. MacInnis struggled. Joshua Matthew Paddon put himself forward to pull Mr. MacInnis...Mr. Paddon began to pull Ryan MacInnis. Evan Alexander Miller testified when they got to the first door Ryan MacInnis pushed back. Ryan MacInnis dug in his heels. [48] Mr. Miller complains that this instruction did not engage the facts of the case. The Crown’s theory was that the appellants were reckless in pushing Mr. MacInnis towards the door, not that they were reckless as to whether he consented to the application of force. Mr. Miller says the judge erred in importing the notion of recklessness when considering the “defence” of consent, a factor which was never part of the defence. [49] I am not persuaded that the trial judge’s explanation of recklessness, or its placement within the overall charge, risked confusing the jury. In any event, the alleged “confusion” would have been insignificant since no one would ever suggest that Ryan MacInnis had consented to his head being put through the glass window or that Messrs. Miller and Paddon believed Mr. MacInnis would consent to such an application of force. [50] Although the appellant Miller stated in his factum that "the Appellant's counsel objected to the charge in this regard" the only significant comment by Ms. Morrow was: ... I'm not sure they understood that wouldn't have to be consent if they found that section [s.30 Criminal Code], if they were applying that section. I think there's going to be some confusion therein where you included that in your charge. [51] Moreover, when Ms. Morrow is consulted again by the trial judge she commented: I do have concerns as I raised with you, but I'm also concerned about bringing that jury in so ... about making them wait any longer ... so I'd like them to go ahead. [52] Ultimately Ms. Morrow did not persist in maintaining her objection. (ix) the objective foreseeability of harm on the part of the accused [53] Both appellants complain that the trial judge: ... did not assist the jury by placing in context the circumstances in which Mr. Paddon and Mr. Miller found themselves in the few seconds prior to the incident happening. .... Would a reasonable person in those circumstances and few seconds of time have been aware of the risk involved? [54] I disagree, for several reasons. First, given the fact that the incident was recorded by a surveillance camera thus enabling the jury to view a DVD and still photographs, the jury did not require such an elaborate review of the circumstances by the trial judge in order to fairly consider the evidence. Second, the trial judge instructed the jury that even if Ryan MacInnis initially consented, they had to consider the scope of that consent and whether Mr. MacInnis consented to the amount of force that Messrs. Paddon and Miller ultimately used in thrusting him into the door. [55] Finally, I am satisfied that the judge provided adequate instructions as to the Crown’s obligation to prove an objective foreseeability of the harm on the part of the accused. Justice Coughlan told the jury: In regard to the third additional element in this case you may find it difficult to decide whether the actions of Joshua Matthew Paddon or Evan Alexander Miller in assaulting Ryan MacInnis were actions that any reasonable person would inevitably have realized would subject Ryan MacInnis to the risk of some bodily harm. In deciding this issue you must be satisfied beyond a reasonable doubt that the conduct of Joshua Matthew Paddon or Evan Alexander Miller was conduct that a reasonable person must have realized would likely cause bodily harm to another or conduct which a reasonable person must have realized would subject another person to the risk of bodily harm. If you have a reasonable doubt about whether the conduct of Joshua Matthew Paddon or Evan Alexander Miller was conduct of this type then the Crown has not proven this ingredient. In deciding this question you do not have to find that Joshua Matthew Paddon or Evan Alexander Miller intended to cause bodily harm to Ryan MacInnis or that Joshua Matthew Paddon or Evan Alexander Miller realized that his actions were likely to subject Ryan MacInnis to the risk of bodily harm. If you are satisfied that any reasonable person must have realized that these actions were likely to do so then this ingredient has been proven. You should consider the following evidence when you decide whether or not the Crown has proven beyond a reasonable doubt that the actions of Joshua Matthew Paddon or Evan Alexander Miller were actions which any reasonable person would have inevitably have realized would subject Ryan MacInnis to the risk of bodily harm. [56] Immediately following this instruction, the trial judge reviewed the evidence of Ryan MacInnis, Ardell Hawley, Damien MacInnis, Kate MacKinnon, Jeff Connors, Joshua Paddon, Evan Miller and Brian Boudrean. [57] As noted, and apart from the judge’s clear directions, the jury had the DVD and photographs to assist them during their deliberations. [58] Armed with these tools no reasonable juror could have been confused regarding the requirement that the risk of bodily harm to Mr. MacInnis be objectively foreseeable. Issue #2 - Did the trial judge err in giving a Browne v. Dunn instruction to the jury? [59] The central factual controversy for the jury to consider in this case was whether Joshua Paddon tripped or stumbled such that he pulled Evan Miller and Ryan MacInnis with him causing Ryan MacInnis' head to strike the door and shatter the window. The appellants characterized this event as an "accident", whereas the Crown characterized it as an intentional thrusting of Ryan MacInnis into the door for which there was objective foreseeability of the risk of bodily harm. [60] The Crown attorney, Ms. Oko, asked the trial judge to give the jury a specific Browne v. Dunn instruction. In her submission Ryan MacInnis was never asked whether Mr. Paddon had tripped at the point at which the complainant went through the window. As well, she said that Mr. Hawley who was behind the men in the foyer and in a position to be able to see, was never asked whether there was a tripping or stumbling by Mr. Paddon in a way that affected Mr. Miller. Counsel for Mr. Paddon opposed the application. In his submission neither Ryan MacInnis nor Ardell Hawley could have seen whether a trip or stumble had occurred. Counsel for Mr. Miller was also strongly opposed. [61] After taking a 20 minute recess to consider counsels’ submissions the trial judge returned and said: With regard to the Brown and Dunn situation, first of all, I've looked at my notes on the evidence, and on cross‑examination by Mr. Smith of Mr. MacInnis, Mr. Smith (sic) answered, "I don't remember if I tried to take a swing when..." So that, I have that in the evidence so there's, he was asked about the swing. So the swing is, is not, should not be commented upon. With regard to the, with regard to the trip that, that is ah...a central part of the case and I will allow a comment on that. Not, it should be a gentle comment on... What I mean is it's not as, be careful in how you comment on it. Looking at the Court of Appeal decision in Parris they said the jury should be instructed [that] but the failure to cross‑examine is a relevant consideration. And ah, so that, any comment should be restricted to that ah, that in fact a failure to cross‑examine is a relevant consideration in weighing the evidence and limited to that. [62] In her closing address to the jury the Crown attorney made brief reference to this subject during the course of her lengthy remarks. First, in reviewing Ryan MacInnis’ testimony, the Crown attorney said: He was not asked by defence counsel about whether or not Mr. Paddon tripped. So we don’t know what he would have said about that, because he wasn’t asked. But we do know that what he says was that he was pushed. That it was a push. He didn’t describe to you in any way, shape or form that there was a stumbling. ... He said he was pushed from behind. So you’ll ask yourselves when you view the tape is the tape consistent with what Mr. MacInnis told you about that. Mr. Hawley, he says he saw the momentum swing. He testified as well that he saw a push when Ryan’s face was about one or two feet from the window. He as well was never asked whether or not Mr. Paddon tripped over Mr. Connor’s feet. He said he saw a push. ... he also went on to say that it was obvious to him that even if the glass hadn’t broken that if Ryan’s face had just hit the glass or the door, that it still would have caused some injury to him. That’s objective foreseeability of crime. So where does the defence of accident come from? Of course, it comes from the accused. No one else talked about a tripping or a stumbling. ... [63] Next day the judge charged the jury and noted: In this case, counsel for Mr. Paddon and Mr. Miller did not cross-examine Ryan MacInnis or Ardell Hawley about Joshua Matthew Paddon tripping or stumbling prior to Ryan MacInnis’s head hitting the glass on the door. The failure to cross-examine on that issue may be taken into consideration in weighing the evidence. [64] The appellants now argue that there was no need for the judge to have given this specific instruction because there was nothing in the evidence of Mr. Paddon or Mr. Miller which contradicted anything that Ryan MacInnis or Ardell Hawley had said. They say they were prejudiced by the judge’s instruction. [65] Both appellants say the trial judge should instead have provided the Crown with the opportunity to recall the witnesses so that they could be specifically questioned on this issue. [66] From my reading of the transcript it would appear that by the time this issue was raised, Ryan MacInnis and Ardell Hawley had already testified. Calling them back to Antigonish would have proved cumbersome and expensive, something the Crown attorney described as “not practical here for obvious reasons”. The transcript suggests that the trial judge and counsel appeared to accept that “for obvious reasons” the witnesses could not be recalled, and that a “gentle comment” by the judge in his charge was the only practical alternative. [67] Quite apart from the trial judge’s broad discretion in managing the conduct of the trial, I am satisfied there was a proper basis for Justice Coughlan proceeding as he did. Although (because Mr. MacInnis and Mr. Hawley were not expressly asked) the evidence of Messrs. Miller and Paddon did not explicitly contradict the evidence given by Mr. MacInnis and Mr. Hawley regarding whether Mr. Paddon had tripped, their evidence was certainly contradictory in substance. Mr. Miller and Mr. Paddon claimed that an accidental trip or stumble effectively caused Mr. MacInnis’s injuries. Neither Mr. MacInnis nor Mr. Hawley were expressly asked about this. [68] There is no hard and fast criterion calling for the invocation of the so-called rule in Browne v. Dunn. It is designed to provide fairness to witnesses and the parties. The extent of its application is within the discretion of the trial judge, having regard to all of the circumstances. In my view, a trial judge deserves considerable deference when we are asked to critique the way in which he or she chooses to deal with this issue. See for example, R. v. Lyttle , [2004] 1 S.C.R. 193 and R. v. Giroux, [2006] O.J. No. 1375 (Q.L.)(C.A.). [69] As I see it there was a sufficient basis for Justice Coughlan to instruct the jury as he did. His salutary direction was nothing more than a “gentle comment” reminding the jury of a factor they could take into account should they wish to do so, such that no reasonable juror could have been diverted from focussing on the central factual controversy in this case. Having regard to the entire charge to the jury, the relatively straightforward set of facts, and the unique opportunity to replay what occurred by reviewing the DVD and other exhibits, the jurors were well equipped to see and decide for themselves what actually happened in the foyer of Pat’s Place. I am not persuaded that the way in which the judge chose to deal with the issue caused any prejudice to Mr. Miller or Mr. Paddon. Issue #3 - Did the trial judge err in instructing the jury on how they might proceed in conducting their deliberations? [70] Mr. Miller addresses this issue at paras. 44-46 of his factum: 44. Towards the end of his charge, the trial judge gave a W.(D.) instruction to the jury, and then continued: When deciding whether the accused is guilty or not guilty you should weigh the theory or position of the Crown against the theory or position of the accused, since it is always the duty of the Crown to prove the guilt of the accused beyond a reasonable doubt before he can be convicted. (underlining mine) This was a questionable instruction as, at least at its commencement, it suggested a balancing process in determining guilt or innocence. 45. The instruction was probably not fatal but shortly thereafter, and close to the end of his charge, the trial judge gave the jury instructions on how to approach their deliberations, and told them to separate what they believed from what they did not believe and then decide the case on their findings of fact only. Thus, he told the jury: There’s a fixed routine you must follow in arriving at your verdict. Here are some suggestions. First, review all of the evidence. Second, list the particular pieces of evidence next to the applicable element or ingredient that makes up the offence and the defence as I described it to you. Third, determine the facts you find from that evidence. Fourth, apply the law that I gave you to the facts you find and decide whether they prove each element or ingredient that makes up the offence beyond a reasonable doubt or whether they raise a reasonable doubt as to the guilty of the accused. (emphasis added by Mr. Miller in his factum) 46. This instruction was a serious error because it encouraged the jury to adopt an impermissible two-stage process in arriving at its verdict. The jury was told that it should determine which facts they accepted as true from the evidence and then apply the law to, and determine their verdict from, only “the facts you find”. This instruction removed from the jury’s consideration evidence that it neither accepted nor rejected, but which could form the basis of a reasonable doubt. [71] These two extracts from the charge about which the appellant now complains are there to be seen in the written transcript of the judge’s charge to the jury. However, the transcript does not reflect what the trial judge actually said to the jury during the course of his charge. [72] In preparing for this appeal as well as the appeal in R. v. Paddon, 2009 NSCA 72, we listened to the audiotapes of the judge’s charge and satisfied ourselves that the written transcript did not accurately record the judge’s charge. We instructed the Registrar to immediately notify counsel of our discovery. In her letters to counsel dated May 19 and May 27, 2009, respectively, the Registrar alerted the appellants’ counsel that their principal submissions on this issue were incorrect. Specifically: (i) at para. 45 of Mr. Miller’s factum he quotes from the jury charge and makes particular reference to the sentence in the transcript which reads: There is a fixed routine you must follow in arriving at your verdict. The Registrar informed counsel that this is an accurate quote from the transcription of the jury charge, however, it is not what the judge said to the jury. The audio recording of the charge makes it clear that what he said was: There is no fixed routine you must follow in arriving at your verdict. (ii) At para. 44 of Mr. Miller’s factum and para. 39 of Mr. Paddon’s factum, the appellants say the trial judge misdirected the jury when he is reported to have said (at p. 1374 lines 14-17, of the appeal book) When deciding whether the accused is guilty or not guilty you should weigh the theory or position of the Crown against the theory or position of the accused ... What the trial judge actually said was: When deciding whether the accused is guilty or not guilty you should NOT weigh the theory or position of the Crown against the theory or position of the accused ... [73] Counsel were advised that the common practice (and now required by Rule 91.15(2)(b)(vii)) in this jurisdiction is to send the transcript of any jury charge to the trial judge for perusal before filing the transcript on appeal, so that any such errors are caught well in advance. It would appear that this practice was not followed in this case, which may account for the confusion. At the hearing counsel for both appellants conceded that as a result of the panel’s own investigation this ground of appeal was virtually eviscerated . [74] I am satisfied the judge’s instructions to the jury as to how they might go about their deliberations were entirely appropriate under the circumstances. His charge is replete with strong reminders that the jury was obliged to consider all of the evidence when deciding whether each essential element of the offence had been proved beyond a reasonable doubt. It would appear that his comments tracked the sample jury charge instructions found in CRIMJI, as were current and applicable at the time the case was heard. There is no merit to the appellant’s submission. [75] Finally, in view of the appellant’s more general complaint that the trial judge may have confused the jury with the content and sequence of certain portions of his charge, I wish to add a brief comment about standardized jury charge instructions. I start with an acknowledgement that the use of standardized instructions by trial judges in Canada is widely recognized and approved. Standardized instructions offer helpful guidance to trial judges in explaining often complex legal principles to lay persons in plain language. However, the authors of such precedents wisely insist that their use comes with a warning. It is never intended that judges do nothing more than read the instructions verbatim. Rather, judges are reminded to edit their application to meet the specific circumstances of the trial over which they are presiding. Ultimately the trial judge, using clear, plain language, is obliged to properly identify the factual and legal issues that arise in the case, to relate the essential evidence to those issues, and to correctly explain the legal principles by which the jury will conduct its work. Sample jury instructions, while very useful, are no substitute for the judge’s own careful and often painstaking analysis, writing and original thinking. [76] Because the jury in this case was aided in its deliberations as to what happened in the relevant two-three second interval by not only the evidence of bystanders, but also a surveillance videotape and photographs, it might be suggested that the trial judge could have provided a more streamlined or abbreviated charge to the jury. However, after taking a functional approach in my evaluation of his instructions as a whole, I am satisfied that he fulfilled his obligation and that the jury received directions which were proper and fair. Issue #4 - Did the trial judge err by not fully answering the jury’s question on what constituted reasonable doubt? [77] During their deliberations, the jury asked three questions which were sent to the judge at the same time and evidently sought his assistance on the meaning of “reasonable doubt”. They were: What is reasonable doubt? Can it be based on a feeling? Do you need evidence to support your reasonable doubt? After seeking counsels’ assistance all counsel agreed that the trial judge answer the question by simply repeating his earlier instruction on reasonable doubt. [78] Appellate counsel for Mr. Miller (who as I have noted was not his trial counsel) now complains that the approach adopted by the trial judge only answered the first of the jury’s three questions, namely: “What is reasonable doubt?” and that he erred by not responding to the jury’s “other” inquiries. [79] I am not persuaded by the appellant’s submission. It must be recalled that this was not a complex case either factually or legally. The principal question for the jury was whether the Crown had proved beyond a reasonable doubt that Ryan MacInnis’s injuries were not caused by an accidental (unintentional) stumbling or tripping, but rather that the appellants, Messrs. Paddon and Miller had intentionally thrust Ryan MacInnis into the door. [80] This was not a complicated case. The jury did not have to wrestle with difficult, abstract principles. The jury had the additional advantage of the extraordinary visual record captured by the DVD and photographs to complement the eyewitness testimony as to what actually had transpired in the foyer of Pat’s Place. [81] Both the charge and the recharge were correct in law. The appellants do not dispute that the charge and recharge adequately explained the so-called first question: “What is reasonable doubt?” All experienced counsel were content with this recharge. It appears to me that the so-called second and third questions were really just collateral to the first. A fair and careful reading of the judge’s instructions satisfies me that he gave a full and proper response to the jury’s inquiry in all of its parts. [82] In recharging the jury, Justice Coughlan correctly instructed the jury on the meaning of reasonable doubt and the requirement of proof beyond a reasonable doubt. He said: The principle of proof beyond a reasonable doubt is an essential part of the presumption of innocence. A reasonable doubt is not a far fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that arises at the end of the case based not only on what the evidence tells you but also on what the evidence does not tell you. It is not enough for you to believe that Joshua Matthew Paddon or Evan Alexander Miller is probably or likely guilty. In those circumstances you must find him not guilty because the Crown has, would have failed to prove his guilt beyond a reasonable doubt. Proof of probably or likely guilty is not proof of guilt beyond a reasonable doubt. You should also remember, however, that it is nearly impossible to prove anything with absolutely certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. If at the end of the case, and after an assessment of all of the evidence, you are not sure that Joshua Matthew Paddon or Evan Alexander Miller committed the offence you must find him not guilty. If at the end of the case, based on all the evidence, you are sure that Joshua Matthew Paddon or Evan Alexander Miller committed the offence you should find him guilty. (Underlining mine) [83] Every case must be decided on its own facts. Given the circumstances and evidentiary record in this case, the definition of reasonable doubt was, in my respectful view, sufficiently clarified. Justice Couglan's recharge made it clear that the standard of proof required a serious examination of the evidence upon which the verdict was to be based. See R. v. Griffin, 2009 SCC 28 at para. 47. I am not persuaded there is any reasonable likelihood that this jury was under any misapprehension as to the meaning of reasonable doubt or the correct standard of proof to apply. (R. v. W.D.S., supra; R. v. Lifchus, [1997] 3 S.C.R. 320; and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.) Conclusion [84] I would, therefore, conclude that Justice Coughlan did not err in law in his instructions to the jury. No reasonable juror could have been confused as to the applicable law required to decide the central factual issue underpinning the charge against the appellants and their defence to that charge. Moreover, I am satisfied the judge’s answer to the jury’s question was clear, accurate and complete. [85] For all of these reasons I would dismiss the appeal. Saunders, J.A. Concurred in: Bateman, J.A. Hamilton, J.A.