COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charlton, 2019 ONCA 400

DATE: 20190516

DOCKET: C61173

Doherty, Hourigan
    and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Laffette Charlton

Appellant

Marianne Salih, for the
    appellant

J. Sandy Tse, for the
    respondent

Heard: January 9, 2019

On appeal from the convictions entered on July 11, 2014
    by Justice K. Barnes of the Superior Court of Justice, sitting with a jury.

Harvison Young J.A
.:

[1]

The appellant Mr. Laffette Charlton was convicted of attempting to
    murder Mr. Shamoiey Akindejoye and discharging a firearm with intent to wound
    Mr. Jonathan Netzereab. He was sentenced to 11 years imprisonment. The primary
    issue at trial was identity.

[2]

The Crowns case rested in large part on the evidence of two witnesses:
    one of the victims, Mr. Akindejoye, and the appellants former co-accused, Mr.
    Marquis Clark. Both witnesses had known the appellant, and each other, for
    several years. The appellant did not testify.

[3]

Both Mr. Akindejoye and Mr. Clarks versions of events evolved
    significantly over time. Mr. Akindejoye initially maintained that he did not
    know the men who shot him. At trial, however, Mr. Akindejoye testified that he
    was certain that the appellant was the shooter.

[4]

By contrast, Mr. Clark initially identified the appellant as the
    shooter, but, at trial, inculpated himself as the shooter. Mr. Clark claimed
    that he was lying when he initially identified the appellant as the shooter in
    order to obtain a more favourable plea deal for himself. By the time of the
    appellants trial, Mr. Clark had pleaded guilty to aggravated assault and was
    serving his sentence.

[5]

The Crowns theory at trial was that the appellant was acting on
    instructions from another individual, Mr. Kadeem Jowrey, to shoot Mr.
    Akindejoye. The Crown theorized that Mr. Clark lured Mr. Akindejoye to the
    scene, where the appellant was waiting. Mr. Netzereab, the other victim,
    accompanied Mr. Akindejoye to the scene and was also shot. Mr. Akindejoyes
    evidence at trial was consistent with the Crowns theory. Mr. Clarks
    preliminary inquiry testimony, which was admitted for its truth pursuant to
K.G.B.
,
    was also consistent with the Crowns theory:
R. v. B. (K.G.)
, [1993] 1
    S.C.R. 740.

[6]

The defence position was that Mr. Clark was the shooter, and that the
    appellant was not involved in any way. Mr. Clarks trial testimony, and his
    testimony on a pre-trial motion, were consistent with the defence position.

Grounds of appeal

[7]

The appellant appeals from conviction only. He advances six grounds of
    appeal:

(1)

Did
    the trial judges delay in providing reasons for allowing the Crowns joint s.
    9(2)
Canada Evidence Act
, R.S.C. 1985, c. C-5 application and
K.G.B.
application rebut the presumption of integrity, such that the trial judge
    erred in law by failing to provide reasons?

(2)

Did
    the trial judge err by admitting Mr. Clarks preliminary inquiry testimony for
    its truth?

(3)

Did
    the trial judge err by failing to provide a
W.(D.)
instruction in
    respect of Mr. Clark and Mr. Akindejoyes evidence?

(4)

Did
    the trial judge err by failing to give a
Soobrian
limiting instruction
    in respect of Mr. Clarks evidence?

(5)

Did
    the trial judge err by failing to properly instruct the jury on the use they could
    make of Mr. Clarks and Mr. Akindejoyes prior consistent statements?

(6)

Were
    the verdicts unreasonable?

[8]

For the reasons that follow, I would allow the appeal on the third
    ground of appeal and order a new trial. In the circumstances of this case, the
    jury required a
W.(D.)
-type instruction to understand the use they
    could make of Mr. Clarks and Mr. Akindejoyes exculpatory evidence:
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742.

The evidence

Shamoiey Akindejoyes Evidence

[9]

Mr. Akindejoyes account of the events evolved over time. On June 19,
    2012, shortly after he was shot, Mr. Akindejoye told a police officer that he
    did not know who shot him. He told the officer that they were randoms and
    that it was dark. The next day, he again told police that he did not know who
    shot him. He said that he had never seen these guys before, but that he would
    find out who they were.

[10]

In
    July 2012, Mr. Akindejoye gave a police statement implicating Mr. Clark and the
    appellant in the shooting. He told the police that he came close enough to the
    appellant to shake his hand, which is when the appellant shot him.

[11]

At
    the appellants preliminary inquiry on April 3, 2013, Mr. Akindejoye gave contradictory
    testimony. On the one hand, he testified that he did not recognize the shooter
    at the time, but had learned from others in the neighbourhood that the
    appellant and Mr. Clark were implicated in the shooting. He also agreed that he
    was being truthful when he spoke to the police at the hospital, and that he
    told them everything he knew at the time. On the other hand, however, he
    testified that he
had
recognized the appellant as
    the shooter at the time of the shooting.

[12]

However,
    Mr. Akindejoyes evidence at trial  unlike his evidence at the preliminary
    inquiry  was unequivocal: the appellant was the shooter. He testified that his
    previous statements were not true, and that he had known all along that the
    appellant was the shooter. He testified that he had lied to the police because
    he did not want to be a rat, and because he initially did not want the
    appellant and Mr. Clark to go to jail. However, he said, he had come to his
    senses and no longer wanted to protect individuals who had tried to kill him.

[13]

Mr.
    Akindejoyes June 19, 2012 statement to police and portions of his testimony at
    the preliminary inquiry were admitted for the truth of their contents under
K.G.B.

Marquis Clarks Evidence

[14]

Mr.
    Clarks evidence also evolved over time, though in the opposite direction to
    Mr. Akindejoyes. He initially gave statements consistent with the Crowns
    theory. But, at the appellants trial, he claimed that he was the shooter, and
    that the appellant was not involved in any way.

[15]

Mr.
    Clark gave three statements inculpating the appellant as the shooter. On August
    8, 2012, the day of his arrest, he gave a video-taped statement to the police.
    He stated that he had lured Mr. Akindejoye to the scene, where the appellant
    shot him. On April 10, 2013, at the appellants preliminary inquiry, he gave
    testimony consistent with his statement to police. Finally, an agreed statement
    of facts read in on Mr. Clarks guilty plea to aggravated assault on May 9,
    2013 was again consistent with this account of the events.

[16]

Later,
    however, on a pre-trial motion shortly before the beginning of the appellants
    trial, Mr. Clark inculpated himself as the shooter. He testified that he had
    lied about the appellant being the shooter in order to secure a more favourable
    plea deal for himself. He stated that at the beginning of his interrogation on
    August 8, 2012, the police showed him a chart that depicted what they believed
    had happened. According to the chart, Mr. Jowrey ordered the shooting, the
    appellant was the shooter, and Mr. Clark lured Mr. Akindejoye to the scene.
    While Mr. Clark was initially reluctant to cooperate with police, he ultimately
    made a statement consistent with the polices theory. At the pre-trial motion,
    Mr. Clark claimed that the police made off-camera threats and inducements which
    influenced him to cooperate. He believed that by adopting the polices theory
    that the appellant was the shooter, he could secure a lighter sentence for
    himself.

[17]

At
    trial, consistent with his evidence on the pre-trial motion, Mr. Clark
    testified that he shot Mr. Akindejoye and Mr. Netzereab. He testified that the
    appellant was unaware of the plan, and that he was not present at the scene. He
    repeated his explanation that he had lied up until his guilty plea was entered
    in order to secure a lighter sentence.

Issues and law

(1)

The trial judges delay in providing written reasons for the mid-trial
    evidentiary rulings

[18]

This
    ground of appeal arises out of two mid-trial applications brought by the Crown.
    One was an application pursuant to s. 9(2) of the
Canada Evidence Act
,
    to cross-examine Mr. Clark, a Crown witness, on his prior inconsistent
    statements. The other sought to have Mr. Clarks prior inconsistent statements
    admitted for their truth, pursuant to the principled exception to the rule
    against hearsay. The trial judge held a blended s. 9(2)/
K.G.B. voir dire
to address these issues. While he delivered his bottom-line ruling on the
    applications orally on July 2, 2014, he did not deliver written reasons for his
    ruling on the s. 9(2) application until August 22, 2016, almost 26 months
    later. His written reasons on the mid-trial
K.G.B.
application,
    followed on September 29, 2016, nearly 27 months after the initial oral ruling.

[19]

In
    his rulings, the trial judge held that the Crown would be permitted to
    cross-examine Mr. Clark on his video-taped statement to police, his preliminary
    inquiry testimony, the agreed statement of facts on his guilty plea, and his
    pre-trial motion testimony. He also held that Mr. Clarks preliminary inquiry
    testimony and pre-trial motion testimony would be admissible for their truth.
    He dismissed the Crowns
K.G.B.
application in respect of Mr. Clarks
    video-taped statement and the agreed statement of facts.

[20]

The
    appellant advances two arguments in relation to this ground of appeal. First,
    he contends that the trial judges delay in providing his written reasons for
    ruling on the s. 9(2) and
K.G.B.
application rebutted the presumption
    of integrity in those reasons:
R v. Cunningham
, 2011 ONCA 543, 106
    O.R. (3d) 641, at paras. 33-34. As a result, the trial judges reasons should
    be disregarded. Second, if successful on this first argument, the appellant
    contends that the trial judge erred in law by failing to provide reasons, since
    the duty of procedural fairness required reasons to be given in these
    circumstances. He submits that because the s. 9(2) and
K.G.B.
rulings
    were crucial to the Crowns case, the appellant was entitled to know why the
    trial judge ruled in the manner that he did:
R. v. Brooks
, 2018 ONCA
    587, 363 C.C.C. (3d) 85.

(a)

The effect of the delay in the release of written reasons for the
    rulings

[21]

The
    respondent concedes that the trial judges delay in providing his reasons
    undermined the integrity of those reasons, and that they should not be relied
    upon in this court. I have accordingly not considered them:
R. v. Headley
,
    2018 ONCA 915, 368 C.C.C. (3d) 308, at para. 16.

(b)

The duty to give reasons for an evidentiary ruling

[22]

This
    court recently summarized the law regarding a trial judges duty to provide reasons
    for an evidentiary ruling. In
R. v. Tsekouras
, 2017 ONCA 290, 353
    C.C.C. (3d) 349, leave to appeal dismissed [2017] S.C.C.A. No. 225, this court
    stated, at para. 156:

Subject to a duty of procedural
    fairness, there is no general duty to provide reasons for an evidentiary
    ruling. The failure to give reasons of an evidentiary ruling is not fatal
    provided that the decision is supportable on the evidence or the basis for the
    decision is apparent from the circumstances. The importance of the
    subject-matter of the ruling also has a bearing on whether procedural fairness
    compels reasons: see
R. v. Woodard
, 2009 MBCA 42, 245 C.C.C. (3d) 522,
    at paras. 22, 24-25.

[23]

In
    my view, the trial judges decision is both supportable on the record and
    apparent from the circumstances. First, with respect to his s. 9(2) ruling,
    each of the prior statements on which the Crown was permitted to cross-examine
    Mr. Clark was inconsistent with his trial testimony. There was no question
    about this. For example, at the preliminary inquiry, Mr. Clark testified that
    the appellant shot Mr. Akindejoye. At trial, however, Mr. Clark testified that
    he himself shot Mr. Akindejoye. This is not a case where it was arguable
    whether there was an inconsistency.

[24]

Second,
    Mr. Clarks preliminary inquiry testimony and pre-trial motion testimony were
    properly admitted pursuant to the principled exception to the rule against
    hearsay. Contrary to the appellants submissions, I believe that this court is
    well-placed to determine the correctness of the trial judges
K.G.B.
ruling. As I will explain when I address the admissibility of Mr. Clarks
    preliminary inquiry testimony, this was not a case where the trial judge had to
    make assessments of credibility in determining whether the evidence should be
    admitted. Briefly, since Mr. Clarks hearsay evidence was admissible due to its
    procedural reliability, the trial judge was not obliged to evaluate Mr. Clarks
    credibility. That task was properly left to the jury. Accordingly, this court
    is able to stand in the trial judges shoes to determine whether Mr. Clarks
    evidence should have been admitted.

[25]

In
    light of my decision to allow the appeal on the
W.(D.)
ground of
    appeal (discussed below), it is not necessary to determine whether the trial
    judge was obligated to provide reasons pursuant to the duty of procedural
    fairness, thereby committing a reversible error by failing to do so.

(2)

The admission of Mr. Clarks preliminary inquiry testimony for its truth

[26]

The
    appellant submits that Mr. Clarks preliminary inquiry testimony should not
    have been admitted for its truth under the principled exception to hearsay
    evidence. He concedes that the necessity criterion was established when Mr.
    Clark recanted his preliminary inquiry testimony. He also concedes that
    threshold reliability was satisfied, since the Crown established there were
    adequate substitutes for testing Mr. Clarks preliminary inquiry testimony
    (i.e. procedural reliability): see
R. v. Bradshaw
, 2017 SCC 35, [2017]
    1 S.C.R. 865, at paras. 27-29, 32;
R. v. Mohamad
, 2018 ONCA 966, 369
    C.C.C. (3d) 211, at para. 115. He argues, however, that Mr. Clarks preliminary
    inquiry testimony had no probative value because it was inherently unreliable,
    and that the trial judge should accordingly have exercised his residual
    discretion to exclude it from evidence.

[27]

I
    would not give effect to this ground of appeal. To explain why, it is helpful
    to briefly review the law on the admissibility of hearsay evidence.

[28]

Hearsay
    is presumptively inadmissible because it can be difficult for the trier of fact
    to assess its truth and accuracy:
Bradshaw
, at para. 1
;
R. v. Couture
, 2007 SCC 28, [2007] 2
    S.C.R. 517, at para. 80. For this reason, hearsay can inhibit rather than
    enhance the truth-seeking function of the criminal trial. There may be concerns
    about the declarants memory, perception, narration, and/or sincerity. When a
    statement is made out of court, the trier of fact is often unable to adequately
    assess these hearsay dangers, since they do not benefit from the ability to
    watch the declarant make her statement in court, where she is under oath and
    subjected to cross-examination: see
Bradshaw,
at paras. 19-20
;
R v. Khelawon,
2006 SCC 57, [2006] 2 S.C.R. 787
, at para.
    63.

[29]

Exceptionally,
    however, an out-of-court statement may be admitted for its truth where it is
    necessary and it satisfies the test for threshold reliability. This is referred
    to as the principled exception to the rule against hearsay. The principled exception
    reflects  as do the traditional exceptions to hearsay evidence  that some
    hearsay evidence presents minimal dangers and its exclusion, rather than its
    admission, would impede accurate fact-finding:
Bradshaw
, at para. 22
    (internal quotations and emphasis omitted).

[30]

In
    assessing a statements threshold reliability, the trial judge must determine
    whether the statement is sufficiently reliable to overcome the hearsay dangers
    it presents:
Bradshaw
, at paras. 26;
Couture
, at para. 81.
    Threshold reliability may be established on the basis of the statements
    substantive reliability, procedural reliability, or a combination of both
    substantive and procedural reliability:
Bradshaw
, at paras. 27-32;
Mohamad
,
    at para. 115. Procedural reliability asks whether there are adequate
    substitutes for testing the statements truth and accuracy:
Bradshaw
,
    at para. 28. Substantive reliability asks whether the circumstances surrounding
    the making of the statement render it inherently trustworthy:
Bradshaw
,
    at para. 30.

[31]

The
    trial judge retains her discretion to exclude the evidence where its probative
    value is outweighed by its potentially prejudicial effect:
Bradshaw
,
    at para. 24;
Khelawon
, at para. 49. That does not, however, mean that
    it is appropriate to revisit the question of necessity or threshold reliability
    when those criteria have been established pursuant to the principled approach
    to hearsay evidence (as in the present case).

[32]

The
    appellant concedes that necessity was established when Mr. Clark recanted his
    prior testimony at trial. He also concedes that threshold reliability was
    established with respect to Mr. Clarks preliminary inquiry testimony. Indeed,
    preliminary inquiry testimony typically satisfies the requirement of threshold
    reliability due to its procedural reliability:
R v. Hawkins
, [1996] 3
    S.C.R. 1043, at para. 76-77;
Mohamad
, at para. 109. Mr. Clark
    testified under oath and was subjected to contemporaneous cross-examination.
    Having established the procedural reliability of Mr. Clarks statement, the Crown
    was not required to go on to prove its substantive reliability:
Mohamad
,
    at para. 115;
Couture
, at para. 87.

[33]

The
    appellant contends, however, that Mr. Clarks statement was so inherently
    unreliable that it had no probative value, and that the trial judge was
    therefore obligated to exclude it pursuant to his residual discretion, despite
    the fact that the statement clearly met the procedural reliability threshold.
    In support of this argument, the appellant relies on comments made by this
    court in
R. v. Humaid
(2006), 81 O.R. (3d) 456 (C.A.), at para. 57,
    leave to appeal dismissed [2006] S.C.C.A. No. 232, which were subsequently
    endorsed by the Supreme Court of Canada in
R. v. Blackman
, 2008 SCC
    37, [2008] 2 S.C.R. 298, at para. 51. Specifically, he relies on the following
    passage from
Humaid
, at para. 57:

A trial judge has a residual
    discretion to exclude evidence where its potential probative value is exceeded
    by the potential prejudicial effect of that evidence. This discretion extends
    to what would otherwise be admissible hearsay evidence. There may be cases
    where the credibility or reliability of the narrator of the out-of-court
    statement is so deficient that it robs the out-of-court statement of any
    potential probative value. In such cases, and I think they would be relatively
    rare, a trial judge could conclude that the narrator's evidence was so
    incredible or unreliable as to necessitate the exclusion of the evidence based
    on the exercise of his or her residual discretion. [Internal citations omitted;
    emphasis added.]

[34]

The
    appellants reliance on this passage is misplaced.
Blackman
and
Humaid
were both cases in which the declarant was not available to testify and be
    cross-examined at trial. Indeed, both cases involved statements made by the
    deceased victim (the declarant) to another individual who was available at
    trial (the narrator or recipient).

[35]

Here,
    not only was Mr. Clark present at the appellants trial, the circumstances of
    his prior statement (i.e. in-court testimony at a preliminary inquiry) was such
    that there was no doubt Mr. Clark had made the statement. Indeed, even if Mr.
    Clark had not testified at the trial, the transcript of the preliminary inquiry
    transcript leaves no doubt as to the fact that he made the impugned statement. The
    central question in this case was thus not about the reliability of the
    statement, but about the declarant Mr. Clarks credibility when making it.

[36]

Turning
    to the trial judges exercise of his residual discretion, I disagree with the appellant
    that the probative value of Mr. Clarks preliminary inquiry testimony was outweighed
    by its potentially prejudicial effect. The trial judges
K.G.B.
ruling
    empowered the jury to consider Mr. Clarks preliminary inquiry testimony,
    pre-trial motion testimony, and trial testimony. The substance of each of these
    statements was clearly probative of an issue in dispute. In addition, this was
    a case where admitting, rather than excluding, the statements promoted the
    truth-seeking function of the criminal trial:
Bradshaw
, at para. 22.
    The admission of the statements for their truth allowed the jury to decide how
    much weight to afford each of Mr. Clarks sworn versions of events in light of
    his explanation for the inconsistencies:
Bradshaw
, at para. 22. As the
    Crown states in its factum, allowing the jury to consider the substance of all
    of the admitted statements was the surest way to promote a fair trial in all
    the circumstances of this case:
Khelawon
, at para. 48.

[37]

On
    the other side of the ledger, the potentially prejudicial effect of admitting Mr.
    Clarks preliminary inquiry testimony for its truth was the same as the potentially
    prejudicial effect of any hearsay statement. There was a risk that the jury
    would be confused about the use they could make of the out-of-court and
    in-court statements. This concern was adequately addressed by the trial judges
    jury instruction. I therefore reject this ground of appeal.

(3)

The failure to provide a
W.(D.)
instruction

[38]

The
    appellant contends that the trial judge erred by failing to give a
W.(D.)
instruction at two junctures in his charge. First, the appellant submits that a
W.(D.)
instruction should have been given with respect to Mr. Clark
    and Mr. Akindejoyes respective evidence that the appellant was not the
    shooter. Second, he submits that a
W.(D.)
instruction should have been
    given in respect of a passage from Mr. Clarks preliminary inquiry testimony
    where Mr. Clark testified that the appellant told him that he did not want to
    kill Mr. Akindejoye, and that he was just going to send him a message. This was
    the only direct evidence of the appellants state of mind.

[39]

In
    his charge, the trial judge walked the jury through each essential element of
    the offence of attempted murder. First, he told the jury that they must
    determine whether the appellant was the shooter. Then, he reviewed Mr.
    Akindejoyes versions of events, followed by Mr. Clarks versions of events.
    After outlining the evolution of each witnesss story over time, the trial
    judge told the jury that they may accept some, none, or all of the witnesses
    evidence, and he gave the standard instruction on the burden of proof. He
    proceeded in the same fashion for each of the other elements of the offence.

[40]

When
    he reached the issue of intent, the trial judge told the jury to consider all
    of the evidence, including the opinions of witnesses who testified about [the
    appellants] state of mind. He noted that Mr. Akindejoye believed that the
    appellant intended to kill him. He also noted that, at the preliminary inquiry,
    Mr. Clark testified that the appellant did not intend to kill Mr. Akindejoye.
    He told the jury to consider the evidence as a whole and use their common sense
    in deciding whether intent to kill was established beyond a reasonable doubt.

[41]

The
    trial judge then proceeded to instruct the jury on the elements of discharging
    a firearm with intent to injure, on the charge in relation to Mr. Netzereab. He
    instructed that jury that they first must determine if the appellant was the
    shooter and that his previous comments in relation to the identification
    evidence applied.

[42]

Defence
    counsel at trial did not ask for a
W.(D.)
instruction as applied to
    either witnesss identification evidence. Counsel did, however, request a
W.(D.)
instruction as it applied to the exculpatory passage of Mr. Clarks preliminary
    inquiry testimony, which spoke to the appellants state of mind, stating that the
    appellant had only intended to send Mr. Akindejoye a message rather than to
    kill him. After receiving submissions from counsel, the trial judge declined to
    give a
W.(D.)
instruction in respect of Mr. Clarks preliminary
    inquiry testimony.

[43]

The
    appellant contends that the jury charge was insufficient. He accepts that it
    was correct and indeed necessary to instruct the jury that they may accept
    some, none, or all of each witnesss evidence. However, he submits that in the
    circumstances of this case, where the jury was faced with two diametrically
    opposed versions of events, more was required. On the question of whether the
    appellant was the shooter, the appellant submits that the trial judge was
    required to add that even if they did not accept Mr. Clarks trial testimony,
    or Mr. Akindejoyes
K.G.B.
evidence, but either or both left them with
    a reasonable doubt as to identity, they were required to acquit. Additionally,
    the appellant submits that the trial judge was obligated to instruct the jury
    that if Mr. Clarks preliminary inquiry testimony about the appellants intent left
    them with a reasonable doubt as to whether the appellant intended to kill Mr.
    Akindejoye, they must find him not guilty of attempted murder.

[44]

I
    agree with the appellant that the trial judge was required to give a
W.(D.)
-type
    instruction in respect of Mr. Clarks and Mr. Akindejoyes exculpatory evidence
    as to identification. His failure to do so constitutes reversible error. In the
    circumstances of this case, it was not sufficient to instruct the jury on the
    burden of proof without relating that instruction to the proper assessment of
    Mr. Clarks trial testimony and pre-trial motion testimony  which was entirely
    exculpatory  and Mr. Akindejoyes exculpatory
K.G.B.
evidence.

[45]

A
W.(D.)
instruction is appropriate where the trier of fact must make
    credibility findings based on conflicting evidence going to essential elements
    of the offence:
R. v. Fogah
, 2018 ONCA 564, 362 C.C.C. (3d) 4, at
    paras. 51-55;
R v. D.(B.)
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para.
    114. The need for a
W.(D.)
instruction may arise, as here, even when
    the accused does not testify, or when the defence calls no evidence. It may
    arise, as here, when Crown witnesses give evidence that is exculpatory
vis-à-vis
the accused:
Fogah
, at paras. 48-56;
D.(B.)
, at para. 105.

[46]

This
    is because a credibility contest may equally arise on an essential element of
    the offence based on the conflicting evidence of two non-accused witnesses. As
    this court stated in
D.(B.)
, at para. 114:

[T]he principles underlying
W.(D.)
are not confined merely to cases where an accused testifies and his or her
    evidence conflicts with that of Crown witnesses. They have a broader sweep.
    Where, on a vital issue, there are credibility findings to be made between
    conflicting evidence called by the defence or arising out of evidence
    favourable to the defence in the Crowns case, the trial judge must relate the
    concept of reasonable doubt to those credibility findings. The trial judge must
    do so in a way that makes it clear to the jurors that it is not necessary for
    them to believe the defence evidence on that vital issue; rather, it is
    sufficient if  viewed in the context of all of the evidence  the conflicting
    evidence leaves them in a state of reasonable doubt as to the accuseds guilt.

[47]

In
    this case, the jury was faced with two diametrically opposed versions of
    events, both of which were adduced through witnesses called by the Crown. On
    the one hand, Mr. Clarks trial testimony and pre-trial motion testimony, as
    well as Mr. Akindejoyes
K.G.B.
statements, were entirely exculpatory
vis-à-vis
the appellant. Mr. Clark testified that he was the shooter, and that the
    appellant was not involved in any way, and Mr. Akindejoye told the police that
    he did not know the individuals who shot him. On the other hand, Mr. Clarks
    preliminary inquiry testimony and Mr. Akindejoyes trial testimony were generally
    inculpatory
vis-à-vis
the appellant.
[1]
In light of the trial judges
K.G.B.
rulings, the jury was entitled to
    accept any of this evidence for its truth.

[48]

Because
    there was no other identification evidence, the jury was required to make
    credibility assessments in relation to both Mr. Akindejoye and Mr. Clark to
    determine the appellants guilt. Given the manner in which the case against the
    appellant unfolded, there was, in my view, a very real risk that the jury would
    resolve the issue of identification by simply choosing either the exculpatory
    or the inculpatory version of events. That is, they may have erroneously
    believed that they were tasked with choosing between Mr. Clarks exculpatory
    and inculpatory statements, and Mr. Akindejoyes exculpatory and inculpatory
    statements, or some permutation thereof. This is precisely the danger that
W.(D.)
is meant to address.

[49]

Without
    a
W.(D.)
instruction, there was a real danger that the jury would not
    understand that the witnesses exculpatory identification evidence could raise
    a reasonable doubt even if they did not accept it, or if they could not decide
    whether to accept it. They needed to understand that even if they did not
    accept Mr. Clarks exculpatory testimony or Mr. Akindejoyes exculpatory
K.G.B.
evidence, if either or both left them with a reasonable doubt, they were
    required to find the appellant not guilty on both counts.

[50]

This
    case is distinguishable from
R. v. Dayes
, 2013 ONCA 614, 117 O.R. (3d)
    324, where this court held that the trial judge was not required to provide a
W.(D.)
instruction in respect of the contradictory evidence from two witnesses as to
    the appellants involvement in a robbery. The court was of the view that, in
    all the circumstances of the case, and particularly the presence of other
    identification evidence, there was no risk that the jury would erroneously
    believe that they were faced with an either/or choice between two competing
    narratives on vital issues:
Dayes,
paras. 55-57. In other words, there
    was no risk that the jury would have seen Mr. Dayess trial as a credibility
    contest.

[51]

As
    I have explained, that risk was very real on the facts of the present appeal.
    The facts here were more akin to those in a two-witness trial where each
    witness gives a diametrically opposed version of events, one of which is
    entirely exculpatory and the other entirely inculpatory. The jury needed to
    understand, not merely that they could accept some, none, or all of each
    witnesss evidence, but that they were not tasked with deciding which version
    of events was true. I cannot accept that the charge, read as a whole,
    adequately conveyed this message to the jury.

[52]

The
    jury should have been told that if they accepted Mr. Clarks trial testimony or
    pre-trial motion testimony, or Mr. Akindejoyes exculpatory
K.G.B.
evidence, they were obligated to acquit the appellant on both counts. Additionally,
    they should have been instructed that, even if they did not accept Mr. Clarks
    or Mr. Akindejoyes exculpatory evidence, if either or both left them with a
    reasonable doubt as to the identity of the shooter, they were required to
    acquit the appellant on both counts.

(4)

The failure to give a
Soobrian
limiting instruction
    in respect of Mr. Clarks evidence

[53]

The
    appellant submits that a
Soobrian
limiting instruction was necessary
    in this case because there was a danger that the jury would infer the
    appellants guilt from Mr. Clarks lack of credibility: see
R. v. Soobrian
(1995), 21 O.R. (3d) 603 (C.A.);
R. v. Figliola
, 2018 ONCA 578, 141
    O.R. (3d) 662, at para. 52.

[54]

The
    Crowns theory at trial was that Mr. Clark was lying to protect the appellant.
    In his cross-examination of Mr. Clark, the trial Crown sought to establish that
    Mr. Clark was lying at trial and on the pre-trial motion, and that he was
    telling the truth at the preliminary inquiry. Then, in his closing address, the
    trial Crown invited the jury to find, not only that Mr. Clark was lying at
    trial, but that he was lying to protect the appellant.

[55]

The
    appellant submits that the jury should have been told that they could not draw
    an adverse inference about the appellants guilt from a mere rejection of Mr.
    Clarks testimony as not credible:
Soobrian,
at p. 613
;
Figliola
, at para.
    52.

[56]

Clearly,
    absent evidence of collusion, it was not open to the jury to infer the
    appellants guilt from Mr. Clarks dishonesty. Some of the comments made by the
    Crown in his closing address may have left the jury with the impression that
    they could do so. However, in light of my disposition of the
W.(D.)
ground, it is unnecessary to determine whether the jury charge was deficient on
    this point.

(5)

The use of Mr. Clark and Mr. Akindejoyes prior consistent statements

[57]

The
    appellant contends that the trial judge misled the jury on the use they could
    make of Mr. Akindejoyes prior consistent statements. He submits that not only
    did the trial judge fail to tell the jury that the prior consistent statements
    did not enhance Mr. Akindejoyes reliability or corroborate his trial
    testimony, the trial judge in fact suggested that the jury could use the prior
    consistent statements in assessing Mr. Akindejoyes credibility.

[58]

In
    light of my decision to allow the appeal on the
W.(D.)
ground, I do
    not believe that it is necessary to address this ground of appeal, and I would
    decline to do so.

(6)

Were the verdicts unreasonable?

[59]

The
    appellant argues that the verdicts in this case are unsafe because they are
    based on the uncorroborated evidence of two
Vetrovec
witnesses who
    admitted to fabricating evidence under oath, and whose stories were
    inconsistent as between each other and as between themselves. He submits that
    judicial experience tells us that no reasonable jury could convict based solely
    on these witnesses evidence.

[60]

This
    argument can be dealt with summarily. In my view, a reasonable jury, properly
    instructed, could have found the appellant guilty of the offences charged.

[61]

In
    evaluating the reasonableness of the jurys verdict in a case that turns on
    findings of credibility, the reviewing court must ask whether the jurys
    verdict is supportable on any reasonable view of the evidence:
R. v. W.H.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at para. 2. The reviewing court must remain
    mindful that the trier of fact is best-placed to assess the significance of any
    inconsistencies in the witnesses testimony, and their motive to lie:
R. v.
    François
, [1994] 2 S.C.R. 827, at pp. 835-37;
R. v. Beaudry
, 2007
    SCC 5, [2007] 1 S.C.R. 190, at paras. 4, 63.

[62]

I
    cannot say that, had the jury been properly instructed on the use they could
    make of Mr. Akindejoyes and Mr. Clarks exculpatory evidence, they could not
    reasonably have found the appellant guilty. In my view, despite the witnesses
    inconsistencies and fabrications, it was open to the jury to find the appellant
    guilty on both counts on the whole of the evidence. It would accordingly not be
    appropriate to enter acquittals in this case.

DISPOSITION

[63]

I
    would allow the appeal, set aside both convictions and order a new trial.

Released: May 16, 2019

D.D.

A. Harvison Young J.A.

I agree Doherty J.A.

I agree C.W. Hourigan J.A.

[1]
The exception is the portion of Mr. Clarks preliminary inquiry testimony where
    he testified that the appellant told him that he did not want to kill Mr.
    Akindejoye. This evidence was partially exculpatory on the attempted murder
    count.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chioros, 2019 ONCA 388

DATE: 20190510

DOCKET: C64836

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Chioros

Appellant

Mark C. Halfyard, for the appellant

Jen Conroy, for the respondent

Heard: May 8, 2019

On appeal from the
    conviction entered on November 14, 2017 by Justice Kelly A. Gorman of the
    Superior Court of Justice.

REASONS FOR DECISION

Introduction

[1]

In September 2015, the Saint Thomas police received an anonymous Crime
    Stoppers tip that the appellant was trafficking large amounts of cocaine in St.
    Thomas. The police conducted surveillance of the appellant over a two-month
    period and he was eventually arrested in London. On a search incident to arrest,
    the police discovered cocaine on his person and in his vehicle. As a result of
    this discovery, the police obtained a warrant to search the appellants home.
    That search revealed more cocaine and marijuana. The appellant was charged with
    possession of cocaine for the purpose of trafficking, possession of marijuana
    for the purpose of trafficking, and possession of oxycodone.

[2]

The appellants trial consisted primarily of a
Charter
application alleging breaches of his ss. 8 and 9 rights. The appellant submitted
    that the police had insufficient grounds to make an arrest and that the
    subsequent searches of the appellants person, car, and home were also
    unconstitutional. That application was dismissed and he was convicted on all
    counts.

[3]

The appellant makes two submissions on appeal: (i) the trial judge erred
    in finding that the
Debot
factors objectively supported the police
    officers subjective belief that he was dealing narcotics and would be in possession
    of narcotics; and (ii) the evidence obtained in the impugned searches should be
    excluded pursuant to s. 24(2) of the
Charter
.

[4]

These reasons explain why we are allowing the appeal. We find that the
    appellants
Charter
rights were breached, that the evidence should be
    excluded under s. 24(2), and that the convictions should be set aside and
    acquittals entered in their place.

Analysis

(i)

Debot
Factors

[5]

The Crime Stoppers tip was received by Cst. Spicer on September 3, 2015
    and included the appellants name and address. It also referenced the fact that
    he drove a silver Audi and the licence plate number of that vehicle. In
    addition, the tipster advised that there was a Harley Davidson motorcycle and a
    Ford Mustang in the driveway of the appellants residence. Cst. Spicer was able
    to confirm that day that the appellant resided at the address provided and that
    the silver Audi was registered to him.

[6]

The police commenced surveillance of the appellants residence on
    September 17, 2015. On that date, Cst. Spicer saw the appellant driving the
    Audi. The other two vehicles mentioned in the tip were never seen at the
    appellants residence, nor was the appellant ever seen driving either vehicle.

[7]

On September 23, 2015, Cst. Spicer observed the appellant driving with
    Jason Daniels. Cst. Spicer knew Mr. Daniels from high school. He believed that Mr.
    Daniels was a drug dealer when they were at school. In addition, he had been
    told by several sources, including credible informants, that Mr. Daniels was a
    drug dealer. Cst. Spicer testified that at the time Mr. Daniels was the subject
    of a drug investigation. However, Cst. Spicer did not know if Mr. Daniels had
    ever been convicted of drug related offences or arrested for same.

[8]

The police followed the appellant and Mr. Daniels to an apartment on
    Ross Street, where they entered unit 11. Cst. Spicer believed that this unit
    was occupied by Mr. Daniels. Cst. Spicer and Sgt. Johnstone saw a blue Sunfire
    arrive on the scene and a young man exit the vehicle. The young man went to
    same floor as unit 11, but was not observed entering the apartment or
    interacting with the appellant or Mr. Daniels. He left the building a short
    time later. The police ran the licence plate for the Sunfire and determined
    that it was registered to Jordan Blackman. Cst. Spicer testified that Mr.
    Blackman had been involved in a prior altercation with a known petty drug
    dealer.

[9]

The following day, September 24, 2015, the police observed the appellant
    pull his vehicle over and lift the hood. He examined the vehicle for a few
    minutes and then drove off. The officers saw him cut through a parking lot, do
    a U turn, and then continue down the street. Both Cst. Spicer and Sgt.
    Johnstone described these actions as counter-surveillance techniques.

[10]

Later
    that day, the officers observed the appellant arrive in the driveway of a group
    of high-rise apartment buildings on Windermere Drive in London. Each building
    had approximately 150 units. The appellant entered 655 Windermere Drive, but
    the officers did not see which apartment he visited. He was there for over an
    hour and was observed exiting the building carrying a bag that appeared to be
    weighted. Sgt. Johnstone obtained information from London Police that they had
    received an anonymous tip that a major drug dealer lived at 655 Windermere
    Drive and that his apartment was being used as a stash house.

[11]

On
    October 27, 2015, Cst. Spicer observed the appellant drive to the Ross Street
    building. Sgt. Spicer was subsequently informed by another officer that he saw
    the appellant, Mr. Daniels, and an unknown male outside of unit 11.

[12]

Cst.
    Spicer conducted surveillance of the appellants residence on November 2, 2015.
    He spotted a Ford pick-up truck in the driveway registered to Dwayne Bennett.
    Cst. Spicer testified that Mr. Bennett was a known drug dealer in the area.
    Neither Mr. Bennett nor the appellant were seen at the residence that day. The
    appellants father was observed to be there.

[13]

On
    November 5, 2015, the police observed the appellant return to 655 Windermere
    Drive. The appellant went inside the building. He did not appear to be carrying
    anything. He came out about an hour later carrying a bag. Again, the officers
    did not know which unit the appellant entered.

[14]

The
    police arrested the appellant shortly after he left the building. They searched
    him incident to arrest and found no drugs on his person. A small amount of
    marijuana and multiple cellphones were found in his vehicle at that time. A
    search at the police detachment located approximately 249 grams of cocaine in
    the appellants boxer shorts. A subsequent search of his home turned up 20
    grams of cocaine and 214 grams of marijuana.

[15]

The trial judge concluded that
that the Crime
    Stoppers tip was compelling, credible, and corroborated by the surveillance.
    She found no breach of ss. 8 or 9 of the
Charter
.

[16]

In
    our view, the trial judge erred in finding that the police had the requisite
    grounds to arrest the appellant and carry out the searches.

[17]

Pursuant
    to s. 9 of the
Charter
,
the police must have reasonable and
    probable grounds to believe that they have sufficient evidence of a crime to
    facilitate an arrest. When the grounds to arrest stem, at least in part, from a
    confidential informant, the court must conduct a
Debot
analysis and
    look at the totality of the circumstances to determine if the confidential
    information is sufficiently credible, compelling, and corroborated to support
    the arrest. Weaknesses in one area may be compensated by strengths in the other
    two:
R. v. Debot
, [1989] 2 S.C.R. 1140, at p.1168.

[18]

Given
    that this was an anonymous tip, there was no evidence regarding the tipsters
    credibility. Nor was there evidence regarding his reliability or motivation in
    providing the information. It was an error, therefore, for the trial judge to
    find the tip to be credible.

[19]

The tip was also not compelling. It consisted of a bald assertion that
    the appellant was engaged in drug dealing without any information regarding the
    details of his alleged activities, whether the tipster had firsthand knowledge
    of the alleged activities, or the currency of the information. It included
    readily available public information regarding the appellants address and car,
    along with information about some, but not all, of the vehicles that were
    sometimes parked in his driveway.

[20]

The trial judge further erred in finding that the tip was corroborated. There
    was no meaningful corroboration. At no time did the police observe the
    appellant engage in any drug activity. Nor did they witness him enter the
    apartment of the alleged major drug dealer. The counter-surveillance evidence
    might be considered to a modicum of corroboration. However, its significance is
    diminished by the fact that there were no alleged counter-surveillance moves on
    the second trip to
655 Windermere Drive
.
    The evidence regarding Mr. Daniels was uncorroborated by objective evidence,
    such as a police record. At its highest, it amounted to an assertion that the
    appellant associated with a suspected drug dealer.

[21]

In addition, we note that the trial judge made two factual errors in her
    corroboration analysis. First, she relied on evidence of surveillance of the
    appellant on November 4, 2015 that disclosed surveillance conscious driving by
    the appellant. It is not contested by the Crown that no such evidence was
    adduced at trial. Second, she relied on the fact that a Honda vehicle referred
    to in the tip was spotted in the appellants driveway. It is also undisputed
    that there was no reference to the Honda in the tip.

[22]

A proper balancing of the
Debot
factors leads inexorably to the
    conclusion that the police lacked sufficient grounds to effect an arrest. The
    arrest amounted to a violation of the appellants s. 9 rights and the searches
    that flowed from the arrest breached his s. 8 rights.

(ii)

Section 24(2) Analysis

[23]

The
Grant
test regarding the exclusion of evidence under s.
    24(2) requires the court to consider and balance: (i) the seriousness of the
Charter
-infringing
    state conduct, (ii) the impact of the breach on the
Charter
-protected
    interests of the accused, and (iii) societys interest in adjudicating the case
    on the merits:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para.
    71.

[24]

With respect to the seriousness of the state conduct, this was not a
    close call. It should have been clear to the police that they had, at most,
    unconfirmed suspicions about the appellants possible involvement in drug
    dealing. Throughout their investigation, the police failed to undertake even
    the most rudimentary steps to verify information, including the extent of Mr.
    Danielss prior drug involvement, the source of the information about the
    apartment at 655 Windermere Drive being used as a stash house, and confirmation
    of whether the appellant ever visited that unit. The investigation was not
    time-sensitive and there was no reason why the police could not have
    investigated further in an effort to gather truly corroborative evidence. It is
    serious state misconduct when the police make a choice not to conduct a proper
    investigation, but instead choose to effect an arrest on a member of the public
    based on unconfirmed and unreliable information. This factor pushes in favour
    of exclusion of the evidence.

[25]

The impact of the breaches on the appellants
Charter
-protected
    rights was profound. He was detained against his will following a dynamic
    public takedown by the police. Searches were then undertaken of his person, his
    vehicle, and his residence. This factor also militates in favour of exclusion
    of the evidence.

[26]

It is conceded by the appellant that the drugs seized are reliable
    evidence and central to the Crowns case. Thus, the third factor favours the
    admission of the evidence

[27]

In our view, a balancing of the
Grant
factors results in the
    conclusion that the inclusion of this evidence would bring the administration
    of justice into disrepute. The court cannot be seen to endorse the type of
    misconduct engaged in by the police in this case.

Disposition

[28]

The appeal is allowed, the convictions are set aside, and in their place
    acquittals will be entered on all counts.

C.W. Hourigan J.A.

David M. Paciocco J.A.

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clarke, 2019 ONCA 403

DATE: 20190515

DOCKET: C65652

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Russell Clarke

Appellant

Perrin Valli, for the appellant

E. Nicole Rivers, for the respondent

Heard: May 10, 2019

On appeal from the convictions entered on June 25, 2018
    by Justice G. Hearn of the Ontario Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant was convicted following a judge
    alone trial of possession of a firearm obtained by crime, possession of property
    obtained by crime, break and enter to steal a firearm, and break and enter with
    intent to commit an indictable offence.

[2]

The circumstances giving rise to these convictions
    were somewhat unusual. At approximately 9:30 a.m. on June 18, 2017, Ms. Jestin
    went to check on a rural property owned by her daughter, Ms. Beaton, who was
    away at the time. As Ms. Jestin walked up to the house, she heard a voice and
    found a man who turned out to be the appellant. She described him as saying
    that he did not know where he was or what was happening. The appellant said
    that he had been locked in a barn or a garage and that he needed help. He
    asked Ms. Jestin to call the police and she did so.

[3]

The appellant waited in the driveway until Officer
    Dolderman and Officer Toor of the Ontario Provincial Police arrived a short
    time later, at around 10:00 a.m. They conducted an initial investigation, which
    consisted of speaking with Ms. Jestin, speaking with the appellant, and looking
    around the property. The appellant told the police that he had been inside a
    shed and there were children outside not allowing him to come outside the shed.

[4]

When the police looked around the shed on the
    property (which was also described at trial as a garage and workshop), they
    discovered that the shed had been broken into. Ms. Jestin had not immediately
    noticed this when she arrived and found the appellant on the property. The appellant
    was arrested for break and enter. As police continued their investigation, they
    located a .22 caliber gun which had been loaded and placed on an ATV inside the
    garage, pointing towards the garage door. The appellant was subsequently arrested
    on the other charges, including possession of the firearm obtained by crime and
    break and enter to steal a firearm.

[5]

At trial, the trial judge ruled that the
    accuseds utterances to police were voluntary. He also dismissed the
    appellants application to exclude the statements on the basis that the police
    had violated the appellants ss. 10(a) and (b)
Charter
rights. Certain other
Charter
issued
    raised by the appellant became moot in light of the concessions made by the
    Crown. The appellant does not appeal from any of the trial judges
Charter
rulings.

The Issues on Appeal

[6]

The appellant argues that the trial judge
    misapprehended the evidence and incorrectly applied the rules of circumstantial
    evidence in finding that:

·

The appellant was the perpetrator of the break-in at the shed;
    and

·

The rifle in the shed was a firearm within the meaning of s. 2
    of the
Criminal Code
.

In the appellants submission, the guilty verdicts on
    these charges were unreasonable.

[7]

We do not agree and would dismiss the appeal for
    the following reasons.

[8]

There is no issue that someone had broken into
    the building in question, and that indictable offences were committed inside.
    The only outbuilding on the property was a building that was variously
    described at trial as a shed, outbuilding, garage, or workshop.

[9]

We see no merit to the appellants submission
    that the trial judge misapprehended and\or misapplied the circumstantial
    evidence in this matter. The issues raised in this appeal were raised at trial
    and considered by the trial judge, upon a careful review of all the evidence.

[10]

The trial judge specifically recognized that
    there was no direct evidence of anyone actually seeing the appellant going in or
    out of the garage or shed. He pointed to the appellants statement to Ms. Jestin
    that he had been in a building  which the appellant referred to as a barn. The
    appellant had been walking on the property from the direction of the shed when
    Ms. Jestin first saw him. The trial judge went on to state as follows:

The
    circumstantial evidence that is in place including the location, findings of
    the officers consistent with the concerns expressed by [the appellant] and the
    remaining evidence in its entirety, satisfies me beyond a reasonable doubt that
    the only reasonable inference to be drawn on all of the evidence is that it was
    [the appellant] who had entered the shed and caused the damage therein.

[11]

The appellant argues that the trial judge erred
    in accepting the utterances that he was locked in the barn as referring to
    the outbuilding on Ms. Beatons property, pointing out that when he stated that
    he was locked in a barn he did expressly refer to the building on Ms.
    Beatons property. The appellants claim of misapprehension of this evidence
    rests partly on the fact that different witnesses described the building that
    was broken into as a barn, shed, workshop and garage. The trial judge described
    it as a shed\garage\shop or a larger type of building in which a number of
    items were located including ATVs, snowmobiles and a truck, together with a
    workshop. He found that it could easily be described as a barn. There was no
    other outbuilding on the property. That the appellant was referring to the
    building on Ms. Beatons property, which had been broken into, was a finding of
    fact well-grounded in the evidence before the trial judge. There is no basis
    for interfering with it.

[12]

The conclusion that the appellant was the
    perpetrator of the break-in was also open to the trial judge in the
    circumstances of this case. He concluded that there was no reasonable
    alternative to the conclusion that he was the perpetrator and was therefore
    guilty. We disagree with the appellants submission that there were other
    reasonable alternatives because: (i) there was at least an 18-hour window
    between the last time Ms. Jestin had checked on the property, such that someone
    else might have broken-in; and (ii) while there were no immediate neighbors,
    there was a village in the area so he might have been referring to another
    outbuilding.

[13]

The trial judges conclusion  namely, that the
    only reasonable inference was that the appellant was the perpetrator of the
    break and enter  was supportable on all the evidence in the case and the trial
    judges findings of fact. These findings of fact included:

·

The building had clearly been broken into
    recently;

·

The appellant was found trespassing on the
    property when the owners mother arrived to check on it;

·

The appellant had uttered statements about being
    locked in a barn (which had been found to have been voluntarily made); and

·

This property was in a rural area with no immediate
    neighbors.

[14]

The trial judge also considered Officer
    Doldermans evidence that he found the gun in the barn, where it had been
    placed on an ATV pointing to the door. The trial judge concluded the fact that
    the garage door had been barricaded and the firearm pointed at the door was
    consistent with the appellants stated fear of children being outside the
    barn. All of these findings were well grounded in the evidence at trial and
    support the trial judges conclusion that there was no reasonable inference
    other than the inference that it was the appellant who had broken into the shed.
    Any other inferences were speculative at best.

[15]

The appellant also submits that the trial judge
    erred and misapprehended the evidence in finding that the gun was a firearm
    within the meaning of s. 2 of the
Criminal Code
. We disagree. Again, this issue was fully explored at trial. The
    trial judge reviewed all the evidence on the point and concluded,
    notwithstanding the Crowns inability rely on a certificate, that the gun that
    was seized within the barn was in fact a firearm within the meaning of the
Criminal
    Code
and that it belonged to Ms. Beaton.

[16]

The appellant points to the contradiction in the
    evidence of the officers in that one of them described it as a semi-automatic rifle
    and the other as having a bolt-action or something resembling a bolt-action on
    the side of it. It is not clear, to begin with, that this is actually a
    contradiction. In any event, both officers described it as a firearm. The trial
    judge further heard evidence from Ms. Beaton that she had owned a .22 rifle
    that had been brought back from their cottage and stored in a case in the
    garage under the bench seat in the truck. Her husband (who had recently died)
    had been meticulous about keeping it clean and in working order. She further
    testified that they had used it regularly for target shooting. When the gun in
    the shed was found, the storage case was empty. Officer Dolderman also
    testified that there was a live round of ammunition in the gun at the time.

[17]

On the basis of all of the evidence, it was open
    to the trial judge to conclude that the gun seized was a firearm and that it
    belonged to Ms. Beaton.

Disposition

[18]

In conclusion, we find no merit in any of the
    issues raised by the appellant, who is essence is asking this court to retry
    the case. The appeal is dismissed.

C
.W. Hourigan J.A.

David M. Paciocco
    J.A.

A Harvison Young J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.C., 2019 ONCA 442

DATE: 20190528

DOCKET: C62938

Pepall, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.

Appellant

Anil K. Kapoor and Dana Achtemichuk, for the appellant

Catherine Weiler, for the respondent

Heard: November 19, 2018

On appeal from the conviction entered on January 20, 2016,
    by Justice Stephen T. Bale of the Superior Court of Justice, sitting with a
    jury.

Pepall J.A.:

Introduction

[1]

The appellant was tried before a judge and jury and convicted of three
    counts of assault with a weapon, one count of aggravated assault and one count
    of assault. He received a sentence of 4.5 years less 10 months credit for
    presentence custody.

[2]

He initially sought leave to appeal his sentence, but has abandoned that
    request.

[3]

In his appeal against conviction, the appellant submits that the trial
    was unfair because he was forced to proceed without counsel despite having
    repeatedly expressed his desire to have counsel represent him. He also submits
    that the trial judge failed to give proper limiting instructions on the use of
    the complainant's prior consistent statements and on the treatment of evidence when
    faced with a multi-count indictment in the absence of a similar fact ruling. As
    I have concluded that the trial judge erred with respect to the absence of a
    limiting instruction on the use of the complainants prior consistent
    statements, there is no need to address the trial fairness or multi-count
    indictment grounds of appeal.

Background Facts

[4]

The appellant and the complainant began dating in 2001. They moved in
    together and started a family in Peterborough.

[5]

The complainant testified that in 2006, she and the appellant started a
    cleaning business. This was a stressful endeavour which coincided with frequent
    abuse, including punching, hitting, and slapping. She stated that the appellant
    commonly hit her with everyday objects: shoes, an ice scraper, broomsticks, a child's
    plastic cup, plastic coat hangers, belts, and electrical cords. She described
    the appellant as a tyrannical and oppressive partner. The complainant also
    testified about a choking incident and some general violence that occurred in
    2006. According to the complainant, the violence became more frequent in 2007
    and continued until their relationship ended in 2013. The appellant was charged
    with one count of assault covering various incidents from January 1, 2007 to
    May 8, 2013 (count two on the indictment). He was also charged with two counts
    of assault with a weapon (counts four and five), to wit assaults with broomsticks
    and belts, covering incidents from January 1, 2008 to May 8, 2013. He was
    charged with aggravated assault on account of an incident that occurred between
    March 20, 2008 and April 3, 2008 (count three). Finally, he was charged with
    assault with a weapon (count one), to wit electrical cords, in relation to an
    incident occurring between May 7 to May 8, 2018.

[6]

At the appellant's first trial, he was represented by counsel, but a
    mistrial was declared. At his second trial, the appellant was unrepresented although
    assisted by counsel who had been appointed pursuant to s. 486.3 for the limited
    purpose of cross-examining the complainant, which he did for more than two
    days. Section 486.3 counsel was present for the majority of the 12 day trial.

[7]

The appellant did not call any evidence. He was convicted on all counts.

Prior Consistent Statement Evidence

[8]

The Crown led evidence of various prior consistent statements of the
    complainant in support of the prosecution of the appellant. The prior
    consistent statements in issue consisted of statements made by the complainant
    to her family doctor, Dr. Auyeung and her mother. The complainant also
    testified about a prior consistent statement made to her family law lawyer, but
    this evidence was not led by the Crown.

(a)     Dr. Auyeung

[9]

The complainant testified that she told Dr. Auyeung that in the summer
    of 2008 the appellant had punched her in the chest and caused her lung to
    collapse, hit her with broomsticks, punched her in the head, and slapped her in
    the face. Dr. Auyeung, the complainant's family doctor, testified that the
    complainant told her that the appellant had hit the complainant, causing her
    lung to collapse. This evidence related to count three, the charge of
    aggravated assault.

[10]

Dr.
    Auyeung also testified that the complainant told her that in the summer of 2008,
    the appellant had hit the complainant on the back and with broomsticks. This
    evidence related to counts two and five.

(b)     The complainants mother

[11]

The
    complainant testified that she told her mother about her collapsed lung at the
    time the assault by the appellant occurred. The complainant's mother testified
    that in the fall of 2008 or winter of 2009, the complainant had told her that
    the appellant had hit the complainant causing her lung to collapse. This evidence
    related to count three.

(c)     The complainants family lawyer

[12]

The
    complainant testified in cross-examination that sometime before August 2014, she
    told her family lawyer that the appellant had forcibly digitally penetrated her
    rectum on one occasion.
[1]
This evidence related to count two.

[13]

The Crown
    did not identify the purpose underlying the admission of the prior consistent
    statements made by the complainant to her family doctor, mother, and family
    lawyer. Both the basis for admissibility, and use of these statements varied by
    count. Some of the prior consistent statements may have been admissible as a
    response to the allegation of recent fabrication. For instance, there was an
    allegation of recent fabrication to support the admission of Dr. Auyeungs
    evidence on counts two and five but not on count three. There was also no
    allegation of recent fabrication to anchor the mothers evidence on count
    three. There was an allegation of recent fabrication relating to the evidence
    of the family lawyer on count two. This statement responded to the allegation
    that the count was motivated and contrived to frustrate the appellant's
    attempts to seek further access to the parties children in Family Court
    proceedings.

[14]

Thus,
    the allegation of recent fabrication applied to certain counts but not all. As
    the appellant concedes, the prior consistent statements could have been
    admitted in relation to the other counts as narrative evidence.

[15]

There
    were three key points in the Crowns closing address where the Crown relied on
    prior consistent statements made by the complainant. First, the Crown asked the
    jury to find the complainant to be a reliable witness. In this context, the
    Crown stated that the complainant remained consistent throughout her
    evidence, that her injuries were corroborated by witnesses including Dr.
    Auyeung, and urged the jury to find that she was not exaggerating. The Crown
    then went on to note:

[The complainant] began to disclose some of the issues she was
    facing back in 2008 before Family Court started, before Small Claims Court,
    before she planned to leave [the appellant]. Her testimony in court is
    consistent with the disclosure she made way back then.

[16]

Second,
    in explaining the disclosure of the abuse by the complainant, the Crown discussed
    the prior consistent statements made by the complainant to her family doctor:

The first real disclosure occurred with Dr. Auyeung. According
    to the doctor, [the complainant] told her that [the appellant] had previously
    hit her in the chest and had caused the collapsed lung. She also said that
    recently he had hit her in the back, and that she was concerned about the lung.
    She told Dr. Auyeung that [the appellant] was abusive, and that he hit her with
    items such as broomsticks. This disclosure occurred in the summer of 2008, and
    ultimately resulted in the involvement of the Children's Aid Society  there
    were on-going discussions between Dr. Auyeung and [the complainant] about the
    abuse.

Finally, counsel went on to ask the jury: if [the
    injuries] were caused by an accident, why tell her doctor about domestic abuse
    in 2008? This question suggested to the jury that the prior consistent
    statements to the doctor were true.

[17]

The
    trial judge did not inquire into the basis for the admission of any of this
    evidence, nor did he give a mid-trial instruction on the permissible or
    impermissible use of these statements. In addition, the final charge to the
    jury was silent on the permitted and prohibited uses of this evidence.

[18]

The self-represented
    appellant did not object to the Crowns closing nor did he provide any
    meaningful input into the content of the trial judges charge to the jury.

Analysis of Lack of Instruction on Prior Consistent Statements

[19]

Prior
    consistent statements are presumptively inadmissible. They lack probative value
    as the repetition of the statement is unrelated to the truth of that statement:
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5;
R. v.
    Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Put differently a
    falsehood does not become true through repetition. If the statements are
    tendered for the truth of their contents, they are inadmissible hearsay
    statements.

[20]

Traditionally,
    prior consistent statements may be admitted to rebut an allegation of recent
    fabrication, for narrative purposes, or as circumstantial evidence: see
R.
    v. Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-29,
per
Hourigan J.A. leave to appeal refused, [2017] S.C.C.A. No. 139;
R. v. M.A.J.
,
    2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 46.  In
Khan
, at paras.
    58-59,

Doherty J.A., in his concurring reasons, described a more
    principled approach to the admission of prior consistent statements based on
    relevance, materiality, and probative value of the evidence.

[21]

Where
    a prior consistent statement is determined to be admissible under an exception,
    it is admitted for a limited purpose:
Khan
, at para. 27. That purpose
    is determined by the exception it is admitted under. It is important for a jury
    to understand what use they may make of evidence of prior consistent
    statements. Generally, if a prior consistent statement is admitted into
    evidence in a jury trial, the trial judge is obliged to provide the jury with a
    limiting instruction:
M.A.J.
, at para. 47;
Ellard,
at para.
    42. As Watt J.A. explained in
R. v. T.(J.A.),
2012 ONCA 177, 288
    C.C.C. (3d) 1, at para. 53, limiting instructions to a jury have three
    components:

(i)

identification of
    the evidence to which the instruction applies;

(ii)

a positive
    instruction about the use the jury may make of the evidence; and

(iii)

a negative
    instruction on the use the jury must not make of the evidence.

[22]

Limiting
    instructions play an important role in cases involving prior consistent
    statements given the reasoning dangers associated with these statements, and
    their limited use. The trier of fact may infer that consistent repetition is
    evidence of the truthfulness of the statement, and the trier of fact may infer
    that this repetition corroborates the testimony of the witness. These risks are
    particularly important to address in jury trials. As the Supreme Court noted in
Ellard
, there is a danger that similar prior statements  could
appear
to be more credible to a jury, and therefore must be treated with
    caution (emphasis in original): at para. 31. Indeed, the admission of prior
    consistent statements calls out for a limiting instruction because, as Hourigan
    J.A. observed in
Khan
, at para. 35, [t]he line between the
    permissible and impermissible uses of prior consistent statements is a fine one,
    and that line varies based on the purpose for which the statement is admitted: see
    also
R. v. M.P
.
, 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 79.

[23]

Here,
    the trial judge failed to articulate the basis upon which the prior consistent
    statements were admissible, and failed to give any limiting instruction. Even
    assuming that the statements were admissible, he ought to have instructed the
    jury on their prohibited and permissible uses which differed from count to count.

[24]

However,
    the failure to give a limiting instruction is not always fatal. For example,
    where a prior consistent statement is admitted for a purpose where there is
    little likelihood of improper use by the jury, a limiting instruction may be
    unnecessary and confusing:
R. v. Demetrius

(2003), 179 C.C.C.
    (3d) 26 (Ont. C.A.), at para. 21. The trial judges instructions to the
    jury must be assessed in the context of the particular case on a functional
    basis:
Demetrius
, at para. 21;
M.A.J.,
at para. 47;
M.P.,
at para. 80.

It must be determined, based on the circumstances of the
    case and the particular risks presented by the evidence in that case, whether the
    trial judges instructions adequately prepared the jury to properly assess the
    evidence:
R. v. O.(L.),
2015 ONCA 394, 324 C.C.C. (3d) 562, at paras.
    39-40;
Ellard,
at para. 48.

[25]

In
    this case, the failure of the trial judge to provide a limiting instruction was
    a fatal error. The evidence of the prior consistent statements was elicited
    from three witnesses and included substantive details of abuse. Many of these
    details mirrored the testimony given by the complainant at trial. In these
    circumstances, there was a real risk that the jury would improperly use the
    statements to serve as corroboration or confirmation of the complainants
    testimony. This risk was heightened given that the trial judge failed to give a
    standard instruction directing the jury that prior consistent statements may
    not be used for the truth of their contents, or as evidence that what was said
    actually happened: see David Watt,
Watts Manual of Criminal Jury
    Instructions,
2nd ed. (Toronto: Carswell, 2015), at pp. 419-420 (Final 35-D
     Prior Consistent Statements of Non-Accused Witness). The Crowns address to
    the jury opened the door for the jury to accept the prior consistent statements,
    particularly those made to Dr. Auyeung, for the truth of their contents. It was
    incumbent on the trial judge to clarify that such a use was impermissible.

[26]

The
    Crown points to one portion of the trial judges instruction as clearly
    enjoin[ing] the prohibited use of the statements. Under the heading of Prior
    Inconsistent Statements of Non-Accused Witness, the trial judge instructed the
    jury as follows:

Generally, the earlier statement may be used only in assessing
    the witnesss credibility. However, there is an exception when the witness,
    while testifying at trial, accepts all or part of the earlier statement as
    true. In that event, the earlier statement may also be considered as evidence
    of what happened, but only to the extent the witness accepted it as true. It is
    for you to decide what weight, if any, to give to the part of the earlier
    statement that the witness accepts as true.

This instruction follows the model instruction set out
    in
Watts Manual of Criminal Jury Instructions,
for the use of prior
inconsistent
statements: see pp. 325-326 (Final 25-A  Prior Inconsistent Statements of
    Non-Accused Witness (Impeachment and Credibility Only)). However, the same
    instruction is not applicable to the use of prior consistent statements, nor is
    it capable of remedying a lack of instruction on the prohibited uses of prior
    consistent statements. Rather this instruction, absent a limiting instruction
    related to prior consistent statements, was capable of misleading the jury.

[27]

Further,
    the Crown in its closing address to the jury invited the jury to infer
    credibility from consistency. As the trial judge highlighted in his charge to
    the jury, credibility [was] a central issue in this case. This court noted in
R. v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), that where
    credibility is an important issue at trial, the trial judge is obliged to
    impart to the jury that the existence of a prior consistent statement cannot
    in and of itself enhance the credibility of the witness: at para. 33. This is
    explained at para. 37 of
R. v. B.(D.),
2013 ONCA 578, 310 O.A.C. 294,
    in the context of rebutting an allegation of recent fabrication and is
    instructive:

A prior consistent statement that is admissible to rebut an
    allegation of recent fabrication is not admitted to prove the truth of its
    contents. Rather,
it neutralizes the challenge or allegation
of recent
    fabrication.
The evidence of the prior consistent statement is used to
    establish that the challenge is in error, not to show that the statement is
    true or that the witness is likely telling the truth because they said the same
    thing before
. In this sense, the admission of the prior consistent
    statement may impact positively on the witness's credibility insofar as
    admission of the statement removes a motive of fabrication. [Emphasis
    added.]

[28]

Left
    only with the Crowns statements on the matter, the jury was invited to infer
    truthfulness from consistency, and there was a real risk that the statements
    would be viewed by the jury as capable of affirmatively adding to the
    complainants credibility, rather than simply countering the challenges to her
    credibility.

[29]

The
    dangers associated with prior consistent statements were squarely engaged by
    the statements admitted in this case, where the credibility of the complainant
    was central. The trial judges instructions to the jury did not elude to, let
    alone enumerate, these dangers. The jury was not equipped to understand the
    basis for which the statements were admitted, and the trial judges
    instructions failed to prepare the jury to properly assess the evidence.
    Accordingly, the absence of a limiting instruction on the use of the prior
    consistent statements was fatal in the circumstances of this case.

Disposition

[30]

For
    these reasons, the appeal is allowed, the conviction is set aside, and a new
    trial is ordered.

Released: May 28, 2019 S.E.P.

S.E. Pepall J.A.

I agree. P. Lauwers
    J.A.

I agree. David M.
    Paciocco J.A.

[1]

The family lawyer was not called as a witness.