COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Parris, 2013
    ONCA 515

DATE: 20130812

DOCKET: C52524  C53315

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrae Parris and Cleavon Joseph

Appellants

Joseph  Di Luca and Erin Dann, for the appellant Andrae Parris

Gregory Lafontaine, for the appellant Cleavon Joseph

David Lepofsky, for the respondent

Heard: March 20, 2013

On appeal from the convictions entered by Justice G. M.
    Miller of the Superior Court of Justice, sitting with a jury, on September 11,
    2009.

Watt J.A.:

[1]

Andrae Parris and Cleavon Joseph sold drugs. Joseph was an experienced
    trafficker, a veteran of the trade. Parris was new to the business. Their
    currency was crack cocaine.

[2]

Jermaine Malcolm was a crack addict, a customer of Andrae Parris.

[3]

One night in September, 2007, Malcolm arranged to buy $30 worth of crack
    from Parris. When Parris arrived with the crack at the front door of Malcolms
    residence, a unit in a Mississauga housing complex, Malcolm, drugs in hand,
    went inside to get the money to complete the transaction. Parris waited at the
    front door. Malcolm did not return.  No drugs. No money. Parris was not a happy
    man.

[4]

Parris, the victim of the front door-back door ploy, a common evasion of
    payment technique among drug purchasers, told his friend Joseph about what had
    happened.

[5]

A little while later, Parris and Joseph returned to recover payment from
    Malcolm.  Joseph went to the front door. Parris went to the back.

[6]

Within two hours of the original drug deal, Malcolm was dead of multiple
    stab wounds.

[7]

A jury convicted both Parris and Joseph of first degree murder. Both
    seek a new trial. They say that the trial judge left things out or said things
    that were wrong when she explained to the jury what the Crown had to prove to
    establish guilt, and how they were to assess the evidence in arriving at their
    verdict.

[8]

The reasons that follow explain why I have concluded that the judges
    instructions were adequate to the task the law sets for trial judges: proper,
    but not perfect. I would dismiss the appeal.

THE BACKGROUND FACTS

[9]

The events that led to Jermaine Malcolms death occupied but a few hours
    and a short distance on the evening of September 21 and early morning of
    September 22, 2007.

The Principals and Places

[10]

Jermaine
    Malcolm was a crack addict and sometime dealer. He spent the afternoon and
    early evening of September 21, 2007 smoking crack cocaine with his friends,
    Mark Belgrove and Thomas Teitsson. Belgrove lived in Unit 24 and Teitsson in
    Unit 7 at 6860 Meadowvale Town Centre Circle in Mississauga.

[11]

Parris
    and Joseph (the appellants) had known each other for seven or eight years and
    were friends. Both were drug dealers.

[12]

During
    the evening of September 21, 2007, the appellants were together at Kool Kats, a
    bar that was a four or five minute drive from the Meadowvale Town Centre
    complex where Malcolm and his friends were smoking crack. The appellants were
    socializing at the bar as well as selling crack cocaine in and from the
    premises.

The Front Door-Back Door Deal

[13]

In
    the early morning of September 22, 2007 Parris left Kool Kats with Malcolm to
    complete a drug deal. The purchaser was either Malcolm or someone Malcolm said
    wanted to buy drugs from Parris. The drugs changed hands at the front door of a
    unit at 6860 Meadowvale. Malcolm took the drugs inside and never returned.

The Search for Malcolm

[14]

Parris
    and Joseph discussed what had happened with the drug deal. With the help of
    Jonathan Litster, Parris was able to determine where Malcolm could be found.
    Shortly before 1:30 a.m. on September 22, 2007, the appellants left Kool Kats
    and headed for the Meadowvale complex in search of Malcolm.

[15]

According
    to Litster, Malcolm was at Thomas Teitssons place. Joseph went to the front
    door. Parris went around to the rear.

The Entry

[16]

Joseph
    banged on the front door of Unit 7. A white cloth covered something in Josephs
    hand. Joseph yelled that he knew Malcolm was inside and threatened to shoot up
    the house if Malcolm failed to come to the door. Teitsson opened the front
    door. Joseph entered. Malcolm appeared and said: I dont have your money.
    Joseph punched Malcolm in the face with a closed fist.

[17]

Teitsson
    tried to leave the unit. Parris blocked Teitssons path. Wielding a steak
    knife, Parris told Teitsson to get back inside or you might get some of this.
    Teitsson retreated to the interior of the unit.

The Basement

[18]

When
    Teitsson went back inside the house, Joseph and Malcolm were in the basement.
    When someone called Andrae, come down here, Parris went to the basement.
    Teitsson went upstairs to find a cell phone to call police. He heard a few
    thumps in the basement but no words spoken. A few minutes later, Teitsson
    called 911 from a neighbours unit.

The Forensic Evidence

[19]

When
    police arrived, they found a knife handle on the hallway floor near the
    stairwell into the basement. The missing blade of the knife was on the basement
    floor. There was blood on the knife blade and on the basement walls.  The
    drywall in the stairwell to the basement was dented and cracked in several
    places. Police found a second knife with a three-inch blade in the front
    hallway.  There was no blood on this knife.

[20]

Parris
    could not be excluded as the minor source of DNA taken from the scrapings under
    Malcolms fingernails and as the major source of DNA found above the door knob
    of a main floor bedroom in Teitssons unit.

[21]

Malcolm
    could not be excluded as the source of DNA found in blood located

i.

on a pair of Nike shoes in the back seat of a motor vehicle in which
    Joseph was arrested;

ii.

on the knife blade found in the basement;

iii.

on the patio by the front door; and

iv.

on the walls and handrail of the basement stairs.

The Cause of Death

[22]

Jermaine
    Malcolm suffered six stab wounds caused by a knife with a single sharp edge.
    The deepest wound penetrated 15.5 centimetres into his body. Four stab wounds
    were inflicted to the deceaseds upper right chest resulting in massive blood
    loss and playing a major role in his death. The pathologist also saw a small
    cutting wound on the lower left side of the deceaseds neck likely caused by
    dragging a knife with a serrated edge across the surface of the skin.

[23]

The
    pathologist could not say how many knives had been used in the attack on the
    deceased.

The Positions of the Parties at
    Trial

[24]

At
    trial, the Crown contended that Parris, angry about being ripped off in the
    drug deal, sought out Malcolm after expressing a desire to kill him. With Josephs
    help, Parris learned from Litster that Malcolm was at Teitssons place.  Joseph
    went to the front door. Parris went to the back door. As soon as the front door
    opened, Joseph entered and attacked Malcolm, forcing him into the basement.
    Joseph summoned Parris to the basement and both men attacked and killed Malcolm
    there.

[25]

According
    to the Crown, the unlawful killing of Malcolm was murder and amounted to first
    degree murder because it was either planned and deliberate or it occurred while
    the appellants unlawfully confined Malcolm or, in the case of Parris,
    Teitsson.

[26]

Both
    appellants testified at trial. It was their position that they went to
    Teitssons place to sell drugs, not to seek out Malcolm because he had ripped
    off Parris earlier. Neither was armed.

[27]

Parris
    testified that he became involved in a physical struggle with Malcolm on the
    main floor of the residence. The struggle spilled into the basement.  Malcolm
    had a knife. Parris asked Joseph to get Malcolm off him (Parris).  Joseph
    struggled with Malcolm to defend Parris. During this struggle Malcolm got
    stabbed with his own knife.

THE GROUNDS OF APPEAL

[28]

The
    appellants advance three common grounds of appeal that allege deficiencies in
    the charge to the jury. They say that the trial judge

i.

misdirected the jury on the elements of constructive first degree murder
    under s. 231(5)(e) of the
Criminal Code
;

ii.

misdirected the jury on the relationship between reasonable doubt and
    credibility as required by
W. (D.)
; and

iii.

failed to provide a sufficiently strong
Vetrovec
caution in
    connection with the testimony of several Crown witnesses.

[29]

The
    appellant Joseph advances two further grounds of appeal. Each alleges a
    deficiency in the charge to the jury.  Joseph says that the trial judge

i.

failed to properly instruct the jury on the defence of accident; and

ii.

failed to adequately instruct the jury on the evidentiary value of
    Josephs unaccepted plea of guilty under s. 606(4) of the
Criminal Code
to second degree murder.

Ground #1: The Instructions on Constructive First Degree
    Murder

[30]

The
    first ground of appeal alleges several discrete but related inadequacies in the
    trial judges final instructions on the appellants liability for first degree
    murder under s. 231(5)(e) of the
Criminal Code
.

[31]

A
    brief overview of the trial judges final instructions on the essential
    elements of first degree murder will put the appellants submissions of error
    in their appropriate setting.

The Instructions of the Trial Judge

[32]

In
    her final instructions, the trial judge left four verdicts to the jury in
    connection with each appellant:

·

not guilty

·

not guilty of first degree murder, but guilty of manslaughter

·

not guilty of first degree murder, but guilty of second degree
    murder

·

guilty of first degree murder

[33]

The
    trial judge instructed the jury that they could find each appellant guilty of
    first degree murder on the basis that the murder of Malcolm was planned and
    deliberate or the murder was committed while the appellants were unlawfully
    confining Malcolm, or in the case of Parris, attempting to unlawfully confine
    Teitsson.

[34]

The
    trial judge distributed drafts of her proposed final instructions to counsel in
    advance of their delivery to the jury. Trial counsel for the appellants offered
    no objection to the instructions either before or after their delivery on any
    ground now said to reflect error.

The Arguments on Appeal

[35]

The
    appellants make three complaints about the trial judges instructions on
    constructive first degree murder under s. 231(5)(e) of the
Criminal Code
.

[36]

First,
    Mr. Lafontaine for Joseph submits that the predicate offence of unlawful
    confinement must be ongoing for a significant period of time before a murder
    committed during its currency can become first degree murder under s. 231(5)(e).
    Mr. Lafontaine concedes that what amounts to a significant period of time
    must be decided on a case-by-case basis. It must be made plain, however, in
    final instructions that a confinement that is no more than incidental to the
    attack that causes death does not engage s. 231(5)(e) to elevate the murder to
    first degree murder. The trial judges failure to make it clear that the
    confinement must be for a significant time was a fatal error.

[37]

Second,
    Mr. Di Luca for Parris says that the trial judge erred in failing to relate the
    evidence to the essential elements of first degree murder under
    s. 231(5)(e) so that the jury could determine whether the enhanced
    participation requirement under the subsection had been met. Mr. Di Luca argues
    that it was not enough for the trial judge to tell the jury that the Crown had
    to prove that Parris must be an active participant in the killing or that he
    must have done something that was an essential, substantial and integral part
    of the killing to be guilty of first degree murder. There was a break in the
    events between the struggle that involved Parris and the killing of Malcolm and
    no evidence that Parris was an active participant in the killing. Without
    further instruction and evidentiary references, the jurors may not have appreciated
    the increased degree of participation required for first degree murder under s.
    231(5)(e).

[38]

Third,
    Mr. Di Luca insists, the trial judge erred in leaving Parris liability for
    first degree murder under s. 231(5)(e) on the basis of the confinement, or attempted
    confinement of Teitsson. Mr. Di Luca says that the evidence about the brief
    interaction between Parris and Teitsson does not meet the air of reality
    standard required to warrant submission of s. 231(5)(e) to the jury on the
    basis of the actual or attempted confinement of Teitsson. Furthermore, no
    causal link existed between any notional confinement of Teitsson and the
    conduct that caused Malcolms death.

[39]

For
    the respondent, Mr. Lepofsky rejects the claims of error advanced here for the
    first time.

[40]

First,
    Mr. Lepofsky says, the trial judge correctly instructed the jury on the
    essential elements of first degree murder under s. 231(5)(e) of the
Criminal
    Code
. The instructions made it clear that the unlawful confinement and the
    killing must be distinct acts, albeit part of the same transaction. But neither
    the governing authorities nor the evidence adduced at trial required or
    warranted further elaboration, in particular, a direction that the confinement
    must be for a significant time to engage the provisions of s. 231(5)(e). Mr.
    Lepofsky reminds us that such a requirement would be inconsistent with the
    inclusion of attempted unlawful confinement as a predicate offence under the
    section where no actual, let alone significant period of confinement need
    ever occur.

[41]

Second,
    Mr. Lepofsky contends, the trial judge did not err in her inclusion of the
    predicate offence of unlawful confinement of Teitsson as a further basis upon
    which Parris could be convicted of first degree murder. The person confined, or
    the person that a party attempts to confine, need not be the same person as the
    victim of the killing. Teitsson tried to escape. Parris forced him back into
    the house with threats of violence. This facilitated the killing of Malcolm,
    thus bringing it within the ambit of s. 231(5)(e).

[42]

Third,
    Mr. Lepofsky continues, the trial judge adequately related the evidence to the
    issues the jury was required to determine in order to decide whether Parris was
    guilty of first degree murder under s. 231(5)(e). What occurred here was a
    joint attack on Malcolm during his confinement in the basement. The evidence
    was uncomplicated. The trial judge made it clear that the liability of each
    appellant was to be considered and determined separately. Counsel did not
    object to the charge.  Nothing more was required.

The Governing Principles

[43]

An
    assessment of this ground of appeal requires a brief refresher about the
    essential elements of constructive first degree murder arising out of unlawful
    confinement or attempted unlawful confinement under s. 231(5)(e).

[44]

First,
    to establish first degree murder under s. 231(5)(e), the Crown must prove each
    of five essential elements beyond a reasonable doubt:

i.

that the accused unlawfully confined or attempted to unlawfully confine the
    victim or another person;

ii.

that the accused murdered the victim;

iii.

that the accused participated in the murder of the victim in such a way
    that the accused was a substantial cause of the victims death;

iv.

that no intervening act of somebody else resulted in the accused no
    longer being substantially connected to the victims death; and

v.

that the crimes of unlawful confinement, whether completed or attempted,
    and murder were part of the same transaction, in that the victims death was
    caused while the accused was confining or attempting to unlawfully confine the
    victim or another as part of the same series of events.

R. v. Harbottle
, [1993] 3 S.C.R. 306, at p.
    325.

[45]

For
    discussion purposes, the essential elements of constructive first degree murder
    under s. 231(5)(e) may be summarized as the

i.

predicate offence;

ii.

murder;

iii.

substantial cause;

iv.

no intervening act; and

v.

same transaction

requirements. In this case, the requirements in issue
    are those of predicate offence, substantial cause, and same transaction.

[46]

Second,
    the predicate offence requirement under s. 231(5)(e) involves the offence of
    unlawful confinement or the preliminary crime of attempted unlawful
    confinement. Unlawful confinement requires the use of physical restraint,
    contrary to the wishes of the person restrained, but to which that person
    submits unwillingly, thereby depriving that person of his or her liberty to
    move from one place to another:
R. v. Luxton
, [1990] 2 S.C.R. 711, at
    p. 723. The authorities establish that if for any significant period of time, the
    victim was coercively restrained or directed contrary to his or her wishes, so
    that she or he could not move about according to his or her own inclination and
    desire, the victim has been unlawfully confined:
R. v. Pritchard
, 2008
    SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[47]

Unlawful
    confinement, like its aggravated form, kidnapping, is a continuing offence, but
    one that is complete when the victim is restrained against his or her will. The
    purpose of the confinement is irrelevant:
R. v. Kimberley
(2001), 56
    O.R. (3d) 18 (C.A.), at para. 107.  Further, for the purposes of invoking, s.
    231(5)(e) through satisfaction of the predicate offence requirement, it is immaterial
    that the unlawful confinement of the victim has not been completed. The
    provision is invoked equally where an accused attempts to unlawfully confine the
    victim or another person.

[48]

Third,
    the substantial cause requirement in s. 231(5)(e) requires the Crown to prove
    that the accused played a very active role  usually a physical role  in the
    killing. The accuseds actions must form an essential, substantial, and
    integral part of the killing of the victim:
Harbottle
, at pp. 323-324.
    This requirement might be better described as reflecting an enhanced or more
    demanding degree of participation in the killing than a requirement of a
    causation:
R. v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 61;
R. v. Ferrari
, 2012 ONCA 399, 287 C.C.C. (3d) 503, at paras. 54 and
    57.

[49]

As
Harbottle
itself illustrates, the substantial cause requirement may
    be met where the conduct of an individual accused does not constitute the
    factual cause of the victims death, provided what the accused does falls
    fairly within the requirement of an essential, substantial and integral part
    of the killing (p. 308).

[50]

Fourth,
    the same transaction requirement refers to the relationship between the
    predicate offence and the killing of the deceased that amounts to murder. This
    requirement is not met where the predicate offence has been completed and the
    deceased killed to facilitate the offenders flight:
R. v. Stevens
(1984), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 541.

[51]

The
    same transaction requirement insists that the Crown prove that the killing
    occurred as part of a continuing series of events constituting a single
    transaction that establishes not only the killing but also the distinct offence
    of unlawful confinement:
Pritchard
, at para. 3;
Stevens
, at
    p. 541;
R. v. Paré
, [1987] 2 S.C.R. 618, at p. 632. The same
    transaction requirement does not demand that the killing (murder) and
    predicate offence occur simultaneously, only that they be part of one continuous
    sequence of events forming a single transaction:
Paré
, at p. 632.

[52]

The
    phrase while committing or attempting to commit in s. 231(5) requires that
    the killing be closely connected, temporally and causally, with the enumerated
    offence:
Pritchard
, at paras. 19 and 25;
R. v. Russell
, 2001
    SCC 53, [2001] 2 S.C.R. 804, at para. 43;
Paré
, at p. 632; and
Luxton
at pp. 722-723.  The murder and the predicate offence, here unlawful
    confinement, must be linked together, both temporally and causally, in circumstances
    that make the entire course of conduct a single transaction:
Pritchard
,
    at para. 35. The essential temporal-causal connection is established where the
    unlawful confinement creates a continuing illegal domination of the victim
    that provides an accused with a position of power that he or she chooses to
    exploit to murder the victim:
Pritchard
, at para. 35.

[53]

To
    satisfy s. 231(5)(e), the confinement and the murder must constitute distinct
    criminal acts, that is to say, the act of confinement and the act of killing
    must not be one and the same:
Pritchard
, at para. 27;
Kimberley
,
    at para. 108; and
R. v. Johnson
(2002), 166 C.C.C. (3d) 44 (Ont.
    C.A.), at para. 39. The same transaction requirement may be met even where
    the person killed and the person confined are not the same, provided the
    killing is closely connected, temporally and causally, with an enumerated
    offence:
Russell
, at para. 43.

[54]

Finally,
    where two or more persons are alleged to be involved in a murder that is said
    to warrant classification as first degree murder under s. 231(5)(e), proof of
    their liability will depend on the manner of their participation, whether as
    co-perpetrators or s. 21 parties:
Ferrari
, at para. 54. The trial
    judges instructions should set out the findings the jury would have to make to
    render the participant liable to conviction of first degree murder:
Ferrari
,
    at para. 98; and
R. v. Almarales
, 2008 ONCA 692, 237 C.C.C. (3d) 148,
    at paras. 82-84.

The Principles Applied

[55]

I
    would not give effect to any of the specific claims of error in connection with
    the final instructions on constructive first degree murder under
    s. 213(5)(e). I reach this conclusion for several reasons.

[56]

First,
    I do not accept the submission that the trial judge did not make it
    sufficiently clear to the jury that the unlawful confinement and murder must be
    distinct acts.

[57]

The
    trial judges final instructions, the subject of extensive discussion in the
    pre-charge conference, track the language of the controlling authorities. The
    charge made it clear that the unlawful confinement and killing must be separate
    acts, as well as essential components of a single ongoing transaction. The
    distinct act requirement demands only that the confinement be distinct and
    independent from the act of killing:
Pritchard
, at para. 27. That was
    so here. The unlawful confinement was not inherent in the very act of killing, but
    rather preceded it as Malcolm was removed from the main floor to the basement
    where he was eventually killed. This is not a case in which the confinement was
    any more inherent in the act of killing than it was in
Kimberley
.

[58]

Further,
    neither the governing authorities nor the evidence adduced at trial required
    the trial judge to undertake a more refined or discriminating analysis of the
    same transaction requirement in s. 231(5)(e). Read as whole, the jury
    instructions made it clear that the Crown had to prove beyond a reasonable
    doubt that the murder and unlawful confinement were separate acts, but linked
    together, both causally and temporally, in circumstances that made the entire
    course of conduct a single transaction:
Pritchard
, at para. 35.
    Nothing more was required.

[59]

Second,
    in connection with the submission that the trial judge should have told the
    jury that the unlawful confinement had to extend for a significant period of
    time to engage the provision, I do not agree that further instruction was
    required.

[60]

The
    trial judge explained to the jury that unlawful confinement was an unlawful
    restriction on liberty for some period of time. The language used to describe
    the same transaction requirement reflected the standard set by
Harbottle
and
Pritchard
, and attracted no objection from trial counsel either at
    the pre-charge conference or after the charge had been delivered.

[61]

The
    phrase any significant period of time appears in connection with the
    description of the unlawful confinement component of s. 231(5)(e) in paragraph
    24 of
Pritchard
. When read together with other portions of the same
    judgment, it seems clear that significant is used synonymously with
    confinement not limited to what was integral to the particular act of
    killing. Neither
Harbottle
nor
Pritchard
requires the
    inclusion of significant or its functional equivalent for the purpose of jury
    instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include
    such wording when the predicate offence requirement can be satisfied by the
    preliminary crime of attempted unlawful confinement where no actual confinement
    would occur.

[62]

Third,
    I would not accede to Parris specific submissions about the trial judges
    failure to relate the evidence to the issue of Parris participation in the
    killing or the inclusion of the unlawful confinement of Teitsson as a predicate
    offence in relation to Parris.

[63]

Joseph
    admitted to stabbing the deceased, but raised issues of accident, self-defence
    and defence of another (Parris). Parris acknowledged no part in the stabbing
    and said he was elsewhere in the house when Joseph killed the deceased. The
    position of the Crown was that the appellants were jointly involved in the
    killing.

[64]

Throughout
    her final instructions, the trial judge made it clear that neither accused was
    to be convicted unless the essential elements of the offence were proven in
    relation to that accused. She reminded the jury that Parris testified that he
    left the basement as soon as he extricated Joseph from the clutches of Malcolm.
    He did not see or use a knife. No further elaboration was required to ensure
    that the jury understood Parris defence.

[65]

The
    jury heard evidence that as Teitsson attempted to flee the premises, he was
    confronted by Parris who had a knife in his hand. Parris threatened Teitsson
    with a knife and ordered him back inside the house. Teitsson complied. He
    remained inside until he was able to flee and call 911 from a neighbours unit.

[66]

Section
    231(5)(e) is not limited to cases in which the victim of the murder and the
    victim of the predicate offence are the same:
Russell
, at para. 33.
    The section requires only that the accused has killed someone, while committing
    or attempting to commit a predicate offence. Provided the killing is closely
    connected, temporally and causally, with an enumerated predicate offence, the
    section may be engaged:
Russell
, at paras. 33 and 43. Indeed, in
Russell
,
    the victim of the unlawful confinement was tied to a bed in one part of the
    house, while the murder victim was beaten and stabbed to death in another. Yet,
    s. 231(5)(e) could be invoked to establish liability for first degree murder.

[67]

Although
    given the overwhelming evidence that Malcolm was unlawfully confined, the actual
    or attempted confinement of Teitsson could easily have been omitted as a
    predicate offence to simplify final instructions, I am unable to say it was
    legally wrong to include reference to Teitsson in relation to Parris only.

Ground #2: The
W. (D.)
Instruction

[68]

The
    second ground of appeal advanced by both appellants alleges error in the trial
    judges instructions on the application of the
W. (D.)
formula to the
    testimony of the appellants.

The Instructions of the Trial Judge

[69]

Early
    in her charge, the trial judge instructed the jury in these terms:

I am now going to give you some instructions on the
    procedure that you must follow in dealing with the testimony of Cleavon Joseph
    and Andrae Parris. It is a three-step analysis that must be followed by you
    during your deliberations.

First, if you believe Cleavon Joseph and Andrae
    Parris evidence, you must find them not guilty.

Second, even if you do not believe their evidence, if
    it leaves you with a reasonable doubt you must find them not guilty.

Third, even if Cleavon Joseph and Andrea Parris
    evidence does not leave you with a reasonable doubt, you may convict each man
    of an offence only if all of the evidence you do accept proves his guilt of the
    offence beyond a reasonable doubt.

[70]

The
    trial judge included this three-step analysis in the written material she
    provided to jurors for their use during their deliberations.

[71]

Trial
    counsel for the appellants did not object to this portion of the trial judges
    charge either before or after it was given.

The Arguments on Appeal

[72]

For
    the appellants, Mr. Lafontaine acknowledges that the general format of the
    trial judges
W. (D.)
instructions was unassailable. However, he says,
    its content was fatally flawed. He submits that, because the trial judges instructions
    erroneously suggested that belief or a reasonable doubt about the evidence of
both
appellants was a condition precedent to their acquittal.  All that was required
    was that the evidence of
either
appellant raised a reasonable doubt
    about guilt.

[73]

For
    the respondent, Mr. Lepofsky says that when the charge to the jury is read as a
    whole, as it must be, it was made clear to the jury that the burden of proof
    that rested on the Crown had to be met in relation to
each
appellant
    before he could be found guilty of any offence. In other words, he says, the
    jury was told that guilt was individual. The charge dealt with each appellant
    individually, explained the essential elements to be proven, and apprised
    jurors of the evidence relevant for their consideration on each issue. In the
    end, nothing more was required.

The Governing Principles

[74]

The
W. (D.)
formula, which emerged from he said/she said cases involving a
    single accused, but has since been given wider application, seeks to ensure
    that jurors understand that the principle of reasonable doubt applies to issues
    of credibility. But as both
W. (D.)
and its closest relative,
S.
    (W.D.)
, make plain, the instruction suggested in
W. (D.)
does not
    constitute a magical incantation that must be uttered in final instructions on
    pain of appellate reversal:
R. v. W
.
(D.)
, [1991] 1 S.C.R.
    742, at p. 758;
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at p. 533.

[75]

The
    purpose of instructions such as those suggested in
W. (D.)
and their
    functional equivalents is to ensure that the jury understands that their
    verdict must be not based on a choice between the evidence of the accused and that
    tendered by the Crown, but on whether, based on the whole of the evidence, they
    are left with a reasonable doubt about an accuseds guilt:
R. v. C.L.Y
.,
    2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8.

[76]

Every
    error in connection with the relationship between reasonable doubt and
    credibility is not necessarily fatal. Indeed, in
W. (D.)
itself, the
    trial judges error in instructing the jury that they were engaged in a
    credibility contest was held not to be fatal in light of the instructions as a
    whole:
C.L.Y
., at para. 8. Our obligation upon appellate review is to
    take a functional approach to the charge as a whole to determine whether the
    jury could have been left with any misunderstanding about the obligation of the
    Crown to prove an accuseds guilt beyond a reasonable doubt on the evidence as
    a whole, not by simply choosing between the competing versions:
R. v.
    Hoohing
, 2007 ONCA 577, [2007] O.J. No. 3224, at para. 16.

The Principles Applied

[77]

I
    would not accede to this ground of appeal despite the erroneous instruction of
    the trial judge on the first stage of
W.(D.)
suggesting that the jury
    had to believe both accuseds to acquit either.

[78]

Each
    appellant testified at trial. The evidence of each could be used by the jury in
    deciding the case of both. If the evidence of either were believed, or raised a
    reasonable doubt about his or the others guilt, that person was entitled to
    its benefit. The proposition that belief or a reasonable doubt about the
    evidence of both is a condition precedent to an acquittal of either is simply
    wrong.

[79]

A
    functional approach to the instructions as a whole satisfies me, however, that
    the erroneous coupling of the appellants testimony in the
W. (D.)
instruction caused no substantial wrong or miscarriage of justice to either
    appellant.

[80]

Considered
    as a whole, the final instructions made it clear to the jury that the burden
    was on the Crown to prove the essential elements of an offence beyond a
    reasonable doubt in relation to an accused before that accused could be
    convicted of an offence. The instructions made it clear that a separate verdict
    was required for each, and that the verdicts need not be the same for both. Each
    was presumed innocent of the charge. And it was for the jury to say for each
    whether the Crown had proven that persons guilt beyond a reasonable doubt on
    the evidence and according to the legal principles that apply to him. It would
    have been clear to the jury that the appellants were advancing entirely
    different defences to the charge. Parris denied participation. Joseph said he
    acted lawfully. Common sense would indicate to jurors when the instructions are
    considered as a whole that they need not believe both to find either not
    guilty.

[81]

The
    trial judge invited the jury to consider a series of questions that represented
    the essential elements the Crown was obliged to prove before any findings of
    guilt could be made. At the conclusion of each segment of her instructions, the
    trial judge advised the jury of the consequences of the available findings for
    each accused and their further deliberations.

[82]

The
    trial judges final instructions also made it clear to the jury that they could
    consider the evidence of each accused, of which they could believe some, none,
    or all, in deciding the case not only of that accused, but also of the other
    accused. It would necessarily follow that if the evidence of either raised a
    reasonable doubt about an issue in connection with the other, that appellant
    was entitled to its benefit.

[83]

Neither
    counsel for the appellants at trial objected to the charge on this ground. While
    failure to object is not fatal to a claim of error, it is of some significance
    in light of the opportunities for objection presented to counsel at trial.

Ground #3: The Adequacy of the
Vetrovec
Warning

[84]

In
    their joint factum, but not in oral argument, the appellants took issue with
    the adequacy of the trial judges
Vetrovec
caution with respect to the
    witnesses Teitsson, Belgrove, and Litster who were called by the Crown, but
    gave some evidence beneficial to the appellants.

The Instructions of the Trial Judge

[85]

After
    instructing the jury about the use they could and could not make of prior
    inconsistent statements of non-accused witnesses, which included the three witnesses
    whose evidence was subject to a
Vetrovec
warning, the trial judge told
    the jury that she had a special instruction for them in connection with the
    evidence of Teitsson, Belgrove, and Litster. She explained the reasons for this
    instruction in relation to each of the witnesses. Prior inconsistent
    statements.  Drug use.  Admitted lies to investigators and others. Criminal
    records.

[86]

The
    trial judge pointed out to the jury that, although they could act on the
    unconfirmed evidence of these witnesses, they should be cautious in doing so, and
    should approach their evidence with the greatest care and caution. After
    explaining the meaning of confirmatory evidence and emphasizing the
    requirement that the evidence be independent of the tainted witness, the trial
    judge provided several examples of potentially confirmatory evidence in
    relation to each witness.

The Arguments on Appeal

[87]

The
    appellants say that the circumstances of this case required a more robust or
    forceful warning about relying on the evidence of the
Vetrovec
witnesses. The jurors should have been told, they say, that it was
dangerous
to act on their unconfirmed evidence and should have been provided with more
    specific instructions about the frailties inherent in each. This was especially
    so because of the paucity of confirmatory evidence from sources beyond the
Vetrovec
witnesses themselves.

[88]

For
    the respondent, Mr. Lepofsky insists that the warning was fully compliant with
    the laws requirements. The instructions identified the
Vetrovec
witnesses, described the reasons that warranted special scrutiny of their
    evidence, warned the jurors of the risk of acting on their unconfirmed evidence
    in language appropriate to the occasion, and gave appropriate examples of
    potentially confirmatory evidence. Mr. Lepofsky says that the language of the
    warning is discretionary and that here, the greatest care and caution was
    adequate to the task demanded by the authorities.

The Governing Principles

[89]

The
    nature of the error alleged here does not warrant an extensive canvass of
    well-trodden ground on the essential elements of
Vetrovec
cautions. It
    is sufficient for current purposes to make mention of four principles
    established by the jurisprudence.

[90]

First,
    the language of the caution. The usual language of a
Vetrovec
caution
    refers to the
danger
of acting on the unconfirmed evidence of the
    suspect witness. However, there is no particular magic in the use of the terms
    danger or dangerous. Depending on the circumstances, the nature and content
    of the warning are matters of judicial discretion:
R. v. Trudel
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 86. It may often be said that
    the warning given could have been stronger. But that does not amount to legal
    error save in exceptional cases. Provided the judge did not go outside the
    acceptable limits of judicial discretion, the word choice is his or hers to
    make:
Trudel
, at para. 86;
R. v. Jones
(2001), 146 OAC 118,
    at para. 3.

[91]

Second,
    deficiencies or shortcomings in the
Vetrovec
caution itself may be
    compensated for in other portions of the final instructions that must be read
    as a whole:
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 52
    and 55.

[92]

Third,
    to satisfy the materiality element
[1]
,
    individual items of confirmatory evidence need not implicate an accused, rather
    are only required to give comfort to the jury that the tainted witness can be
    trusted in his or her assertion that the accused is the person who committed
    the offence:
Khela
, at paras. 40-42;
R. v. Roks
, 2011 ONCA
    526, 274 C.C.C. (3d) 1, at para. 65.

[93]

Finally,
    at least in the absence of collusion, mutual confirmation among
Vetrovec
witnesses is permissible:
Roks
, at para. 67; and
R. v. Winmill
(1999), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 120.

The Principles Applied

[94]

This
    ground of appeal fails for several reasons.

[95]

First,
    the cautionary language used in a
Vetrovec
warning rests with the
    discretion of the trial judge. To hold otherwise, as a matter of unyielding
    principle, risks return to the empty formalism
Vetrovec
abandoned. The
    language used here, in the circumstances of this case, fulfilled the clear and
    sharp warning that
Vetrovec
requires.

[96]

Second,
    the issue is not whether the trial judge could have used more robust language
    in the warning. For that can nearly always be said. But that is beside the
    point. The issue is whether the language used in the circumstances fell fairly
    within the trial judges discretion to compose a word formula to bring home to
    the jury the need for caution:
Jones
, at para. 3. In a case such as
    this, where the
Vetrovec
witnesses were not
participes criminis
,
    jailhouse informers, or those cumbered with a motive to fabricate, the language
    used was adequate to the task the authorities set for it.

[97]

Third,
    I am not persuaded that the nature or volume of potentially confirmatory
    evidence exerts any influence on the terms in which the warning is cast. I can
    find no authority in
Vetrovec
, or its progeny, for such a principle.
    In every event, I am not satisfied that the record in this case reveals any
    deficit of potentially confirmatory evidence whether from the
Vetrovec
witnesses or otherwise.

Ground #4: The Accident Defence

[98]

The
    appellant Joseph advances an argument that the trial judge erred in law in
    failing to instruct the jury on the defence of accident, thus depriving him of
    the potential verdict of manslaughter. Some further details about the
    circumstances surrounding the death of Jermaine Malcolm are necessary to
    appreciate this ground of appeal.

The Additional Background

[99]

Jermaine
    Malcolm suffered six stab wounds. Four wounds penetrated his chest, up to a
    depth of 15.5 centimetres, one his lower left thigh, and another, his upper
    left arm. He also suffered blunt force blows to his face consistent with being
    struck by a fist or having his face forced into a wall or other rigid object.

[100]

Investigators
    found a knife blade in the basement with blood stains on it and a corresponding
    handle in the upstairs hallway. The blood was consistent with that of Malcolm.

The Instructions of the Trial Judge

[101]

The defence
    advanced on the appellant Josephs behalf at trial was self-defence and defence
    of another, Parris, under his protection. The trial judge instructed the jury
    on s. 27 and the former ss. 34 and 37 of the
Criminal Code
. No objection
    was or is taken to those instructions.

[102]

In her
    instructions to the jury on the essential elements of murder, the trial judge
    explained the
mens rea
requirement of s. 229(a), as well as what was
    required of a person who was alleged to be an aider or abetter of a principal.
    No objection was or is taken to those instructions.

[103]

Trial counsel
    for the appellant did not seek, nor did the trial judge provide, instructions
    on an accidental stabbing during an unlawful act and the legal consequences of
    such a finding or a reasonable doubt about it.

The Arguments on Appeal

[104]

The appellant
    Joseph says that the trial judge should have left the defence of accident to
    the jury in the event that the jury rejected the self-defence and defence of
    another justifications advanced on Josephs behalf. The appellant Joseph says
    that there was an air of reality to support a finding that an unintentional
    stabbing occurred in the context of an unlawful act. Such a finding would have
    led jurors to a verdict of manslaughter.

[105]

For the respondents,
    Mr. Lepofsky takes the position that the claim now advanced lacks an air of
    reality in the trial record. The evidence adduced of a beating and multiple
    penetrating stab wounds is the antithesis of accident, and the jurys verdict,
    which included a finding that the appellant committed murder, either as a
    co-principal or aider or abettor, negates any such claim.

The Governing Principles

[106]

The criminal law
    uses the term accident to refer to two discrete sets of circumstances. The
    first has to do with the conduct or
actus reus
element of a crime: an
    unintentional act, in contradistinction to an intentional act. The second
    relates to the mental or fault element, the
mens rea
of a crime.  An
    accused says that she or he did not intend the consequences of his or her
    conduct, as for example, the death of the victim:
R. v. Mathisen
, 2008
    ONCA 747, 239 C.C.C. (3d) 63, at para. 70.

[107]

Accident in the
    sense of an unintended consequence, in this case at least, is nothing more than
    an argument that the appellant lacked the
mens rea
for murder. This
    sense of accident can be serviced by proper instructions on the
mens rea
for murder, rather than on some separate basis:
Mathisen
, at para. 73.

[108]

Accident in the
    sense of an unintentional act raises a discrete defence.  The circumstances in
    which the accident occurs determine the question of liability for unlawful
    homicide and, if liability exists, whether the crime is murder or manslaughter:
R. v. Tennant and Naccarato
(1975), 23 C.C.C. (2d) 80 (Ont. C.A.), at
    p. 89. If the appellant accidentally caused Malcolms death during the
    course of an unlawful act, and if the jury were satisfied beyond a reasonable
    doubt that the unlawful act was such that a reasonable person would inevitably
    realize would subject another to the risk of at least some bodily harm, the
    appellant would be guilty of manslaughter:
Tennant and Naccarato
, at
    p. 96.

The Principles Applied

[109]

This ground of
    appeal fails for several reasons.

[110]

First, the
    principal defence advanced at trial was self-defence and defence of another
    under Josephs protection. These justifications authorize the use of force in
    anticipation of, or in response to, an actual or impending attack, subject to
    the limits imposed by the specific justification invoked. They involve
    intentional conduct at least so far as responsive force is concerned. They are
    the antithesis of unintended conduct now said to have been erroneously omitted
    from the trial judges final instructions.

[111]

I acknowledge
    that inconsistency with the defence advanced at trial, even incompatibility
    between the defence advanced at trial and the one later claimed to have been
    wrongly omitted, is not the standard we must apply in deciding whether the
    omission reflects error. The air of reality test is the standard to be applied.

[112]

Even if the
    evidence in this case met the air of reality threshold, which to me seems
    unlikely, the failure to leave accident in the sense of unintentional conduct,
    to the jury caused neither Joseph nor Parris any substantial wrong or
    miscarriage of justice. The deceased was stabbed six times. Four wounds
    penetrated his chest to a significant depth. He was beaten. The jury found that
    Joseph intended to kill the deceased and may even have planned and deliberated
    his murder. Trial counsel made no objection to this omission, one that was
    inconsistent with Josephs abortive s. 606(4) plea of guilty to second degree
    murder. Nothing more need be said.

Ground #5: The Ineffectual Guilty Plea of the Appellant Joseph

[113]

The final ground
    of appeal relates to the appellant Joseph and the evidentiary value, if any, to
    be assigned to his plea of guilty to second degree murder when arraigned on the
    charge of first degree murder.

The Additional Background

[114]

When arraigned
    on the charge of first degree murder, the appellant Joseph, through his
    counsel, pleaded not guilty of first degree murder, but guilty of second degree
    murder. The procedure was repeated several times because of the manner in which
    jury selection proceeded.

[115]

Crown counsel
    did not consent to the entry of a plea as s. 606(4) of the
Criminal Code
requires before the trial judge can consider whether to accept the plea and act
    upon it. The trial judge directed that a plea of not guilty be entered and
    the trial proceeded.

[116]

Crown counsel
    confronted Joseph with his attempt to plead guilty to second degree murder and
    the inconsistency of that plea with the defence he advanced at trial. The appellant
    said he pleaded guilty because he killed a man but didnt mean to kill anyone.

The Instructions of the Trial Judge

[117]

The trial judge
    instructed the jury about the evidentiary value of Josephs rejected s. 606(4)
    guilty plea in these terms:

You will recall that when Cleavon Joseph and Andrae
    Parris were arraigned before we began jury selection, Cleavon Joseph pleaded
    not guilty to first degree murder but guilty to second degree murder and that
    plea was not accepted by the Crown and I indicated that a plea of not guilty
    was to be entered on Mr. Josephs behalf.

You are entitled to consider Mr. Josephs plea of
    guilty to second degree murder as an admission by him, but you must not find
    him guilty of that or of any other offence unless you are satisfied beyond a
    reasonable doubt that the Crown has proven all of the essential elements of
    that offence.

Mr. Josephs plea is a factor for you to consider but
    it is only one factor to be considered along with all of the other evidence.
    Like evidence of anything else said by Mr. Joseph on Mr. Parris, it is only
    evidence concerning the person who said it.

[118]

Trial counsel
    for the appellant Joseph did not object to this instruction.

The Arguments on Appeal

[119]

For the
    appellant Joseph, Mr. Lafontaine acknowledges that, as a general rule,
    unaccepted s. 606(4) pleas of guilty are considered admissions of the party
    entering the plea and are available for use by the trier of fact in determining
    the level of that accuseds culpability. But here, he says, the appellant made
    it plain in cross-examination that he did not admit having intentionally killed
    the deceased. The instruction was gravely prejudicial because it was
    inconsistent with his trial testimony of an unintentional killing.

[120]

For the
    respondent, Mr. Lepofsky submits that the appellant Josephs s. 606(4)
    plea of guilty was voluntary and unequivocal, whether entered by  counsel or by
    the appellant. Its value as an admission, on which the jury was properly instructed,
    was not diminished by the appellants trial testimony inconsistent with his
    earlier plea. The appellant cannot resile from the evidentiary effect of the
    plea having made a deliberate choice to enter it on each of several
    arraignments.

The Governing Principles

[121]

A guilty plea is
    a formal admission of guilt of the offence to which the plea is entered.
    Further, it constitutes a waiver of not only the accuseds right to require the
    Crown to prove its case (by relevant, material, and admissible evidence) beyond
    a reasonable doubt, but also of related procedural safeguards including those
    that are constitutionally protected. To be valid, a plea of guilty must be
    voluntary, informed, and unequivocal:
R. v. T. (R.)
(1992), 10 O.R.
    (3d) 514 (C.A.), at para. 14.

[122]

Pleas of guilty
    under s. 606(4) are different from pleas of guilty to the offence charged. To
    be effectual under s. 606(4), a plea of guilty to any other offence arising
    out of the same transaction as the offence charged, whether or not it is an
    included offence, requires prosecutorial consent and judicial acceptance.
    Where the plea is effectual, the accused is found not guilty of the principal
    offence, but guilty of the offence to which the plea of guilty has been
    entered.

[123]

The absence of
    prosecutorial consent to a s. 606(4) guilty plea makes the plea a nullity and
    leaves an accuseds plea as one of not guilty of the offence charged:
R. v.
    Dobson
(1985), 19 C.C.C. (3d) 93 (Ont. C.A.), at pp. 94-95; and
R. v.
    Pentiluk and MacDonald
(1974), 21 C.C.C. (2d) 87 (Ont. C.A.), at pp.
    90-91.  Despite its ineffectual nature, the unaccepted s. 606(4) plea of guilty
    can be considered an admission and the jury instructed accordingly:
Dobson
,
    at p. 95;
Pentiluk and MacDonald
, at pp. 91-92. In a joint trial, the
    judge must make it clear that the rejected s. 606(4) guilty plea is an
    admission only as against its maker:
Pentiluk and MacDonald
, at p.
    92.

The Principles Applied

[124]

I would not give
    effect to this ground of appeal. Neither the procedure followed nor the
    instructions given reflect legal error or rendered the appellants trial
    unfair.

[125]

The decision to
    enter a plea of guilty under s. 606(4) of the
Criminal Code
was that
    of the appellant. He was represented throughout by experienced counsel whose
    competence is not challenged on appeal. This was a jury trial. A pre-trial
    conference was mandatory under s. 625.1(2). Counsel must be taken to have known
    from this conference that the Crown would not consent to the plea of guilty to
    second degree murder. Yet the plea was entered several times in the presence of
    the prospective jurors. Counsel must be taken to have known and to have advised
    the appellant of the potential evidentiary consequences of the plea. To claim
    prejudice now, in light of an apparently deliberate tactical decision, rings
    hollow.

[126]

The trial judge
    entered a plea of not guilty and instructed the jury in unexceptional terms
    about the evidentiary value of the plea as an admission. The admission was not
    left as dispositive of the appellants guilt of the lesser offence, but only as
    an item of evidence for the jury to consider. This instruction was appropriate
    in this case.

CONCLUSION

[127]

For these
    reasons, I would dismiss the appeal.

Released:

RJS                                       David Watt
    J.A.

AUG 12 2013                          I agree Robert J.
    Sharpe J.A.

I agree
    Alexandra Hoy J.A.

[1]
This element relates to the implicative quality of confirmatory evidence.


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), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue, and for greater certainty shall apply to the complainant and to
    any witness under eighteen years of age whose evidence was considered at trial
    or on the appeal. 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 complainant 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, 172, 172.1, 173, 210, 211,
    212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault
    with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, 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).

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. P.G., 2013 ONCA 520

DATE: 20130821

DOCKET: C54825

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

Alan M. Buchanan, for the appellant

John A. Neander, for the respondent

Heard: March 4, 2013

On appeal from the conviction entered on February 15,
    2011 and the sentence imposed on December 5, 2011 by Justice Gregory M.
    Mulligan of the Superior Court of Justice, sitting with a jury.

Epstein J.A.:

I.        OVERVIEW

[1]

The appellant was convicted after a trial by judge and jury of sexual
    assault and was sentenced to twelve months imprisonment.  He appeals conviction
    and sentence.

[2]

In 2007, the appellant and the complainant met over the internet.  That
    summer they saw each other once.  They had sporadic contact by email and
    telephone over the following two years.  There was no intimacy between them.
    In the summer of 2009, the complainant was experiencing personal difficulties.
    As a break from these difficulties, the appellant invited the complainant to
    have dinner with him and his twelve-year-old son on a boat the appellant was
    using.

[3]

The appellant and the complainant socialized over drinks and then had
    dinner with the son.  After dinner the appellant and the complainant retired to
    one of the berths in the boat.  Sexual activity ensued.

[4]

The prosecution turned on the issue of consent.  The complainants
    evidence at trial was that the sexual contact was non-consensual.  The
    appellant testified that the complainant actually initiated the sexual activity
    and participated in its escalation until it reached a point where she said
    stop.  And he did.

[5]

The material divergence of the evidence of the appellant and the
    complainant was what happened after dinner.

[6]

According to the complainant, after dinner the appellant announced he
    was going to lie down and strongly urged her to join him.  With some
    reluctance, she did.   They went into one of the berths in the cabin of the
    boat and once they were on the bed, the appellant started to caress her.  The
    complainant testified that she resisted but the appellant continued.  He
    fondled and then sucked her breasts.  The complainants evidence is that she
    started crying and pleaded with the appellant to stop.  He ignored her
    resistance, put his hand down the front of her pants, undid her belt and put
    his finger into her vagina.  He then got out of the bed, went to the foot of
    the bed and pulled her toward him. The appellant, not able to get the
    complainants pants off as she continued to struggle and try to stop him, put
    his mouth on her pubic area just above her belly before getting back onto the
    bed.  The appellant rubbed his penis against her buttock. He then held her down
    until he seemed to fall asleep.

[7]

When the appellants advances stopped, the complainant got out of the
    bed and moved to leave the berth, but the appellant stepped in front of her and
    blocked her way. After he eventually stepped aside, she went through the main
    cabin, past the son, to the head and cleaned herself up.  Still upset, she
    returned to the main cabin where she found the appellant sitting with his son.
    Reluctantly, she had a cigarette with the appellant and tried to make small
    talk with the son. She then left the boat and hurried to her truck to leave.
    The appellant followed her suggesting that he had a great time and that they
    should pursue a relationship.

[8]

The next evening, the complainant reported the matter to the police.  In
    accordance with their direction, she went to the hospital where a sexual
    assault evidence kit was performed. On another visit to the hospital a few days
    later, photographs were taken of various marks on her body.

[9]

In addition to the complainants testimony, the Crown called forensic
    biological evidence that indicated that the appellants saliva was found on the
    complainants clothing; specifically on her bra, jeans and sweater.  The Crown
    also called a sexual assault nurse examiner at the hospital, who from her
    examination notes, described observing a five by four cm area on the complainants
    lower back where the skin was red.

[10]

The
    appellant provided a different description of what happened after dinner.

[11]

The
    appellant testified that the considerable amount of alcohol he had consumed,
    together with his diabetes, caused him to hit the wall.   He told the
    complainant he had to lie down.  He asked her if she wanted to come, and she
    followed him.

[12]

According
    to the appellant, after they got onto the bed, the complainant started to
    snuggle and kiss him.  He kissed her back and she became more passionate.  The
    two continued to engage in foreplay during which time she undid her belt to
    provide access to her pubic area allowing him to massage her clitoris.

[13]

The
    appellant testified that because of his medical problems and the alcohol he had
    consumed, he had no libido. He could not get an erection.  Therefore, as the
    foreplay intensified, the appellant went to the foot of the bed to perform oral
    sex on the complainant. He kissed her stomach and pubic area at which point she
    said stop; he said are you sure?, and she said yeah.  The appellant
    stopped and got back onto the bed.  The complainant said you are mad at me,
    arent you to which the appellant said no, putting her hand on his genitals
    to demonstrate that he did not have an erection.  The two then fell asleep.

[14]

When
    they woke up they went to the main cabin and smoked a cigarette together.  The
    complainant hugged and kissed the appellant and said goodnight to the son.  The
    appellant then walked the complainant to her truck.  They parted on good
    terms.

[15]

The
    defence consisted of the appellants testimony and a vigorous attack on the
    complainants credibility. In his address to the jury, defence counsel argued,
    among other things, that the complainants version of events  including the
    circumstances in which she ended up on the bed with a man she barely knew, and
    why the appellant would force himself on her when his young son was but a few
    feet away  defied common sense.

[16]

The
    son did not testify.

II.       GROUNDS OF APPEAL

[17]

The
    appellant alleges two errors arising out of the jury instructions: the
    explanation of the burden of proof and the jurys use of the expert forensic
    evidence.  In addition, the appellant seeks to introduce fresh evidence
    pursuant to s. 683(1)(d) of the
Criminal Code
, R.S.C. 1985, c. C-46.

III.       ANALYSIS

[18]

I
    will deal first with the grounds of appeal arising out of the trial record.  In
    my view neither of them warrants quashing the verdict.

(1)

Jury
    Instructions

Burden of Proof

[19]

The
    appellants main argument is that the trial judge erred in instructing the jury
    with respect to reasonable doubt.  The trial judge was obliged, argues the
    appellant, to explain that proof of guilt beyond a reasonable doubt is much
    closer to absolute certainty than it is to probable guilt.

[20]

The
    portion of the charge dealing with reasonable doubt is as follows:

The phrase, reasonable doubt is a very important part of our
    criminal justice system.  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 logically arises from the
    evidence, or the lack of evidence.

It is not enough for you to believe that [P.G.] is probably or
    likely guilty.  In those circumstances you must find him not guilty because
    Crown Counsel would have failed to satisfy you of his guilt beyond a reasonable
    doubt.  Proof of probable or likely guilt is not proof of guilt beyond a
    reasonable doubt.

You should remember, however, that it is nearly impossible to
    prove anything with absolute certainty, Crown Counsel is not required to do
    so.  Absolute certainty is a standard of proof that is impossibly high.

If, at the end of the case, after considering all of the
    evidence you are sure that [P.G.] committed the offence you should find [P.G.]
    guilty of it, since you have been satisfied of his guilt of that offence beyond
    a reasonable doubt.

However, if, at the end of the case, based on all of the
    evidence or lack of evidence, you are not sure that [P.G.] committed the
    offence, you should find him not guilty of it.

[21]

In
R. v. Starr
, 2000 SCC 40,

[2000] 2 S.C.R. 144
,
Iacobucci
    J. explained that one effective way to define the standard of proof is to
    explain that it is much closer to absolute certainty than to a balance of
    probabilities.  However, it is clear that there is more than one effective way
    to explain reasonable doubt.   Instructions that include the word sure
    together with the other aspects of the standard of proof description set out in
R. v. Lifchus
, [1997] 3 S.C.R. 320 at para. 39, have been held to
    provide the jury with the necessary standard of proof guidance.  See:
R. v.
    Hall
(2004), 193 O.A.C. 7 (C.A.) at paras. 34-36 and
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.) at paras. 36-38. These decisions are
    dispositive of this argument.

[22]

The
    appellant also challenges what is known as the
W.D.
instruction (see
R.
    v. W.D.
, [1991] 1 S.C.R. 742). He concedes that the trial judges
    instructions followed the standard
W.D.
formula. He argues however,
    that in the circumstances of this case, one that is essentially a she said, he
    said case, the trial judge was required to do more than merely set out the
W.D.
formula.

[23]

The
    following is the passage in the charge containing the
W.D.
instruction:

In this case [P.G.], the accused, testified, and Im going to
    give you some instructions as a framework to assist you, and I may repeat this
    later in my charge.
[1]
If you believe [P.G.]s evidence that he did not commit the offence as charged,
    you must find him not guilty.  Even if you do not believe [P.G.]s evidence, if
    it leaves you with a reasonable doubt about his guilt or about an essential
    element of the offence charged you must find him not guilty of that offence.

Even if [P.G.s] evidence does not leave you with a reasonable
    doubt of his guilt or about an essential element of the offence charged, you
    may convict him only if the rest of the evidence that you do accept proves his
    guilt beyond a reasonable doubt.

[24]

I
    do not agree with the appellant that this instruction would leave the jury
    incapable of properly determining whether the Crown had met the burden of
    establishing guilt.  This was a straightforward case that turned on the jurys
    assessment of the credibility of the accused and of the complainant.  The purpose
    of
W.D.
is to assist jurors in precisely these circumstances.

[25]

I
    add that while not dispositive, the errors now alleged about the instructions
    concerning the burden of proof are that the instructions were legally
    inadequate.  According to Doherty J.A. in
R. v. Austin
(2006), 214
    C.C.C. (3d) 38 (Ont. C.A.) at para. 14, in such circumstances trial counsels
    approval of the jury charge, and to a lesser extent his or her failure to
    object, will be a significant consideration on appeal. (See also:
R. v.
    Carrière
(2001), 159 C.C.C. (3d) 51 at para. 59 (Ont. C.A.), and
R. v.
    Johnson
(2002), 166 C.C.C. (3d) 44 at para. 57 (Ont. C.A.).)

[26]

In
    my view, the need for any special instruction in this case is belied by the
    fact that the appellant advanced no such position at trial.

[27]

In
    any event, I am of the view that in relation to the standard of proof, the
    charge is unassailable in law.

[28]

I
    would therefore not give effect to this ground of appeal.

Expert Evidence

[29]

The
    appellant does not point to any error in the principles of expert evidence in
    the trial judges instructions.  Rather, he submits that the trial judge erred
    by failing to advise the jury that the DNA evidence was not controversial
    that it was, in fact, accepted by both the Crown and the defence.  The argument
    is that this omission left the jury with the impression that this evidence
    supported the Crowns case.

[30]

I
    do not see any merit in this argument.

[31]

The
    jury was instructed and repeatedly reminded that it was their job to weigh the
    evidence.  It was open to the jury to view the DNA evidence as benign in the
    sense that it was consistent not only with both the appellants evidence and
    the complainants evidence that there was intimate contact between the two but
    also with the nature of that contact.  It was also open to the jury to attach
    some significance to the DNA evidence in considering the Crowns argument that
    the appellant, in order to explain away the evidence, concocted his version of
    what happened between him and the complainant.

[32]

Again,
    I note that defence counsel approved of this aspect of the draft charge during
    pre-charge discussions and failed to object to the instructions at the
    conclusion of the charge.  This failure weakens the complaint that the trial
    judge failed to give the jurors adequate assistance in their task of evaluating
    this evidence.

(2)

The Fresh
    Evidence

[33]

The
    fresh evidence the appellant tenders consists of an affidavit sworn by the son
    about his observations on the day in question.  In addition, the appellant
    relies on his own affidavit and the affidavit of his trial counsel in support
    of the admissibility of the sons proposed evidence.  The Crown cross-examined
    all of the affiants.

[34]

While
    the son is able to provide his recollection of what happened during the
    complainants visit on the day in question, in my view, the aspect of his
    proffered evidence most material to the issue of consent is his description of
    the circumstances under which the complainant and his father went to lie down
    and, more significantly, what took place just prior to her departure.  As set
    out above, in these two areas, the evidence of the complainant and the
    appellant differ.

[35]

The
    complainant testified that the appellant more or less told her to accompany him
    when he went to lie down.  The appellants evidence was that he told her he
    needed to lie down, asked her if she wanted to join him, and she did.

[36]

The
    sons proposed evidence is that the appellant said he was going for a nap and
    the complainant said, I guess Ill join you.  Although this evidence differs
    slightly from his fathers, it would support his fathers version of events
    that it was the complainant who suggested that she accompany the appellant when
    he went to lie down.

[37]

Of
    more significance, in my view, is the evidence about what transpired between
    when the complainant and the appellant emerged from the berth and when the
    complainant left to go home.

[38]

The
    complainant testified that she was very upset when she left the berth and went
    directly to the head to clean up.  She re-entered the main cabin, eager to
    leave but the appellant, who by then was in the cabin with his son, pressured
    her to have a cigarette with him.  She talked briefly with the son and then
    after she finished her cigarette she left as quickly as she could. The
    appellants evidence was that after smoking a cigarette the complainant hugged
    and kissed him and said goodnight to his son.  He then walked the complainant
    to her truck and they parted on good terms.

[39]

Once
    again, the sons proposed evidence differs somewhat from his fathers evidence
    at trial. The son does say that the complainant hugged and kissed the appellant
    before leaving.  However, the son says that the complainant also hugged him
    (the son) as she left  something the appellant did not mention.  Nonetheless,
    the sons proposed evidence does support that of the appellant on the important
    issue of the complainants apparent state of mind, after she and the appellant
    came out of the berth.

Applicable Legal Principles

[40]

Section
    683(1) of the
Code
allows an appellate court to receive evidence on
    appeal "where it considers it in the interests of justice". The
    appellate courts discretion to accept fresh evidence should be informed by the
    appellant's interests in pursuing his appellate remedies and by the interests
    of the administration of justice. Those interests include ensuring not only
    that verdicts are reliable but also that the appellate process is not routinely
    used to re-write the evidentiary trial record.  To allow the process to be
    re-opened too easily jeopardizes the validity of all verdicts:
R. v. Dooley
,
    2009 ONCA 910, 249 C.C.C. (3d) 449 at paras. 106-107;
R. v. Snyder
,
    2011 ONCA 445, 273 C.C.C. (3d) 211

at para. 44.

[41]

Admitting
    evidence on appeal of facts that were litigated at trial is very much the
    exception (
R. v. M.(P.S.)
(1992), 77 C.C.C. (3d) 402 at p. 411 (Ont.
    C.A.)) and is justified only in furtherance of the integrity of the process:
Snyder

at para. 44.

[42]

In
    its recent decision in
Snyder
,
drawing on both the well-known
    decision in
R. v. Palmer and Palmer
, [1980] 1 S.C.R. 759 at p. 775 and
    the more recent case of
Reference re: Truscott
, 2007 ONCA 575, 225
    C.C.C. (3d) 321 at para. 92,

this court at para. 45

described
    the admissibility of fresh evidence on appeal as an exercise in discretion
    involving the answer to three questions:

Is the proffered evidence admissible under the rules of
    evidence applicable to criminal trials? [the admissibility requirement]

Is the evidence sufficiently cogent that it could reasonably be
    expected to have affected the verdict? [the cogency requirement]

What is the explanation offered for the failure to produce the
    evidence at trial and how should that explanation affect its admissibility on
    appeal?  [the due diligence inquiry]

[43]

The
    first two components of the test are directed at preconditions to the
    admissibility of fresh evidence under s. 683(1). Evidence that is not
    admissible under the usual rules of evidence governing criminal proceedings, or
    is not sufficiently cogent to potentially affect the verdict, cannot be
    admitted on appeal:
Truscott

at para. 93.

[44]

This
    courts judgment in
Truscott

at para. 93 characterizes the last
    component, often referred to as the due diligence requirement, not as a
    precondition of admissibility but as a factor that must be examined only if the
    evidence meets the other two preconditions.  See
R. v. Maciel
, 2007
    ONCA 196, 219 C.C.C. (3d) 516

at paras. 45-51, leave to appeal to S.C.C.
    refused, [2007] S.C.C.A. No. 258.  The explanation offered for the failure to
    adduce evidence at trial, or in some cases the absence of any explanation, can
    result in the exclusion of evidence that would otherwise be admissible on
    appeal:
Truscott
at para. 93.

Application of the Principles to this Case

[45]

The
    first consideration  whether the sons proposed evidence is admissible  can
    easily be answered in the affirmative.  The sons evidence that the complainant
    was in good humour after emerging from the berth and kissed his father and
    hugged them both is admissible under the rules of evidence.  The evidence would
    be relevant, as it would be capable of supporting the appellants version of
    events and of impeaching the reliability of the complainants trial testimony.

[46]

This
    takes me to the second question. Could the sons proposed testimony, when
    considered in the context of the rest of the evidence, reasonably be expected
    to have affected the verdict?

[47]

This
    court in
Truscott
at para. 100 described the cogency analysis in this
    way:

The cogency inquiry requires a
    qualitative assessment of the evidence proffered on appeal
. That
    evaluation must measure the probative potential of the evidence considered in
    the context of the entirety of the evidence admitted on appeal and heard at
    trial.
If the fresh evidence considered in this context
    could reasonably be expected to have changed the result at trial, the evidence
    is sufficiently cogent to justify its admission on appeal
.... [Emphasis
    added.]

[48]

The
    Crowns primary resistance to the reception of the sons evidence is that it is
    not sufficiently cogent to affect the verdict.  The Crown points to
    inconsistencies between the sons proposed evidence and the appellants trial
    evidence, which the Crown argues raise doubts as to credibility. The sons
    affidavit suggests, and his cross-examination confirms, that from the time the
    complainant arrived to the time she departed he was either with the appellant
    and complainant or on the boat. This contradicts the appellants trial evidence
     as well as the complainants evidence  that the son left, a few times, for
    twenty or thirty minutes. Similarly, in both a letter filed on sentencing and
    in his affidavit on the fresh evidence motion, the son states that the
    complainant hugged him before she left, in addition to hugging and kissing the
    appellant. But, in his trial testimony, the appellant did not mention this hug
    between the complainant and his son.

[49]

The
    Crown also submits that the sons questionable proposed evidence is incapable
    of supporting the appellants evidence, because the appellants evidence is
    itself inconsistent.  First, in his statement to the police, the appellant made
    no mention that the son was present on the evening in question. Then at trial,
    as mentioned above, the appellant said nothing about the complainants giving
    the son a hug. After the son himself stated that she gave him a hug, the
    appellant now swears that his son is correct: before she left, the complainant
    did hug his son, as well as hugging and kissing the appellant.

[50]

The
    Crown further submits that to be admitted, the proposed fresh evidence requires
    a higher degree of cogency as the decision not to call the son at trial was a
    tactical one.  In making this submission, the Crown relies on the following
    evidence of the appellants trial counsel, under cross-examination on his
    affidavit filed in support of the fresh evidence application:

A: . He had great faith in my skill as an advocate. He thought
    at trial -- he thought my cross-examination of [the complainant] went very
    well. And he thought that the jury was giving him signs that I was being
    listened to. And so he --  perhaps he was looking at things through
    rose-coloured glasses.

Q: Hes willing to take his chances without [his son].

A: I suppose.

[51]

The
    Crown says that this evidence demonstrates that the appellant decided not to
    call his son as a witness as he was confident that the jury would find him not
    guilty.

[52]

In
    determining whether the second test set out above has been met, the task is to assess
    the potential value of the sons evidence, a task that involves an evaluation
    of the proffered evidence and the credibility of the witness. That evaluation
    is not for the purpose of determining the ultimate reliability and credibility
    of the evidence, but rather for the purpose of determining whether it is
    sufficiently cogent to warrant its admission on appeal.

[53]

The
    qualitative assessment begins by identifying the purpose or purposes for which
    the evidence is admissible. As indicated above, the sons evidence, if
    believed, is capable of corroborating the appellants evidence and impeaching
    that of the complainant.  In my view, in the particular circumstances of this
    case, this purpose is particularly important since without the sons testimony
    the Crowns case depends almost exclusively on the jurys assessment of the
    credibility of the appellant and the complainant.  I view the DNA evidence and
    the photographs and the nurses description of the marks on the complainant as
    being of marginal value.

[54]

The
    appellant is unable to demonstrate that the proposed evidence is credible. That
    said, I do not agree with the Crown that the sons evidence is so lacking in
    credibility as to warrant its outright rejection.  The situation is therefore
    similar to the one in
Babinski
where Rosenberg J.A. says, at p. 715,
    that where the court of appeal, having fully reviewed the record, is unable to
    find that the evidence is not credible, even though it is unable to say that it
    is credible, the court must go on to consider whether if believed, it could
    reasonably be expected to have affected the result.

[55]

The
    question is whether the sons evidence is reasonably capable of belief.  I
    cannot say whether or not the proposed evidence is credible or reliable.  I
    have not heard the trial evidence or seen the son testify and be
    cross-examined.  What I can say is that in my view, while the inconsistencies
    and discrepancies emphasized by the Crown are relevant to credibility, they are
    insufficient to establish that the evidence is not credible as explained in
Palmer
,
i.e.
is not reasonably capable of belief.  Even if, at a trial, the
    sons evidence was not accepted as entirely credible or as credible in every
    respect, it may still be capable of affecting the verdict given its potential
    import on a decisive issue: the credibility of the appellant and the
    complainant on the issue of consent.

[56]

In
    my view, the sons proposed evidence meets the second criterion.

[57]

The
    third question, the explanation provided for why the evidence was not adduced
    at the trial, is applied less strictly against an accused who appeals
    conviction than it is for other categories of appellants.  For example, if the
    proffered evidence is sufficiently cogent to warrant an acquittal, fresh evidence
    should be received on appeal even though it was available at trial. However, if
    the evidence were available at trial but not led for tactical reasons, the
    cogency requirement takes on greater importance.

[58]

In
    the circumstances of this case, the analysis of why the son was not called as a
    witness at the trial is complicated by the fact that he was available and able
    to testify. The appellant's explanation is that he was concerned that
    testifying would have been harmful for his son, particularly given the ongoing,
    high-conflict legal proceedings between the appellant and his sons mother over
    custody and access arrangements.

[59]

In
    his affidavit in support of the application to receive his sons evidence, the
    appellant details the legitimacy of his concern.  He says that the mothers
    hostility toward their sons potential involvement in the trial became apparent
    as the trial approached and then increased as the trial progressed.  The
    appellant also attests to the fact that following the preliminary inquiry a
    family court hearing took place during which the presiding judge, apprised of
    the pending sexual assault trial, had admonished him for considering calling
    his son as a witness and even for having his son talk to the appellants
    lawyer.

[60]

There
    is room for debate over whether the third test will be met where the evidence
    demonstrates that a child is available to testify at trial but, for some
    reason, may suffer harm if called as a witness in a trial involving one or both
    parents.  In this case it is alleged that the potential harm would arise out of
    the fact that the child, at the time of the trial, was at the centre of
    high-conflict family proceedings.  The debate would involve a number of
    considerations including the likelihood of the risk, the nature and degree of
    potential harm to the child and the quality of the evidence necessary to
    establish the risk.

[61]

However,
    I am of the view that this debate does not have to be addressed in order to
    decide this appeal as I am satisfied that the third test is met.

[62]

First,
    I am not prepared to accept the Crowns argument that the decision not to call
    the son was a tactical one and that therefore the proposed fresh evidence must
    reach a higher level of cogency in order to be admitted.

[63]

The
    testimony of the appellants trial counsel set out above, when considered in
    the context of all of the evidence relevant to the fresh evidence application,
    supports the appellants argument that his primary reason for not following his
    lawyers advice to have his son called as a witness was out of concern over the
    impact that testifying would have on his son.  As the trial progressed, the
    appellant became more optimistic that the jury would return a verdict of not
    guilty.  However, in my view the fact that this optimism influenced the
    appellants ultimate decision not to require his son to testify does not mean
    the decision was strategic. The evidence satisfies me that the appellants
    primary reason for deciding that his son should not be called as a witness
    his sons best interests  did not change. What changed were the implications
    of protecting his son from the consequences not only of testifying in a trial
    let alone one of this nature but also of being forced to do something that
    would likely exacerbate the legal difficulties in which he and his parents were
    involved.  In these circumstances I do not view the decision not to call the
    son as a witness at the trial as amounting to a tactic that should affect the
    assessment of the admissibility of the proposed fresh evidence.

[64]

As
    I see it, it would be contrary to the ends of justice not to receive the sons
    proposed evidence.  His testimony is effectively the only evidence relevant to
    the sole issue  consent  aside from that of the appellant and complainant.
    It is reasonably capable of belief. If it is believed or if it raises a
    reasonable doubt, the sons evidence could well affect the outcome of a
    prosecution in which the appellant faces a serious charge that attracts serious
    consequences.

[65]

In
    exercising this courts broad discretion I would allow the application to admit
    the proposed fresh evidence.

IV.     DISPOSITION

[66]

Because
    this determination could reasonably be expected to have affected the verdict,
    the verdict can no longer stand.

[67]

I
    would therefore allow the appeal, quash the conviction and order a new trial.

[68]

Given
    this disposition, it is unnecessary to address the sentence appeal.

Released:

AUG 21 2013                                   Gloria
    Epstein J.A.

MR                                                  I
    agree M. Rosenberg J.A.

I
    agree R. G. Juriansz J.A.

[1]
The judge did indeed repeat these instructions, in virtually identical words,
    later in the charge, immediately before outlining the positions of the Crown
    and the defence.