



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v.
  Moir,









2013 BCCA
  36




Date: 20130130

Docket: CA038222

Between:

Regina

Respondent

And

Dustin Blue Robert Moir

Appellant

PUBLICATION BAN:  Pursuant to Section
486.5(2) of the
Criminal Code
there
is a publication ban in place which prohibits the publication, broadcast or
transmission of any information that could identify any undercover police
operators involved in this proceeding.

Corrected Judgment
:
The text of the judgment was corrected at paragraph [31]
on January 31, 2013




Before:



The
  Honourable Madam Justice D. Smith





The
  Honourable Madam Justice Bennett





The
  Honourable Mr. Justice Harris




On Appeal from the Supreme Court of
British Columbia, February 16, 2010

(
R. v. Moir
, Chilliwack
Registry Number 53172)




Counsel for
  the Appellant:



R.P. Thirkell and K.R. Beatch





Counsel for
  the Respondent:



S.J. Brown





Place and
  Date of Hearing:



Vancouver, British Columbia

November 1, 2012





Place and
  Date of Judgment:



Vancouver, British Columbia

January 30, 2013









Written
  Reasons by:





The
  Honourable Madam Justice Bennett





Concurred
  in by:





The
  Honourable Madam Justice D. Smith

The
  Honourable Mr. Justice Harris








Reasons for Judgment of the Honourable
Madam Justice Bennett:

Introduction

[1]

Chelsey Acorn was
killed in late 2005.  She was 14 years old.  I will refer to her as Chelsey
throughout these reasons, as she was still a child at the time of her death.  Her
remains were found by hikers at the Carolina Mines campsite, off the Coquihalla
Highway in April 2006.  On February 16, 2010, Dustin Moir was convicted of
first degree murder by Mr. Justice Grist sitting with a jury.  Mr. Moir
appeals this conviction.

[2]

In my view, there
is merit to the appeal.  I would allow the appeal, set aside the conviction and
direct a new trial.

Background

[3]

Chelsey was born
on May 4, 1991.  Her mother turned over her care to the Ministry of
Children and Family Development in December 2003.  In May 2004, Chelsey and her
siblings were apprehended by the Ministry.  On April 5, 2005, Chelseys
mother consented to the Ministry having permanent custody and legal
guardianship of Chelsey.  Between March 2004 and June 2005, she had been placed
in foster homes 18 different times.  On June 10, 2005, Chelsey left her
last placement without permission.  Her social worker had no contact with her
after this date.  She was last seen by a friend in an Abbotsford mall on
October 23, 2005.

[4]

Mr. Moir and
his father, Jesse West, were known to have had some association with Chelsey
prior to her death.  The police mounted separate Mr. Big undercover
operations against both men, although initially Mr. West was the primary
suspect.  In the course of these operations, however, Mr. Moir made
statements that led his undercover handler to view him as a suspect as well.

[5]

In the course of
the Mr. Big operation, Mr. Moir initially told his handler that his
father had offered him $15,000 to bury a body in a carry-and-bury scheme.  In
his conversation with Mr. Big, Mr. Moir said his father had asked
for his help on a hit on a girl, a service for which he would be paid.  Mr. Moir
agreed to help.  Mr. Moir, Mr. West and Chelsey drove to a campsite
by the Coquihalla Highway.  According to this version of events, both men had
sex with Chelsey on the way.  He told Mr. Big they set up a tent.  Mr. Moir
and his father then dug a grave, which took some time.  They entered the tent
and bound Chelsey with duct tape.  Mr. West then choked Chelsey.  Mr. Moir
said that she survived, and he completed the killing by choking her further. 
He carried her body to the grave.  He then threw rocks on top of her, one of
which struck her head.  This rock was large enough to crush her skull.  Mr. Moir
told Mr. Big she was already dead when he did this.

[6]

Chelsey was found in a shallow grave with the side of her skull caved
in.  A large boulder was located near her head.

[7]

Mr. Moir and Mr. West were originally named as co-accused in a
single count of first degree murder.  Mr. Moir brought a pre-trial motion
for severance, which was denied; eight weeks into the trial itself, Mr. West
brought a motion for severance in response to certain evidence led against Mr. Moir. 
The trial judge granted this motion.

[8]

The Crown called
37 witnesses.  Mr. Moir testified on his own behalf but called no other
evidence.  The trial judge permitted the Crown to call one further witness in
rebuttal.

[9]

At trial, Mr. Moirs
testimony agreed with the version given in the Mr. Big operation in many
respects.  He testified, however, that he did not know in advance that his father
intended to kill Chelsey and that he did not directly participate.  His story
was that he watched his father choke her in the tent and then, at his fathers
direction, carried the body to the grave (which, according to his testimony,
his father had prepared by himself).  The two then buried her, dumped her personal
belongings and went to Mr. Wests home.  On his version of events at
trial, Mr. Moirs involvement was limited to helping his father bury the
body, so that he was merely a witness to the crime and an
accessory-after-the-fact.

[10]

Mr. Moir and
other witnesses, Steven Dudley and Josh Gordon, gave evidence regarding the
control Mr. West had over Mr. Moir and others.  The younger men were
afraid of Mr. West, and considered him a domineering and violent man.

[11]

Mr. Moir testified
that he felt compelled to exaggerate his involvement to Mr. Big in order to
stay in the criminal organization and to keep the respect of his handler, who
he viewed as his only real friend.

Issues on Appeal

[12]

Mr. Moir
raises the following issues:

i)        The
trial judge erred in failing to instruct the jury on the limited use of prior
statements;

ii)        The
trial judge erred in permitting the Crown to lead rebuttal evidence;

iii)       The
trial judge erred in his instructions on post-offence conduct;

iv)       The
trial judge erred in his instructions on motive;

v)       The
trial judge erred by failing to instruct the jury on the included offence of
manslaughter;

vi)       The trial judge erred by
failing to instruct the jury on how to deal with the conflict between the
out-of-court statements made by Mr. Moir and his
viva voce
testimony.

Discussion

[13]

Before I commence my
discussion, I wish to comment on some procedural issues that arise in this
case.  The trial judge gave opening instructions in writing to the jury.  He
incorporated these instructions into the final instruction by reference.  The
opening instructions were not marked as an exhibit.  In addition, mid-trial
instructions were provided to the jury in writing, which were not marked as
exhibits.

[14]

In my respectful
view, when jury instructions are provided to jurors in writing, they must be
marked as exhibits for the record.  Also, when written drafts of the jury
instructions are prepared and distributed to counsel for review, the drafts
also need to be marked for identification, as otherwise the submissions with
respect to the charge to the jury are incomprehensible for the purpose of
appellate review.  The submissions of counsel on the content of the charge to
the jury are often a key component in the analysis of the correctness of the
charge.  (See
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 at
para. 58.)

i)        Did the Trial Judge Err in Failing to
Instruct the Jury on the Limited Use of Prior Statements?

[15]

The trial judge
gave
no
instructions to the jury on the use that may be made of prior
inconsistent or consistent statements.  Mr. Moir raises the evidence of
two witnesses that he says required such an instruction.  He argues that without
an instruction, there is a clear error of law.  The Crown submits that the
trial judge did not err in failing to give such an instruction, but if he did
err, this Court should apply the curative provision of s. 686(1)(b)(iii)
of the
Criminal Code
, R.S.C. 1985, c. C-46.

[16]

Generally, a prior
inconsistent statement of a non-accused witness is only admissible to challenge
the credibility of that witness.  If the witness adopts the prior statement,
then the statement may be used for the truth of its contents.  The exception to
this rule, based on necessity and reliability, is not present here.  This is a
complicated rule of evidence.

[17]

The failure to
instruct the jury on the proper uses of prior inconsistent statements may be a
reversible error.  Writing for the majority of the Supreme Court of Canada, Mr. Justice Major
explained the rationale for this type of jury instruction in
R. v. Bevan
,
[1993] 2 S.C.R. 599 at 619:

The
reason why the law requires an instruction of this nature is that there is
otherwise a risk that jurors may not be aware that they cannot use such
statements as substantive evidence, irrespective of the use made of the
statements by counsel.  While the trial judge and counsel undoubtedly
appreciated the limited purpose of reference to the prior inconsistent
statements, it cannot be safely assumed that the jury had a similar
understanding.

See also
R. v. Kokotailo,
2008 BCCA 168, 254 B.C.A.C. 262 at para. 44.

[18]

With few exceptions,
a witnesss prior consistent statements are not admissible.  If the jury hears
prior consistent out-of-court statements, a limiting instruction as to the use
of the statements must almost always be given by the trial judge.  Failure to
do so will generally be an error of law.

[19]

This rule is
succinctly set out in
R. v. Demetrius
(2003), 179 C.C.C. (3d) 26
at para. 12, 176 O.A.C. 349 (C.A.):

There
is a well-established rule that self-serving evidence, such as prior consistent
statements are generally not admissible at trial.  In
R. v. Toten
(1993), 83 C.C.C. (3d) 5 (Ont. C.A.) at 36, Doherty J.A. identified the
rationale for generally rejecting prior consistent statements as resting not 
on any principle unique to prior consistent statements, but on the very
practical assessment that, generally speaking, such evidence will not provide
sufficient assistance to the trier of fact to warrant its admission.  As David
M. Paciocco and Lee Steusser,
The Law of Evidence
, 2nd ed. (Toronto, Ont:
Irwin Law, 1999) at 305 explain:  In most cases, the evidence is  of no
value.  It is redundant and potentially prejudicial to allow the testimony to
be repeated.  It may gain false credence in the eyes of the trier of fact
through the consistency with which it is asserted.

[20]

In
R. v. Ellard,
2009 SCC 27, [2009] 2 S.C.R. 19, the Court considered the question of the
admissibility of a prior statement through re-examination by the Crown.  The
majority of the Court, in concluding that the statement was inadmissible, said
this at para. 31:

[31]      Having
described the relevant context, the first issue is whether Ms. Bowles prior
statements were admissible through re-examination.  It is true that prior
consistent statements are presumptively inadmissible (
R. v. Béland
,
[1987] 2 S.C.R. 398, at pp. 409-10, and
R. v. Stirling
, 2008
SCC 10, [2008] 1 S.C.R. 272, at para. 5).  The rationale for excluding
them is that repetition does not, and should not be seen to, enhance the value
or truth of testimony.  Because there is a danger that similar prior
statements, particularly ones made under oath, could
appear
to be more
credible to a jury, they must be treated with caution.  [Emphasis in original.]

[21]

In order to
understand the application of these principles in this case, it is necessary to
delve into the evidence in greater detail.  Mr. Moir told Mr. Big
that he helped Mr. West kill Chelsey by choking her and digging the hole. 
He said that after she was in the grave, he crushed her head with a rock.  Mr. Moirs
statement was the only evidence directly implicating him in the murder.  In his
instructions, the trial judge correctly instructed the jury to be cautious
before relying on the Mr. Big statement.  He said:

It is my
instruction to you that great care must be taken in considering the credibility
of the accuseds statements induced in this manner.

The
law has had experience with false confessions of crime by those who were later
exonerated.  People will at times confess to crimes they have not committed. 
This is a particular danger in the context of an investigation of the sort conducted
here.

[22]

The Crown attempted to support the confession with the testimony of two
witnesses, Mr. Gordon and Mr. Dudley.  Mr. Gordons testimony
was the only other evidence that had the potential to directly corroborate the confession;
Mr. Dudleys evidence went to a potential motive.  I will examine each in
turn.

Josh Gordon

[23]

Mr. Gordon
gave evidence that could corroborate the story Mr. Moir gave to Mr. Big.
 The evidence in question related to a shovel, which Crown counsel raised in
its examination-in-chief of Mr. Gordon:

Q         You had mentioned that
Dustin had done something with a body, correct?  He had buried it; is that
correct?

A          Yeah.

Q         Did he say how?

A          No.

Q         Or what had been used to
bury the body?

A          A shovel.

Q.        All right.  When did he tell
you that?

A          Jesse actually asked me for
a shovel.

Q         All right.  Ill ask you
again first of all what type of shovel.  Were you provided details as to what
type of shovel it was?

A          Collapsible shovel.

Q         A collapsible shovel, all
right.  What colour?

A          Green.

Q         All right.  And where did
the -- I see youre looking at Mr. Moir.  Can you tell us where the shovel
was?  Where was the -- that was mentioned -- do you know where it came from?

A          The foster family.  In the
shed from the foster family that I was living with at the time.

Q         All right.  And Ill ask you
again who did you provide the shovel to?

A          Jesse West.

Q         Youre certain?

A          He asked me for the
shovel.  Yeah, I am certain.

Q         All right.  Is there any
time that you recall providing a shovel to Mr. Moir?

MR. HENDERSON:    My
friend is cross-examining his own witness, My Lord.

[24]

As a result of the
objection, the Court adjourned while Mr. Gordon reviewed the statement he
provided to police.  On his return to the witness stand, Mr. Gordon gave
the following testimony:

Q.        Mr. Gordon, during the
afternoon break, you had an opportunity to review the entirety of your
statement?  Youll have to say yes or no.

A          Yes.

Q         Did that opportunity assist
in refreshing your memory, sir?

A          Yeah.  I took a look at
it.  It says that I gave it to Dustin.

THE COURT:  Well, just dont -- not
what it says but it helps you with your memory, does it?

A          I
really dont recall who I gave the shovel to.  Jesse West did ask for it,
though.

[25]

In
cross-examination, the following exchange occurred:

Q         Now, that paragraph
indicates that in fact Mr. West came by asking for a shovel and you gave
him a shovel; is that right?

A          Yes.

Q         Now, reference was made by
my friend in another part of the statement where it suggests that youd given
the shovel to Mr. Moir.  Im going to suggest to you that when you refer
to Dustin Moir later in the statement, that was a misstate by you, you were
actually trying to refer to Mr. West; is that correct?

THE COURT:  Sorry.  Where did you draw
that from, Mr. Henderson?

MR. HENDERSON:    From the
portion Ive just shown him.

THE COURT:  Well, this is a portion of
the statement that precedes --

MR. HENDERSON:    Thats right.

THE COURT:  -- the portion where he
identified it as given to Mr. Moir.

MR. HENDERSON:    Thats right.

THE COURT:  And you say that that
indicates a confusion in the statement -- apparent in the statement?

MR. HENDERSON:    Yes.

THE COURT:  Why dont we put it
directly to the witness.  Were you confused when you said that you gave this
shovel to Mr. Moir?

A          No, I wasnt.

THE COURT:  Carry on.

MR. HENDERSON:

Q         Again, sir, in the first
part of that statement in that paragraph you indicated you were asked by Mr. West
and gave that shovel to Mr. West; is that right?

A          Jesse West asked me for a
shovel.  Right now I do not recall who I gave it to.

Q         All right.  So you dont
know whether you gave it to Mr. West or Mr. Moir; is that right?

A          Right now thats correct,
yeah.

Q         Okay.  And me showing the
portion to you -- you can turn over to the next page, if you like, where it says,
I gave the shovel to Mr. West, that doesnt help you?  No?

A          Jesse asked for it.  If
anything I probably gave it to Jesse West.

Q         Oh.

A          Im positive.

Q         One thing you couldnt say
is, as I understand your statement, you werent able to tell us when -- tell
the police when you gave that shovel.  You dont know if it happened before or
after Mr. Moir told you about his dad killing Chelsey Acorn, right?  Is my
question clear enough?

A          Im pretty sure I gave the
shovel to him before --

Q         All right.

A          --
I was told.

[26]

The trial judge gave
the jury this instruction:

Mr. Gordon
said that while he was living in a foster home, Jesse West asked him for a
collapsible shovel.  He said that he was not sure if he provided the shovel to
Jesse West or Dustin Moir but he thought it was Jesse West who received it
because he was the one who asked for it.

[27]

The reference by
the trial judge to Mr. Gordons testimony, that he may have given the
shovel to Mr. Moir
prior
to the murder, provided the only evidence
that pointed to Mr. Moirs guilt of a planned or deliberate murder, apart
from the Mr. Big statements.  There was, however, no direct evidence from Mr. Gordon
that he gave a shovel to Mr. Moir.  After Mr. Gordon read his prior
statement, he said:  It [the statement]
says
that I gave it to
Dustin.  The trial judge then pressed him for an answer.  Mr. Gordon
replied that he could not remember who he gave the shovel to, but that Mr. West
did ask for it.  Both before and after this evidence, Mr. Gordon testified
that he gave the shovel to Mr. West.

[28]

Whether a witness
adopts a prior statement is a question of fact for the jury:
R. v.

Stiers,
2010 ONCA 382 at para. 42, 255 C.C.C. (3d) 99, citing
R. v. Toten
(1993), 14 O.R. (3d) 225 at 242 (C.A.).  Here, the judge did not leave this issue
with the jury.  Rather, he summarized the evidence as if it was a fact.

[29]

The jury needed to
be instructed on the proper use of the prior statements, in terms of both
assessing the credibility of Mr. Gordon and the substantive use of the
statement, if adopted by Mr. Gordon.  The jury could have concluded that
Mr. Gordon did not adopt his prior statement, in which case the jury would
have no direct evidence that Mr. Gordon gave the shovel to Mr. Moir. 
It heard evidence that Mr. Gordon had said in his statement that he had
given the shovel to Mr. Moir; that he could not remember who he gave the
shovel to; and that he was positive he gave the shovel to Mr. West.  A
limiting instruction regarding the use that could be made of the prior
inconsistent statement, similar to that set out, (in part), below, was
essential to a fair trial.

[3] 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.

Canadian
Judicial Council.  Model Jury Instructions; Final Instructions, Prior
Inconsistent Statements of Non-Accused Witness (11.10)
http://www.cjc-ccm.gc.ca/cmslib/general/jury-instructions/NCJI-Jury-Instructions-Final-2012-06-E.pdf

[30]

It was not given.  This
was an error in law.

Stephen Dudley

[31]

The trial judge also charged the jury on motive.  I will return to the discrete
issue of motive later in these reasons.  The only evidence of motive on the
part of Mr. Moir was drawn from the testimony of Mr. Dudley.  Mr. Dudley
testified that he and Mr. Moir were roommates for about three weeks.  He
testified that this was around the end of April and the beginning of May 2005. 
Afterwards, Mr. Dudley moved to Clearwater, B.C.  He said that during this
time Mr. Moir was dating Chelsey, and she stayed over with him on three or
four occasions.  He also described an incident when he, Mr. Moir and
Chelsey were at Mr. Wests residence.  Mr. Dudley testified that Mr. West,
Mr. Moir and Chelsey were in the bedroom together and came out with messy
hair and clothing ‒ the inference being that the three had engaged in
sexual activity.

[32]

Counsel for Mr. Moir
cross-examined Mr. Dudley on a prior statement to police, which was
inconsistent with his evidence at trial regarding Mr. Moirs relationship
with Chelsey.  The following exchange took place at trial:

Q         So back on the -- when you
gave this statement, if you could turn to line 93 which is at page 5 of 39,
this is what you initially told the police on that date.  You were asked:

And
did Dustin ever use your phone?

And
your answer is:

No,
he had his.

Right?

A          Yes.

Q         If youd turn over to page,
the next page 6, you were asked if you ever had called her at line 99.  You
said:

Look,
I knew Chelsey Acorn but I never talked to her.  I knew who she was.  I seen
her before, but thats it.  I never talked to her.

Do
you see that?

A          Yeah.

Q         At that point, before that,
if you can turn back the page to page 4 of 39, and if you also look at page 3
of 39, you couldnt remember Chelseys name, last name, at that time, right?

A          Yes.

Q         In fact, at page 2 of 39 lines
32 and 33 you were asked if you remember her last name and your answer was,
No.  Is that right?

A          Yes

Q         Page -- line 102 and 109 of
your statement, thats at page 6, look at that.  You said you never hung out
with her, like at page -- at line 103.

A          Yeah.

Q         At line 105 you told the
police officer you had gone once to Mr. Wests apartment, right?

A          Yes.

Q         And at line 116 and 123,
turn over the page, you indicated youd stayed the night but that it was just
you and Dustin there, no girls, right?

A          Yes.

Q         And
specifically at line 122 and 123 you were asked:

Were
there any girls there?

And
the answer was:

No.

Right?

A          Yes.

Q         Now, at 128 and 129, the
police officer accuses you of lying to him is that right?

A          Yes.

Q         And you say at 136 and 138,
you say:

Im just --
Im saying what I know and saying what I remember.

Is that right?

A          Yes.

Q         At 147 and 148 of this
statement, the police suggest or ask you if you helped Dustin kill Chelsey,
right?

A          Yes.

Q         He said:

Or did you --
did you help Dustin kill Chelsey?

Your answer was:

No.

Right?

A          Yeah.

Q         Now, at this point, this was
kind of a frightening accusation the police were making to you; is that right?

A          Yes.

Q         They were -- first of all,
they were suggesting that Dustin had killed Chelsey to you, right?

A          Yes.

Q         And now theyre saying to
you -- asking you the question whether you were involved in helping Dustin kill
Chelsey, right?

A          Yes.

Q         You say at 155 of the same
page, with reference to your stay on the Coast in Mission:

Most of the
time I was drunk when down there.  I dont remember much.

Right?

A          Yes.

Q         Police officers continued to
grill you about what you saw between Dustin and Chelsey and Chelsey and West,
right --

A          Yeah.

Q         -- in the statement.  At 271
they ask you, if you could turn to that, line 271, they ask you what would
actually happen to somebody hurt someone like a -- did something to a little --
a young girl, right?

A          Yes.

Q         And of course you said
should be in jail, right?

A          Yes.

Q         That would be a normal
response.  They had suggested in this -- throughout this statement that -- strongly,
they told you that Dustin had killed Chelsey, right?

A          Yes.

Q         And to leave no doubt in
your mind that Dustin was the murderer, right?

A          Yes.

Q         In fact, they used that
accusation to you to try and give you -- force you or to provide details which were
not true.  For example, they suggested to you that Dustin had told you
something about Chelsey, how Chelsey died, right?

A          Yes.

Q         And that wasnt true?

A          No.

Q         He never told you that?  The
police officer kept on pushing you and pushing you on it, didnt he?

A          Yes.

Q         He kept on saying Dustin did
it and youre helping murderers get away, right?

A          Yes.

Q         Now, at this point in the
process of this interview, you became very frightened about your situation with
these police; is that right?

A          Yes.

Q         You thought if you didnt
say something to connect Dustin to Chelsey, you might get into trouble?

A          Yes.

Q         Cause they wanted you to
explain how your phone records were related to Chelsey; is that right?

A          Yes.

Q         They say to you, after you
tell them that Dustin doesnt use the phone:

Well, you
explain to us how it was that your phone records showed Chelsey contacting you.

Right?

A          Yes.

Q         Now, you accepted the police
officers word for things.  If they tell you Dustin did it, you werent going
to question them, right?

A          No.

Q         And if they tell you that
youre somehow implicated with Dustin because of these phone records, youre
not going to question them, right?

A          No.

Q         So you knew the best and
easiest way to solve this problem for yourself was to give them something that
would show them theres a connection between West, Chelsey and Dustin, right?

A          Yes.

A          And you came to court here
today and you didnt really want to stray much from the statement, you didnt
want to get in trouble for giving a statement to the police that was untrue,
right?

A          Yes.



[33]

Later in cross-examination, Mr. Dudley said:

Q         So from what I can take it
is you agree with me I shouldnt be accepting whats in your statement, right?

A          Yes.

Q         But accepting what youre
telling us now and Im asking you questions, right?

A          Yes.

[34]

Crown counsel was permitted
to re-examine Mr. Dudley, and the following exchange occurred:

Q         Now, Im going to be giving
to you the statement, a copy of the statement that my friend had referred to in
his direct [
sic
] examination.  Actually, I see you still have it in
front of you.  Now, the details that you provided to the police at that time on
the -- April 11
th
of 2007, were those details correct?

A          Yes.

[35]

Mr. Dudley
gave evidence in cross-examination that was inconsistent with his prior statements,
including key evidence regarding the relationship between Mr. Moir and
Chelsey.  Defence counsel also led a summary of a part of his statement that
was consistent with his evidence in an effort to show that Mr. Dudley was trying
to extricate himself as a suspect.  At the end of re-examination, Crown counsel
asked Mr. Dudley a blanket question: whether everything in his April 11,
2007 statement to police was correct, and he replied, Yes.  As a result, Mr. Dudley
adopted everything in his prior statement as true, which added to the already
present inconsistencies with his trial evidence.  While this was not the effect
the Crown was seeking, it is the legal result of such a question.  This
question also permitted the Crown to tender prior
consistent
statements
by its own witness.  This in itself was an error, which was compounded by the
failure of the trial judge to properly instruct the jury on the proper use of
the prior statements.  Instead of instructing the jury on the proper use of
prior consistent and inconsistent statements, the judge permitted the jury to
use the statements for the truth of the contents:

In
redirect  the Crown also asked whether the details provided to the police
about Acorn coming to the Talbot Street and 7
th
Avenue residence on
three or four occasions was correct and whether the information he provided to
the police about the party at Jesse Wests basement suite was correct.  He said
that these details and the information about the party were correct.

[36]

Again, the trial judge did not leave the issue of adoption of the prior
statement with the jury (see
Stiers
cited at para. 28 above).  He
summarized the evidence as fact.

[37]

In
Ellard
,
the Supreme Court of Canada discussed the requirement for a jury instruction
when a prior consistent statement is tendered, and said this at paras. 42-43:

[42]      As
previously noted, because there is a danger that the repetition of prior
consistent statements may bolster a witnesss reliability,

a limiting
instruction will almost always be required where such statements are
admitted.  The purpose of such an instruction is to tell the jury that
consistency is not the same as accuracy, and that the statements can only be
used to rebut the allegation of recent fabrication, not to support the fact at
issue or the general reliability of the witness.   (See
R. v. Rockey
,
[1996] 3 S.C.R. 829,
per
McLachlin J.;
R. v. Fair
(1993), 16 O.R. (3d) 1 (C.A.), at pp. 20-21;
R. v. Divitaris
(2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 31;
R. v. A.
(J.)
(1996), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 533; and
R. v. Codina
(1995), 95 C.C.C. (3d) 311 (Ont. C.A.), at p. 330.)

[43]      Delineated
exceptions to the generally stringent rule have emerged, some of which were
canvassed in
R. v. Demetrius
(2003), 179 C.C.C. (3d) 26 (Ont.
C.A.), at para. 22.  These include situations where the defence itself
relies on the prior statement,
R. v. S. (P.)
(2000), 144
C.C.C. (3d) 120 (Ont. C.A.), at paras. 62-63; where the prior statement was not
offered as proof of the underlying fact,
R. v. G.M.
, [2000]
O.J. No. 5007 (QL) (C.A.);  or where the concern over self‑corroboration
and thereby bolstering the witnesss reliability is not present,
R. v. Clark
(1995), 87 O.A.C. 178.  (See also David M. Paciocco and Lee Stuesser,
The
Law of Evidence
(5th ed. 2008), at p. 501.)

[38]

None of the
exceptions arise in this case.  Counsel for Mr. Moir cross-examined Mr. Dudley
with respect to his statement and evidence.  Counsel for the Crown (not counsel
on the appeal) was permitted to confirm
all
of his prior statement as
true, some of which conflicted with the testimony the Crown had tendered from
the witness in examination-in-chief.

[39]

The Crown contends
that the jury would essentially have figured out that Mr. Dudley could not
have adopted his entire statement because there were so many inconsistencies
within the statement itself.  With respect, this highlights all the more reason
why an instruction on the use of prior inconsistent and consistent statements
was necessary.

[40]

As noted above, Mr. Dudley was the only person who gave evidence of
a potential motive on the part of Mr. Moir, which is that Chelsey was
under age when he had intercourse with her.  The implication was that he feared
Chelsey would report him to the police for having sex with a minor.

[41]

At the opening of
the trial and in the final instructions, the trial judge gave the jury the
standard instruction with respect to assessing the credibility of witnesses:

Now, under
number 7, does the witnesss testimony seem reasonable and consistent?  Did the
witness say something different on an earlier occasion?  Is the witnesss
testimony consistent with what other reliable witnesses say about the same
event?

Under number
8, do any inconsistencies in the witnesss evidence make the main points of the
testimony less believable or reliable?  Is the inconsistency about something
important or a minor detail?  Does it seem like an honest mistake?  Is it a
deliberate lie?  Is the inconsistency because the witness said something
different or because he or she failed to mention something?  Is there an
explanation for it?  Does it make any sense?

Those
last two, number 7 and 8, I think are often highlighted as important features
when assessing credibility.

[42]

The credibility of
Mr. Dudley, Mr. Gordon and Mr. Moir were key issues in the
trial.  The evidence of the witnesses, Mr. Dudley and Mr. Gordon,
around which the impugned statements revolve, was critical to the credibility
of the witnesses and the guilt of Mr. Moir.

[43]

In my respectful
view, the failure to give a limiting instruction in this case is a legal error that
cannot be cured by the application of s. 686(1)(b)(iii).  The evidence is
not so overwhelming that it can be said that a reasonable and properly
instructed jury would inevitably have convicted Mr. Moir had the error not
been made.  Nor can it be said that the error is so harmless that it could not
have affected the verdict.  (See
R. v. Van
, 2009 SCC 22, [2009]
1 S.C.R. 716 at paras. 35-36.)  On this basis alone, I would order a new
trial.

[44]

I will address the
remaining grounds of appeal as the issues may arise in a new trial.

ii)       Did the Trial Judge Err in Admitting
Rebuttal Evidence?

[45]

Crown counsel cross-examined
Mr. Moir about Aurora (Rory) Phillips, including whether he knew Ms. Phillips,
if he had had a sexual relationship with her, stayed at her home or travelled to
Alberta with her.  Mr. Moir replied in the negative to all these
questions.  He was shown a surveillance photo of two women, and he identified
Tamara Peters, Mr. Wests girlfriend.  He said he did not know the other
person, subsequently identified as Ms. Phillips.

[46]

The Crown was
permitted to tender the evidence of Ms. Phillips in rebuttal, after the
defence closed its case.  Ms. Phillips testified that she met Mr. Moir
through Mr. Dudley when she was 15 years old in the spring of 2005.  Mr. Moir
and Mr. Dudley moved in with Ms. Phillips and her mother for about a
week.  During that time, Ms. Phillips and Mr. Moir engaged in sexual
activity.  She acknowledged that the relationship was casual.  She next saw Mr. Moir
in the summer of 2006.  Ms. Phillips telephoned Mr. Moir to pick her
up at a party because she was extremely intoxicated.  He drove her home.  The
next day, she agreed to go on a trip to Alberta with Mr. Moir, Mr. West
and Ms. Peters.  In Edmonton, Mr. Moir became involved in an argument
with Ms. Peters.  Ms. Phillips and Ms. Peters left the truck to
find Mr. West at Tim Hortons.  When they returned, Mr. Moir was not
in the truck.  The three left and returned to British Columbia, leaving Mr. Moir
in Edmonton.

[47]

Ms. Phillips
identified herself in the surveillance photo with Ms. Peters.

[48]

The principles applicable
to the admission of rebuttal evidence are well-established.  The Crown is not
permitted to split its case.  It must call all of the evidence it intends to rely
on before the accused is required to determine whether to present a defence. 
This is grounded in basic rules of trial fairness.  As with any rule, there are
exceptions, and this rule is no different.  The Crown may call reply or
rebuttal evidence in limited circumstances, which includes evidence that
becomes relevant when the defence calls evidence that the Crown could not have
reasonably foreseen.  This is the basis on which the Crown defends this ruling.

[49]

The Crown is not
permitted to call rebuttal evidence if the evidence relates to a collateral
matter, is irrelevant, is simply confirmatory of evidence already called by the
Crown or is relevant but in the Crowns hands before the defence commenced its
case.  In
R. v. Krause
, [1986] 2 S.C.R. 466, Mr. Justice McIntyre
set out the principles on rebuttal evidence at 473-475:

At the outset,
it may be observed that the law relating to the calling of rebuttal evidence in
criminal cases derived originally from, and remains generally consistent with,
the rules of law and practice governing the procedures followed in civil and
criminal trials. The general rule is that the Crown, or in civil matters the
plaintiff, will not be allowed to split its case. The Crown or the plaintiff
must produce and enter in its own case all the clearly relevant evidence it
has, or that it intends to rely upon, to establish its case with respect to all
the issues raised in the pleadings; in a criminal case the indictment and any
particulars: see
R. v. Bruno
(1975), 27 C.C.C. (2d) 318 (Ont.
C.A.),
per
Mackinnon J.A., at p. 320, and for a civil case see:
Allcock
Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd
.,
[1967] 1 O.R. 18 (Ont. C.A.),
per
Schroeder J.A., at pp. 21-22. This
rule prevents unfair surprise, prejudice and confusion which could result if
the Crown or the plaintiff were allowed to split its case, that is, to put in
part of its evidence -- as much as it deemed necessary at the outset -- then to
close the case and after the defence is complete to add further evidence to
bolster the position originally advanced. The underlying reason for this rule
is that the defendant or the accused is entitled at the close of the Crown's
case to have before it the full case for the Crown so that it is known from the
outset what must be met in response.

The plaintiff
or the Crown may be allowed to call evidence in rebuttal after completion of
the defence case, where the defence has raised some new matter or defence which
the Crown has had no opportunity to deal with and which the Crown or the
plaintiff could not reasonably have anticipated. But rebuttal will not be
permitted regarding matters which merely confirm or reinforce earlier evidence
adduced in the Crowns case which could have been brought before the defence
was made. It will be permitted only when it is necessary to insure that at the
end of the day each party will have had an equal opportunity to hear and
respond to the full submissions of the other.

In
the cross-examination of witnesses essentially the same principles apply. Crown
counsel in cross-examining an accused are not limited to subjects which are
strictly relevant to the essential issues in a case. Counsel are accorded a
wide freedom in cross-examination which enable them to test and question the
testimony of the witnesses and their credibility. Where something new emerges
in cross-examination, which is new in the sense that the Crown had no chance to
deal with it in its case-in-chief (i.e., there was no reason for the Crown to
anticipate that the matter would arise), and where the matter is concerned with
the merits of the case (i.e. it concerns an issue essential for the
determination of the case) then the Crown may be allowed to call evidence in
rebuttal. Where, however, the new matter is collateral, that is, not
determinative of an issue arising in the pleadings or indictment or not
relevant to matters which must be proved for the determination of the case, no
rebuttal will be allowed. ... This is known as the rule against rebuttal on
collateral issues. Where it applies, Crown counsel may cross-examine the
accused on the matters raised, but the Crown is bound by the answers given.
This is not to say that the Crown or the trier of fact is bound to accept the
answers as true. The answer is binding or final only in the sense that rebuttal
evidence may not be called in contradiction. ...

[50]

In
R. v. Aalders
,
[1993] 2 S.C.R. 482 at 498, Mr. Justice Cory added this:

In
my view, the crucial question with regard to the admission of rebuttal evidence
is not whether the evidence which the Crown seeks to adduce is
determinative
of an essential issue, but rather whether it is
related
to an essential
issue which may be determinative of the case.  If the reply evidence goes to an
essential element of the case and the Crown could not have foreseen that such
evidence would be necessary, then it is generally admissible.  Thus, if a
statement is made during the course of a witnesss testimony at trial which
conflicts with other evidence relating to an essential issue in the case, reply
evidence will be permitted to resolve the conflict. [Emphasis in original.]

[51]

The trial judge
held that Ms. Phillips evidence was admissible on two bases.  The first was
that her evidence would be relevant to the issue of whether Mr. Moir had a
sexual relationship with Chelsey, which the trial judge considered evidence of
motive.  The trial judge highlighted two elements of Ms. Phillips
evidence that went to motive.  First, the trial judge thought Ms. Phillips
would give evidence regarding Mr. Moirs home and contradict his evidence
that he did not have access to a bedroom (only a couch).  She did not give this
evidence.  Second, he thought that Ms. Phillips evidence that she and Mr. Moir
had sexual relations while he had a girlfriend would rebut Mr. Moirs
testimony that he would not have sex with Chelsey because of his existing
relationship with the same girlfriend.  In his oral ruling on
voir dire
,
the trial judge said the following:

[27]      The
evidence as it relates to motive is a significant trial issue, and the
accuseds denial of the sexual aspect of his relationship with Acorn, as
indicated by his roommates evidence, was not, in my view, to have been
reasonably anticipated by the Crown until this evidence was given.

[52]

As will be developed further under the issue of motive, the Crown did
not assert or attempt to rely on motive when it came to the killing of Chelsey.
 In any event, at its best, Ms. Phillips evidence going to Mr. Moirs
disposition to have sex and his sleeping arrangements (which she did not give)
went to a collateral issue, and was entirely foreseeable.  On this basis, Ms. Phillips
evidence should not have been admitted.

[53]

The second ground on
which the trial judge concluded that the evidence was relevant was with respect
to whether Mr. Moir feared his father to the extent that he would help him
kill someone.  The trial judge was of the view that the trip to Alberta was
significant evidence leading to assessment of the accuseds state of mind and
his stated abiding fear of his father.

[54]

This evidence of
fear of his father was known to the Crown before it closed its case.  It
cannot have been taken by surprise with respect to the defences reference to
the relationship between Mr. Moir and Mr. West.  A number of Crown
witnesses gave evidence in this regard; it was referred to in Mr. Moirs
statement to the undercover officers.  As well, the Crown referred to this
precise issue when addressing the admissibility of a wiretap.  The defence did
not attempt to argue duress as a defence.

[55]

The trial judge
did not permit the Crown to tender the evidence to demonstrate character and
propensity.  Nonetheless, the Crown relied on this evidence in its closing
address to demonstrate a propensity to have sexual relations with young girls
on the part of Mr. Moir:

He minimizes his relation about
Chelsey to you while he was on the stand and, you know, as I said earlier, that
just flies in the face of what Steven Dudley told you, Cory Gill, Arnold Horan,
and its the same minimization that he gave in the Mr. Big statement.  Hes
removing himself from Chelsey.  Why?
Because he had this relationship with
her when she was so young.  Similar to how hes denying the evidence of Aurora
Phillips, Rory Phillips.  You know, they had a brief sexual encounter when she
was 15.  But again, hes purging his memory, hes distancing himself from that
relationship.  Hes just putting away
‒ no relationship with young
girls
.  [Emphasis added.]

[56]

This use of the evidence by the Crown compounded the error.

[57]

In my respectful view, the only basis upon which Ms. Phillips evidence
may
have been relevant was on the issue of the relationship between Mr. Moir
and his father.  This was not new evidence to the Crown, however.  The Crown
was alive to the potential defence long before Mr. Moir testified.  This
evidence falls far outside the permissible bounds of proper rebuttal evidence. 
It was an error to admit it.  As I have already concluded a new trial is
necessary, an analysis of s. 686(1)(b)(iii) as it applies to this error is
not required.

iii)      Did the Trial Judge Err in
his Instruction on Post-Offence Conduct?

[58]

The trial judge
did not give an instruction on the use of post-offence conduct.  The Crown
relied on the following acts in his closing address to the jury, which is set
out in para. 126 of Mr. Moirs factum:

The Crown referred to six examples of post-offence conduct in
its closing submissions.  In summary form, beginning with events immediately
after the death of Chelsey Acorn, the Crowns submissions were these:

a)         The
placements of all the other rocks,  Its consistent to keep the body down so
that the animals wouldnt reach her. T19-3307, ll.  42-45

b)         And
then they cleaned up the whole situation, the location,  They cleaned up the
park.  T19-3307, ll.  46-47

c)         They
went back to the house.  I shower.  Im there the next night.  They bleach the
car, they clean the car, thats something that they would do. -- T19-3304,
ll.  37-42

d)         He
cut out a newspaper clipping - true.  Oh, and (indiscernible), left it in his
moms safe, true. -- T19-3303, ll.  41-43

e)         [following
news that Chelsey Acorns body was discovered] the first person Mr. Moir
called was his dad.  They came over and they caucused, if you will.

The only fear that Mr. Moir has at that point in time is that theyre going
to be caught by the police for what they did.  T19-3300, ll.  31-43, and

f)          And
thats exactly what he tells you  -- tells to Ajay on September 20th.  He left
town because the body was discovered, and its discovered, that came out in the
media.  T19-3300, ll.  45-47

At least two other examples of
post-offence conduct were put to Mr. Moir during cross-examination.  The
first was the suggestion that the reason Mr. Moir did not go to the
police after the killing was that he had some hand in this  a proposition
he denied.  The second was the fact that he immediately phoned his father in a
panic when the police seized a vehicle from his yard  Mr. Moir agreed
that he telephoned his father but denied he was in a panic.   T18-3070; 3073

[59]

Mr. Moir
submits that this conduct was equally consistent with someone who had been an
accessory-after-the-fact.  He says that the trial judge should have instructed
the jury that the after-the-fact conduct had no probative value, based on the
decision in
R. v. White,
2011 SCC 13, [2011] 1 S.C.R. 433.

[60]

The unusual aspect
of this case is that the evidence of the after-the-fact conduct was provided in
Mr. Moirs statement to Mr. Big as part and parcel of his confession
to murder.  Thus, if such a direction was required, the jury would have to be
instructed that if they accepted the after-the-fact conduct part of his
statement to Mr. Big, then they could not use it to determine whether the
earlier part of his statement (that he committed the murder) was true.  This would
be an absurdity.  A jury charge must be based in reality and not appear to be
angels dancing on the head of a pin.

[61]

In
R. v. Pintar
(1996), 30 O.R. (3d) 483 at 495, 93 O.A.C. 172 (C.A.), Mr. Justice Moldaver
(as he then was) summarized the functional approach to a jury instruction:

When I speak of the
functional
approach, I do so only in the sense that the expression provides a convenient
label for the underlying principles which should inform the content of every
jury charge. It would be wrong to think that I am purporting to advance a novel
concept or engaging in a radical departure from existing jurisprudence. To
appreciate this, one need only consider the thoughts expressed by Doherty J.A.
on this very subject in
R. v. Haughton
(1993), 11 O.R. (3d) 621
at p. 625, affirmed [1994] 3 S.C.R. 516, 93 C.C.C. (3d) 99:

A trial judges instructions to the
jury must be custom-made for the particular case. Those directions must equip
the jury with the law necessary to render its verdict. The scope of the trial judges
legal instructions will depend in large measure on the nature of the evidence
adduced and the issues legitimately raised by that evidence. A trial judge
should not engage in a far-ranging esoteric discourse on potential applications
of legal principles which bear no realistic relationship to the issues raised
by the evidence. Unnecessary legal instruction serves only to dull the focus of
the truly pertinent legal instructions and to confuse or intimidate the jury .
. .

While similar expressions can be found in the authorities,
one of the more colourful and graphic descriptions of the
functional approach comes from
Time Inc. v. Hill
,
87 S.Ct. 534 (1967) at pp. 557-58, where, albeit in the context of a libel
case, Mr. Justice Fortas observed:

But a jury instruction is not abracadabra. It is not a
magical incantation, the slightest deviation from which will break the spell.
Only its poorer examples are formalistic codes recited by a trial judge to
please appellate masters. At its best, it is simple, rugged communication from
a trial judge to a jury of ordinary people, entitled to be appraised in terms
of its net effect. Instructions are to be viewed in this common sense
perspective, and not through the remote and distorting knothole of a distant
appellate fence.

[62]

Similarly, in
Daley
, Mr. Justice Bastarache said this
at para. 57:

... The duty of the trial judge
was succinctly put by Scott C.J.M. in
R. v. Jack
(1993), 88 Man. R. (2d)
93 (C.A.), aff'd [1994] 2 S.C.R. 310: the task of the trial judge is to explain
the critical evidence and the law and relate them to the essential issues in
plain, understandable language (para. 39).

An instruction on post-offence conduct would only serve to
confuse the jury.
Given the
nature of this evidence, I would not interfere with the verdict on this basis.

iv)      Did the Trial Judge Err in his Instruction
on Motive?

[63]

In the submissions
by counsel on the charge to the jury, defence counsel told the trial judge that
no one, including the Crown was alleging or raising a motive, and sought that
the reference to motive be removed.  In the context of cautioning the jury on
the use of the confession to Mr. Big, the trial judge gave this
instruction:

As the above indicates, you can rely on the
accuseds confession without finding support if you are convinced beyond a
reasonable doubt that the confession is true.  However, common sense indicates
that in considering the confession you should look at this evidence with
caution and examine the evidence in this case to see if there is evidence that
may confirm or support the confession.

It is for you to say whether evidence confirms
the confession or whether you will accept some, all, or none of what Dustin
Moir said during the investigation.

The
following illustrates the kind of evidence you may want to examine to see if it
confirms or supports the accuseds confession or perhaps indicates its
unreliability.  It may help you; it may not.  It is for you to say.

...

4.         There is evidence from Steven
Dudley that Moir had a sexual relationship with Acorn when she was 13 years of
age which would have given Moir the same sort of motive to do away with Chelsey
Acorn because she might report him for having sex with an underage minor.  You
should also remember, however, that there was no evidence of animosity between
them or that Acorn threatened Moir with this at any time before her death.

[64]

There was evidence that Mr. West was concerned that Chelsey would
report him to the authorities for having sex with her when she was a minor. 
There was evidence that suggested that Mr. West was Chelseys pimp.  When Mr. Dudley
was living with Mr. Moir, Chelsey called Mr. Dudleys cell phone a
number of times to speak with Mr. Moir because Mr. Moirs cell phone
was cut off.  The first call was on May 18, 2005; the last was on May 25,
2005.  Phone records confirmed these calls.  This evidence suggests that
Mr. Moir and Mr. Dudley were roommates later in May 2005 and not
April.  As noted above, the trial judge instructed the jury that Mr. Moir
had a motive to kill Chelsey if he had sex with a minor.  No one pointed out to
the trial judge that the telephone calls with Mr. Moir through Mr. Dudley
commenced several weeks
after
Chelseys 14th birthday.  At that point, she
was no longer a minor under the law at that time.  There was a real possibility
that Mr. Dudley was in error with respect to when Chelsey met
Mr. Moir.

[65]

More importantly,
issues of age and timing aside, there was simply no evidence that Mr. Moir
was concerned about Chelsey reporting him to the authorities, and any inference
drawn from Mr. Wests concerns is speculation and contrary to the bulk of
the evidence.

[66]

The trial judge
should not have instructed the jury that they could consider this as a motive
for Mr. Moir to kill Chelsey.  This was an error in law.  Again, there is
no need for an analysis pursuant to s. 686(1)(b)(iii) as a retrial is
required based on the first ground of appeal.

v)       Did the Trial Judge Err in Failing to Leave
Manslaughter as a Verdict?

[67]

Mr. Moir submits that there was an evidentiary basis for the jury
to reach a verdict of manslaughter.  He refers to the following evidence in his
factum:

·

Mr. Moirs denial of any intent to kill Chelsey Acorn or any
intent to inflict bodily harm that he knew was likely to cause her death,

·

Mr. Moirs testimony that he was merely a witness to his fathers
crime and did nothing more than assist in the cover-up, by amongst other
things, putting rocks in the grave,

·

Mr. Moirs testimony to the effect that he believed that his
father choked Chelsey Acorn to death,

·

Mr. Moirs statement to the fictitious crime boss that he crushed
Chelsey Acorns head with a large rock but he believed she was already dead, and

·

Dr. Charlesworths expert opinion that the
most likely
cause of death was the crushing of Chelsey Acorns head with a large heavy
object such as a rock.

[68]

He submits that this evidence demonstrates an air of reality that
Mr. Moir did not intend to kill Chelsey, relying on
Aalders
at 504.

[69]

Theoretically, the jury could have, through considerable intellectual
machinations, cobbled together a scenario from the evidence that could lead
them to a manslaughter verdict.  Neither the Crown nor the defence asked for
this verdict to be left with the jury.  Manslaughter was never a realistic
verdict on this evidence.  I harken back to my earlier comments regarding the
functional approach to a jury instruction and the need to keep a jury focussed
on the truly pertinent issues.  In my view, this was a case of murder or
accessory-after-the-fact.  There was no air of reality to a manslaughter
verdict and the trial judge did not err in not leaving this verdict as a
possible outcome.  I would not accede to this ground of appeal.

vi)      Did the Trial Judge Err in Failing to Instruct
the Jury on how to Address the Conflict Between Mr. Moirs Out-of-Court
Statements and his Testimony?

[70]

Mr. Moir
submits that the trial judge was required to give what is commonly referred to
as the 
MacKenzie
 instruction (
R. v. MacKenzie
, [1993]
1 S.C.R. 212).

[71]

Mr. Moir
submits that because his evidence at trial denying participation in the murder
conflicted with his out-of-court statements to Mr. Big admitting
participation in the murder, the trial judge was required to instruct the jury
that if they accepted Mr. Moirs testimony or had a reasonable doubt as to
his guilt arising from his testimony, they must reject the out-of-court
statements.  Mr. Moir relies on the following reasoning in
R. v. Mayuran,
2012 SCC 31 at paras. 41 and 42, 284 C.C.C. (3d) 1:

[41]      At the Court of Appeal and before this Court, the
Crown conceded that this instruction was an error.  The error stems from this
Courts decision in
R. v. MacKenzie
, [1993] 1 S.C.R. 212.  As
a general rule, the evidence in a case should be considered as a whole in
determining whether there is a reasonable doubt as to guilt (
R. v. Morin
,
[1988] 2 S.C.R. 345;
R. v. Rojas
, [2008] 3 S.C.R. 111, at
para. 43).  But
MacKenzie
held that, on important items of
evidence the jury may require guidance on how to approach its task.  As a
result,

where a statement by an accused at
trial is entirely at odds with a previous out-of-court statement by the
accused, and the jury believes the statement at trial, or is left in reasonable
doubt that it is true, then the jury must reject the out-of-court statement;
the accused must be given the benefit of the doubt.  In arriving at that
conclusion, the jury should, of course, give consideration to the evidence as a
whole. [p. 239]

[42]      A specific instruction
of this kind is not required in every case where there is conflicting evidence
about the accuseds out-of-court statements.  A
MacKenzie
instruction is
only required where the credibility of [the] conflicting statements go[es]
directly to the ultimate issue in dispute and the jurys decision to accept
one statement amount[s] to choosing between the two competing theories of the
case (
White
(S.C.C.), at para. 52).  There is no reason to give a
specific instruction where the conflicting statements are not individually
crucial to the determination of the ultimate issue (para. 53).

[72]

In my view, it is
not necessary to decide whether such an instruction was required in this case. 
When the charge is read as a whole, the jury would understand that if they
accepted the evidence of Mr. Moir or if it raised a reasonable doubt, they
should acquit.  The following instructions to the jury, taken from the Crowns
factum, demonstrate this conclusion:

(a)        Instructions to
consider all the evidence:

The presumption of innocence only ceases to apply if at the
end of the case and after you consider all of the evidence the Crown satisfies
you beyond a reasonable doubt that an accused is guilty of the crime charged.

If, at the end of the case and after assessing
all the evidence, you are not sure that an accused committed the offence you
must find him not guilty.

...

If at the end of the case and based on
all the evidence you are sure that an accused committed the offence you should
find that accused guilty.

...

When you decide whether the accused is guilty or not guilty
of an offence, you should look at all the evidence and consider the whole of my
instructions.

(b)        Instructions on the
elements of the offence:

In this case, the evidence indicating an
assault on Chelsey Acorn is that contained in the accuseds confession to the
crime boss played by [officers name omitted]. The accused said in his
confession that Chelsey Acorn was first subjected to force to her neck by Jesse
West placing his arm around her throat from behind and then applying pressure
to her neck until she was unconscious or dead.  Dustin Moir said that he then
choked her from the front when she subsequently showed some sign of life.

...

Unless you are satisfied beyond a
reasonable doubt that Dustin Moir assaulted Chelsey Acorn or together and in
concert with Jesse West assaulted Chelsey Acorn, both intending the assault,
Dustin Moir will not be guilty of first degree murder as a principal offender.

...

In this case, the evidence the Crown relies on as
implicating Dustin Moir as an aider is in the role he indicated to [officers
name omitted] in keeping Chelsey Acorn distracted and in helping to dig the
grave, as part of the plan while Jesse West prepared to kill her ...  If, however,
you have a reasonable doubt that Dustin Moir did not know of Jesse Wests
planned and deliberate intention to kill, and his participation was confined to
helping bury the body after the murder had been committed, this would be after
the fact and you must find him not guilty of murder.

(c)        Instructions on
R. v. W. (D.)
,
[1991] 1 S.C.R. 742:

If you believe the testimony of Dustin Moir that he did not
commit the offence charged, you must find him not guilty.

Even if you do not believe the testimony of Dustin Moir, if
it leaves you with a reasonable doubt about his guilt, you must find him not
guilty.

Even if the testimony of Dustin Moir does not raise a
reasonable doubt about his guilt if, after considering all of the evidence you
are satisfied [
sic
] beyond a reasonable doubt, you should acquit.

If you reject the evidence of Dustin Moir given at trial as
incapable of raising a reasonable doubt, you need to assess whether the Crowns
case, based on the truth of the confession, is sufficient to satisfy you beyond
a reasonable doubt of his guilt.

(d)        Instructions on the
confession to undercover police:

... the law views confessions produced
in this manner as inherently unreliable.  They may be used by you as proof of
an offence but it would be dangerous to do so without independent confirmation
of the truth of what an accused had to say.

...

As the above indicates, you can rely on the accuseds
confession without finding support if you are convinced beyond a reasonable
doubt that the confession is true.

[73]

There is an obvious error in the
W. (D.)
instruction.  It
should read ... after considering all of the evidence you are
not
satisfied beyond a reasonable doubt ....  In my view, however, this is a
harmless error that would not affect the verdict.  When read as a whole, trial
judges jury instructions were abundantly clear on the Crowns burden of proof
with respect to the out-of-court statements of Mr. Moir and his testimony
at trial.

[74]

I would not accede to this ground of appeal.

Conclusion

[75]

There were two versions of the events available to the jury in this
case, one in which the Mr. Moir was an active principal or aider of the
offence of murder; the other in which he was a fearful bystander and accessory
after-the-fact.  The trial judge did not instruct the jury on the proper use of
prior consistent and inconsistent statements from witnesses.  By failing to do
so, he fell into error.  This error alone requires a new trial.

Disposition

[76]

I would allow the
appeal and order a new trial.

The Honourable Madam Justice Bennett

I agree:

The
Honourable Madam Justice D. Smith

I agree:

The
Honourable Mr. Justice Harris


