



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charlton, 2019 ONCA 400

DATE: 20190516

DOCKET: C61173

Doherty, Hourigan
    and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Laffette Charlton

Appellant

Marianne Salih, for the
    appellant

J. Sandy Tse, for the
    respondent

Heard: January 9, 2019

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

Harvison Young J.A
.:

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

Grounds of appeal

[7]

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

(1)

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

(2)

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

(3)

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

(4)

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

(5)

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

(6)

Were
    the verdicts unreasonable?

[8]

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

The evidence

Shamoiey Akindejoyes Evidence

[9]

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

[10]

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

[11]

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

[12]

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

[13]

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

Marquis Clarks Evidence

[14]

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

[15]

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

[16]

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

[17]

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

Issues and law

(1)

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

[18]

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

[19]

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

[20]

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

(a)

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

[21]

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

(b)

The duty to give reasons for an evidentiary ruling

[22]

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

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

[23]

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

[24]

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

[25]

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

(2)

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

[26]

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

[27]

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

[28]

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

[29]

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

[30]

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

[31]

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

[32]

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

[33]

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

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

[34]

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

[35]

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

[36]

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

[37]

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

(3)

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

[38]

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

[39]

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

[40]

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

[41]

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

[42]

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

[43]

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

[44]

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

[45]

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

[46]

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

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

[47]

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

[48]

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

[49]

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

[50]

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

[51]

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

[52]

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

(4)

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

[53]

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

[54]

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

[55]

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

[56]

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

(5)

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

[57]

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

[58]

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

(6)

Were the verdicts unreasonable?

[59]

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

[60]

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

[61]

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

[62]

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

DISPOSITION

[63]

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

Released: May 16, 2019

D.D.

A. Harvison Young J.A.

I agree Doherty J.A.

I agree C.W. Hourigan J.A.





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


