



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ranglin, 2018 ONCA 1050

DATE: 20181218

DOCKET: C62741

Doherty, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Ranglin

Appellant

Delmar Doucette, Andrew Furgiuele and Janelle Belton,
    for the appellant

Michael Bernstein, for the respondent

Heard: October 25, 2018

On appeal from the conviction entered on June 29, 2016 by
    Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a
    jury.

Trotter J.A.
:

A.

introduction

[1]

The appellant was convicted of first degree murder. After oral argument,
    his appeal was dismissed with reasons to follow. These reasons explain why the
    appeal was dismissed.

B.

overview of the facts

[2]

On June 7, 2011, Keith Brissett was murdered while sitting in a car parked
    behind an apartment building in Mississauga. A man walked up to the car and shot
    Brissett six times. The identity of the shooter was the only issue at trial.

[3]

There were a number of people around the building at the time. The
    police identified Anthony Borden, Junior Moy-Lingomba, Curtis Murray, and the
    appellant (also known as Juice) as persons of interest. In October 2012,
    Borden and Moy-Lingomba were charged with first degree murder. Following a
    preliminary inquiry, both were committed to stand trial.

[4]

Borden entered into an agreement with the Crown. He implicated the
    appellant as the shooter and eventually pled guilty to accessory after the fact
    to murder. Borden testified for the Crown and claimed to have seen the
    appellant shoot Brissett. Borden testified that he then drove the appellant away
    from the scene.

[5]

Moy-Lingomba refused to cooperate. However, the Crown eventually stayed
    the murder charge against him and substituted a charge of accessory after the
    fact. That charge was also stayed. The Crown called Moy-Lingomba as a witness
    at the appellants trial. He admitted to being in and out of the apartment
    building that night but claimed that he did not see who shot Brissett. Moy-Lingomba
    testified that he saw Murray around the building that night and said he was
    wearing green clothing. This description was consistent with the evidence of
    Taniesha Wisdom, who witnessed the shooting. She said the shooter wore green
    and had very dark skin (the appellant did not). The appellant went to the jury
    with the theory that Murray was the shooter.

C.

the issues on appeal

[6]

The appellant argues that the trial judge erred in his instructions to the
    jury in the following ways: (1) by failing to direct the jury on the proper use
    they could make of utterances made by Moy-Lingomba in a
KGB
statement;
    (2) by giving
Vetrovec
[1]

warnings concerning the evidence of Borden and Moy-Lingomba over the
    objection of defence counsel; (3) by failing to properly instruct the jury on the
    third party suspect evidence in relation to Murray; and (4) by dealing unfairly
    with the evidence of Taniesha Wisdom.

D.

analysis

(1)

Instruction on the
KGB
Statement

[7]

About a year after Brissett was killed, the police were still
    investigating who was involved in the killing. On June 21, 2012 they recorded a
    conversation between Moy-Lingomba and a police informant, Darren Watts, at the
    Brampton Courthouse. This was before Moy-Lingomba was charged with the murder.
    The statement was admitted for its truth under
R. v. B. (K.G.)
, [1993]
    1 S.C.R. 740 (
KGB
).

[8]

At the time, both men were in custody for other offences. Mr. Watts was
    facing firearms charges. He made a deal with the police whereby he would be
    paid $30,000 to provide them with information. On June 21, 2012, Watts was
    placed in the holding cells of the courthouse. He was wearing a wire. His
    instructions were to get Moy-Lingomba to say that he saw the appellant shoot
    Brissett. Moy-Lingomba never uttered these words. However, he attributed words
    to the appellant that provided powerful evidence of motive to kill Brissett.

[9]

Moy-Lingomba, who was also facing firearms charges, was brought to the courthouse
    the same day. He was interviewed by the police. The police allegedly threatened
    to charge him with the murder, and to implicate his father and girlfriend.
    Moy-Lingomba was then lodged in the holding cells with Watts.

[10]

During
    a recorded conversation, Moy-Lingomba told Watts that the appellant told him
    that he wanted to kill Brissett to avenge the murder of his cousin, Demar
    Ranglin. Many years earlier, Brissett had been charged with this murder but
    acquitted.

[11]

The
    portion of their recorded conversation that was ultimately admitted under
KGB
is as follows:

Watts: Juice. Fucking stupid.

Moy-Lingomba: Juice stupid? How?

Watts: Cause he should have just dealt with that by himself.

Moy-Lingomba: You know long Juice has been looking for that guy
    [Brissett]. Juice has been looking for that guy since 06-07. Thats the first
    time Juice seen him, I dont know how long. Juice is like, you homey, if I see
    this guy anywhere hes getting it. Hes like yo, bro, if I see him in front of
    boydem [police] hes getting it. If anywhere I see this guy, on demand.

Watts: On sight thing then?

Moy-Lingomba: On sight.

Watts: It wasnt even premeditated or nothing.

Moy-Lingomba: No.

Watts: Like accident basically.

Moy-Lingomba: Just ran into the nigga you know.

Watts: Oh coincidence.

Moy-Lingomba: It was just a coincidence that he was there and
    it was a coincidence that me and Tones [Borden] at Rexwood that day.

[12]

At
    the appellants trial, Moy-Lingomba was a hostile witness in every sense of the
    word. He had previously refused to be sworn at the appellants preliminary
    inquiry (which was held separately from the earlier preliminary inquiry of Borden
    and Moy-Lingomba). He expressed a willingness to lie under oath. He was abusive
    and profane when responding to questions posed by the Crown.

[13]

Moy-Lingomba
    admitted making the utterances reproduced above; he had little choice, since
    the conversation had been recorded. However, Moy-Lingomba denied that he received
    this information directly from the appellant; he insisted that his knowledge
    was derived from rumour and gossip in the community, but could not remember
    from whom. He agreed with defence counsels suggestions that it was all
    scuttlebutt, rumour and just word on the street, type of thing.

[14]

No
    issue is taken with the decision to admit Moy-Lingombas utterances. The
    appellant challenges the manner in which the trial judge instructed the jury on
    this evidence.

[15]

The
    only contentious issue concerning this evidence was the source of Moy-Lingombas
    information. That is, did the appellant actually tell him that he wanted to
    kill Brissett, or did Moy-Lingomba acquire this information through rumour or gossip?
    If it were the former, the utterances were admissible and provided cogent
    evidence of a motive; if it were the latter, the utterances were inadmissible
    for their truth and would have no value at all.

[16]

It
    would have been preferable had the trial judge instructed the jury along the
    following lines:

The contents of Moy-Lingombas statement is evidence against
    Mr. Ranglin and may provide evidence of a motive for the murder
only
if
    you are satisfied that the information in Moy-Lingombas statement came
directly
from Mr. Ranglin and not from someone else or gossip on the street.

[17]

The
    trial judge did not give such an instruction. However, I am satisfied that the
    trial judges instructions on the use of hearsay evidence, together with his
    instructions on the
KGB
statement, were sufficient to convey this straightforward
    issue to the jury. It would have been clear to the jury that Moy-Lingombas
KGB
utterances could not be used for
any
purpose unless they were
    satisfied that he was repeating what the appellant told him.

[18]

The
    trial judge correctly explained hearsay evidence to the jury, as well as the
    hearsay exception engaged by the
KGB
statement:

There is an exception to the hearsay rule.
Anything that you
    find that the accused said to a witness may be used by you as proof of what the
    accused said in deciding this case. This, of course, requires you to make a
    determination that the statement to the witness was made by the accused and
    determine what statement was made by the accused.
If you so determine for
    any statement made by the accused to the witness, you may use that statement
    made by the accused to the witness as proof of what the accused said to the
    witness when considering and deciding whether the Crown has proven the guilt of
    the accused beyond a reasonable doubt. [Emphasis added.]

[19]

Later
    in his charge, the trial judge addressed the exchange between Watts and
    Moy-Lingomba:

With respect to statements made by Mr. Moy-Lingomba during this
    specific portion of the conversation only, in addition to these statements to
    assess his testimony like any other witness, Mr. Moy-Lingombas testimony and
    these statements can be used as evidence
of what actually happened
. In
    other words, you may consider any statements made by Mr. Moy-Lingomba during
    this specific portion of the conversation, and only this portion of the
    conversation, as part of the testimony of Mr. Moy-Lingomba at this trial.
    [Emphasis added.]

It is plain that the phrase what actually happened
    refers to whether Moy-Lingomba received this information from the appellant or from
    other sources.

[20]

The
    trial judge followed up this instruction with a review of the factors that
    might shed light on whether Moy-Lingomba was telling the truth about the source
    of his information. He clearly framed for the jury the tension between what Mr.
    Moy-Lingomba said to Watts (i.e
.
, Ranglin told me) and his testimony
    at trial (i.e
.
, it was from gossip in the community).

[21]

After
    completing his review of the
KGB
statement and Moy-Lingombas testimony
    in general, the trial judge said, It is important that you keep in mind all of
    my instructions including the hearsay and the way in which the conversations
    between Mr. Moy-Lingomba and Mr. Watts can and cannot be used by you in
    deciding this case.

[22]

Near
    the end of his instructions, the trial judge summarized the defence position on
    this issue as follows:

The defence submitted that the portion of the conversation with
    Mr. Watts was only a small segment of the conversation, that it was made after
    threats, Mr. Moy-Lingomba was high, talking to someone who he had no respect
    for, was protecting him and his crew
and was based entirely on rumour and
    gossip.
[Emphasis added.]

This was the last fact-specific reference in the trial
    judges charge.

[23]

Defence
    counsel had input into the trial judges instructions to the jury. The trial
    judge incorporated a suggestion made by defence counsel on this very issue. No
    objection was taken to the charge after it was delivered, which is a telling
    indication that the jury was properly equipped to deal with this
    straightforward evidentiary issue: see
R. v. Sinobert
, 2015 ONCA 691,
    at para. 82. In the context of the trial judges instructions as a whole, and
    in light of the issues framed by counsel, it cannot be said that the jury was misled
    about the proper use it could make of the
KGB

statement.

[24]

I
    would dismiss this ground of appeal.

(2)

The
Vetrovec
Warning

[25]

The
    Crown relied on the evidence of two disreputable witnesses  Borden and
    Moy-Lingomba. Bordens evidence was central to the Crowns case. He testified
    that he saw the appellant shoot Brissett and then immediately drove him away from
    the scene.

[26]

Moy-Lingombas
    evidence may have played a lesser role. Previously charged with the murder, and
    being palpably hostile to the Crown, he tried to assist the appellant during
    his testimony. Nevertheless, his
KGB
utterances provided the most compelling
    evidence of planning and deliberation.

(a)

The Trial Judges Ruling

[27]

During the pre-charge conference, the Crown
    requested that
Vetrovec
cautions be given with
    respect to both witnesses. Defence counsel requested that
Vetrovec
cautions
not
be given. The trial
    judge decided to give the instruction in relation to both Borden and
    Moy-Lingomba:
R. v. Ranglin
, 2016 ONSC 4310.

[28]

With Borden, it was anticipated throughout the
    trial that he was the type of unsavoury witness whose evidence would require a
Vetrovec

caution. The trial judge appreciated that his evidence was
    central to the Crowns case.

[29]

The trial judge recognized that he had
    discretion on the
Vetrovec
issue. After
    considering this courts decision in
R. v. A.W.B.
, 2015 ONCA 185, he determined that, because Bordens evidence was
    essential to the Crowns case, and in light of his overwhelming credibility
    problems, a
Vetrovec

caution was both
    necessary and mandatory in the circumstances of this case:
Ranglin
, at para. 40.

[30]

In relation to Moy-Lingomba, the trial judge concluded
    that he too had overwhelming credibility issues. He also recognized that
    Moy-Lingomba was a mixed
Vetrovec
witness,
    in the sense that he gave evidence that was helpful to the Crown and the
    defence. The trial judge concluded that it was mandatory that a
Vetrovec
caution be given for Moy-Lingomba:
Ranglin
, at para. 47.

[31]

The
    appellant submits that the trial judge erred in considering that these
    instructions were mandatory in this case. In the alternative, he argues that,
    having decided to give
Vetrovec
warnings, the

trial judge ought
    to have exercised his discretion to not catalogue potentially confirmatory
    evidence for the jurys assistance. Lastly, the appellant says that the trial
    was rendered unfair by virtue of the repetition of the confirmatory evidence in
    the Crowns closing address and the trial judges final instructions.

(b)

Discussion

[32]

Trial
    judges enjoy considerable discretion in charging juries on unsavoury witnesses:
    see
Vetrovec
, pp. 823, 831;
R. v. Potvin
, [1989] 1 S.C.R.
    525, at p. 557;
R. v. Bevan
, [1993] 2 S.C.R. 599, at pp. 610-611; and
R.
    v. Brooks
, [2000] 1 S.C.R. 237, at pp. 243-244. Consequently, these
    decisions are afforded substantial deference on appeal:
Brooks
, at pp.
    253-254;
Bevan
, at p. 614;
R. v. Carroll
, 2014 ONCA 2, at para.
    67, leave to appeal refused, [2014] S.C.C.A. No. 193;
R. v. Rafferty
,
    2016 ONCA 816, at paras. 30-31; and
R. v. Moore
, 2017 ONCA 947, at
    para. 20.

[33]

Because
    of the high level of discretion inherent in
Vetrovec
warnings, they
    are not usually spoken of in mandatory terms. However, in
Bevan
, Major
    J. held, at p. 614:

While under
Vetrovec
a
    caution to the jury is a matter of the trial judge's discretion and is not
    required in all cases involving testimony of accomplices or accessories after
    the fact,
there are some cases in which the circumstances may be such that
    a
Vetrovec
caution
    must be given
. The trial judge's discretion whether to give a
Vetrovec
warning should
    generally be given wide latitude by appellate courts. [Emphasis added.]

[34]

In
    that case, the caution was mandated because the two jailhouse informant
    witnesses had lengthy criminal records, strong motivations to lie, and
    approached the police looking for a deal in exchange for their testimony.

[35]

Similarly,
    in
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, Fish J. held, at
    para. 5, that while trial judges usually enjoy a discretion in this regard,
    they sometimes must give such an instruction. As he observed at para. 4, [w]e
    know from recent experience that unsavoury witnesses, especially but not only jailhouse
    informants, can be convincing liars and can effectively conceal their true
    motives for testifying as they have.

[36]

In
    this case, irrespective of whether the warnings were truly mandatory, realistically,
    it was necessary that the jury be warned about, and equipped to deal with, the dangers
    inherent in the evidence of Borden and Moy-Lingomba.

[37]

The
    case for a warning was most compelling for Borden. He was the paradigmatic
Vetrovec
witness. Borden was an admitted drug dealer and a self-styled gangster who accepted
    gifts from his girlfriend who was employed as a sex-trade worker. He
    habitually carried a firearm and was prepared to use it. Moreover, Borden was
    arguably an accomplice to this murder. He admitted to driving the appellant
    away from the scene after the shooting, as well as taking steps to conceal his
    own involvement.

[38]

It
    was only after Borden was committed to stand trial for Brissetts murder that
    he entered into a deal with the Crown to implicate the appellant in exchange
    for the opportunity to plead guilty to a far less serious charge. As the trial
    judge told the jury, [t]his might provide Mr. Borden with a motive to minimize
    his involvement in the shooting and implicate others.

[39]

The
    trial judge was correct to conclude that Borden had overwhelming credibility
    issues and that his evidence was essential to the Crowns case. The trial judge
    considered the objections of defence counsel, which were based largely on
    tactical considerations; however, he was right to reject the argument that
    counsel enjoyed the power of veto on the
Vetrovec

issue.
    Clearly, he did not. In all of the circumstances, and despite the objection of
    defence counsel, it was not an error to give the warning in this case. It was
    necessary.

[40]

I
    am doubtful that a
Vetrovec
caution was mandatory in the case of
    Moy-Lingomba. Nevertheless, there were good reasons to provide this warning.

[41]

Moy-Lingomba
    was involved in drug dealing. He regularly carried a gun. When he testified, he
    was serving a sentence for firearms offences. Like Borden, Moy-Lingomba was initially
    charged with murdering Brissett. Eventually, all charges in relation to the
    murder were discontinued. As the trial judge told the jury, [t]his might have
    provided Mr. Moy-Lingomba with a motive to minimize his involvement in the
    shooting and implicate others.

[42]

I
    accept that Moy-Lingomba did not stand in the exact same position as Borden.
    However, having been instructed on the dangers with Bordens evidence, the jury
    may well have been puzzled had they not been instructed to approach the
    evidence of Moy-Lingomba, Bordens associate, in the same careful way.

[43]

The
    appellant argues that the case for a
Vetrovec
caution for Moy-Lingomba
    was weakened by the fact that his evidence was important to the defence in its
    third party suspect claim. The trial judge acknowledged that Moy-Lingomba was a
    mixed
Vetrovec
witness. As he said at para. 46 of his ruling on the
    issue: Without the
Vetrovec
caution, the jury will not be told,
    understand or apply the appropriate legal assessment to Mr. Moy-Lingombas inculpatory
    evidence and the less stringent assessment of his exculpatory evidence. The
    trial judge provided a mixed
Vetrovec
caution in which he conveyed
    the complexity of the situation to the jury. No objection is taken to the
    correctness of this instruction: see
R. v. Rowe
, 2011 ONCA 753, at
    para. 32; and
R. v. Gelle
, 2009 ONCA 262, at para. 16.

[44]

I
    am not persuaded that the trial judge erred in providing the warning that he
    did in relation to Moy-Lingombas testimony.

[45]

The
    appellant further argues that, having decided to warn the jury about the
    dangers of Bordens evidence and Moy-Lingombas inculpatory evidence, he should
    have mitigated any prejudicial impact of these warnings by declining to identify
    potentially confirmatory evidence for the jury.

[46]

Trial
    judges are afforded leeway in the manner in which they choose to deal with
    confirmatory evidence. However, in this case, defence counsel did not ask the
    trial judge to forego giving the second part of the
Vetrovec
instruction. On this basis alone, I would decline to intervene. I also note
    that, at trial, the defence argued that Borden could not be trusted because he
    heard all of the Crowns evidence that was led at his preliminary inquiry. It
    was argued that Bordens testimony was built upon this acquired knowledge. The
    trial judges itemization of the confirmatory evidence played well with this
    position.

[47]

Lastly,
    the appellant argues that, overall, the
Vetrovec
instructions were
    unfair because they had the effect of unduly bolstering the Crowns case. The
    appellant argues that there was too much correspondence between the Crowns
    closing address and the confirmatory evidence portion of the trial judges
    instructions.

[48]

The
    potential for unfairness to the defence in having confirmatory evidence
    repeated by the trial judge has been recognized in prior cases: see
Brooks
,
    at pp. 249-250;
Carroll
, at para. 79. It is a factor to be considered
    in deciding whether to give the caution in the first place. However, I am not
    persuaded that the fairness of the trial was undermined in this case.

[49]

The
    trial judge thoroughly canvassed the issues for the jury in the pre-charge
    phase of the proceedings. Various drafts of the final instructions were
    generated and discussed. By the end of this process, both the Crown and the
    defence were equipped with the final version of the instructions that the trial
    judge intended to provide to the jury. Both knew in advance what the trial
    judge would refer to in explaining why special cautions were warranted for both
    witnesses, as well as the potentially confirmatory evidence that might restore
    the jurys faith in the evidence of both witnesses. Forearmed with this
    knowledge, both counsel were entitled to tailor their closing addresses
    accordingly.

[50]

There
    is no suggestion that the trial judge identified evidence that was not
    confirmatory. Just because the Crown chose to emphasize the same evidence in
    its closing address did not render the
Vetrovec

cautions
    unfair. The defence stood in the same position. As the trial judge said at
    para. 39 of his

Vetrovec
ruling: The defence will have the
    benefit of a long list of reasons why the jury should be extremely cautious of
    Mr. Bordens evidence when the jury is assessing it. The defence emphasized
    these factors in its closing address.

[51]

As
    it related to Borden, the trial judges itemization of the many pieces of
    confirmatory evidence simply reflected the state of the record. To a certain
    extent it was off-set by the 11 points that the trial judge identified as
    supplying the need for a special caution in the first place.

[52]

There
    is no basis to the claim that there was unfairness in relation to Moy-Lingomba.
    The trial judges instructions helpfully distinguished between the inculpatory
    and exculpatory portions of his evidence.

[53]

I
    would dismiss this ground of appeal.

(3)

Third Party Suspect Evidence

(a)

Introduction

[54]

At
    trial, the defence alleged that Murray killed Brissett. Early on in the trial,
    there was a dispute as to whether the threshold for advancing this theory had
    been met. However, after Moy-Lingombas evidence had been presented, it was agreed
    that the issue was clearly in play. The appellant submits that the trial judge
    erred in the manner in which he left the issue with the jury.

[55]

In
    its closing address to the jury, the Crown chose to combat the third party
    suspect claim by relying heavily on the body of evidence that pointed to the appellant
    as the shooter. The trial judges instructions had a similar focus. The
    appellant argues that the trial judge erred by allowing the issue to be dealt
    with in this fashion. He submits that the trial judge was required to limit the
    jurys focus to evidence that specifically went to whether Murray was the
    shooter or not. He argues that evidence that pointed to the appellant as the
    shooter was irrelevant to the issue and the trial judge erred in failing to
    elucidate that distinction for the jury. Essentially, the appellant contends
    that evidence capable of rebutting the third party suspect claim must be
    independent of the appellants guilt.

[56]

The
    appellant also submits that the trial judge further erred in the manner in
    which he reviewed the evidence on this issue. He argues that the trial judge
    essentially set up a credibility contest between Borden and Moy-Lingomba.

[57]

I
    would reject both arguments.

(b)

Third Party Suspects

[58]

The
    assertion that a third party committed the offence in question is a denial of
    authorship. In
R. v. McMillan
(1975), 7 O.R. (2d) 750 (C.A.), affd 
    [1977] 2 S.C.R. 824, at p. 757, Martin J.A. said:

I take it to be self-evident that if A is charged with the
    murder of X, then A is entitled, by way of defence, to adduce evidence that B,
    not A, murdered X

Martin J.A. further observed that, before being
    permitted to adduce evidence of a third party suspect, the evidence must meet
    the test of relevancy and must have sufficient probative value to justify its
    reception: p. 757.

[59]

In
Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, Abella J. linked the
    criteria in
McMillan

to the air of reality cases (citing
R.
    v. Fontaine
, 2004 SCC 27, [2004] 1 S.C.R. 702 and
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3), holding, at para. 48: The defence must show
    that there is some basis upon which a reasonable, properly instructed jury
    could acquit based on the defence. See also
R. v. Grant
, 2015 SCC 9,
    [2015] 1 S.C.R. 475, at paras. 24-25. As counsel for the appellant rightly
    submitted, once the third party suspect issue is in play, all this evidence
    needs to do is raise a reasonable doubt about the accused as perpetrator of the
    offence.

[60]

As
    important as third party suspect evidence may be, it does not warrant a
    protective shield that may only be penetrated by evidence that directly
    contradicts it. No authority was offered for this position. There is none.
    Evidence that another person committed the offence in question must be
    considered in the context of all of the evidence to determine whether guilt has
    been proved beyond a reasonable doubt:
R. v. Tomlinson
, 2014 ONCA 158,
    at para. 78. The Crown is entitled to argue that the evidence of a third party
    perpetrator does not raise a reasonable doubt because the claim is overwhelmingly
    defeated by the evidence pointing to the accused as the perpetrator.

(c)

The Trial Judges Instructions

[61]

The
    trial judge followed the formula recommended in David Watt,
Watts Manual
    of Criminal Jury Instructions,
2nd ed. (Toronto: Carswell, 2015) (Final 75
     Third Party Suspect) and addressed the issue while outlining the elements of
    first degree murder. He posed the threshold question of identity, instructing
    the jury that their first task is to determine whether the Crown has proven
    beyond a reasonable doubt that Mr. Ranglin was the person who shot Mr. Brissett
    on June 7, 2011. The trial judge then gave the following instructions (which I
    have numbered to correspond with
Watts Criminal Jury Instructions
):

1.   Anyone charged with an offence may
    introduce or rely on evidence that shows or tends to show that somebody else,
    not the person charged, committed the offence. The evidence may be direct. It
    may be circumstantial. It may be both.

2.   In this case,
    Mr. Ranglin is saying that Curtis Murray may be the person who shot Mr.
    Brissett on June 7, 2011. Evidence that shows or tends to show that Mr. Murray
    shot Mr. Brissett, taken together with the rest of the evidence, may cause you
    to have a reasonable doubt about whether it was Mr. Ranglin who shot Mr.
    Brissett on June 7, 2011.

3.   In this case, Mr. Ranglin points
    to the following evidence that Mr. Murray was the person who shot Mr.
    Brissett..

[62]

As
    Justice Watt says in his commentary to this instruction, at p. 1257:

The instruction itself is unremarkable. It begins by pointing
    out the general rule that permits introduction of evidence of third party
    participation, then becomes more specific in the following paragraph.
The
    second paragraph underscores the jurys obligation to consider the third party
    suspect evidence, along with the rest of the evidence, in deciding whether the
    case against D has been proven beyond a reasonable doubt
.

The third paragraph identifies the supportive evidence by
    subject-matter, then suggests it be followed by a review of the relevant
    evidence on both sides of the participation issue
. The instruction should
    be folded into a discussion of the appropriate essential element, as for
    example in Final 229-A,
Second Degree Murder
, Did
(NOA) cause
    (NOC)
s
death?. [Emphasis added.]

[63]

The
    trial judge followed this sensible approach. After identifying the evidence
    that may have pointed to Murray as the shooter, he then reviewed the evidence
    the Crown relied upon to rebut this assertion. Not surprisingly, the evidence
    of Borden and Moy-Lingomba figured prominently in this review. But it was not
    the only evidence to which he referred in this context. The trial judge referenced
    all of the evidence adduced at trial that was connected to the issue of
    identity. He did not unfairly pit the testimony of the two
Vetrovec
witnesses
    against each other in a manner that created a credibility contest.

[64]

After
    the trial judge completed his review of the evidence bearing on the identity of
    the shooter, he delivered the final part of the recommended third party suspect
    instructions. These instructions adhere closely to the framework in
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742. This is surely the correct approach for, once
    the third party suspect issue is properly in play, it need only raise a
    reasonable doubt on the issue of identity: see
Tomlinson
, para. 78; and
R. v. Khan
, 2011 BCCA 382, at paras. 90-91. This was clearly brought
    home to the jury in this case.

[65]

I
    would dismiss this ground of appeal.

(4)

Taniesha Wisdoms Evidence

[66]

The
    appellant argues that the trial judge dealt with the evidence of Taniesha
    Wisdom in an unfair manner. First, he argues that the trial judge commented adversely
    on the fact that her evidence was presented in a video format. Second, the
    appellant submits that her evidence, especially as it related to the skin
    colour of the shooter, was not properly incorporated into the trial judges
    review of the evidence pointing to Murray.

[67]

Ms.
    Wisdom was unable to testify in person. A videotape of her evidence from the
    preliminary inquiry was played for the jury. In a nutshell, Ms. Wisdom
    testified that she had witnessed the shooting when she was returning to the
    building with a friend and their children. She recognized Mr. Borden from the
    building. However, she did not recognize the shooter. She described him as a
    man who wore green clothing, and who had very dark skin. The appellants skin
    was much lighter.

[68]

The
    appellant argues that the following instruction concerning Ms. Wisdoms
    evidence was unfair:

Just like any witness, it is for you to decide how much or
    little you believe of or rely upon her evidence. You may believe some, none or
    all of it.
In deciding how much of little you will believe of or rely upon
    this evidence, remember that while you saw her videotaped evidence in its
    entirety, you did not have the opportunity to watch and listen to Ms. Wisdom
    give evidence live in front of you, as you did with other witnesses. This may
    or may not affect your assessment of her evidence
. It is for you to say how
    much or little you will believe of and rely upon Ms. Wisdoms evidence in
    deciding this case. [Emphasis added.]

[69]

Unfortunately,
    the videotape of Ms. Wisdoms evidence was not made an exhibit at trial and was
    not available for viewing on appeal. It ought to have been made a lettered
    exhibit at trial: see
R. v. MacIsaac
, 2017 ONCA 172, leave to appeal refused,
    [2017] S.C.C.A. No. 152, at para. 57. Without the videotape, it is difficult to
    fully evaluate this ground of appeal, in the sense of knowing if the trial
    judges comments were tailored to a specific shortcoming of the recording.

[70]

Nevertheless,
    I am of the view that there was nothing objectionable in the trial judges
    direction. No objection was taken. The trial judges remarks were benign and
    did not undermine the exculpatory force of Ms. Wisdoms evidence. His
    instructions reflected the obvious fact that, unlike all of the other witnesses
    at trial, the jury was left to assess her credibility from a videotape, and not
    from in-court testimony. It cannot be said that this testimonial factor was
    irrelevant. Indeed, it would have been improper for the trial judge to tell the
    jury that they could not consider this factor in assessing her evidence. I see
    no error.

[71]

The
    appellant also complains that, in his third party suspect instructions, the
    trial judge did not specifically refer to the fact that Ms. Wisdom provided a
    description of the shooters skin that supported the defence position that
    Murray killed Brissett. Although the trial judge could have included this point
    in his third party suspect instructions, his failure to do so was not an error.

[72]

The
    importance of this aspect of Ms. Wisdoms evidence was squarely before the jury.
    When summarizing the evidence of various witnesses, the trial judge included the
    following summary of Ms. Wisdoms description of the shooter:

She saw a car by the back door to the building, between the
    back doors and the garbage bins. She described the shooter as a very dark black
    man (darker than Mr. Borden), dark skin, African black and very dark skinned.
    The shooter shot the person in the car from the drivers side. The shooter was
    wearing a green hat and green t-shirt.

[73]

When
    dealing with the exculpatory aspects of Moy-Lingombas evidence, the trial
    judge referenced aspects of Ms. Wisdoms evidence in the following passage:

Some of Mr. Moy-Lingombas evidence is exculpatory, that is may
    assist or help Mr. Ranglin in his defence, at least it could, depending on your
    view of some of his evidence. For example, Mr. Moy-Lingomba testified that
    Murray was at the Rexwood apartment that night wearing a green shirt and a
    green cap, which is evidence, if accepted by you, is consistent with the
    description of the shooters clothing by Ms. Wisdom.

This was repeated in the third-party suspect
    instructions.

[74]

In
    his closing address, defence counsel emphasized Ms. Wisdoms description of the
    shooters skin colour. This was repeated by the trial judge when he summarized
    the position of the defence. The significance of this aspect of Ms. Wisdoms
    evidence would not have been lost on the jury.

[75]

I
    would dismiss this ground of appeal.

E.

Conclusion and disposition

[76]

As explained above, the appeal was dismissed at the end of the oral
    hearing.

Released: DD DEC 18 2018

Gary
    Trotter J.A.

I
    agree. Doherty J.A.

I
    agree. David Brown J.A.





[1]

R. v. Vetrovec
, [1982] 1 S.C.R.
    811.


