



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fogah, 2018 ONCA 564

DATE: 20180625

DOCKET: C61607

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samora Fogah

Appellant

Anil Kapoor and Dana Achtemichuk, for the appellant

Leslie Paine, for the respondent

Heard: February 6, 2018

On appeal
    from the convictions entered by Justice Todd Ducharme of the Superior Court of
    Justice, sitting with a jury, on June 25, 2014.

BROWN J.A.:

I.

OVERVIEW

[1]

On the evening of October 30, 2009, Ritchie Durant was shot and killed
    in front of a sports bar on Davenport Road, near Ossington Avenue, in Toronto.
    A second person, David Ruffolo, was shot in the leg but survived. The
    appellant, Samora Fogah, was charged with four offences: first degree murder;
    attempted murder with a prohibited firearm; aggravated assault by wounding;
    and, discharging a prohibited firearm with intent to wound.

[2]

Identity was the main issue at the trial. Was the appellant the shooter?
    Following a 13-day trial, the jury concluded he was, finding the appellant guilty
    of first degree murder, aggravated assault, and discharging a prohibited
    firearm with intent to wound. It was the appellants second trial; his first
    trial had resulted in a hung jury.

[3]

The appellant appeals from his conviction. He advances a single ground
    of appeal: the trial judge erred in the
W.(D.)
instructions he gave
    the jury at two points during the charge (
R. v. W.(D.)
, [1991] 1
    S.C.R. 742). The appellant submits the
W.(D.)
instructions erroneously
    directed the jury to consider the supporting defence evidence or evidence
    relied upon by the defence when assessing whether they were left with a
    reasonable doubt as a result of the appellants evidence. The appellant argues
    this formulation of the
W.(D.)
instruction had the effect of directing
    the jury to look for supporting evidence when assessing his evidence, deflected
    the jury from considering all the evidence, and amounted to an error.

[4]

For the reasons set out below, I would dismiss the appeal. Although the
    trial judges expanded
W.(D.)
instruction was not ideal, in the
    circumstances it did not amount to a reversible error.


II.

SUMMARY OF THE EVIDENCE

Altercation in the bar

[5]

There was no dispute that when the appellant was in the bar on the
    evening of October 30, 2009 some sort of altercation broke out between two
    patrons: Bubba (Tiago Adao) and One-Eyed Mike, or Mikey (Mike Grizzelle). Some
    present in the bar saw Bubba pick on Mikey and push him into a table.

[6]

From there the evidence diverged. Another patron, David Ruffolo,
    testified that he saw the appellant approach Bubba, likely to tell him to leave
    Mikey alone. Ritchie Durant then approached the appellant and a heated exchange
    took place. The appellant then left the bar. Two other Crown witnesses, Quentin
    Wyse and Wilson Gouveia, testified much to the same effect.

[7]

The appellant testified that while he was in the bar he heard a thump
    and turned to find Mikey holding his head. He went over and asked Mikey if he
    was alright. Mr. Durant tried to calm Bubba and also asked if Mikey was
    alright. The appellant responded yeah, hes all right, to which Mr. Durant
    said: this fucking guy, referring to Bubba. The appellant did not describe
    the exchange with Mr. Durant as being hostile. The appellant stated he left the
    bar at that point and did not return.

The shooting

[8]

Mr. Ruffolo testified that some time following the altercation, he was
    standing outside the bar. The appellant approached and entered the bar briefly.
    The appellant exited the bar, followed closely by Mr. Durant. The appellant
    argued with Mr. Durant and then shot him. The appellant then shot Mr. Ruffolo
    in the leg and left. There were differences in the accounts Mr. Ruffolo gave about
    those events at the preliminary inquiry and at trial.

[9]

Mr. Gouveia testified the appellant returned to the bar later that
    night, looked around briefly, and then went back outside.

[10]

Mr.
    Medeiros testified that the man he had seen leaving the bar after the
    altercation between Bubba and One-Eyed Mike returned, went into the bar,
    followed by Mr. Durant, and came out. At that point, Mr. Durant pushed his
    girlfriend into Mr. Medeiros, who fell. He then heard four gunshots, but did
    not see the shooting. He saw the shooter run east, and then along Ossington
    Avenue.

[11]

A
    person waiting at a nearby bus stop testified he heard two to four pops and
    then observed a black man wearing jeans and a grey hoodie cross Ossington
    Avenue and go into Victor Jara Lane. En route, the man appeared to slide a
    pistol into the front waistband of his pants.

[12]

The
    building in which the appellant rented a basement apartment faced onto
    Davenport Road and backed onto Victor Jara Lane.

[13]

The
    appellant testified that upon returning home from the bar, he rolled a joint,
    and then took his dog for a walk. During the walk, he heard sirens and saw
    police cars at the intersection of Davenport and Ossington. He thought there
    must have been an accident, returned home, played a video game, and went to sleep.
    The appellant denied any involvement in the shooting.

[14]

Mr.
    Durant died of his injuries a day after the shooting. Mr. Ruffolo survived.

The appellants arrest

[15]

About
    one week after the shooting, on November 8, 2009, the appellant was arrested at
    his residence on Davenport Road. One of the officers testified that as she walked
    down a hallway towards the appellants apartment, she saw him standing at his
    door pointing a gun. The appellant denied he had a gun; he stated he was
    holding a cell phone.

[16]

The
    police searched the appellants basement apartment after his arrest. They found
    a semi-automatic Smith and Wesson handgun in the wall of the furnace room. It did
    not have a magazine, but a bullet was in the chamber. They also located an
    empty, rusted 40-calibre Smith and Wesson gun magazine in the toilet tank in
    the basement bathroom. The appellant denied ownership of the gun and magazine.

[17]

A
    police firearms expert testified that, within practical certainty, the
    bullets found at the bar and retrieved from Mr. Ruffolos leg all had been
    fired by the gun found by the police at the Davenport residence.

[18]

No
    fingerprints were obtained from the gun or magazine seized at the appellants
    residence. Some gunshot residue was found on a hoodie and shirt that belonged
    to the appellant.


III.

THE CHARGE TO THE JURY

[19]

To
    put in context the appellants submission that the trial judge erred in his
W.(D.)
instruction to the jury, I shall review how the charge on that issue evolved
    into its final form, including the submissions made by trial counsel regarding
    the
W.(D.)
instruction.

The trials evidentiary stage

[20]

The
    evidence at trial started on June 2, 2014 and concluded on June 16, 2014.

[21]

In
    addition to the appellant, the defence called two other witnesses. The first
    was Officer Mobbs, who was one of the first responders to the scene of the
    shooting. Officer Mobbs testified about the appearance of the inside of the bar
    on the night of the shooting. In his closing to the jury, defence counsel
    submitted that the pictures taken of the inside of the bar did not look
    anything like a place where the events described by the witnesses could have
    occurred. He suggested the appearance of the inside of the bar might have been
    altered by those at the bar, which gave the jury another tool to test the
    credibility of the witnesses who described the events of that evening.

[22]

The
    other witness called by the defence was Ryan Handlarski, a criminal lawyer. At
    the request of the defence, Mr. Handlarski went to the appellants Davenport
    Road residence during the trial to ascertain which light switch in the hallway
    leading to the appellants apartment turned on the hallway light. That evidence
    was led in response to the testimony of one of the arresting officers, Constable
    McFatridge. She had testified that upon entering the appellants building, she
    used the first light switch in the hallway to turn on the lights, at which time
    she saw the appellant holding a gun. Mr. Handlarski testified that it was the
    second, not the first, switch in the hallway that turned on the light.

[23]

As
    well, the defence read into evidence an agreed statement of facts, which
    included: (i) other than the one round found in the gun, no ammunition was
    found during the search of the appellants apartment; (ii) no hats were seized
    during the search of the apartment  the person at the bus stop had said the
    man who appeared to have the pistol was either wearing a hood or a hat; and
    (iii) neighbours saw the appellant walking his dog the day after the shooting,
    suggesting that he was not lying low, as had been put to the appellant during
    his cross-examination.

[24]

On
    June 10, 2014 the trial judge advised counsel that a pre-charge conference was
    necessary. He flagged for consideration whether counsel would be content with
    using the charge to the jury given at the first trial. It is not clear from the
    record that counsel had a copy of the charge from the first trial at the time
    of the second trials pre-charge conference. It was not marked as an exhibit at
    the second trial.

The June 17, 2014 pre-charge conference

[25]

A
    pre-charge conference was held on June 17, 2014. Defence counsel suggested the
W.(D.)
instruction should follow the 
Final 16: Testimony of the Accused (The
    W.(D.) Instruction)
 found in the first edition of Justice David Watts
    publication,
Watts Manual of Criminal Jury Instructions
(Toronto: Thomson
    Canada, 2005), at p. 152.
[1]

[26]

Crown
    counsel made no submissions on the appropriate form of the
W.(D.)
instruction.

The charge: June 23, 2014

[27]

The
    trial judges charge to the jury spanned two days.

[28]

On
    the first day, June 23, the trial judge charged the jury on, among other
    things, some of the basic principles of law: the presumption of innocence; the
    burden of proof; and the concept of reasonable doubt. The trial judge stated
    that [f]rom start to finish, it is always Crown counsel who must prove the
    person charged, Mr. Fogah, is guilty beyond a reasonable doubtThe burden of
    proof never shifts to the accused. On the principle of reasonable doubt, the
    trial judges comments included the following:

If, at the end of the case, after considering all the evidence,
    you are sure that Mr. Fogah committed an offence, you should find him or her
    guilty of it, since you would have been satisfied of his or her guilt of that
    offence beyond a reasonable doubt.

If, at the end of the case, based on all of the evidence or the
    lack of evidence, you are not sure that Mr. Fogah committed an offence, you
    should find him or her not guilty of it.

[29]

Towards
    the end of the first day of his charge, the trial judge dealt with the
    appellants evidence. After instructing the jury on the use it could make of
    evidence concerning events surrounding the appellants arrest, he turned to
    review the appellants evidence generally. The trial judge prefaced his
    review by stating: And remember, as I have already told you, the Crown has the
    burden of proof and Mr. Fogah does not have to prove anything.

[30]

Following
    his summary of the appellants evidence, the trial judge gave the jury a
W.(D.)
instruction. He modified Watts Final 16 instruction, stating:

Now, if you believe Mr. Fogahs evidence then you must find him
    not guilty.

Even if you do not believe Mr. Fogahs evidence supported by
    the other evidence relied on by the defence, but it leaves you with a
    reasonable doubt about his guilt, you must find him not guilty.

Even if Mr. Fogahs testimony or other evidence relied on by
    the defence does not leave you with a reasonable doubt of his guilt, you may
    find him guilty only if the rest of the evidence before you that you do accept
    proves Mr. Fogahs guilt of the offence beyond a reasonable doubt.

[31]

I
    will refer to this instance of the
W.(D.)
instruction as the First Version.

The charge continued: June 24, 2014

[32]

On
    the following day, the trial judge continued his charge by instructing the
    jury, with the assistance of decision trees, on the elements of the offences
    charged. He reviewed at length the evidence related to identification, followed
    by a more general review of the evidence. The trial judge then reviewed the
    positions of the parties.

[33]

Having
    done so, the trial judge informed the jury that he wanted to give it an
    important reminder about the burden of proof. He stated:

In approaching the evidence and arriving at your verdict, you
    must remain mindful the burden of proof is on the Crown and that Mr. Fogah does
    not have to prove anything.

If you believe Mr. Fogahs evidence, supported by the other
    defence evidence, that he did not shoot Richard Durant and David Ruffolo, you
    must find him not guilty.

Even if you do not believe his evidence supported by the other
    defence evidence, if it leaves you with a reasonable doubt, you must find him
    not guilty.

And even if his evidence, supported by the other defence
    evidence, does not leave you with a reasonable doubt, you may convict him of
    the offences charged only if the rest of the evidence that you do accept proves
    his guilt beyond a reasonable doubt.

[34]

I
    will refer to this instance of the
W.(D.)
instruction as the Second
    Version.

[35]

That
    was not the trial judges final word on the burden of proof. In the subsequent,
    concluding section of the charge, the trial judge reminded the jury that Mr.
    Fogah is presumed to be innocent in this trial. He is not obliged to prove his
    innocence. The Crown has the burden of proving guilt.

[36]

After
    the jury retired to deliberate, the trial judge asked counsel whether they had
    any objections to the charge. Neither did.

[37]

For
    ease of reference, a table comparing the standard version, First Version, and
    Second Version of the
W.(D.)
instruction can be found at Appendix A
    to these reasons.

June 25, 2014

[38]

Over
    the course of the following day, the jury posed several questions. The jury
    returned with its verdict that day.


IV.

THE ISSUE STATED

[39]

The
    appellant points out some minor deficiencies in the trial judges
W.(D.)
instruction, such as the slight variation in language used in the two versions of
    the instruction and his failure to explain phrases such as defence evidence
    and evidence relied on by the defence. But the error in the instruction,
    according to the appellant, lies in its use of expanded language in the first
    and second stages of the customary
W.(D.)
instruction.

[40]

As
    mentioned, defence counsel had asked the trial judge to charge in accordance
    with Watts first edition Final 16 jury instruction. In that model instruction,
    the first stage of the
W.(D.)
instruction stated: If you believe (
NOA
)s
    evidence that (s/he) did
not
commit the offence(s) charged, you must
    find (him/her)
not
guilty (emphasis in original). Instead of
    replicating that language, the trial judge expanded it, so that the first stage
    of the Second Version of the
W.(D.)
instruction stated: If you
    believe Mr. Fogahs evidence,
supported by
    the other defence evidence
, that he did not shoot Richard Durant and
    David Ruffolo, you must find him not guilty (expanded language emphasized).

[41]

In
    Watts Final 16 instruction, the second stage stated: Even if you do not
    believe (
NOA
)s evidence, if it leaves you with a reasonable doubt
    about (
his/her
) guilt, (or, about an essential element of the offence
    charged (or, an offence)), you must find (
him/her
not guilty) (of that
    offence). The trial judge instructed the jury on the second stage as follows:
    Even if you do not believe Mr. Fogahs evidence 
supported by the other evidence relied on by the
    defence
 (First Version)  or 
supported
    by the other defence evidence
 (Second Version)  if it leaves you with
    a reasonable doubt (about his guilt), you must find him not guilty.

[42]

The
    appellants main submission is that using this expanded language was an error
    because it could misdirect the jury about the evidence it could take into
    account in considering whether the Crown had proved the charges beyond a
    reasonable doubt. This misdirection could happen in two ways. First, the
    appellant contends the language might deflect the jury from considering the
    whole of the evidence on the issue of reasonable doubt, including exculpatory
    evidence from witnesses other than the appellant. Second, the jury might not
    understand it could acquit solely on the basis of the appellants evidence,
    unsupported by other evidence.

[43]

The
    Crown acknowledges the language used by the trial judge in the
W.(D.)
instruction was not ideal. However, when read in the context of the entire
    charge, it did not amount to a misdirection. First, the instructions purpose
    and effect were favourable to the defence by ensuring the jury would consider
    whether any of the defence evidence, not simply that of the appellant, was
    capable of raising a reasonable doubt. Second, the
W.(D.)
instruction
    did not limit the jury to considering only defence evidence on the issue of
    reasonable doubt. When read in its entirety, the charge was replete with instructions
    that: the Crown bore the burden of proving the appellants guilt beyond a
    reasonable doubt; the burden never changed; and, the jury had to consider all
    of the evidence in deciding whether the Crown had proved its case beyond a
    reasonable doubt.


V.

ANALYSIS

The governing legal principles

[44]

Where
    credibility is a central issue in a jury trial, a
W.(D.)
instruction
    explains to the jury the relationship between the assessment of credibility
    and the Crowns ultimate burden to prove the guilt of the accused to the
    criminal standard:
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at
    para 8.

[45]

The
    message of
W.(D.)
is that it must be made crystal clear to the jury
    that the burden
never
shifts from the Crown to prove
every
element
    of the offence beyond a reasonable doubt  The main point is that lack of
    credibility on the part of the accused does not equate to proof of his or her
    guilt beyond a reasonable doubt:
J.H.S.
, at para. 13 (emphasis in
    original, citations removed).

[46]

A
    trial judge must direct the jurys mind to the decisive question of whether
    the accuseds evidence, considered in the context of the evidence as a whole,
    raises a reasonable doubt as to his guilt:
R. v. Dinardo
, 2008 SCC
    24, [2008] 1 S.C.R. 788, at para. 23. The focus of the instruction remains on
    the principle of reasonable doubt:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1
    S.C.R. 5, at para. 6.

[47]

How
    the trial judge conveys that message is not confined to the words of some
    magic incantation:
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at p. 533. As
    observed by this court in
R. v. Moore
, 2017 ONCA 947, 357 C.C.C. (3d)
    500, at para. 30, while there is a legal obligation on a trial judge to properly
    instruct the jury on reasonable doubt, [t]here is no legal obligation on a
    trial judge to recite the language in
W.(D.)
. The
W.(D.)
form of instruction is a helpful map, not the only route:
C.L.Y.
, at
    para. 8. The substance of the message is what matters; not the precise form:
J.H.S.
,
    at para. 13.

[48]

When
    and how to instruct a jury on the relationship between the principle of
    reasonable doubt and the assessment of credibility has evolved somewhat since
    its original expression in 1991 in
W.(D.).


[49]

W.(D
.)
    was a case that involved conflicting evidence from the accused and the
    complainant; no other witness testified. Several years after
W.(D.)
,
    Sopinka J., in his dissent in
R. v. Haroun
, [1997] 1 S.C.R. 593,
    expressed the view that the
W.(D.)
principle should apply to the
    evidence of defence witnesses other than the accused. At para. 15, he stated:

Cory J.s comments in W. (D.) thus apply not only to
    the testimony of the accused, but to the defence evidence as a whole. 
    Accordingly, the trial judge must instruct the jury, first, that if they
    believe the testimony of the accused or the defence witnesses, they must
    acquit.  Second, even if they do not believe the testimony of the
    accused
or the defence witnesses
, if they
    have a reasonable doubt after considering the evidence as a whole, including
    the testimony of the accused and the defence witnesses, they must also acquit.
    [Emphasis in original.]

[50]

In
    the 2005 edition of
Watts Manual of Criminal Jury Instructions
, the
    author observed, at p. 152, that [t]he full sweep of the
W.(D.)
instruction
    is unclear. For example, the author queried whether a
W.(D.)
instruction might be appropriate where the accuseds version of events emerged
    through other witnesses whose credibility the Crown impeached.

[51]

In
    the 2008 decision in
R. v. Van
, 2008 ONCA 383, 92 O.R. (3d) 462, reversed
    on other grounds, 2009 SCC 22, [2009] 1 S.C.R. 716, this court developed the
    point made by Sopinka J. in his dissent in
Haroun
. In
Van
, the
    appellant argued the trial judge had erred by giving a standard
W.(D.)
instruction. He contended the evidence of his ex-wife was crucial to his
    defence, virtually amounting to an alibi: para. 17. In those circumstances,
    the appellant argued, the trial judge should have directed the jury, in the
    second and third stages of the
W.(D.)
instruction, to consider not
    only the evidence of the accused, but any evidence called by the defence
    capable of raising a reasonable doubt. Although this court did not accept that
    the ex-wifes evidence amounted to an alibi, it stated, at para. 19, that;

[T]he trial judge should have instructed the jury that at the
    second and third stages of the
W. (D.)
analysis, the jury was to
    consider, in addition to the evidence of the accused, all of the evidence
    called by the defence to determine whether it was left with a reasonable doubt.

[52]

Then,
    in
R. v. B.D
., 2011 ONCA 51, 266 C.C.C. (3d) 197, this court held, at
    para. 114, that the
W.(D.)
principles apply not only where an accused
    testifies and his or her evidence conflicts with that of Crown witnesses but
    also where an accused does not testify, but 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.

[53]

The
    following year, in
R. v. Cyr
, 2012 ONCA 919, 294 C.C.C. (3d) 421, this
    court summarized the basic principles regarding
W.(D.)
instructions
    stating, in part, at paras. 50-53:

[T]he
W. (D
.
)
instruction, or its
    functional equivalent, is not limited to an accuseds testimony or statement
    admitted at trial, rather it extends to other exculpatory evidence that emerges
    during trial proceedings.

[T]he purpose of the
W. (D.)
instruction or
    its functional equivalent is to ensure that the jury understands how to apply
    the burden of proof to the issue of credibility. The jury must be cautioned
    that a trial is
not
a contest of credibility between
    witnesses, a matter of choosing sides as it were, and that the jurors do not
    have to accept the defence evidence in full to find the accused not guilty.

[A] trial judge is not required to relate his or her reasonable
    doubt instruction to specific items of evidence, whether consistent with the
    defence or the Crowns theory of the case.

[T]he failure to expressly relate a
W. (D.)
or
    equivalent instruction to a particular item of evidence is not fatal, provided
    that the charge, taken as a whole, makes it clear to the jury that they are to
    apply the presumption of innocence and the burden of proof to
all
the
    evidence adduced at trial. [Citations omitted and emphasis in original.]

[54]

That
    was the state of the jurisprudence in this province in 2014 when the trial
    judge charged the jury in the present case.

[55]

A
    year later, in 2015, the second edition of
Watts Manual of Criminal Jury
    Instructions
was published. The author observed that the jurisprudence had
    extended the application of the
W.(D.)
instruction beyond cases where
    the accused testified to those where the exculpatory version of events arises
    because of a statement of [the accused] entered as part of the Crowns case, or
    from evidence elicited from witnesses called by the Crown: at p. 271.

[56]

To
    address such circumstances, the author proposed a model
W.(D.)
instruction
    that expanded the customary language to include a reference to such other
    evidence. For example, the proposed instruction for the first stage of the
W.(D.)
reads: If you believe (
NOA
)s evidence (or,
specify
) that (
s/he
)
    did not commit the offence(s) charged, you must find (
him/her
) not
    guilty. The or, specify field could contain a reference to a statement of
    the accused introduced by Crown counsel or other evidence that constituted a
    defence to the offence charged.

The application of the principles to the present case

[57]

The
    trial judges use of the expanded language in his
W.(D.)
instructions
    was not ideal, but it did not give rise to reversible error.

[58]

As
    the sketch of the evolution of the
W.(D.)
instruction set out above
    discloses, courts have pointed out the need in some circumstances for expanded
W.(D.)
instructions that refer not only to the evidence of the accused but also to the
    defence evidence as a whole. In his dissent in
Haroun
, Sopinka J.
    thought it necessary in the first and second stages of the instruction to refer
    to the evidence of the accused or the defence witnesses. In
Van
, this
    court opined that circumstances might require expanding the second and third
    stages to include not only the evidence of the accused, but any evidence
    called by the defence capable of raising a reasonable doubt: paras. 17 and 19.

[59]

Given
    that state of the law when the trial judge charged the jury in the present
    case, I see no reversible error in the trial judge including, in the first, second
    and third stages of his
W.(D.)
instruction, a reference to the other
    evidence relied on by the defence or other defence evidence. The defence led
    evidence in addition to that of the appellant and, as described above, did so
    to place before the jury evidence that could enhance the credibility of the appellants
    version of the contested events.

[60]

The
    decisions in
Haroun
and
Van
would suggest that an expanded
W.(D.)
instruction that refers to defence evidence other than that given by the
    accused should use alternative language (e.g. If you believe the accuseds
    evidence
or
evidence from the other
    defence witnesses [on a vital issue], you must find the accused not guilty). The
    trial judge used that formulation when instructing on the third stage in the
    First Version his of
W.(D.)
instruction, but otherwise used a
    different formulation, referring to the evidence of the appellant supported
    by other evidence of the defence.

[61]

Did
    the use of the language supported by amount to reversible error?

[62]

It
    did not in
R. v. John
, 2016 ONCA 615, 133 O.R. (3d) 360, leave to
    appeal refused, [2017] S.C.C.A. No. 101, where this court considered a form of
W.(D.)
instruction very similar to that used in the present case. In
John
,
    the trial took place in 2011 and the accused testified. The trial judges
W.(D.)
instruction stated:

If you believe Mr. Johns evidence
supported by other
    defence evidence
that he did not commit the offence charged, you must
    find him not guilty. Even if you do not believe Mr. Johns evidence
supported
    by other defence evidenc
e, if it leaves you with a reasonable doubt about
    his guilt, you must find him not guilty. Even if Mr. Johns evidence supported
    by other evidence does not leave you with a reasonable doubt of his guilt,
    you may find him guilty only if the rest of the evidence that you do accept
    proves [he is] guilty of the offence beyond a reasonable doubt. [Emphasis in
    original.]

[63]

Similar
    versions of an expanded
W.(D.)
instruction, in the context of judicial
    self-instruction, can be found in
R. v. Bacchus
, 2011 ONSC 6572, at
    para. 36, and
R. v. Brown
, 2011 ONSC 7527, at para. 46.

[64]

In
John
, the appellant contended the
W.(D.)
instruction diluted
    a mid-trial corrective instruction by the trial judge that reminded the jury
    there was no obligation on the part of the accused to call any witness and the
    onus of proof rested throughout on the Crown. This court held that given the absence
    of any
viva voce
defence evidence other than the appellants, it would
    have been preferable not to use the phrase supported by other defence
    evidence in the
W.(D
.) instruction. However, when read in the context
    of the entire charge, the expanded language did not suggest any obligation on
    the accused to call evidence: see paras. 52-56.

[65]

The
    appellant acknowledges that in
John
this court did not find error in
    the use of the supported by other defence evidence language in the
W.(D.)
instruction. However, the appellant submits his complaint about the use of expanded
W.(D.)
language differs from that considered in
John
. He
    argues that in the present case the use of the expanded language risked misdirecting
    the jury about the evidence it could take into account when considering whether
    the Crown had proved its case beyond a reasonable doubt.

[66]

I
    am not persuaded by the appellants submission.

[67]

I
    accept the Crowns submission that the language of the
W.(D.)
instruction,
    read literally, did not direct the jury that it must find evidence supporting
    that of the appellant in order to believe him, nor did it prevent the jury from
    considering all of the evidence when determining whether the Crown had proved
    the charges beyond a reasonable doubt.

[68]

However,
    any deficiency in the charge must also be considered in light of the effect of
    the charge as a whole:
Van
, ONCA, at para. 19. Would the overall effect
    of the expanded language misdirect the jury about the evidence it could
    consider in determining whether the Crown had proved guilt beyond a reasonable
    doubt? I conclude it would not. For several reasons.

[69]

First,
    the effect of the expanded language must be measured, in part, against the purpose
    of a
W.(D.)
instruction. Did the expanded language diminish the
    message to the jury that the burden never shifts from the Crown to
    prove every element of the offence beyond a reasonable doubt? In my
    view, it did not.

[70]

The
W.(D.)
instruction given by the trial judge on the second day of his
    charge was bracketed by the message that the burden of proof never shifted from
    the Crown. The trial judge prefaced the Second Version of the
W.(D.)
instruction with the following words: In approaching the evidence and arriving
    at your verdict, you must remain mindful the burden of proof is on the Crown
    and that Mr. Fogah does not have to prove anything. Shortly after giving the Second
    Version, the trial judge stated, in the charges concluding sections: Mr.
    Fogah is presumed to be innocent in this trial. He is not obliged to prove his
    innocence. The Crown has the burden of proving guilt.

[71]

As
    well, the trial judge repeated throughout his charge that the appellant did not
    have to prove that he was innocent of the crime charged because the Crown bore the
    burden to prove the appellants guilt beyond a reasonable doubt.

[72]

When
    the charge is read as a whole  as it must be  the instruction to this jury
    satisfied the ultimate test formulated by Cory J. in
W.(D.)
: whether
    the jury could not have been under any misapprehension as to the correct
    burden and standard of proof to apply: p. 758. In my view, it could not.

[73]

Second,
    neither version of the
W.(D.)
instruction detracted from the trial
    judges overarching instruction that the jury was to consider all of the
    evidence when considering whether the Crown had proved the appellants guilt
    beyond a reasonable doubt. On both occasions when a
W.(D.)
instruction
    was given, the third stage of the instruction told the jury that it could
    convict the appellant of the offences charged only if the rest of the evidence
    that you do accept proves Mr. Fogahs guilt beyond a reasonable doubt. Moreover,
    as the Crown points out in its factum, at least 19 times during his charge the
    trial judge directed the jury to consider all of the evidence in reaching its
    decision. The jury could not have been under any misunderstanding about its
    duty to consider all of the evidence in determining whether it raised a
    reasonable doubt about the appellants guilt.

[74]

Third,
    in the First Version of the
W.(D.)
instruction, given towards the end
    of the first day of the charge, the trial judge used the standard language of
    the first stage of
W.(D.)
: [I]f you believe Mr. Fogahs evidence then
    you must find him not guilty.

[75]

At
    the start of the following day, when dealing with the elements of the offence
    of first degree murder, the trial judge directed the jury to consider the
    appellants denial of being involved in the shooting or of knowing anything
    about the gun or magazine found in the furnace room and toilet tank. The trial
    judge made no suggestion that the jury could not accept the appellants denial
    without other supporting evidence.

[76]

When
    assessed against those other portions of the charge, I am not persuaded the
    trial judges statement in the first stage in the Second Version  if you
    believe Mr. Fogahs evidence, supported by the other defence evidence  would
    have the effect of directing the jury not to accept Mr. Fogahs evidence unless
    supported by other evidence. The trial judge correctly instructed the jury in
    the first stage of the First Version. If there was a deficiency in the charge
    in the first stage of the Second Version, the fact that it was correctly
    related at other points in the charge suggests that the jury was properly
    instructed:
Van
, SCC, at para. 23.

[77]

Finally,
    defence counsel did not object to either version of the
W.(D.)
instruction given by the trial judge, nor did he suggest the trial judge had
    failed to direct the jury to consider all of the evidence when determining
    whether the Crown had proved the charges beyond a reasonable doubt. There had
    been ample time for defence counsel to consider the effect of the expanded
    language in the
W.(D.)
instruction  an overnight break followed the
    delivery of the First Version of the instruction. While the absence of an
    objection is not determinative, it is a strong indication that trial counsel
    did not have the concerns about the effect of the
W.(D.)
instruction now
    voiced on appeal.

[78]

For
    these reasons, I conclude the trial judge did not commit a reversible error
    when instructing the jury on the
W.(D.)
principles. His instruction
    clearly conveyed the key
W.(D.)
message that the burden never shifts
    from the Crown to prove every element of the offence beyond a reasonable doubt.
    Nor did his instruction, when considered in the larger context of the charge as
    a whole, misdirect the jury about the evidence it was to consider. I therefore
    would dismiss the appeal.


VI.

DISPOSITION

[79]

For
    the reasons set out above, I would dismiss the appeal.

Released: KF Jun 25 2018

David Brown J.A.
I agree. K. Feldman J.A.
I agree. Fairburn J.A.


APPENDIX A



W.(D.)
STAGE

STANDARD
          INSTRUCTION

FIRST VERSION

SECOND VERSION



First

If you believe Mr. Fogahs evidence that he did not
          commit the offences charged, then you must ﬁnd him not guilty.

If you believe Mr. Fogahs evidence then you must
          ﬁnd him not guilty.

If you believe Mr. Fogahs evidence, supported by the
          other defence evidence, that he did not shoot Richard Durant and David
          Ruffolo, you must find him not guilty.



Second

Even if you do not believe Mr. Fogahs evidence, if it
          leaves you with a reasonable doubt about his guilt, you must find him not
          guilty.

Even if you do not believe Mr. Fogahs evidence
          supported by the other evidence relied on by the defence, but it leaves you
          with a reasonable doubt about his guilt, you must find him not guilty.

Even if you do not believe his evidence supported by the
          other defence evidence, if it leaves you with a reasonable doubt, you must
          find him not guilty.



Third

Even if Mr. Fogahs evidence does not leave you with a
          reasonable doubt of his guilt, you may convict him only if the rest of the
          evidence that you do accept proves his guilt beyond a reasonable doubt.

Even if Mr. Fogahs testimony or other evidence relied
          on by the defence does not leave you with a reasonable doubt of his guilt,
          you may find him guilty only if the rest of the evidence before you that you
          do accept proves Mr. Fogahs guilt of the offence beyond a reasonable doubt.

Even if his evidence, supported by the other defence
          evidence, does not leave you with a reasonable doubt, you may convict him of
          the offences charged only if the rest of the evidence that you do accept proves
          his guilt beyond a reasonable doubt.







[1]
Final 16 in Watts first edition reads as follows:

[1]  If you believe [
Name of Accused (NOA)
]s
    evidence that (
s/he
) did
not
commit the offence(s) charged, you
    must find (
him/her
)
not
guilty.

[2]  Even if you do
not
believe (
NOA
)s
    evidence, if it leaves you with a reasonable doubt about (
his/her
)
    guilt, (or, about an essential element of the offence charged (or, an
    offence)), you must find (
him/her
) not guilty (of that offence).

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


