Her Majesty the Queen v. Charlton

[Indexed as: R. v. Charlton]

Ontario Reports

Court of Appeal for Ontario

Doherty, Hourigan and Harvison Young JJ.A.

May 16, 2019

146 O.R. (3d) 353 | 2019 ONCA 400

Case Summary

Criminal law — Charge to the jury — Credibility of two witnesses who gave evidence with their earlier statements key to main issue at trial — Prior statements of witnesses being properly admitted for the truth of their contents — Trial judge erring in failing to give W.(D.) instruction in respect of witnesses' exculpatory identification evidence — New trial ordered.

Criminal law — Evidence — Credibility — Accused convicted of attempted murder — Witness A initially claiming that he did not recognize shooter but identifying accused as shooter at trial — Witness C initially identifying accused as shooter but inculpating himself as shooter in his trial testimony — C had been co-accused initially but having pled guilty to aggravated assault and was serving his sentence by the time of accused's trial — Witnesses' pre-trial statements being admitted at trial for truth of their contents.

Criminal law — Evidence — Hearsay — Witness identifying accused as shooter in his preliminary inquiry evidence but testifying at trial that he himself was shooter and that accused was not involved — Trial judge not erring in admitting witness' preliminary inquiry testimony for truth of its contents under principled exception to hearsay rule.

Criminal law — Trial judge — Duty to give reasons — Trial judge's delay of more than two years in releasing written reasons for two mid-trial evidentiary rulings undermining integrity of reasons to extent that they were disregarded by appellate court — Absence of reasons not fatal as trial judge's decisions were supportable on record and basis for decisions was apparent from circumstances.

Facts

The accused was convicted of attempted murder and discharging a firearm with intent to wound. The primary issue at trial was the identity of the shooter. One of the victims, A, initially twice denied recognizing the shooter, testified at the preliminary hearing that he had recognized the accused as the shooter at the time of the offence and then testified at trial that the accused was the shooter. C, the accused's former co-accused, identified the accused as the shooter in his police statement and in his preliminary inquiry testimony, but at trial inculpated himself as the shooter. C testified that he had lied previously about who was the shooter in order to get a better plea bargain. The pre-trial statements of both A and C and C's preliminary inquiry testimony were admitted at trial for the truth of their contents under the principled exception to the hearsay rule. The trial judge gave oral reasons stating the bottom line of two key rulings but didn't deliver written reasons until 26 months and 27 months respectively after the oral ruling. The accused appealed his conviction.

Held

The appeal should be allowed.

The trial judge's delay in providing reasons for two mid-trial evidentiary rulings undermined the integrity of those reasons to the extent that the appellate court disregarded them. However, the resulting absence of reasons was not fatal, as the trial judge's decisions were supportable on the record and the basis for the decisions was apparent from the circumstances.

The trial judge did not err by admitting C's preliminary inquiry testimony for the truth of its contents. The probative value of that evidence was not outweighed by its potentially prejudicial effect.

The trial judge erred in failing to give a W.(D.) instruction with respect to the exculpatory parts of A's and C's identification evidence. 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. 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. A credibility contest may arise on an essential element of the offence based on the conflicting evidence of two non-accused witnesses. Without a W.(D.) instruction in this case, 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 C's exculpatory testimony or A's exculpatory K.G.B. evidence, if either or both left them with a reasonable doubt, they were required to find the accused not guilty on both counts. It could not be said that, had the jury been properly instructed on the use they could make of A's and C's exculpatory evidence, they could not reasonably have found the accused guilty.

Appeal

APPEAL by the accused from the convictions entered on July 11, 2014 by Barnes J. of the Superior Court of Justice, sitting with a jury.

Counsel:

• Marianne Salih, for appellant
• J. Sandy Tse, for respondent

The judgment of the court was delivered by

Judgment

[1] Introduction

HARVISON YOUNG J.A.: — 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] Crown's Case

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

Both Mr. Akindejoye and Mr. Clark's 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.

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 appellant's trial, Mr. Clark had pleaded guilty to aggravated assault and was serving his sentence.

[3] Crown's Theory

The Crown's 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. Akindejoye's evidence at trial was consistent with the Crown's theory. Mr. Clark's preliminary inquiry testimony, which was admitted for its truth pursuant to K.G.B., was also consistent with the Crown's theory.

[4] Defence Position

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

Grounds of Appeal

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

1. Did the trial judge's delay in providing reasons for allowing the Crown's joint s. 9(2) Canada Evidence Act application and B. (K.G.) 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. Clark's 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. Akindejoye's evidence?

4. Did the trial judge err by failing to give a "Soobrian limiting instruction" in respect of Mr. Clark's evidence?

5. Did the trial judge err by failing to properly instruct the jury on the use they could make of Mr. Clark's and Mr. Akindejoye's prior consistent statements?

6. Were the verdicts unreasonable?

For the reasons that follow, the appeal is allowed on the third ground of appeal and a new trial is ordered. In the circumstances of this case, the jury required a W.(D.)-type instruction to understand the use they could make of Mr. Clark's and Mr. Akindejoye's exculpatory evidence.

The Evidence

Shamoiey Akindejoye's Evidence

Mr. Akindejoye's 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.

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.

At the appellant's 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.

However, Mr. Akindejoye's 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.

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

Marquis Clark's Evidence

Mr. Clark's evidence also evolved over time, though in the opposite direction to Mr. Akindejoye's. He initially gave statements consistent with the Crown's theory. But, at the appellant's trial, he claimed that he was the shooter, and that the appellant was not involved in any way.

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 appellant's preliminary inquiry, he gave testimony consistent with his statement to police. Finally, an agreed statement of facts read in on Mr. Clark's guilty plea to aggravated assault on May 9, 2013 was again consistent with this account of the events.

Later, however, on a pre-trial motion shortly before the beginning of the appellant's 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 police's 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 police's theory that the appellant was the shooter, he could secure a lighter sentence for himself.

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 Judge's Delay in Providing Written Reasons for the Mid-Trial Evidentiary Rulings

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. Clark's 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)/ B. (K.G.) 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 B. (K.G.) application, followed on September 29, 2016, nearly 27 months after the initial oral ruling.

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. Clark's preliminary inquiry testimony and pre-trial motion testimony would be admissible for their truth. He dismissed the Crown's B. (K.G.) application in respect of Mr. Clark's video-taped statement and the agreed statement of facts.

The appellant advances two arguments in relation to this ground of appeal. First, he contends that the trial judge's delay in providing his written reasons for ruling on the s. 9(2) and B. (K.G.) application rebutted the presumption of integrity in those reasons. As a result, the trial judge's 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 B. (K.G.) rulings were crucial to the Crown's case, the appellant was entitled to know why the trial judge ruled in the manner that he did.

(a) The Effect of the Delay in the Release of Written Reasons for the Rulings

The respondent concedes that the trial judge's delay in providing his reasons undermined the integrity of those reasons, and that they should not be relied upon in this court. Accordingly, they have not been considered.

(b) The Duty to Give Reasons for an Evidentiary Ruling

This court recently summarized the law regarding a trial judge's duty to provide reasons for an evidentiary ruling. In R. v. Tsekouras, 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.

In this case, the trial judge's 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.

Second, Mr. Clark's preliminary inquiry testimony and pre-trial motion testimony were properly admitted pursuant to the principled exception to the rule against hearsay. Contrary to the appellant's submissions, this court is well-placed to determine the correctness of the trial judge's B. (K.G.) ruling. As explained when addressing the admissibility of Mr. Clark's 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. Clark's hearsay evidence was admissible due to its procedural reliability, the trial judge was not obliged to evaluate Mr. Clark's credibility. That task was properly left to the jury. Accordingly, this court is able to stand in the trial judge's shoes to determine whether Mr. Clark's evidence should have been admitted.

In light of the 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. Clark's Preliminary Inquiry Testimony for Its Truth

The appellant submits that Mr. Clark's 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. Clark's preliminary inquiry testimony (i.e., procedural reliability). He argues, however, that Mr. Clark's 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.

This ground of appeal is not given effect. To explain why, it is helpful to briefly review the law on the admissibility of hearsay evidence.

Hearsay is presumptively inadmissible because it can be difficult for the trier of fact to assess its truth and accuracy. For this reason, hearsay can inhibit rather than enhance the truth-seeking function of the criminal trial. There may be concerns about the declarant's 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.

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 that "some hearsay evidence 'presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact-finding'".

In assessing a statement's threshold reliability, the trial judge must determine whether the statement is sufficiently reliable to overcome the hearsay dangers it presents. Threshold reliability may be established on the basis of the statement's substantive reliability, procedural reliability, or a combination of both substantive and procedural reliability. Procedural reliability asks whether there are adequate substitutes for testing the statement's truth and accuracy. Substantive reliability asks whether the circumstances surrounding the making of the statement render it inherently trustworthy.

The trial judge retains her discretion to exclude the evidence where its probative value is outweighed by its potentially prejudicial effect. 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).

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. Clark's preliminary inquiry testimony. Indeed, preliminary inquiry testimony typically satisfies the requirement of threshold reliability due to its procedural reliability. Mr. Clark testified under oath and was subjected to contemporaneous cross-examination. Having established the procedural reliability of Mr. Clark's statement, the Crown was not required to go on to prove its substantive reliability.

The appellant contends, however, that Mr. Clark's 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, which were subsequently endorsed by the Supreme Court of Canada in R. v. Blackman. 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.

The appellant's 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").

Here, not only was Mr. Clark present at the appellant's 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 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. Clark's credibility when making it.

Turning to the trial judge's exercise of his residual discretion, the probative value of Mr. Clark's preliminary inquiry testimony was not outweighed by its potentially prejudicial effect. The trial judge's B. (K.G.) ruling empowered the jury to consider Mr. Clark's 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. The admission of the statements for their truth allowed the jury to decide how much weight to afford each of Mr. Clark's sworn versions of events in light of his explanation for the inconsistencies. As the Crown states, 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.

On the other side of the ledger, the potentially prejudicial effect of admitting Mr. Clark's 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 judge's jury instruction. This ground of appeal is therefore rejected.

(3) The Failure to Provide a W.(D.) Instruction

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. Akindejoye's 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. Clark's 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 appellant's state of mind.

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. Akindejoye's versions of events, followed by Mr. Clark's versions of events. After outlining the evolution of each witness's 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.

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 appellant's] 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.

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.

Defence counsel at trial did not ask for a W.(D.) instruction as applied to either witness's identification evidence. Counsel did, however, request a W.(D.) instruction as it applied to the exculpatory passage of Mr. Clark's preliminary inquiry testimony, which spoke to the appellant's 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. Clark's preliminary inquiry testimony.

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 witness's 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. Clark's trial testimony, or Mr. Akindejoye's B. (K.G.) 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. Clark's preliminary inquiry testimony about the appellant's 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.

The trial judge was required to give a W.(D.)-type instruction in respect of Mr. Clark's and Mr. Akindejoye's 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. Clark's trial testimony and pre-trial motion testimony -- which was entirely exculpatory -- and Mr. Akindejoye's exculpatory B. (K.G.) evidence.

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. 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.

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 R. v. 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 Crown's 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 accused's guilt.

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. Clark's trial testimony and pre-trial motion testimony, as well as Mr. Akindejoye's B. (K.G.) 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. Clark's preliminary inquiry testimony and Mr. Akindejoye's trial testimony were generally inculpatory vis-à-vis the appellant. In light of the trial judge's B. (K.G.) rulings, the jury was entitled to accept any of this evidence for its truth.

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 appellant's guilt. Given the manner in which the case against the appellant unfolded, there was, in this court's 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. Clark's exculpatory and inculpatory statements, and Mr. Akindejoye's exculpatory and inculpatory statements, or some permutation thereof. This is precisely the danger that W.(D.) is meant to address.

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. Clark's exculpatory testimony or Mr. Akindejoye's exculpatory B. (K.G.) evidence, if either or both left them with a reasonable doubt, they were required to find the appellant not guilty on both counts.

This case is distinguishable from R. v. Dayes, 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 appellant's 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. In other words, there was no risk that the jury would have seen the trial as a credibility contest.

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 witness's evidence, but that they were not tasked with deciding which version of events was true. The charge, read as a whole, did not adequately convey this message to the jury.

The jury should have been told that if they accepted Mr. Clark's trial testimony or pre-trial motion testimony, or Mr. Akindejoye's exculpatory B. (K.G.) 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. Clark's or Mr. Akindejoye's 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. Clark's Evidence

The appellant submits that a "Soobrian limiting instruction" was necessary in this case because there was a danger that the jury would infer the appellant's guilt from Mr. Clark's lack of credibility.

The Crown's 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.

The appellant submits that the jury should have been told that they could not draw an adverse inference about the appellant's guilt from a mere rejection of Mr. Clark's testimony as not credible.

Clearly, absent evidence of collusion, it was not open to the jury to infer the appellant's guilt from Mr. Clark's 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 the 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. Akindejoye's Prior Consistent Statements

The appellant contends that the trial judge misled the jury on the use they could make of Mr. Akindejoye's 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. Akindejoye's reliability or corroborate his trial testimony, the trial judge in fact suggested that the jury could use the prior consistent statements in assessing Mr. Akindejoye's credibility.

In light of the decision to allow the appeal on the W.(D.) ground, it is not necessary to address this ground of appeal, and it is declined.

(6) Were the Verdicts Unreasonable?

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.

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

In evaluating the reasonableness of the jury's verdict in a case that turns on findings of credibility, the reviewing court must ask whether the jury's verdict is supportable on any reasonable view of the evidence. 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.

It cannot be said that, had the jury been properly instructed on the use they could make of Mr. Akindejoye's and Mr. Clark's exculpatory evidence, they could not reasonably have found the appellant guilty. In this court's 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

The appeal is allowed, both convictions are set aside and a new trial is ordered.

Appeal allowed.

Notes

1 The exception is the portion of Mr. Clark's 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.

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