WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 ..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 2020-04-16 Docket: C66746

Hoy A.C.J.O., Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

C.L. Appellant

Counsel: Matthew B. Day, for the appellant Lisa Joyal, for the respondent

Heard: March 9, 2020

On appeal from the conviction entered on October 19, 2018 by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

Overview

[1] In the fall of 2013, the complainant visited C.L. at his home. She alleges that he sexually assaulted her. He says that they engaged in consensual sex.

[2] The complainant ultimately gave a statement to the police, and C.L. was eventually charged with sexual assault, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. He was found guilty after trial by a jury. C.L. now appeals that conviction. He raises several grounds of appeal.

[3] One of C.L.’s grounds of appeal relates to the trial judge’s decision to modify the reasonable doubt portion of her charge to the jury relating to R. v. W.(D.), [1991] 1 S.C.R. 742. This was done by the trial judge in an apparent effort to incorporate an instruction that would reflect this court’s recognition in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, that, despite the absence of obvious flaws in the evidence of the accused, the law permits conviction based on acceptance beyond a reasonable doubt in the truth of conflicting credible evidence.

[4] For the reasons that follow, I would find, as C.L. contends, that the trial judge erred in making this modification. On this basis I would allow the appeal, quash the conviction, and order a retrial.

The Material Facts

[5] C.L. met the complainant through her brother, who was C.L.’s friend. C.L. also periodically supplied marijuana to both of them. He found the complainant to be beautiful and told her so, but they were not in a relationship.

[6] In the fall of 2013, when C.L. was 20 years of age, the 17-year-old complainant arranged to meet C.L. to obtain marijuana. She took the bus to the bus stop near his home and met C.L. there. They proceeded to the home that he shared with roommates and went to his bedroom to complete the marijuana transaction.

[7] At some point C.L. and the complainant began to play chess, at his invitation. The complainant claims that after some time passed, C.L. made a sexual invitation to her that she described as “disgusting”. She had been sitting on a shelf near the closet but stood up. He became “really, really angry”, pushed her down on the bed and pushed himself on top of her. She said “no” and tried unsuccessfully to push him away. Despite her telling him to stop, he penetrated her with his penis, and he licked her vagina against her will. After the assault he tried to walk her to the bus, ultimately calling a taxi for her and paying the fare.

[8] C.L.’s account is diametrically opposed. He admits he was romantically interested in the complainant, and he believed that she was interested in him. He claims that after playing chess for some time he moved to the bed. He told the complainant that she was special and asked her to lie down with him. When he laid down, she joined him. He asked her if he could kiss her and she agreed. They kissed for some time before he asked if he could perform oral sex on her. She agreed and “indicated pleasure” while it was happening. She declined his invitation that she performs oral sex on him, but agreed to intercourse after instructing him not to ejaculate inside of her. They had sex and he wore a condom. Again, she signalled her pleasure. At no time did she tell him to stop but was “100 percent” a “willing participant” in all that had happened. He claims he walked her to the bus stop, but after discovering there were no more buses he secured and paid for a taxi to take her home. He says that he had not been drinking and had not taken drugs that evening.

[9] The complainant and C.L. agree that they exchanged texts in the following day or days but disagree on the messages sent. The complainant describes C.L. attempting to meet to apologize to her for the sexual assault. He contends that he wrote the complainant to let her know that he was not interested in a relationship and that he wanted to apologize if she felt misled about that. Neither party preserved the messages.

[10] C.L. testified at his trial that in the following month he received a threatening call from a person he believed to be the complainant’s boyfriend. C.L. says that, in response, he taunted the boyfriend by bragging about having had sex with the complainant. He said he then received a message from the complainant claiming she had not consented.

[11] Subsequently, during an argument with her mother that included insults directed at her friends, the complainant told her mother that C.L. had sexually assaulted her. At some point her brother was also told. The brother believes that this conversation occurred roughly two or three months after the alleged event.

[12] During a November 6, 2013, Facebook exchange with C.L. about an unrelated topic, the complainant’s brother evidently became annoyed with something C.L. messaged. The brother responded, “why the fuck do you bring this up”, “you try and get with my sister in the worst way possible”, “now this”, “don’t even bother with me”. C.L. replied, “dude she consented and I was drunk it takes two to tango bro”. C.L. testified that he made up the part about being drunk to downplay his responsibility for sleeping with his friend’s sister, but the rest was true.

[13] The complainant’s allegation did not come to the attention of the police until January 19, 2014, when the complainant’s mother called the police after another argument with the complainant. The complainant’s mother reported the allegation. This led to the complainant submitting a police statement, after several drafts.

[14] Nothing happened with the allegation until January 12, 2016, when the complainant was arrested for stealing money from a seasonal gift-wrapping charity where she had volunteered. Before she was interviewed on videotape about the theft [“the theft investigation interview”] she mentioned the sexual assault allegation to Det. Kit, who was investigating the theft. Det. Kit brought up the sexual assault allegation at the end of the theft investigation interview after telling the complainant that the theft charge would be diverted. The videotape of the theft investigation interview shows the complainant crying near the end of that interview.

[15] As the result of this further complaint, arrangements were made for the complainant to give a videotaped statement in accordance with s. 715.1 of the Criminal Code. This statement was provided on February 4, 2016. It captured the complainant’s account, outlined above, and C.L. was charged with sexual assault.

[16] C.L. was tried by jury in October of 2018. The complainant testified, adopting the s. 715.1 videotaped statement as part of her evidence, and she was cross-examined. She was confronted with inconsistencies between her trial testimony and earlier versions of events she had given, including about: whether she had been to C.L.’s apartment before; whether C.L. said that the marijuana transaction would take place at the bus stop; whether the marijuana transaction occurred before or after the alleged sexual assault; how she ended up on the bed; and whether C.L. had invited her back after the alleged sexual assault. Defence counsel took the position that in each case, the change in her evidence at trial made C.L. look as though he was an unwanted suitor, whereas the earlier versions were consistent with C.L.’s testimony.

[17] During her examination-in-chief the complainant had been asked about her theft from the charity. She testified that when interviewed by the police about the theft she wanted to be “straight up and honest” and therefore admitted the theft, which she said was for bus fare. Despite objections, the trial judge ultimately allowed the videotape of the theft investigation interview to be played in full. Defence counsel took the position that the portion of the videotape relating to the theft allegation showed that, contrary to her testimony, instead of accepting responsibility for the theft, the complainant denied it until she was cornered. He also took the position that the complainant’s statement during the preliminary inquiry that she told Det. Kit before the interview that the theft was a cry for help made no sense given that she could be seen denying the theft immediately after that purported conversation. The Crown took the position that the balance of the videotape, which he was permitted to show during the complainant’s re-examination, supported the sexual assault allegation by depicting the complainant’s distraught demeanour when the topic of the alleged sexual assault was raised.

[18] Det. Lorentz testified about records extracted from the complainant’s cellphone. No deleted text messages between C.L. and the complainant were retrieved. The extraction report confirmed four unanswered phone calls from C.L.’s phone to the complainant’s phone, date-stamped March 5, 2014, months after the alleged assault. There was no way to independently confirm the accuracy of the date-stamps. Only C.L. was asked about these phone calls. He said he had a drug customer with the same first name as the complainant and both women were listed in his cellphone by that name. He was trying to contact his customer, not the complainant. The Crown’s position was that the after-the-fact failure of the complainant to answer these phone calls was consistent with her testimony that she did not want anything to do with C.L. because of the sexual assault.

[19] The complainant’s brother testified about the Facebook exchange. The Crown then closed its case.

[20] C.L. testified in his defence, giving the exculpatory version described above.

[21] During the charge to the jury, at the invitation of the Crown, the trial judge modified the standard W.(D.) jury direction, as described below.

[22] The jury returned with a verdict of guilty after close to two days of deliberations.

Issues

[23] C.L. raises several grounds of appeal relating to the trial judge’s decision to permit the Crown to play, during the complainant’s re-examination, the portion of the videotape of the theft investigation interview showing the complainant reacting to Det. Kit’s mention of the sexual assault allegation. C.L. also contends that rhetorical questions posed by the Crown in its closing address rendered the trial unfair, and he maintains that the verdict was unreasonable.

[24] With the exception of the unreasonable verdict challenge, it is not necessary to consider these grounds of appeal. I would allow the appeal on the remaining ground of appeal, that the trial judge erred by incorporating a “J.J.R.D. instruction” into her jury direction relating to the application of the reasonable doubt standard to the evaluation of credibility. Since the appropriate remedy for this ground of appeal is a retrial, I must also address the unreasonable verdict challenge, for if this ground of appeal were to succeed, the appropriate remedy would be an acquittal. As I will explain, I would not find the conviction to be unreasonable. I would therefore order a retrial.

Analysis

A. The J.J.R.D. Instruction

[25] The W.(D.) jury direction is intended to explain “what reasonable doubt means in the context of evaluating conflicting testimonial accounts”: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. That direction, set out in W.(D.), at p. 758, provides:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

[26] This formula is not a magic incantation that must be slavishly parroted in a jury direction: R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 533; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7. However, the W.(D.) direction provided to a jury must be sufficiently clear to ensure that the jury is not under any misapprehension as to the correct standard of proof and how it applies to credibility issues: W.(D.), at pp. 757-58.

[27] It is instructive to note that the W.(D.) formula seeks to ensure that the correct standard of proof is applied to credibility issues by describing the three general states of belief a trier of fact may arrive at after evaluating credibility and reliability in a case where there is evidence inconsistent with guilt, and directing the trier of fact to the outcomes that follow from each of those three general states of belief. In R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), a leading decision prior to R. v. W.(D.), Morden J.A. described the three alternative states of belief relating to the exculpatory evidence as “total acceptance, total rejection, or something in between”: at p. 557. The first W.(D.) alternative describes total belief; the last, total rejection; and the middle alternative being the “something in between” where the trier of fact cannot decide whether to believe or disbelieve the exculpatory evidence.

[28] The trial judge modified the W.(D.) jury instruction that she gave by offering five propositions, which I will number 1-5 for convenience:

1. If you believe [C.L.]’s evidence that he did not commit the offence charged, you must find him not guilty.
2. Even if you do not believe [C.L.]’s evidence that he did not commit the offence, if it leaves you with a reasonable doubt about his guilt, or, about an essential element of the offence charged, you must find him not guilty.
3. When you assess the evidence of [C.L.], you should not view it in a vacuum. You may conclude that you reject [C.L.]’s evidence even though you consider that on its own it does not contain any obvious flaws. You may reject [C.L.]’s evidence based on a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting credible evidence.
4. If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must find [C.L.] not guilty because Crown counsel would have failed to prove [C.L.]’s guilt beyond a reasonable doubt.
5. Even if [C.L.]’s evidence does not leave you with a reasonable doubt of his guilt, or, about an essential element of the offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

[29] C.L. does not take issue with propositions 1, 2, 4, or 5. He argues, however, that the trial judge erred in adding proposition 3, what he refers to as the “J.J.R.D. instruction”. Although J.J.R.D. was not a jury instruction case, this reference is apt because it is evident that proposition 3 was adapted from the following passage from this court’s decision in J.J.R.D. at para. 53, where Doherty J.A. said:

The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified the way the accused testified or the substance of the accused’s evidence. [Emphasis added.]

[30] I agree that the trial judge committed an error in proposition 3 of her W.(D.) direction. I accept the Crown submission that J.J.R.D. endorses the proposition that a proper conviction can be arrived at even where exculpatory testimony has no obvious flaws if the Crown mounts a strong prosecution: R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 40. In such a case a trier of fact may appropriately find that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt. There may be exceptional cases where it is appropriate for a trial judge to explain this avenue of conviction to the jury. We need not decide whether this is so since the direction the trial judge provided in this case was in error, for the following reasons.

[31] First, and most plainly, the trial judge misquoted the relevant extract from J.J.R.D. in a way that confuses the standard of proof beyond a reasonable doubt. Instead of instructing the jury that they could reject C.L.’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence” she said they could do so “based on a considered and reasonable acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (emphasis added). The first use of the word “reasonable” in that direction has meaning only if it is understood to be modifying the kind of reasonable doubt that will suffice for a conviction. This direction could well have been understood by a juror to be authorizing C.L.’s conviction if acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a reasonable conclusion. This is not consistent with the law. The burden of proof in a criminal jury trial requires that each juror must be convinced, subjectively, of the guilt of the accused beyond a reasonable doubt. Based on this direction a hold-out juror could mistakenly choose to convict because the decision of other jurors to do so, while not agreed with, is reasonable. This was a misdirection on a crucial matter.

[32] Second, and more broadly, the “considered and reasoned acceptance” language of J.J.R.D. has no place in a W.(D.) jury direction. As the totality of the passage quoted above reveals, J.J.R.D. was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W.(D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see J.J.R.D., at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance … of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’s evidence” (emphasis added). The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis: see R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 84, leave to appeal to S.C.C. requested, [2019] S.C.C.A. No. 368; R. v. R.D., 2016 ONCA 574, 342 C.C.C. (3d) 236, at paras. 18-19. It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence.

[33] Put otherwise, the prerequisite terms, “considered and reasoned”, were chosen because J.J.R.D. was about the sufficiency of reasons. These terms are meaningful in a sufficiency of reasons case. They direct appellate courts to ask what the trial judge’s reasons for decision reveal about the basis for conviction, and whether those reasons provide a pathway to conviction by showing that a decision to convict without identifying problems with the exculpatory evidence was based on a considered and reasoned acceptance of the truth of conflicting credible evidence beyond a reasonable doubt. In contrast, those same terms, “considered and reasoned”, offer no guidance to a trier of fact about when it is appropriate to convict in the face of exculpatory evidence that has no obvious flaws. Since every decision a trier of fact is to reach must be considered and reasoned, telling the trier of fact that it may reject exculpatory evidence beyond a reasonable doubt based on considered and reasoned acceptance of conflicting evidence adds nothing. Indeed, doing so in a jury trial runs the risk of planting the suggestion that this determination must be considered and reasoned, whereas the other W.(D.) conclusions, less so.

[34] Simply put, the “considered and reasoned” language in J.J.R.D. has nothing to do with a W.(D.) direction, adds nothing of use to a W.(D.) direction, and may even be misleading.

[35] Third, I agree with C.L. that inserting paragraph 3 in the W.(D.) direction as the trial judge did in this case resulted in an uneven charge. As I have stressed, the W.(D.) formula functions by instructing jurors on the implications of the alternative possible conclusions that can arise from credibility evaluation where there is exculpatory evidence and conflicting inculpatory evidence. Proposition 3 does not do so. It does not describe a conclusion and its consequences, but rather purports to describe a mode of reasoning. Indeed, it describes a mode of reasoning that will result in conviction. Expressly inserting only one mode of reasoning into the W.(D.) charge can only serve to emphasize its importance over other competing modes of reasoning, which is not appropriate, particularly not when the only mode of reasoning inserted is inculpatory.

[36] Even the place where proposition 3 was inserted, immediately after propositions 1 and 2, adds to the unevenness of the charge. Proposition 1 and 2 describe the two circumstances in which C.L.’s testimony could lead to an acquittal. To then immediately describe a way in which C.L.’s testimony can be overcome even if it is without obvious problems could well diminish the importance of propositions 1 and 2 in the eyes of a juror.

[37] Fourth, I accept C.L.’s concern that featuring a mode of reasoning that focuses on the comparative value of the conflicting evidence in a “he said/she said” case increases the risk that jurors might engage in credibility contest reasoning. This is perhaps the key mischief that the W.(D.) decision intended to ameliorate, the very risk that materialised in that case and that featured in the reasoning in Challice, at pp. 554-57. I appreciate that jurors are to consider the whole of the charge, and jurors faithful to propositions 1, 2, 4, and 5 would not simply decide which version of events to prefer. For that reason, I would not find the charge to be in error on this basis alone. Still, the increased risk of confusion that could arise by featuring a contrast between the inculpatory and exculpatory evidence in a “he said/she said” case underscores further why a such an instruction should not be inserted into a W.(D.) charge.

[38] Finally, although there may be exceptional cases where it is appropriate to alert jurors that they may reject defence evidence outright and find guilt beyond a reasonable doubt based on the strength of the Crown case despite finding no identifiable material flaws in that defence evidence, this is not one of them. Given the problems with the complainant’s evidence and the absence of supporting evidence, there is no air of reality to the proposition that a jury could fairly convict C.L., even if unable to identify any material flaws in his evidence. A jury direction should relate to the needs of the specific case. This case did not call for such a direction.

B. The Reasonableness of the Verdict

[39] C.L. argues that the complainant’s testimony was so problematic that a finding of guilt, in the face of C.L.’s testimony, was unreasonable. I am not persuaded that the verdict was unreasonable. The unreasonable verdict standard is high. In R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 61, this court recently re-iterated the relevant standard in credibility cases:

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: R. v. W.H. 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 2. The reviewing court must remain mindful that the trier of fact is best-placed to assess the significance of any inconsistencies in the witnesses’ testimony, and their motive to lie: R. v. François, [1994] 2 S.C.R. 827, at pp. 835-837; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 4, 63.

[40] I have already expressed my view that this would not have been a proper case for an outright rejection of C.L.’s evidence based solely on the complainant’s testimony, had the jury found no material flaws in C.L.’s testimony. There are obvious risks in rejecting exculpatory evidence where that evidence is immune from cogent criticism. One would think that the credibility of inculpatory evidence must be particularly impressive before that evidence can be credited beyond a reasonable doubt in the face of otherwise unassailable exculpatory evidence. As I have said, the complainant’s evidence was not compelling enough to accomplish this, had the jury taken the view that it could find no material flaws in C.L.’s testimony.

[41] However, C.L.’s testimony was not without problems of its own. For example, the jury could have taken the view that C.L.’s testimony that he suddenly changed his mind about wanting to have a relationship with the complainant was implausible, or the jury may have been troubled by his admitted lie about being drunk when he had sex with the complainant, or it may have rejected C.L.’s claim that the complainant’s brother reluctantly agreed that C.L. could date the complainant, which the brother denied in his evidence. For these and other reasons the jury could reasonably have taken the view that C.L.’s testimony itself was flawed and should therefore be rejected as incapable of raising a reasonable doubt as to his guilt. It could also have concluded in the absence of credible exculpatory evidence that the complainant’s evidence should be believed beyond a reasonable doubt, despite its problems. Since a reasonable conviction could have been fashioned in this way, this ground of appeal must be dismissed.

[42] Because the verdict was not unreasonable on at least one reasonable view of the evidence the unreasonable verdict appeal must be denied.

Conclusion

[43] I would therefore find that the trial judge erred in proposition 3 of her W.(D.) direction to the jury, set aside C.L.’s conviction, and order a new trial.

[44] As a result of the COVID-19 emergency, the panel relieved C.L. from the term of his bail that requires him to surrender into custody prior to this decision being released.

Released: April 16, 2020 David M. Paciocco J.A. I agree. Alexandra Hoy A.C.J.O. I agree. I.V.B. Nordheimer J.A.