Court File and Parties
DATE: 20010116
DOCKET: C27456/C27460
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MOLDAVER J.J.A and SIMMONS J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and -
CHRISTOPHER PHILLIPS and BYRON COREY BAKER Appellant
COUNSEL: Jonathan Dawe for the appellant Christopher Phillips Richard Litkowski for the appellant Byron Corey Baker Michal Fairburn for the respondent
Heard: September 20 and 21, 2000
On appeal from conviction for first degree murder by The Honourable Mr. Justice D. McCombs, with a jury, dated October 12, 1996.
Reasons for Decision
MOLDAVER J.A.:
[1] Byron Baker and Christopher Phillips appeal from their convictions for first degree murder. Of the various issues raised, one relates solely to Baker while the others are common to both appellants. I would define the issues as follows:
(1) Did the jury arrive at an unreasonable verdict in relation to Baker?
(2) Did the trial judge err (a) in failing to correct remarks made by Crown counsel that improperly impugned Ms. Rubeena Alam's credibility, and (b) in failing to direct the jury that the rejection of Ms. Alam's evidence could not be used as positive evidence of the appellants' guilt?
(3) Did the trial judge misdirect the jury on the test to be applied in determining whether Ms. Alam's evidence raised a reasonable doubt about the guilt of the appellants?
(4) Did the trial judge misdirect the jury on the definition of reasonable doubt?
[2] In order to address these issues, I do not propose to detail the evidence adduced at trial, except where necessary to flesh out a particular issue. What follows is a brief overview of the case.
Overview
[3] On Friday, June 17, 1994, shortly after 9:00 p.m., Stokely Wilson was shot and killed by two men while seated in his car in a parking lot at 51 Morecambe Gate in Scarborough, Ontario. According to the eyewitnesses called by the Crown, the two men responsible for the killing approached the driver's window of the Wilson vehicle in succession and each fired numerous shots at Wilson. The assailants then fled the scene in a car later identified as belonging to the appellant Phillips' mother.
[4] At trial, the defence conceded that the elements of first degree murder had been made out. Accordingly, the sole issue for the jury was whether the Crown had met its onus of establishing that the appellants were the shooters.
[5] The case for the Crown against Phillips was admittedly stronger than that against Baker. In addition to the evidence of three eyewitnesses who identified Phillips as the second of the two shooters, the Crown established that Phillips had a motive to kill Wilson and that the getaway car used by the assailants belonged to Phillips' mother.
[6] That said, the case against Phillips was by no means open and shut. Of the three eyewitnesses who purported to identify him as the second shooter, only one, Hasely McLean, provided compelling identification evidence upon which the jury could safely act assuming they believed his testimony. By contrast, the identification evidence given by the other two witnesses, Gladstone Richards and Clifton Fisher, was frail and incapable, on its own, of supporting a conviction. In addition, the credibility of each of these witnesses was hotly contested. All were described by the trial judge as persons of unsavoury character and cross-examination revealed numerous inconsistencies and contradictions in their testimony.
[7] Apart from these difficulties, the Crown had to contend with the evidence of a fourth eyewitness, Rubeena Alam. Called as a Crown witness, Ms. Alam, then Hasely McLean's girlfriend, testified that although she could not identify the first shooter, she could identify the second shooter, albeit not by name, and he was not the appellant Phillips. Unlike the other three eyewitnesses, Ms. Alam was a person of good character and her evidence went in essentially unchallenged. It is apparent from the record however, that while testifying, Ms. Alam appeared nervous and upset and she presented as an extremely reluctant witness. Indeed, at one point in her testimony, she remarked "I just want to get this over with".
[8] With respect to Baker, the case for the Crown rested primarily on Hasely McLean's positive identification of him as the first shooter. As with Phillips, McLean testified that Baker was known to him prior to the night in question, such that the jury could safely rely on his identification provided they believed his evidence. The real question was whether his evidence was credible. In this respect, the Crown relied to some extent on the evidence of Messrs. Fisher and Richards, who also identified Baker as the first shooter and to a much large extent on various pieces of circumstantial evidence which tended to support the veracity of McLean's testimony, including the important fact that Baker was known to him prior to the night of the shooting.
Position of the Parties at Trial
[9] The appellants did not give evidence at trial and no evidence was called on their behalf. Counsel for Phillips contended that the identification evidence relied upon by the Crown was both incredible and unreliable and that it would be unsafe to register a conviction against his client based largely on the testimony of three unsavoury eye-witnesses. In addition, he emphasized the evidence of Rubeena Alam and told the jury that even if they did not believe her testimony, Phillips was entitled to be acquitted if her evidence raised a reasonable doubt about his guilt.
[10] Counsel for Baker also focused on the frailties associated with the evidence of the three eyewitnesses. He noted that the case for the Crown depended primarily on the evidence of Hasely McLean, an unsavoury witness whose evidence was riddled with inconsistencies and contradictions. He also relied, albeit to a lesser extent, on the evidence of Rubeena Alam, submitting that if her evidence left the jury in a state of reasonable doubt about the identity of the second shooter, this would also cast doubt on McLean's purported identification of Baker as the first shooter. In sum, he submitted that the case against his client was weak and that it would be dangerous for the jury to convict on the evidence presented by the Crown.
[11] Crown counsel, on the other hand, maintained that the jury could safely act on the evidence of Hasely McLean to convict both appellants. He invited the jury to consider McLean's testimony in the context of the whole of the evidence and in particular, the independent evidence which tended to confirm both the veracity and reliability of his testimony. As for the evidence of Rubeena Alam, Crown counsel portrayed her as a fearful, reluctant witness who was not telling the whole truth and he submitted that the jury should reject her evidence where it differed from that of McLean as to the identity of the perpetrators.
Analysis
Issue one: Did the Jury arrive at an unreasonable verdict in relation to Baker?
[12] Despite Mr. Litkowski's able submissions, I have not been persuaded that the verdict against Baker was unreasonable. In reaching this conclusion, I have considered the whole of the record, through the lens of judicial experience, with a view to determining whether twelve properly instructed jurors, acting judicially, could reasonably have arrived at the same result as the jury in this case. (See R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at p.24 (S.C.C.)). I base my affirmative response to that question on a number of factors.
[13] First, I have considered the frailties associated with the evidence of the witnesses McLean, Fisher and Richards in the overall context of the trial, including the dynamics at work that could reasonably account for the nature and quality of their evidence. In this respect, I agree with Crown counsel that apart from speculation, there was no tenable evidence to explain why these witnesses would falsely implicate Baker in a murder which he did not commit. To the contrary, all of the evidence pointed to the fact that from the outset, these three men were concerned about becoming involved as witnesses and they were anything but willing participants in the process. The incremental manner in which their evidence developed and their demeanor on the witness stand were matters which the jury was uniquely capable of assessing.
[14] As for the inconsistencies in their testimony and the testimony of other Crown witnesses, once again, the jury was well positioned to assess their significance, taking into account the aura of fear in the courtroom, the inability on the part of some of the witnesses to read and refresh their memory, the lack of sophistication of some of the witness and the language barrier confronting others.
[15] The second factor that I have considered is the trial judge's instructions to the jury. Given the unsavoury character of the three eyewitnesses who implicated the appellants, the inconsistencies and contradictions in their testimony and the frailties associated with eyewitness identification, the trial judge was obliged to warn the jury in the clearest of terms about the inherent dangers in their evidence and the need to proceed with extreme caution before acting on it to convict Baker. Having reviewed the charge, I am satisfied that the trial judge's instructions in this regard were exemplary. In fairness, Mr. Litkowski does not suggest otherwise. In particular, he accepts that in light of the trial judge's careful instructions, the jury would have fully appreciated the dangers inherent in the testimony of Hasely McLean and the need to look for confirmatory evidence before acting on it to convict Baker. That brings me to the third factor.
[16] The third factor involves an assessment of the evidence capable of supporting the credibility and reliability of McLean's identification evidence, that is, evidence which the jury could look to as a means of restoring their faith in him as a witness and strengthening their belief that he was telling the truth. Based on the record, I am satisfied that there was a respectable body of cogent evidence available to the jury in this regard.
[17] Commencing with the reliability of McLean's identification of Baker as the first shooter, McLean testified that he had known Baker for some time prior to the night in question. He also testified that he had known Phillips for a considerable period of time, both as a neighbour and through business dealings, and that he had met Baker through his association with Phillips.
[18] In assessing whether McLean did in fact know Baker prior to the night in question, it was open to the jury to consider two pieces of evidence that were capable of confirming his testimony. First, there was evidence that Baker and Phillips were close friends and that they frequently met one another at Phillips' home, located down the street from McLean's residence. Second, and more importantly, McLean produced a piece of paper which he claimed he had received from Baker in the course of certain illicit dealings with both Baker and Phillips. Written on the paper was Baker's pager number and his nickname "Junior".
[19] In my view, these two pieces of circumstantial evidence lent considerable support to McLean's testimony that Baker was known to him prior to the night of the shooting, such that the jury could safely act on his identification of Baker provided his evidence was believed.
[20] Turning to the question of McLean's credibility, again, there was a respectable body of evidence the jury could look to as a means of restoring their faith in him as a witness and strengthening their belief that he was telling the truth. Crown counsel has identified nine such items of evidence in her factum and I see no need to replicate them. Suffice it to say that while some are less cogent than others, viewed cumulatively, they tend to support the veracity of McLean's testimony.
[21] By way of example only, I think it significant that McLean's identification of Phillips as the second shooter was amply supported by evidence independent of McLean. This was something the jury could take into account as a means of bolstering McLean's credibility and increasing the probability that he was telling the truth about Baker. (See R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 at pp.14-15 (S.C.C.)). In addition, without going into detail, I think that the following items of evidence were significant and capable of lending support to McLean's veracity:
• the piece of paper with Baker's pager number and nickname;
• Baker's close association with Phillips;
• the sighting of a small child in the getaway car who fit the description of a small child identified by McLean at the murder scene;
• evidence confirming McLean's testimony that Baker had shaved lines in his eyebrows on the night of the shooting;
• evidence confirming McLean's testimony that Baker was wearing a big black wool hat at the time of the shooting.
[22] In sum, having considered the whole of the record, I am satisfied that twelve properly instructed jurors, acting judicially, could reasonably have come to the conclusion that Baker was the first shooter and that he was guilty of first degree murder as charged. Accordingly, I would not give effect to this ground of appeal.
Issue two: Did the trial judge err (a) in failing to correct remarks made by Crown counsel that improperly impugned Rubeena Alam's credibility; and (b) in failing to instruct the jury that the rejection of Ms. Alam's evidence could not be used as positive evidence of the appellant's guilt?
[23] This ground of appeal has, as its genesis, the following remarks made by Crown counsel in his closing address to the jury:
It is an admitted fact that [Phillips] lived on and off at 51 Morecambe Gate, unit 41. Ms. Alam resided on and off with Hasely McLean in Unit 25. And yet, it was Ms. Alam's testimony she didn't recognize Christopher Phillips at all.
Now, she testified that both she and Hasely McLean knew the second shooter from the neighbourhood. In my submission, Rubeena Alam was more intensely reluctant to give evidence in this trial than any other witness called by the Crown. And you may recall at one point she said, words to the effect, "I just want to get this over with". It's important to recall that Ms. Alam gave contradictory evidence as to Hasely McLean's knowledge of the second shooter. It is open to you, I submit, to find that she knows the identity of the second shooter, otherwise she would not have engaged in a discussion with Hasely McLean about the second shooter and the second shooter's motives in shooting Stokely Wilson.
In my submission, Rubeena Alam's testimony exemplifies why you can accept all, some or none of what every witness has to say to you. It is open to you to find, for the reasons I have indicated, that Rubeena Alam knows more than she is prepared to say about the identity of the second shooter. (emphasis added)
[24] Although defence counsel at trial [not Mr. Dawe] raised no objection to this aspect of the Crown's address, it is now submitted, for the first time on appeal, that it contains two improper suggestions that called for correction by the trial judge. First, Mr. Dawe contends that the Crown improperly invited the jury to draw inferences regarding Ms. Alam's credibility that were unavailable on the factual record. Second, he submits that the impugned remarks may have led the jury to infer that Ms. Alam actually recognized the second shooter as Phillips and that a rejection of her evidence could be used as positive evidence to corroborate the identification evidence given by the other three eyewitnesses, Fisher, Richards and McLean.
[25] In order to address these complaints, it is first necessary to reproduce the trial judge's instructions to the jury relating to Ms. Alam's evidence. In his charge, the trial judge directed the jury as follows:
You heard what the Crown said about Rubeena Alam. It is open to you to look at her evidence and say to yourselves why it is that she is saying what she's saying and you can accept parts of the evidence that support the Crown's case and reject the parts that don't support the Crown's case, or you can assess it in other ways and decide that she is telling the truth that she is unable to identify either of the accused persons as the killers, then that is a factor that may well raise a reasonable doubt in your minds. It is for you to determine what weight to give to the testimony of this witness.
[26] After the jury retired, counsel for Phillips objected to this instruction. His complaint, in a nutshell, was that it was wrong to tell the jury that they could only use Ms. Alam's evidence to acquit Phillips if they were satisfied that she was telling the truth. Acknowledging the error, the trial judge recalled the jury and provided the following reinstruction:
When I discussed the evidence of Rubeena Alam, she was the first eye witness, I pointed out that the Crown's position was that you should conclude the Crown's position when the Crown made its speech to you, Mr. Holmes did, the Crown's position was that you should conclude she knows more than she is saying about the identity of the second shooter. The Crown's position is that you can draw the inference that she is lying. I should have also pointed out the defence position, that is, that Rubeena Alam said she knew the second shooter and she said the second shooter was not in the line up.
So, ladies and gentlemen, it's up to you to disbelieve Rubeena Alam as the Crown suggests and also up to you to believe Rubeena Alam or to find that her evidence might reasonably be true. If you find that it might reasonably be true, that fact by itself is going to raise a reasonable doubt, is capable of raising a reasonable doubt in your minds. (emphasis added)
[27] Returning to Mr. Dawe's complaints, he submits that it was wrong for the Crown, in the absence of an evidentiary foundation, to invite the jury to conclude that Ms. Alam knew more about the identity of the second shooter than she was saying and that the trial judge exacerbated the error by repeating the Crown's remarks in the recharge. In addition, he maintains that the impugned remarks may well have led the jury to infer that Ms. Alam actually recognized the second shooter as Phillips and that a rejection of her evidence could be used as positive evidence to corroborate the testimony of the other three eyewitnesses who identified Phillips as the second shooter. I see no merit in either submission.
[28] Beginning with the first complaint, based on the record, I am satisfied the Crown counsel was on solid ground in submitting that contrary to her evidence, the jury could find that Ms. Alam did indeed know the identity of the second shooter and that they could take this into account in assessing her credibility.
[29] As for the second complaint, it must be emphasized that unlike the authorities to which we were referred, such as R. v. Witter (1996), 1996 CanLII 4005 (ON CA), 105 C.C.C. (3d) 44 (Ont.C.A.), neither the Crown nor the trial judge told the jury that a rejection of Ms. Alam's evidence could be used as positive evidence of guilt. Furthermore, contrary to the submission of the appellants, this case is distinguishable from R. v. Walker (1994), 1994 CanLII 8725 (ON CA), 90 C.C.C. (3d) 144 (Ont.C.A.), where Crown counsel not only repudiated his own witness but invited the jury to accept, as factual, the converse of what she had said in the absence of affirmative contradictory evidence. Here, there was ample evidence from other witnesses implicating Phillips as the second shooter and Crown counsel was therefore entitled to invite the jury to accept, as factual, the converse of what Ms. Alam had said based on the other evidence. The impugned comments themselves invited no more than an inference that Ms. Alam was not telling the truth.
[30] In sum, I am of the view that it is fanciful to think that the jury would have inferred from the impugned remarks that a rejection of Ms. Alam's testimony could be translated into positive evidence of Phillip's guilt. Accordingly, I would reject this ground of appeal.
Issue three: Did the trial judge misdirect the jury on the test to be applied in determining whether the evidence of Rubeena Alam raised a reasonable doubt about the guilt of the appellants?
[31] It will be recalled that in his initial instructions regarding the testimony of Ms. Alam, the trial judge told the jury that if they were to "decide that she is telling the truth that she is unable to identify either of the accused persons as the killers, then that is a factor that may well raise a reasonable doubt in your minds".
[32] As indicated, counsel for Phillips objected to this aspect of the charge. In particular, he submitted, correctly in my view, that it was wrong for the trial judge to tell the jury that the evidence of Ms. Alam could raise a reasonable doubt if the jury was satisfied that she was "telling the truth". As is apparent from the record, the trial judge acknowledged the error and he invited defence counsel to assist him in fashioning a curative instruction. In the protracted discussion that followed, defence counsel, at several points, invited the trial judge to instruct the jury that Ms. Alam's evidence could raise a reasonable doubt if they were satisfied that "it might reasonably be true". At other points, he suggested that the jury be told that her evidence could raise a reasonable doubt if they were satisfied that there was "a reasonable possibility that she is telling the truth".
[33] Prior to recalling the jury, the trial judge vetted his proposed reinstruction with counsel. Without going into detail, suffice it to say that neither defence counsel took exception to it. The curative instruction given by the trial judge is reproduced in full at paragraph 26 and it need not be repeated. In short, the trial judge told the jury that if they were satisfied that Ms. Alam's evidence "might reasonably be true", that alone could give rise to a reasonable doubt.
[34] On appeal, both appellants submit that the trial judge erred in instructing the jury to apply the "might reasonably be true test" to Ms. Alam's evidence. They maintain that the instruction was prejudicial because it tended to shift the onus to the appellants to persuade the jury that Ms. Alam's evidence might reasonably be true, or risk conviction. As they point out, correctly in my view, the law recognizes no such onus. (See R. v. K. V. (1991), 1991 CanLII 5761 (BC CA), 68 C.C.C. (3d) 18 (B.C.C.A.); R. v. Tyhurst (1992), 1992 CanLII 12825 (BC CA), 79 C.C.C. (3d) 238 (B.C.C.A.); R. v. Mathieu (1994), 1994 CanLII 5561 (QC CA), 90 C.C.C. (3d) 415 (Que. C.A.), aff'd at (1995), 1995 CanLII 79 (SCC), 101 C.C.C. (3d) 575 (S.C.C.)).
[35] The foregoing authorities make it clear that the "might reasonably be true test" should be avoided when dealing with contradictory evidence in cases where the presumption of innocence, and no other, applies. In this respect, I agree with the views expressed by Fish J.A. at p.429 of R. v. Mathieu, supra:
In short, the "might reasonably be true" test should not be transplanted from its natural habitat of adverse presumptions on to the entirely difference terrain of contradictory evidence in cases where the presumption of innocence, and no other, avails.
[36] With this in mind, I acknowledge that in relation to Ms. Alam's testimony, it would have been preferable had the trial judge instructed the jury in accordance with the formula enunciated by Cory J. at p.409 of R. v. W.(D) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). That said, I am not persuaded that his failure to do so constituted reversible error.
[37] The reinstruction, given with the approval of defence counsel, was designed to inform the jury that they need not accept Ms. Alam's evidence as truthful before acting on it to find a reasonable doubt. In my view, although not perfect, it was adequate to the task. Importantly, it conveyed the clear message that the jury need not pick and choose between Ms. Alam's evidence and that of the other eyewitnesses. Rather, the jury was made to understand that unless they rejected Ms. Alam's evidence as false, they could act on it to find a reasonable doubt. Accordingly, I would not give effect to this ground of appeal.
Issue four: Did the trial judge misdirect the jury on the definition of reasonable doubt?
[38] The appellants submit that the trial judge misdirected the jury on the definition of reasonable doubt. In particular, they contend that the trial judge erred in:
• defining a reasonable doubt as "an honest and fair" doubt based on reason and common sense;
• describing the term as an "ordinary term", not a "legal term having some special connotation";
• failing to expressly compare and distinguish the criminal standard of proof from the civil standard of proof.
As a result of these alleged errors, the appellants contend that the jury may well have been led to believe that proof beyond a reasonable doubt would be achieved, in relation to each accused, if they were satisfied that he "probably" was the person who shot and killed the deceased Wilson.
[39] In assessing this ground of appeal, I have considered the supplementary submissions provided by the parties following the release, after oral argument, of four decisions from the Supreme Court of Canada, to wit: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449; R. v. Beauchamp, [2000] S.C.C. 54; R. v. Russell, [2000] S.C.C. 55 and R. v. Avetysan, [2000] S.C.C. 56.
[40] The passages from the charge bearing on this issue are reproduced in full below:
When I speak of reasonable doubt, I use the words in their ordinary, natural meaning, not as a legal term having some special connotation. I think you know what a reasonable doubt is. It is an honest and fair doubt based upon reason and common sense. It is a real doubt, not an imaginary or frivolous doubt. Proof beyond a reasonable doubt has been achieved when each of you, as jurors, feel sure of the guilt of the accused. In order to convict Mr. Baker and or Mr. Phillips, you must be able to say that you are satisfied beyond a reasonable doubt that they are truly guilty.
On the other hand, should the evidence, which you have heard, leave you with a lingering or a nagging doubt with respect to the proof of the offence so that you are unable to say to yourself that the Crown has proven the guilt of the accused beyond a reasonable doubt so that you feel sure of the guilt of the accused then your duty is to find either or both of them not guilty.
[41] Before addressing the specific concerns raised by the appellants, in fairness to the trial judge, it should be pointed out that he did not have the benefit of R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) when he delivered the charge. It is also noteworthy, in my view, that defence counsel at trial raised no objection to the impugned instruction. This indicates to me that they were satisfied that the jury fully appreciated the high standard of proof needed to support a conviction and it serves as a yardstick against which to measure the contrary position now advanced for the first time on appeal.
[42] Turning to the first of the three complaints, the appellants submit that it was wrong to qualify the word "doubt" with the adjectives "honest" and "fair" because the use of those words may well have induced the jury to apply a standard of proof lower than that required. (See R. v. Lifchus, supra, at p. 10). I disagree.
[43] In my view, the words "honest" and "fair" do not add or detract, in any meaningful sense, from the word "reasonable" which itself modifies the word "doubt". Rather, as I see it, they are essentially synonymous with the word "reasonable". How a "dishonest" and "unfair" doubt could nonetheless be said to be "reasonable" escapes me!
[44] Unlike adjectives such as "serious", "haunting" and "substantial" which Cory J. in Lifchus, supra, at p. 10, found to be offensive because of their tendency to mislead the jury into applying a higher or lower standard of proof than that required, the words "honest" and "fair" are far less problematic. Indeed, I question whether their use is improper at all. Be that as it may, if the trial judge did err in including them, the error was not fatal. (See R. v. Russell, unreported decision of the Supreme Court of Canada, released November 10, 2000).
[45] The second concern relates to the description of reasonable doubt as an "ordinary term", not a "legal term having some special connotation". In light of Lifchus, supra, and its progeny, it is clear that this language should not have been used. It is equally clear however, that standing alone, this error could not realistically have misled the jury into applying the civil standard of proof. Rather, its impact, if any, must be assessed in context, having regard to the instruction as a whole.
[46] That brings me to the third concern, namely, the failure on the part of the trial judge to expressly compare and distinguish the criminal standard of proof from the civil standard of proof.
[47] Manifestly, the impugned instruction does not track the language used by Cory J., at p.13 of Lifchus, supra, to differentiate the criminal and civil standards of proof. In and of itself, however, that is not fatal. The crucial issue is whether the instruction, read as a whole, raises a reasonable likelihood that the jury misapprehended the correct standard of proof.
[48] Measured against that yardstick, I am satisfied that the language used by the trial judge adequately distinguished the criminal standard of proof from the civil standard of proof. The trial judge told the jury that proof beyond a reasonable doubt would only be achieved if they felt "sure of the guilt of the accused". In the next sentence, he made it clear that in order to convict, the jury had to be satisfied beyond a reasonable doubt that each accused was "truly guilty". Shortly thereafter, he reinforced the very high standard of proof needed to convict when he instructed the jury, in no uncertain terms, that if, after considering the whole of the evidence, they were left with a "lingering" or "nagging" doubt such that they could not be sure of the guilt of the accused, then it was their duty to acquit[^1].
[49] Read as a whole, I am satisfied the jury would have appreciated the high standard of proof need to support a conviction. Expressed somewhat differently, it is speculative to think that this jury would have been left with the impression that proof on a balance of probabilities or anything close to it was sufficient to justify a conviction.
[50] In coming to this conclusion, I have considered the instruction on the meaning of reasonable doubt alone and in conjunction with the alleged misdirection concerning the approach to be taken to Rubeena Alam's evidence and its impact on the outcome in relation to both appellants. Although, as I have said, it would have been preferable had the trial judge avoided using the phrase "might reasonably be true" in respect of Ms. Alam's evidence, there was no misdirection. Accordingly, this case is distinguishable from Avetysan, supra, where the inadequate instruction on reasonable doubt was accompanied by a failure to properly instruct the jury in accordance with the principles set forth in R. v. W. (D.), supra.
[51] Accordingly, I would not give effect to this ground of appeal.
Disposition
[52] I have not been persuaded that the verdict against Baker was unreasonable, nor am I satisfied that the trial judge committed reversible error in his instructions to the jury. Accordingly, I would dismiss both appeals.
RELEASED: JANUARY 16, 2001 "M.J. MOLDAVER J.A. "I AGREE M. ROSENBERG J.A." "I AGREE J. SIMMONS J.A."
[^1]: If anything, the qualifiers "lingering" and "nagging" set the standard of proof too high and in light of Lifchus, supra, they should no longer be used. (See R. v. Pan (1999), 1999 CanLII 3720 (ON CA), 134 C.C.C. (3d) 1 at p. 81(Ont.C.A.)).