DATE: 20040216

DOCKET: C38957

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. DEXTER EMMANUEL BOYCE (Appellant)

BEFORE: DOHERTY, LASKIN and GILLESE JJ.A.

COUNSEL: Russell Silverstein for the appellant

Nicholas Devlin for the respondent

HEARD: February 11, 2004

ORALLY

RELEASED: February 11, 2004

On appeal from the conviction entered by Justice McNeely, sitting with a jury, dated April 11, 2002.

E N D O R S E M E N T

[1] Counsel’s careful, if not, microscopic deconstruction of the trial judge’s reasonable doubt instruction does not cause us to have any concerns that the jury may have applied the wrong standard of proof.

[2] We propose to comment briefly on three of the arguments made by counsel. Counsel argues that the jury was not instructed that the absence of evidence could leave a reasonable doubt. The trial judge said the following:

A reasonable doubt is a doubt that is based on reason and common sense. It is a doubt that arises from your consideration of the evidence that you have.

[3] In our view, the jury would clearly have understood that “a consideration of the evidence you have” includes and requires a consideration of all of the evidence and a comparison of the evidence of the various witnesses. The jury were clearly told to consider that only one of the two police officers at the scene observed the appellant in possession of the narcotics.

[4] A second argument raised by counsel relates to the second prong of the “W.D.” instruction. The trial judge said the following:

Naturally if you believe him you are going to acquit him. If you do not know whether to believe him or not, if you are in a state of doubt, again you must acquit him.

[5] In our view, these words captured the substance and essence of the first and second part of the “W.D”. instruction.

[6] A third argument arises from the trial judge’s following instruction:

Even if you decide “while his evidence is unreliable and I am not prepared to believe any of it or rely on any of it” you still must be satisfied on the evidence that you do believe that he has been proved guilty beyond a reasonable doubt because a person can sometimes be a liar without being guilty of the offence with which they are charged.

[7] This instruction inured to the benefit of the appellant. In the course of his evidence, the appellant admitted that he had lied to the police. The trial judge was simply cautioning the jury against jumping from the fact that the appellant had lied to the conclusion that he must have committed the offence.

[8] The appeal is dismissed.

“Doherty J.A.”

“John Laskin J.A.”

“E.E. Gillese J.A.”