COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.F.R., 2007 ONCA 106

DATE: 20070219

DOCKET: C44779 and C44987

RE:

HER MAJESTY THE QUEEN (Respondent in C44779/ Appellant in C44987) – and – A. F. R. (Appellant in C44779/ Respondent in C44987)

BEFORE:

FELDMAN, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Peter Copeland

for A.F.R.

Eliott Behar

for the Crown

HEARD & ENDORSED:

February 16, 2007

On appeal from the conviction entered by Justice Terrence L.J. Patterson of the Superior Court of Justice, sitting with a jury, dated December 6, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant appeals his conviction on the ground that the charge to the jury on reasonable doubt was deficient. He submits that since the central issue in the trial was the credibility of the witnesses that the trial judge failed to link his W.D. charge to the issue of credibility. His primary attack was directed to the following instruction given after the judge gave a clear W.D. charge:

It is unnecessary that you resolve conflicting evidence if you feel you are unable to do so. A conflict of the evidence is capable of giving rise to a reasonable doubt if you so decide but not necessarily so.

[2] While the above instruction is perhaps not a model of clarity, in our view, when the jury charge is read as a whole, the jury could not be under any misapprehension of the correct standard of proof to be applied in their deliberations.