Her Majesty the Queen v. Tuck
[Indexed as: R. v. Tuck]
Ontario Reports
Court of Appeal for Ontario,
Laskin, van Rensburg and Benotto JJ.A.
December 24, 2014
123 O.R. (3d) 321 | 2014 ONCA 918
Case Summary
Criminal law — Charge to jury — Post-offence conduct — Accused claiming that he stabbed deceased in self-defence — Trial judge reviewing alleged post-offence conduct with jury and instructing them to consider whether conduct resulted from accused's knowledge that he had not acted in self-defence or from some other cause — Trial judge not committing error of inviting jury to jump to question of guilt as precondition to deciding how they would use the post-offence conduct evidence.
Criminal law — Charge to jury — Reasonable doubt — Trial judge not erring in failing to explicitly instruct jury that exculpatory evidence could be source of reasonable doubt even if not affirmatively believed — Trial judge making appropriate burden and standard of proof clear to jury and properly instructing them on use they could make of exculpatory evidence.
Criminal law — Evidence — Prejudice to accused — Trial judge editing accused's statements to police to remove prejudicial content including his silence in response to some questions and his discussion about retaining counsel — During cross-examination of investigating officer it was suggested that he had manipulated and pressured accused into speaking — Trial judge entitled to reweigh probative value versus prejudicial effect of excluded portions of statement given questions to investigating officer — Trial judge not erring in concluding that excluded portions of statement now had greater probative value and in reversing ruling excluding portions of the statement — Trial judge instructing jury that accused having right to remain silent, that they could not use the exercise of right in determining his guilt, and that evidence being relevant only to whether he was pressured into speaking and, if so, the effect of that pressure.
The accused was charged with second degree murder. At trial, the Crown sought to introduce certain statements by the accused to the investigating officer. The trial judge, acceding to a defence request to edit the statements to remove any prejudicial content, ordered that the statements be edited to remove references to the accused's refusal to answer certain questions and a discussion during which the accused refused the officer's suggestions that he speak to counsel. The trial judge reversed that ruling during the cross-examination of the investigating officer. The accused testified and admitted stabbing the deceased but claimed that he acted in self-defence. The accused was convicted. He appealed.
Held, the appeal should be dismissed.
The trial judge did not err in reversing her editing ruling on the basis that the defence had put the tenor and context of the police interviews in issue by suggesting that the officer was manipulating and pressuring the accused. She was correct in concluding that what had previously been of limited relevance had become relevant during the officer's cross-examination. She instructed the jury [page322] that the accused had a right not to have his choice to remain silent used in any way in their deliberations, and that his silences were to be considered only to assess the tenor of the statements and to assist in determining whether any pressure existed and, if so, what effect it may have had. That instruction obviated the potential prejudice to the accused.
The trial judge did not err in her instruction to the jury about the accused's post-offence conduct. She identified the items of evidence that were relevant to that instruction; cautioned the jury that, if they found that the accused engaged in the alleged conduct, not to immediately conclude that he did so because he was conscious of not acting in self-defence; and to consider all of the evidence in deciding the reason he did so. She reviewed the evidence of the alternative innocent explanations offered by the accused for his words and conduct. She instructed the jury that if they accepted that the accused said or did what was alleged, they should consider whether that was because he was conscious of not acting in self-defence or for some other reason. She did not commit the error of inviting them to decide whether the accused was conscious of committing the very offence with which he was charged, before using the post-offence conduct to decide if he committed the offence.
The trial judge did not err in failing to explicitly instruct the jury that potentially exculpatory out-of-court statements made by the accused could be the source of a reasonable doubt even if not affirmatively believed. She instructed the jury that they had to consider the exculpatory statements along with all of the other evidence unless satisfied that he did not make them; that they had to consider all of the statements that might help him even if they could not decide whether he made them; and that, if they could not decide whether he made the statements, they had to consider the statements along with the rest of the evidence in deciding whether they had a reasonable doubt about the accused's guilt. The charge was sufficient.
R. v. Bucik, [2011] O.J. No. 3545, 2011 ONCA 546, 283 O.A.C. 161, 87 C.R. (6th) 309, 274 C.C.C. (3d) 421; R. v. Hall, [2010] O.J. No. 4603, 2010 ONCA 724, 269 O.A.C. 199, 263 C.C.C. (3d) 5 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 499]; R. v. King, [2013] O.J. No. 2850, 2013 ONCA 417, 309 O.A.C. 39, consd
R. v. Palmer, [2010] O.J. No. 5096, 2010 ONCA 804 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 361], distd
Other cases referred to
R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 226 C.R.R. (2d) 92, 273 O.A.C. 241, 266 C.C.C. (3d) 197; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, EYB 1991-67602, 12 W.C.B. (2d) 551; R. v. White (1998), 1998 CanLII 789 (SCC), 39 O.R. (3d) 223, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, 161 D.L.R. (4th) 590, 227 N.R. 326, J.E. 98-1546, 112 O.A.C. 1, 125 C.C.C. (3d) 385, 16 C.R. (5th) 199, 38 W.C.B. (2d) 442
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (b)(iii)
APPEAL by the accused from the conviction entered on March 11, 2009 by Forestell J. of the Superior Court of Justice, sitting with a jury. [page323]
Richard Litkowski, for appellant.
Riun Shandler, for respondent.
The judgment of the court was delivered by
VAN RENSBURG J.A.: —
Overview
[1] The appellant was convicted, after a trial by jury, of second degree murder in a stabbing death at a nightclub. He claimed in his defence that the victim was the aggressor, and that he had taken the victim's knife from him and stabbed him in self-defence.
[2] The appellant contests his conviction. He argues that the trial judge erred in the course of the trial in revisiting a ruling that had excluded prejudicial portions of his statements to the police, and in her instructions with respect to post-offence conduct and the exculpatory portions of his out-of-court statements.
[3] For the reasons that follow, I would dismiss the appeal.
Background
[4] The facts relevant to the issues raised in this appeal can be briefly stated, and will be expanded upon as necessary in the course of these reasons.
[5] On February 3, 2001 and into the early morning hours of February 4, the deceased, Salim Jabaji, attended a "rave" at the Docks nightclub in Toronto with two friends, Robert Conejeros and Ryan Vandelaar. The appellant was there with his friends, twins David and Charles Coulter and Becky Parmiter.
[6] Robert and Charles were involved in three fights while at the nightclub. The final altercation was broken up by a bouncer who dragged Robert out of the club. It was shortly after this altercation that the appellant stabbed the deceased.
[7] The appellant found the Coulter twins near the club's entrance. Charles told him he had been punched in a fight, and the appellant told Charles that he had "[gotten] the knife away from the guy" and that he might have stabbed him. He gave David a knife. They left the club.
[8] The deceased was found in a pool of blood, and was taken to hospital where he was declared dead. The police swabbed the blood found on various parts of the floor of the Docks, as well as on the handle and blade of a knife they found on the floor.
[9] The trio found Becky and went to a hotel for the night. The next morning, after dropping Becky home, they heard on the radio that someone had died after being stabbed at the club. [page324] The Coulters told the appellant that he should turn himself in. The appellant said he would, but did not want to do so at the time. The appellant asked what he should do, and they told him to go to the police. The appellant repeated the words "I'm fucked".
[10] Two days after the stabbing, the Coulters learned that they were being sought in connection with the events at the Docks. When they attended at the police station, Charles was charged with assault on Robert. David was charged with the murder of the deceased.
[11] Charles Coulter subsequently surreptitiously recorded several telephone conversations with the appellant in an effort to clear his brother's name.
[12] Detective Sergeant Davis, the lead investigating officer, also had several telephone calls with the appellant, which he recorded. He was notified of the existence of the tapes of Charles' conversations with the appellant. He received a DNA report excluding the Coulters as the source of a DNA profile found on the knife. He obtained a warrant to seize the appellant's DNA, and videotaped the execution of the warrant. Analysis demonstrated that the appellant's blood was found on the floor and the knife used to stab the deceased.
[13] The appellant was charged with the murder of the deceased in September 2001, after which he was interviewed by Det. Sgt. Davis.
[14] The charge against David Coulter was withdrawn.
[15] The appellant testified that he was unarmed on the night in question, that he had wrestled a knife away from the victim and that he then stabbed him in self-defence. The main issue at trial therefore was whether the stabbing was in self-defence.
Issue One: Did the Trial Judge Err in Reversing Her Ruling with Respect to Editing the Appellant's Statements to Police?
(1) Original ruling
[16] At trial, the Crown sought to introduce as evidence the recordings of three of the telephone conversations between Det. Sgt. Davis and the appellant, the videotape of the execution of the DNA warrant, and the post-arrest interview. The trial judge ruled the statements voluntary and admissible. There is no challenge to this ruling on appeal.
[17] The defence then requested that the statements be edited to remove any prejudicial content. The defence sought four types of edits, arguing in part that the jury could improperly infer that the appellant's silence in response to certain questions, and his [page325] consideration of retaining counsel, were evidence of guilt. The Crown consented to certain edits and opposed others.
[18] The trial judge ruled in favour of the appellant on all four objections. The trial judge's order included that the police statements be edited to remove references to the appellant's refusal to answer certain questions, which the trial judge characterized as having no probative value, and a discussion where the appellant refused the officer's suggestions that he speak to legal counsel, which the trial judge found to be irrelevant and potentially prejudicial.
(2) Mid-trial ruling
[19] The trial judge revisited her editing decision at the request of the Crown in the course of the cross-examination of Det. Sgt. Davis, and after the edited recording of the statements had already been played for the jury during his examination-in-chief.
[20] In cross-examining the officer, defence counsel had suggested that Det. Sgt. Davis, an experienced investigator, was playing a "cat and mouse game" with the younger appellant, and that he was using interrogation techniques designed to pressure the appellant into speaking. Counsel put to the officer, using the edited tapes, that the appellant had not said that he did not want to incriminate his friends until after the officer suggested this to him. This was misleading, as the unedited tapes showed that it was the appellant who initially raised this issue.
[21] Crown counsel objected to the misleading question. The Crown also submitted that in the cross-examination, the defence had put the tenor and context of the interviews in issue by suggesting that the officer was manipulating and pressuring the appellant, and that, therefore, most of the previously edited portions of the tapes should now be admissible. Defence counsel submitted that while it was necessary for the court to correct the impression left with the jury, there was no need to revisit the editing decision.
[22] After some discussion, including consideration of defence counsel's intended direction in his cross-examination of the officer, the trial judge found that "the tenor and context of the statements [was] an issue", and that "the jury would be left with an incomplete misleading record with which to assess the interviews if they were deprived of the edited portions of the statements relating to the refusal of [the appellant] to answer questions and to the officer's suggestions that [the appellant] consult a lawyer and his parents". [page326]
[23] The trial judge determined that, while the potential prejudice identified in her earlier ruling still existed, a re-balancing of probative value and prejudice was required. At that point in the trial and with the issues crystallizing as they had, the probative value of the edited sections outweighed their prejudicial effect. She concluded that the prejudicial effect of such evidence could be addressed by way of an instruction to the jury.
(3) Analysis
[24] The appellant contends that the trial judge erred in reversing her prior ruling on editing, that it was a premature and disproportionate response to trial counsel's misleading question, and that the cross-examination of Det. Sgt. Davis did not so significantly alter the analysis of probative value and prejudicial effect that the obvious prejudice was overcome.
[25] The appellant asserts that the goal of trial counsel was to portray the appellant as a man of some indecision, a man wrestling with himself, and to contrast that with an experienced homicide investigator in order to explain why he was lying in the statements. He submits that the appropriate response was to correct the mistake on the record, and that playing the edited portions of the statements was not required in order to balance the error made in asking the misleading question.
[26] I would reject this submission. The concern addressed by the trial judge was not limited to a correction of the single misleading question. A correction on the record, as proposed by the appellant's trial counsel and on appeal, would not have been sufficient. The trial judge's decision to reconsider her ruling was an appropriate response to what was occurring in the course of the trial, and was not premature. The trial judge was correct in concluding that what had previously been of limited relevance had become relevant during the officer's cross-examination: there was now an issue about the officer's good faith and whether he was manipulating the appellant, and whether this influenced the information and misinformation the appellant chose to provide.
[27] The explanation of what trial counsel was seeking to achieve does not change the analysis. If the goal was to portray the appellant in a certain way in contrast to the officer, in order to explain his conduct during the statements, then the jury was entitled to assess for itself the dynamics of the statements, including the officer's encouragement of the appellant to seek legal advice, and the appellant's refusal to answer certain questions.
[28] The trial judge recognized the continuing potential for prejudice in some of the edited portions of the statements. Her [page327] reweighing of the probative value versus prejudicial effect of the edited portions, however, as stated above, was informed by what was occurring at trial, was based on correct principles and is entitled to deference.
[29] After hearing submissions from counsel, and before the re-edited recordings of the statements were played for the jury, the trial judge gave an instruction to the jury. She explained that the right to silence is fundamental, and that the appellant had a right not to have his choice to remain silent used in any way in the jury's deliberations. His silences were to be considered only to assess the tenor of the statements and to assist in determining whether any pressure existed and, if so, what effect it may have had. This instruction was not challenged by the appellant at trial or on appeal. The effect of the instruction, which was repeated in the final charge to the jury, was to obviate the potential prejudice, so that the jury understood the permissible and prohibited uses of the evidence in their reasoning.
[30] Accordingly, I would not give effect to this ground of appeal.
Issue Two: Did the Trial Judge Err in Her Instruction to the Jury About the Appellant's Post-Offence Conduct?
[31] As his second ground of appeal, the appellant challenges the trial judge's instruction to the jury on his post-offence conduct.
(1) The post-offence conduct
[32] The post-offence conduct that attracted a specific instruction in the jury charge consisted of the following: the evidence that the appellant gave the knife to David Coulter and left the nightclub quickly from the south entrance after the stabbing, the fact that he did not remain at his home after the stabbing, what he said when he was in the car with the Coulters and Becky Parmiter, as well as lies the appellant told in his statements to the police.
[33] As a preliminary point, I note that no objection was taken on appeal to the admissibility of this evidence as post-offence conduct. It is acknowledged that the evidence in question was circumstantial evidence relevant to the question of whether the appellant acted in self-defence.
(2) The post-offence conduct charge
[34] In her charge, the trial judge identified the specific evidence of the appellant's conduct and words after the stabbing that was alleged to be post-offence conduct. She instructed the [page328] jury to approach its consideration of such evidence in two steps. First, they had to determine whether the appellant actually said or did what was alleged. If they concluded that he had said or done certain things, they should determine whether he did so because he was conscious of not acting in self-defence or for some other reason. She cautioned the jury not immediately to conclude that the appellant did or said so because he was conscious of not acting in self-defence, and to decide the reason, they should consider all of the evidence. She noted that of particular importance was evidence that offered other explanations for this conduct or these statements.
[35] The trial judge then reviewed the evidence respecting the appellant's explanations for the post-offence conduct and statements. She cautioned the jury to assess the explanations in the context of all the evidence. She further instructed them not to use the evidence about what the appellant did or said after the stabbing in deciding or helping them to decide whether they were satisfied beyond a reasonable doubt that the appellant did not act in self-defence unless they rejected any other explanation for it.
(3) Analysis
[36] The appellant contends that the post-offence conduct instruction was in error because the trial judge invited the jury to decide whether the appellant was conscious of committing an offence before using the post-offence conduct to decide if the appellant committed the offence. The appellant relies on the decision of this court in R. v. Hall, [2010] O.J. No. 4603, 2010 ONCA 724, 263 C.C.C. (3d) 5, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 499, a decision that was released well after the trial judge's instructions in this case.
[37] In Hall, this court confirmed a number of key points respecting post-offence conduct, which had been identified and developed by the Supreme Court of Canada in R. v. White (1998), 1998 CanLII 789 (SCC), 39 O.R. (3d) 223, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57. Post-offence conduct is a type of circumstantial evidence that is to be considered together with all of the other evidence at trial. The old label of "consciousness of guilt evidence" has been abandoned in favour of "evidence of post-offence or after-the-fact conduct". "Consciousness of guilt" is simply one inference that may be drawn from the evidence of the accused's conduct, and is not a special category of evidence in itself.
[38] In Hall, this court observed, at para. 138:
The difference with post-offence conduct circumstantial evidence is that, to be evidence that meets the circumstantial evidence test, it must be [page329] consistent only with the ultimate conclusion of guilt. It is the requirement of meeting the test for circumstantial evidence that creates the impression of a tautological analytical exercise by the jury. That is why it is so important for the jury to assess the post-offence conduct only as part of its ultimate assessment in weighing all of the evidence at the stage of determining whether guilt has been proved beyond a reasonable doubt, rather than treating it as a separate category.
[39] The court in Hall held that the trial judge ought not to have concluded her instruction on post-offence conduct by telling the jury that they could only use the evidence if they found that what he "did or said afterwards was because he was conscious of having done what [was] alleged against him" (at para. 141). This wording invited the jury "to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence" (at para. 143). Instead, the jury ought to have been instructed to look at the issue of post-offence conduct in light of all the evidence, and on a consideration of all the evidence to decide whether the Crown had proven the accused's guilt beyond a reasonable doubt (at para. 145).
[40] At the same time, the court observed, at para. 146, that standing on its own, this flaw in the charge, which had not been objected to at trial, would not constitute reversible error. There were, however, other deficiencies in the charge on post-offence conduct in Hall that, taken together, amounted to legal error, including the trial judge's failure to fully and fairly summarize the body of evidence and to explain to the jury possible alternative and innocent explanations for the conduct. There was also concern that certain of the evidence relied upon was not in fact post-offence conduct evidence as it was highly equivocal.
[41] In the present case, the charge contained the elements approved of in R. v. White, at para. 58. The trial judge employed the term "after-the-fact conduct". She identified the items of evidence that were relevant to her instruction. She cautioned the jury, that if they found that the appellant engaged in the alleged conduct, not to immediately conclude that he did so because he was conscious of not acting in self-defence, and to consider all of the evidence in deciding the reason he did so. The trial judge reviewed the evidence of the alternative innocent explanations offered by the appellant for his words and conduct. She repeatedly told the jury to consider the post-offence conduct evidence, to the extent it was accepted as such, together with all the other evidence in reaching their verdict. The trial judge also instructed the jury that they might find the after-the-fact conduct of limited assistance in light of the admission by the appellant that he was responsible for the death of Mr. Jabaji, and in light of the fact that with respect to the appellant's words and conduct after he [page330] heard on the radio that Mr. Jabaji had died, the appellant was aware of causing his death when he acted and spoke as alleged. There was no objection at trial to any aspect of the charge on post-offence conduct.
[42] The post-offence conduct was only to be considered by the jury on the issue of self-defence. The trial judge instructed the jury that if they accepted that the appellant said or did what was alleged, they must consider whether this was because he was conscious of not acting in self-defence or for some other reason. This was not, as in Hall, an invitation to decide whether the appellant was conscious of committing the very offence with which he had been charged, before using the post-offence conduct to decide if the appellant committed the offence. In the context of the trial judge's full instructions on post-offence conduct, it did not invite the jury to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence.
[43] In Hall, the court cautioned that a trial judge should instruct the jury to reserve their final judgment about the meaning of the appellant's conduct until all the evidence has been considered in the normal course of their deliberations. The trial judge did not say this explicitly when she was charging the jury on post-offence conduct. In the context of an otherwise fulsome, accurate and fair charge on post-offence conduct, the trial judge's failure to use certain language that this court endorsed in Hall is not sufficient to constitute reversible error.
[44] Finally, in argument the appellant identified a second alleged error in the charge that he contends improperly invited the jury to consider post-offence conduct in relation to his intent, and not just in relation to self-defence. He asserts that, although the trial judge had ruled that post-offence conduct could be considered only in respect of self-defence, and charged the jury in that manner, later the trial judge erred in telling the jury to consider the appellant's words and conduct before, at the time and after the acts that caused Mr. Jabaji's death, on the issue of intent.
[45] The appellant relies on R. v. Palmer, [2010] O.J. No. 5096, 2010 ONCA 804, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 361, where this court concluded that it was an error for the trial judge, who used similar wording, to instruct the jury to consider the accused's conduct after the unlawful act in assessing his intent, where the post-offence conduct was only relevant to self-defence. The court applied the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 in dismissing the appeal. [page331]
[46] While the trial judge in the present case instructed the jury in assessing intent to consider the appellant's words and conduct after the unlawful act, she did not go on in her review of the evidence relevant to intent, to refer to any of the post-offence conduct that was subject to a specific instruction. Unlike in Palmer, where the trial judge gave no specific instruction limiting the use of post-offence conduct to self-defence, in the present case there was such a specific instruction. In my view, the specific instruction was not undermined by what the trial judge later said in her instruction respecting intent. When the charge as a whole is considered, including the specific instructions about post-offence conduct where such evidence was reviewed, the jury would not have been misled or confused about the proper use of such evidence.
[47] I would accordingly not give effect to this ground of appeal.
Issue Three: Did the Trial Judge Err in Her Instruction to the Jury Regarding the Appellant's Exculpatory Evidence?
[48] As his third ground of appeal, the appellant contends that the trial judge erred in not giving an instruction based on the principles in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 when, during her charge, she was instructing the jury about certain exculpatory evidence.
(1) The relevant portions of the charge
[49] In her charge to the jury, the trial judge referred to the out-of-court statements made by the appellant to other persons, including Charles Coulter. Some of the statements and his attitude and demeanour in making them were exculpatory. The trial judge told the jury that they were to take this into account in assessing whether the Crown had proven the case beyond a reasonable doubt. The trial judge stated:
Unless you decide that Mr. Tuck made a particular remark or statement you must not consider it in deciding the case. Some or all of the statements may help Mr. Tuck in his defence. In particular, the statements to Charlie Coulter in which Mr. Tuck says that he stabbed the person because he had to or because he was jumped may help Mr. Tuck in his defence. You must consider those remarks along with all of the other evidence unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help Mr. Tuck even if you cannot decide whether he said them.
If you decide that Mr. Tuck made remarks that may help him in his defence or if you cannot decide whether he made them, you will consider those statements along with the rest of the evidence in deciding whether you have a reasonable doubt about Mr. Tuck's guilt. You may give anything you find [page332] Mr. Tuck said as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything you find he said, however, is only part of the evidence and you should consider it along with and in the same way as all the other evidence.
[50] The appellant, relying on this court's decision in R. v. Bucik, [2011] O.J. No. 3545, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 31 to 34, contends that the trial judge erred in not instructing the jury that the exculpatory evidence in question could be the source of a reasonable doubt even if not affirmatively believed.
(2) Analysis
[51] In R. v. Bucik, the issue respecting the appellant Harrington was identification -- was he one of two people who participated in a fatal assault on the victim Auld? As with Tuck's statements to Charles Coulter in the present case, portions of Harrington's statements to the police were exculpatory. Two eyewitnesses' descriptions of the second assailant were inconsistent with Harrington's appearance. Harrington did not testify at trial. The trial judge gave a general instruction on reasonable doubt, but did not link it to any of the evidence supporting the defence's theory of the case.
[52] This court held that, while the jury was instructed that it could consider the exculpatory portion of the statement and the eyewitness evidence, the trial judge did not explain how they should consider such evidence. Doherty J.A. stated that the jury should have been instructed along the lines of W. (D.), that even if they did not believe this evidence was true, unless they rejected it, it could be considered in the context of the rest of the evidence when deciding whether the Crown had discharged its burden of proof (at paras. 34 and 37).
[53] However, as Blair J.A. noted in R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 103, "W. (D.) does not set out a slavish formula; what is important is that the jury understand the burden and standard of proof and their application". In R. v. King, [2013] O.J. No. 2850, 2013 ONCA 417, 309 O.A.C. 39, a trial judge's charge respecting exculpatory evidence that used wording similar to that employed by the trial judge in this case and did not specifically instruct along the lines of W. (D.), was held to be sufficient. In King, there was no W. (D.) charge on the accused's statements to police, nor did she testify. Epstein J.A. noted that the question is not whether the exact W. (D.) formulation is used but "whether the jury was properly equipped by having the appropriate burden and standard of proof explained to them" (at para. 16). [page333]
[54] In the present case, the appellant testified at trial and his evidence was consistent with the exculpatory portions of his statements, to the extent that he acted in self-defence. The trial judge gave a W. (D.) instruction twice in her charge when referring to the appellant's testimony. Reading the charge as a whole, the appropriate burden and standard of proof were made clear to the jury.
[55] As in King, the trial judge's charge on the issue was sufficient. The jury was specifically instructed that they must consider the exculpatory remarks along with all of the other evidence unless satisfied that he did not make them, that they must consider all the remarks that might help the appellant even if they could not decide whether he said them, and that, if the jury could not decide whether he made the remarks, they must consider the statements along with the rest of the evidence in deciding whether they had a reasonable doubt about the appellant's guilt.
[56] The jury was therefore specifically and properly instructed in this case on how they were to approach the appellant's exculpatory out-of-court statements.
[57] Accordingly, I [would] not give effect to this ground of appeal.
Conclusion
[58] For these reasons, I would dismiss the appeal.
Appeal dismissed.
End of Document