Court of Appeal for Ontario

Date: 2018-06-25

Docket: C61607

Judges: Feldman, Brown and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Samora Fogah Appellant

Counsel

Anil Kapoor and Dana Achtemichuk, for the appellant

Leslie Paine, for the respondent

Heard

February 6, 2018

Appeal

On appeal from the convictions entered by Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on June 25, 2014.

BROWN J.A.:

I. OVERVIEW

[1] On the evening of October 30, 2009, Ritchie Durant was shot and killed in front of a sports bar on Davenport Road, near Ossington Avenue, in Toronto. A second person, David Ruffolo, was shot in the leg but survived. The appellant, Samora Fogah, was charged with four offences: first degree murder; attempted murder with a prohibited firearm; aggravated assault by wounding; and, discharging a prohibited firearm with intent to wound.

[2] Identity was the main issue at the trial. Was the appellant the shooter? Following a 13-day trial, the jury concluded he was, finding the appellant guilty of first degree murder, aggravated assault, and discharging a prohibited firearm with intent to wound. It was the appellant's second trial; his first trial had resulted in a hung jury.

[3] The appellant appeals from his conviction. He advances a single ground of appeal: the trial judge erred in the W.(D.) instructions he gave the jury at two points during the charge. The appellant submits the W.(D.) instructions erroneously directed the jury to consider the supporting defence evidence or evidence relied upon by the defence when assessing whether they were left with a reasonable doubt as a result of the appellant's evidence. The appellant argues this formulation of the W.(D.) instruction had the effect of directing the jury to look for supporting evidence when assessing his evidence, deflected the jury from considering all the evidence, and amounted to an error.

[4] For the reasons set out below, I would dismiss the appeal. Although the trial judge's expanded W.(D.) instruction was not ideal, in the circumstances it did not amount to a reversible error.

II. SUMMARY OF THE EVIDENCE

Altercation in the bar

[5] There was no dispute that when the appellant was in the bar on the evening of October 30, 2009 some sort of altercation broke out between two patrons: Bubba (Tiago Adao) and One-Eyed Mike, or Mikey (Mike Grizzelle). Some present in the bar saw Bubba pick on Mikey and push him into a table.

[6] From there the evidence diverged. Another patron, David Ruffolo, testified that he saw the appellant approach Bubba, likely to tell him to leave Mikey alone. Ritchie Durant then approached the appellant and a heated exchange took place. The appellant then left the bar. Two other Crown witnesses, Quentin Wyse and Wilson Gouveia, testified much to the same effect.

[7] The appellant testified that while he was in the bar he heard a thump and turned to find Mikey holding his head. He went over and asked Mikey if he was alright. Mr. Durant tried to calm Bubba and also asked if Mikey was alright. The appellant responded "yeah, he's all right", to which Mr. Durant said: "this fucking guy", referring to Bubba. The appellant did not describe the exchange with Mr. Durant as being hostile. The appellant stated he left the bar at that point and did not return.

The shooting

[8] Mr. Ruffolo testified that some time following the altercation, he was standing outside the bar. The appellant approached and entered the bar briefly. The appellant exited the bar, followed closely by Mr. Durant. The appellant argued with Mr. Durant and then shot him. The appellant then shot Mr. Ruffolo in the leg and left. There were differences in the accounts Mr. Ruffolo gave about those events at the preliminary inquiry and at trial.

[9] Mr. Gouveia testified the appellant returned to the bar later that night, looked around briefly, and then went back outside.

[10] Mr. Medeiros testified that the man he had seen leaving the bar after the altercation between Bubba and One-Eyed Mike returned, went into the bar, followed by Mr. Durant, and came out. At that point, Mr. Durant pushed his girlfriend into Mr. Medeiros, who fell. He then heard four gunshots, but did not see the shooting. He saw the shooter run east, and then along Ossington Avenue.

[11] A person waiting at a nearby bus stop testified he heard two to four "pops" and then observed a black man wearing jeans and a grey hoodie cross Ossington Avenue and go into Victor Jara Lane. En route, the man appeared to slide a pistol into the front waistband of his pants.

[12] The building in which the appellant rented a basement apartment faced onto Davenport Road and backed onto Victor Jara Lane.

[13] The appellant testified that upon returning home from the bar, he rolled a joint, and then took his dog for a walk. During the walk, he heard sirens and saw police cars at the intersection of Davenport and Ossington. He thought there must have been an accident, returned home, played a video game, and went to sleep. The appellant denied any involvement in the shooting.

[14] Mr. Durant died of his injuries a day after the shooting. Mr. Ruffolo survived.

The appellant's arrest

[15] About one week after the shooting, on November 8, 2009, the appellant was arrested at his residence on Davenport Road. One of the officers testified that as she walked down a hallway towards the appellant's apartment, she saw him standing at his door pointing a gun. The appellant denied he had a gun; he stated he was holding a cell phone.

[16] The police searched the appellant's basement apartment after his arrest. They found a semi-automatic Smith and Wesson handgun in the wall of the furnace room. It did not have a magazine, but a bullet was in the chamber. They also located an empty, rusted 40-calibre Smith and Wesson gun magazine in the toilet tank in the basement bathroom. The appellant denied ownership of the gun and magazine.

[17] A police firearms expert testified that, "within practical certainty," the bullets found at the bar and retrieved from Mr. Ruffolo's leg all had been fired by the gun found by the police at the Davenport residence.

[18] No fingerprints were obtained from the gun or magazine seized at the appellant's residence. Some gunshot residue was found on a hoodie and shirt that belonged to the appellant.

III. THE CHARGE TO THE JURY

The trial's evidentiary stage

[19] To put in context the appellant's submission that the trial judge erred in his W.(D.) instruction to the jury, I shall review how the charge on that issue evolved into its final form, including the submissions made by trial counsel regarding the W.(D.) instruction.

[20] The evidence at trial started on June 2, 2014 and concluded on June 16, 2014.

[21] In addition to the appellant, the defence called two other witnesses. The first was Officer Mobbs, who was one of the first responders to the scene of the shooting. Officer Mobbs testified about the appearance of the inside of the bar on the night of the shooting. In his closing to the jury, defence counsel submitted that the pictures taken of the inside of the bar did not look anything like a place where the events described by the witnesses could have occurred. He suggested the appearance of the inside of the bar might have been altered by those at the bar, which gave the jury another tool to test the credibility of the witnesses who described the events of that evening.

[22] The other witness called by the defence was Ryan Handlarski, a criminal lawyer. At the request of the defence, Mr. Handlarski went to the appellant's Davenport Road residence during the trial to ascertain which light switch in the hallway leading to the appellant's apartment turned on the hallway light. That evidence was led in response to the testimony of one of the arresting officers, Constable McFatridge. She had testified that upon entering the appellant's building, she used the first light switch in the hallway to turn on the lights, at which time she saw the appellant holding a gun. Mr. Handlarski testified that it was the second, not the first, switch in the hallway that turned on the light.

[23] As well, the defence read into evidence an agreed statement of facts, which included: (i) other than the one round found in the gun, no ammunition was found during the search of the appellant's apartment; (ii) no hats were seized during the search of the apartment – the person at the bus stop had said the man who appeared to have the pistol was either wearing a hood or a hat; and (iii) neighbours saw the appellant walking his dog the day after the shooting, suggesting that he was not lying low, as had been put to the appellant during his cross-examination.

[24] On June 10, 2014 the trial judge advised counsel that a pre-charge conference was necessary. He flagged for consideration whether counsel would be content with using the charge to the jury given at the first trial. It is not clear from the record that counsel had a copy of the charge from the first trial at the time of the second trial's pre-charge conference. It was not marked as an exhibit at the second trial.

The June 17, 2014 pre-charge conference

[25] A pre-charge conference was held on June 17, 2014. Defence counsel suggested the W.(D.) instruction should follow the "Final 16: Testimony of the Accused (The W.(D.) Instruction)" found in the first edition of Justice David Watt's publication, Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Canada, 2005), at p. 152.

[26] Crown counsel made no submissions on the appropriate form of the W.(D.) instruction.

The charge: June 23, 2014

[27] The trial judge's charge to the jury spanned two days.

[28] On the first day, June 23, the trial judge charged the jury on, among other things, some of the basic principles of law: the presumption of innocence; the burden of proof; and the concept of reasonable doubt. The trial judge stated that "[f]rom start to finish, it is always Crown counsel who must prove the person charged, Mr. Fogah, is guilty beyond a reasonable doubt…The burden of proof never shifts to the accused." On the principle of reasonable doubt, the trial judge's comments included the following:

If, at the end of the case, after considering all the evidence, you are sure that Mr. Fogah committed an offence, you should find him or her guilty of it, since you would have been satisfied of his or her guilt of that offence beyond a reasonable doubt.

If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that Mr. Fogah committed an offence, you should find him or her not guilty of it.

[29] Towards the end of the first day of his charge, the trial judge dealt with the appellant's evidence. After instructing the jury on the use it could make of evidence concerning events surrounding the appellant's arrest, he turned to review the appellant's evidence "generally". The trial judge prefaced his review by stating: "And remember, as I have already told you, the Crown has the burden of proof and Mr. Fogah does not have to prove anything."

[30] Following his summary of the appellant's evidence, the trial judge gave the jury a W.(D.) instruction. He modified Watt's Final 16 instruction, stating:

Now, if you believe Mr. Fogah's evidence then you must find him not guilty.

Even if you do not believe Mr. Fogah's evidence supported by the other evidence relied on by the defence, but it leaves you with a reasonable doubt about his guilt, you must find him not guilty.

Even if Mr. Fogah's testimony or other evidence relied on by the defence does not leave you with a reasonable doubt of his guilt, you may find him guilty only if the rest of the evidence before you that you do accept proves Mr. Fogah's guilt of the offence beyond a reasonable doubt.

[31] I will refer to this instance of the W.(D.) instruction as the "First Version".

The charge continued: June 24, 2014

[32] On the following day, the trial judge continued his charge by instructing the jury, with the assistance of decision trees, on the elements of the offences charged. He reviewed at length the evidence related to identification, followed by a more general review of the evidence. The trial judge then reviewed the positions of the parties.

[33] Having done so, the trial judge informed the jury that he wanted to give it "an important reminder about the burden of proof." He stated:

In approaching the evidence and arriving at your verdict, you must remain mindful the burden of proof is on the Crown and that Mr. Fogah does not have to prove anything.

If you believe Mr. Fogah's evidence, supported by the other defence evidence, that he did not shoot Richard Durant and David Ruffolo, you must find him not guilty.

Even if you do not believe his evidence supported by the other defence evidence, if it leaves you with a reasonable doubt, you must find him not guilty.

And even if his evidence, supported by the other defence evidence, does not leave you with a reasonable doubt, you may convict him of the offences charged only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

[34] I will refer to this instance of the W.(D.) instruction as the "Second Version".

[35] That was not the trial judge's final word on the burden of proof. In the subsequent, concluding section of the charge, the trial judge reminded the jury that "Mr. Fogah is presumed to be innocent in this trial. He is not obliged to prove his innocence. The Crown has the burden of proving guilt."

[36] After the jury retired to deliberate, the trial judge asked counsel whether they had any objections to the charge. Neither did.

[37] For ease of reference, a table comparing the standard version, First Version, and Second Version of the W.(D.) instruction can be found at Appendix "A" to these reasons.

June 25, 2014

[38] Over the course of the following day, the jury posed several questions. The jury returned with its verdict that day.

IV. THE ISSUE STATED

[39] The appellant points out some minor deficiencies in the trial judge's W.(D.) instruction, such as the slight variation in language used in the two versions of the instruction and his failure to explain phrases such as "defence evidence" and "evidence relied on by the defence." But the error in the instruction, according to the appellant, lies in its use of expanded language in the first and second stages of the customary W.(D.) instruction.

[40] As mentioned, defence counsel had asked the trial judge to charge in accordance with Watt's first edition Final 16 jury instruction. In that model instruction, the first stage of the W.(D.) instruction stated: "If you believe (NOA)'s evidence that (s/he) did not commit the offence(s) charged, you must find (him/her) not guilty" (emphasis in original). Instead of replicating that language, the trial judge expanded it, so that the first stage of the Second Version of the W.(D.) instruction stated: "If you believe Mr. Fogah's evidence, supported by the other defence evidence, that he did not shoot Richard Durant and David Ruffolo, you must find him not guilty" (expanded language emphasized).

[41] In Watt's Final 16 instruction, the second stage stated: "Even if you do not believe (NOA)'s evidence, if it leaves you with a reasonable doubt about (his/her) guilt, (or, about an essential element of the offence charged (or, an offence)), you must find (him/her not guilty) (of that offence)." The trial judge instructed the jury on the second stage as follows: Even if you do not believe Mr. Fogah's evidence "supported by the other evidence relied on by the defence" (First Version) – or "supported by the other defence evidence" (Second Version) – if it leaves you with a reasonable doubt (about his guilt), you must find him not guilty.

[42] The appellant's main submission is that using this expanded language was an error because it could misdirect the jury about the evidence it could take into account in considering whether the Crown had proved the charges beyond a reasonable doubt. This misdirection could happen in two ways. First, the appellant contends the language might deflect the jury from considering the whole of the evidence on the issue of reasonable doubt, including exculpatory evidence from witnesses other than the appellant. Second, the jury might not understand it could acquit solely on the basis of the appellant's evidence, unsupported by other evidence.

[43] The Crown acknowledges the language used by the trial judge in the W.(D.) instruction was not ideal. However, when read in the context of the entire charge, it did not amount to a misdirection. First, the instruction's purpose and effect were favourable to the defence by ensuring the jury would consider whether any of the defence evidence, not simply that of the appellant, was capable of raising a reasonable doubt. Second, the W.(D.) instruction did not limit the jury to considering only defence evidence on the issue of reasonable doubt. When read in its entirety, the charge was replete with instructions that: the Crown bore the burden of proving the appellant's guilt beyond a reasonable doubt; the burden never changed; and, the jury had to consider all of the evidence in deciding whether the Crown had proved its case beyond a reasonable doubt.

V. ANALYSIS

The governing legal principles

[44] Where credibility is a central issue in a jury trial, a W.(D.) instruction explains to the jury "the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard": R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para 8.

[45] The message of W.(D.) is that "it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt … The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt": J.H.S., at para. 13 (emphasis in original, citations removed).

[46] A trial judge must direct the jury's mind "to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt": R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The focus of the instruction remains on the principle of reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6.

[47] How the trial judge conveys that message is not confined to the words of "some magic incantation": R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533. As observed by this court in R. v. Moore, 2017 ONCA 947, 357 C.C.C. (3d) 500, at para. 30, while there is a legal obligation on a trial judge to properly instruct the jury on reasonable doubt, "[t]here is no legal obligation on a trial judge to recite the language in W.(D.)." The W.(D.) form of instruction is "a helpful map, not the only route": C.L.Y., at para. 8. The substance of the message is what matters; not the precise form: J.H.S., at para. 13.

[48] When and how to instruct a jury on the relationship between the principle of reasonable doubt and the assessment of credibility has evolved somewhat since its original expression in 1991 in W.(D.).

[49] W.(D.) was a case that involved conflicting evidence from the accused and the complainant; no other witness testified. Several years after W.(D.), Sopinka J., in his dissent in R. v. Haroun, [1997] 1 S.C.R. 593, expressed the view that the W.(D.) principle should apply to the evidence of defence witnesses other than the accused. At para. 15, he stated:

Cory J.'s comments in W. (D.) thus apply not only to the testimony of the accused, but to the defence evidence as a whole. Accordingly, the trial judge must instruct the jury, first, that if they believe the testimony of the accused or the defence witnesses, they must acquit. Second, even if they do not believe the testimony of the accused or the defence witnesses, if they have a reasonable doubt after considering the evidence as a whole, including the testimony of the accused and the defence witnesses, they must also acquit. [Emphasis in original.]

[50] In the 2005 edition of Watt's Manual of Criminal Jury Instructions, the author observed, at p. 152, that "[t]he full sweep of the W.(D.) instruction is unclear." For example, the author queried whether a W.(D.) instruction might be appropriate where the accused's version of events emerged through other witnesses whose credibility the Crown impeached.

[51] In the 2008 decision in R. v. Van, 2008 ONCA 383, 92 O.R. (3d) 462, reversed on other grounds, 2009 SCC 22, [2009] 1 S.C.R. 716, this court developed the point made by Sopinka J. in his dissent in Haroun. In Van, the appellant argued the trial judge had erred by giving a standard W.(D.) instruction. He contended the evidence of his ex-wife was "crucial to his defence, virtually amounting to an alibi": para. 17. In those circumstances, the appellant argued, the trial judge should have directed the jury, in the second and third stages of the W.(D.) instruction, to consider not only the evidence of the accused, but any evidence called by the defence capable of raising a reasonable doubt. Although this court did not accept that the ex-wife's evidence amounted to an alibi, it stated, at para. 19, that:

[T]he trial judge should have instructed the jury that at the second and third stages of the W. (D.) analysis, the jury was to consider, in addition to the evidence of the accused, all of the evidence called by the defence to determine whether it was left with a reasonable doubt.

[52] Then, in R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, this court held, at para. 114, that the W.(D.) principles apply not only where "an accused testifies and his or her evidence conflicts with that of Crown witnesses" but also where an accused does not testify, but on a vital issue "there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case".

[53] The following year, in R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421, this court summarized the basic principles regarding W.(D.) instructions stating, in part, at paras. 50-53:

[T]he W. (D . ) instruction, or its functional equivalent, is not limited to an accused's testimony or statement admitted at trial, rather it extends to other exculpatory evidence that emerges during trial proceedings.

[T]he purpose of the W. (D.) instruction or its functional equivalent is to ensure that the jury understands how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, a matter of choosing sides as it were, and that the jurors do not have to accept the defence evidence in full to find the accused not guilty.

[A] trial judge is not required to relate his or her reasonable doubt instruction to specific items of evidence, whether consistent with the defence or the Crown's theory of the case.

[T]he failure to expressly relate a W. (D.) or equivalent instruction to a particular item of evidence is not fatal, provided that the charge, taken as a whole, makes it clear to the jury that they are to apply the presumption of innocence and the burden of proof to all the evidence adduced at trial. [Citations omitted and emphasis in original.]

[54] That was the state of the jurisprudence in this province in 2014 when the trial judge charged the jury in the present case.

[55] A year later, in 2015, the second edition of Watt's Manual of Criminal Jury Instructions was published. The author observed that the jurisprudence had extended the application of the W.(D.) instruction beyond cases where the accused testified to those where the exculpatory version of events "arises because of a statement of [the accused] entered as part of the Crown's case, or from evidence elicited from witnesses called by the Crown": at p. 271.

[56] To address such circumstances, the author proposed a model W.(D.) instruction that expanded the customary language to include a reference to such other evidence. For example, the proposed instruction for the first stage of the W.(D.) reads: "If you believe (NOA)'s evidence (or, specify) that (s/he) did not commit the offence(s) charged, you must find (him/her) not guilty." The "or, specify" field could contain a reference to a statement of the accused introduced by Crown counsel or other evidence that constituted a defence to the offence charged.

The application of the principles to the present case

[57] The trial judge's use of the expanded language in his W.(D.) instructions was not ideal, but it did not give rise to reversible error.

[58] As the sketch of the evolution of the W.(D.) instruction set out above discloses, courts have pointed out the need in some circumstances for expanded W.(D.) instructions that refer not only to the evidence of the accused but also to the defence evidence as a whole. In his dissent in Haroun, Sopinka J. thought it necessary in the first and second stages of the instruction to refer to the evidence of the accused or the defence witnesses. In Van, this court opined that circumstances might require expanding the second and third stages to include not only the evidence of the accused, but "any evidence called by the defence capable of raising a reasonable doubt": paras. 17 and 19.

[59] Given that state of the law when the trial judge charged the jury in the present case, I see no reversible error in the trial judge including, in the first, second and third stages of his W.(D.) instruction, a reference to "the other evidence relied on by the defence" or "other defence evidence." The defence led evidence in addition to that of the appellant and, as described above, did so to place before the jury evidence that could enhance the credibility of the appellant's version of the contested events.

[60] The decisions in Haroun and Van would suggest that an expanded W.(D.) instruction that refers to defence evidence other than that given by the accused should use alternative language (e.g. "If you believe the accused's evidence or evidence from the other defence witnesses [on a vital issue], you must find the accused not guilty"). The trial judge used that formulation when instructing on the third stage in the First Version his of W.(D.) instruction, but otherwise used a different formulation, referring to the evidence of the appellant "supported by" other evidence of the defence.

[61] Did the use of the language "supported by" amount to reversible error?

[62] It did not in R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, leave to appeal refused, [2017] S.C.C.A. No. 101, where this court considered a form of W.(D.) instruction very similar to that used in the present case. In John, the trial took place in 2011 and the accused testified. The trial judge's W.(D.) instruction stated:

If you believe Mr. John's evidence supported by other defence evidence that he did not commit the offence charged, you must find him not guilty. Even if you do not believe Mr. John's evidence supported by other defence evidence, if it leaves you with a reasonable doubt about his guilt, you must find him not guilty. Even if Mr. John's evidence supported by other evidence does not leave you with a reasonable doubt of his guilt, you may find him guilty only if the rest of the evidence that you do accept proves [he is] guilty of the offence beyond a reasonable doubt. [Emphasis in original.]

[63] Similar versions of an expanded W.(D.) instruction, in the context of judicial self-instruction, can be found in R. v. Bacchus, 2011 ONSC 6572, at para. 36, and R. v. Brown, 2011 ONSC 7527, at para. 46.

[64] In John, the appellant contended the W.(D.) instruction diluted a mid-trial corrective instruction by the trial judge that reminded the jury there was no obligation on the part of the accused to call any witness and the onus of proof rested throughout on the Crown. This court held that given the absence of any viva voce defence evidence other than the appellant's, it would have been preferable not to use the phrase "supported by other defence evidence" in the W.(D.) instruction. However, when read in the context of the entire charge, the expanded language did not suggest any obligation on the accused to call evidence: see paras. 52-56.

[65] The appellant acknowledges that in John this court did not find error in the use of the "supported by other defence evidence" language in the W.(D.) instruction. However, the appellant submits his complaint about the use of expanded W.(D.) language differs from that considered in John. He argues that in the present case the use of the expanded language risked misdirecting the jury about the evidence it could take into account when considering whether the Crown had proved its case beyond a reasonable doubt.

[66] I am not persuaded by the appellant's submission.

[67] I accept the Crown's submission that the language of the W.(D.) instruction, read literally, did not direct the jury that it must find evidence supporting that of the appellant in order to believe him, nor did it prevent the jury from considering all of the evidence when determining whether the Crown had proved the charges beyond a reasonable doubt.

[68] However, any deficiency in the charge must also be considered in light of the effect of the charge as a whole: Van, ONCA, at para. 19. Would the overall effect of the expanded language misdirect the jury about the evidence it could consider in determining whether the Crown had proved guilt beyond a reasonable doubt? I conclude it would not. For several reasons.

[69] First, the effect of the expanded language must be measured, in part, against the purpose of a W.(D.) instruction. Did the expanded language diminish the message to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt? In my view, it did not.

[70] The W.(D.) instruction given by the trial judge on the second day of his charge was bracketed by the message that the burden of proof never shifted from the Crown. The trial judge prefaced the Second Version of the W.(D.) instruction with the following words: "In approaching the evidence and arriving at your verdict, you must remain mindful the burden of proof is on the Crown and that Mr. Fogah does not have to prove anything." Shortly after giving the Second Version, the trial judge stated, in the charge's concluding sections: "Mr. Fogah is presumed to be innocent in this trial. He is not obliged to prove his innocence. The Crown has the burden of proving guilt."

[71] As well, the trial judge repeated throughout his charge that the appellant did not have to prove that he was innocent of the crime charged because the Crown bore the burden to prove the appellant's guilt beyond a reasonable doubt.

[72] When the charge is read as a whole – as it must be – the instruction to this jury satisfied the ultimate test formulated by Cory J. in W.(D.): whether "the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply": p. 758. In my view, it could not.

[73] Second, neither version of the W.(D.) instruction detracted from the trial judge's overarching instruction that the jury was to consider all of the evidence when considering whether the Crown had proved the appellant's guilt beyond a reasonable doubt. On both occasions when a W.(D.) instruction was given, the third stage of the instruction told the jury that it could convict the appellant of the offences charged "only if the rest of the evidence" that "you do accept" proves Mr. Fogah's guilt "beyond a reasonable doubt." Moreover, as the Crown points out in its factum, at least 19 times during his charge the trial judge directed the jury to consider all of the evidence in reaching its decision. The jury could not have been under any misunderstanding about its duty to consider all of the evidence in determining whether it raised a reasonable doubt about the appellant's guilt.

[74] Third, in the First Version of the W.(D.) instruction, given towards the end of the first day of the charge, the trial judge used the standard language of the first stage of W.(D.): "[I]f you believe Mr. Fogah's evidence then you must find him not guilty."

[75] At the start of the following day, when dealing with the elements of the offence of first degree murder, the trial judge directed the jury to consider the appellant's denial of being involved in the shooting or of knowing anything about the gun or magazine found in the furnace room and toilet tank. The trial judge made no suggestion that the jury could not accept the appellant's denial without other supporting evidence.

[76] When assessed against those other portions of the charge, I am not persuaded the trial judge's statement in the first stage in the Second Version – "if you believe Mr. Fogah's evidence, supported by the other defence evidence" – would have the effect of directing the jury not to accept Mr. Fogah's evidence unless supported by other evidence. The trial judge correctly instructed the jury in the first stage of the First Version. If there was a deficiency in the charge in the first stage of the Second Version, the fact that it was correctly related at other points in the charge suggests that the jury was properly instructed: Van, SCC, at para. 23.

[77] Finally, defence counsel did not object to either version of the W.(D.) instruction given by the trial judge, nor did he suggest the trial judge had failed to direct the jury to consider all of the evidence when determining whether the Crown had proved the charges beyond a reasonable doubt. There had been ample time for defence counsel to consider the effect of the expanded language in the W.(D.) instruction – an overnight break followed the delivery of the First Version of the instruction. While the absence of an objection is not determinative, it is a strong indication that trial counsel did not have the concerns about the effect of the W.(D.) instruction now voiced on appeal.

[78] For these reasons, I conclude the trial judge did not commit a reversible error when instructing the jury on the W.(D.) principles. His instruction clearly conveyed the key W.(D.) message that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. Nor did his instruction, when considered in the larger context of the charge as a whole, misdirect the jury about the evidence it was to consider. I therefore would dismiss the appeal.

VI. DISPOSITION

[79] For the reasons set out above, I would dismiss the appeal.

Released: June 25, 2018

"David Brown J.A." I agree. K. Feldman J.A. I agree. Fairburn J.A.

APPENDIX "A"

W.(D.) Instruction Comparison

W.(D.) Stage	Standard Instruction	First Version	Second Version
First	If you believe Mr. Fogah's evidence that he did not commit the offences charged, then you must find him not guilty.	If you believe Mr. Fogah's evidence then you must find him not guilty.	If you believe Mr. Fogah's evidence, supported by the other defence evidence, that he did not shoot Richard Durant and David Ruffolo, you must find him not guilty.
Second	Even if you do not believe Mr. Fogah's evidence, if it leaves you with a reasonable doubt about his guilt, you must find him not guilty.	Even if you do not believe Mr. Fogah's evidence supported by the other evidence relied on by the defence, but it leaves you with a reasonable doubt about his guilt, you must find him not guilty.	Even if you do not believe his evidence supported by the other defence evidence, if it leaves you with a reasonable doubt, you must find him not guilty.
Third	Even if Mr. Fogah's evidence does not leave you with a reasonable doubt of his guilt, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.	Even if Mr. Fogah's testimony or other evidence relied on by the defence does not leave you with a reasonable doubt of his guilt, you may find him guilty only if the rest of the evidence before you that you do accept proves Mr. Fogah's guilt of the offence beyond a reasonable doubt.	Even if his evidence, supported by the other defence evidence, does not leave you with a reasonable doubt, you may convict him of the offences charged only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

Footnote

[1] Final 16 in Watt's first edition reads as follows:

[1] If you believe [Name of Accused ("NOA")]'s evidence that (s/he) did not commit the offence(s) charged, you must find (him/her) not guilty.

[2] Even if you do not believe (NOA)'s evidence, if it leaves you with a reasonable doubt about (his/her) guilt, (or, about an essential element of the offence charged (or, an offence)), you must find (him/her) not guilty (of that offence).

[3] Even if (NOA)'s evidence does not leave you with a reasonable doubt of (his/her) guilt, (or, about an essential element of the offence charged (or, an offence)), you may convict (him/her) only if the rest of the evidence that you do accept proves (his/her) guilt (of it) beyond a reasonable doubt.