Her Majesty the Queen v. Charlton
[Indexed as: R. v. Charlton]
2019 ONCA 400
Court of Appeal for Ontario, Doherty, Hourigan and Harvison Young JJ.A.
May 16, 2019
Criminal law — Charge to the jury — Credibility of two witnesses who
gave evidence with their earlier statements key to main issue at trial — Prior statements of witnesses being properly admitted for the truth of their
contents — Trial judge erring in failing to give W.(D.) instruction in respect
of witnesses’ exculpatory identification evidence — New trial ordered.
Criminal law — Evidence — Credibility — Accused convicted of
attempted murder — Witness A initially claiming that he did not recognize shooter but identifying accused as shooter at trial — Witness
C initially identifying accused as shooter but inculpating himself as
shooter in his trial testimony — C had been co-accused initially but
having pled guilty to aggravated assault and was serving his sentence by
the time of accused’s trial — Witnesses’ pre-trial statements being
admitted at trial for truth of their contents.
Criminal law — Evidence — Hearsay — Witness identifying accused as
shooter in his preliminary inquiry evidence but testifying at trial that
he himself was shooter and that accused was not involved — Trial judge
not erring in admitting witness’ preliminary inquiry testimony for truth
of its contents under principled exception to hearsay rule.
Criminal law — Trial judge — Duty to give reasons — Trial judge’s
delay of more than two years in releasing written reasons for two mid-trial evidentiary rulings undermining integrity of reasons to extent that
they were disregarded by appellate court — Absence of reasons not fatal
as trial judge’s decisions were supportable on record and basis for
decisions was apparent from circumstances.
The accused was convicted of attempted murder and discharging a firearm with
intent to wound. The primary issue at trial was the identity of the shooter. One of
the victims, A, initially twice denied recognizing the shooter, testified at the
preliminary hearing that he had recognized the accused as the shooter at the time
of the offence and then testified at trial that the accused was the shooter. C, the
accused’s former co-accused, identified the accused as the shooter in his police
statement and in his preliminary inquiry testimony, but at trial inculpated himself
as the shooter. C testified that he had lied previously about who was the shooter in
order to get a better plea bargain. The pre-trial statements of both A and C and C's
preliminary inquiry testimony were admitted at trial for the truth of their contents under the principled exception to the hearsay rule. The trial judge gave oral
reasons stating the bottom line of two key rulings but didn’t deliver written
reasons until 26 months and 27 months respectively after the oral ruling. The
accused appealed his conviction.
Held, the appeal should be allowed.
The trial judge’s delay in providing reasons for two mid-trial evidentiary rulings
undermined the integrity of those reasons to the extent that the appellate court
disregarded them. However, the resulting absence of reasons was not fatal, as the