



WARNING

THIS
    IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND
    IS SUBJECT TO:

110. (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111. (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138. (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)     is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)     is guilty of an offence punishable on summary
    conviction.




COURT
    OF APPEAL FOR ONTARIO

CITATION:  R. v. K.C., 2015 ONCA 39

DATE: 20150126

DOCKET: C56733

Doherty, Gillese and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.C. and J.B.

Respondents

Alison Wheeler, for the appellant

Timothy E. Breen, for the respondent, K.C.

Delmar Doucette and Adam Boni, for the respondent, J.B.

Heard:  December 17, 2014

On appeal from the acquittals entered on February 8, 2013
    by Justice John B. McMahon of the Superior Court of Justice, sitting with a
    jury.

Doherty J.A.:


I



overview

[1]

The respondents, K.C. and J.B., were charged with first degree murder.
    Both were young persons as defined in the
Youth Criminal Justice Act
,
    S.C. 2002, c. 1 and the trial proceeded accordingly. The jury acquitted both
    respondents.

[2]

The Crown advances one ground on appeal. The Crown argues that the trial
    judge improperly excluded potentially important evidence. The excluded evidence
    has two parts. First, the Crown sought to lead evidence that the respondent,
    J.B., and Neil Armstrong, the murder victim, participated on opposite sides of
    a brief group fight about 11 months before the murder while both were
    incarcerated at the Toronto Youth Assessment Centre (TYAC). Second, the Crown
    tendered evidence that K.C., J.B. and Armstrong were housed in the same section
    in TYAC for a few days shortly after the fight between J.B. and Armstrong. The
    substance of the evidence was never seriously challenged and eventually became
    the subject of an agreed statement of fact.

[3]

The Crown alleged that the evidence was relevant to motive. The Crown
    contended that enduring animosity between two groups led to the murder. That
    animosity grew out of altercations between the two groups at TYAC. The Crown
    also contended that the evidence could confirm parts of the testimony of the
    central Crown witness, Cleavon Springer, an accomplice and admitted serial liar.

[4]

The defence maintained that the evidence was not probative of motive or
    confirmatory of any material part of Springers testimony. The defence argued
    that even if the evidence had some modest probative value, its obvious
    potential to significantly prejudice the accused far outweighed any probative
    value.

[5]

There were two trials.  In both, the Crown relied on Springers
    preliminary inquiry evidence to provide the necessary context to determine
    admissibility.  At the first trial, the evidence was ruled admissible on a
    pre-trial motion.  The trial judge subsequently declared a mistrial for
    unrelated reasons before Springer testified.  At the second trial, again on a
    pre-trial motion, the trial judge confirmed the admissibility of the evidence
    again relying on Springers preliminary inquiry evidence.

[6]

Springers trial evidence differed in some ways from his preliminary
    inquiry testimony. Relying on those differences, defence counsel asked the
    trial judge to revisit the evidentiary ruling. The trial judge reconsidered the
    ruling and excluded the evidence from TYAC save for evidence that K.C. had been
    an inmate at TYAC for a relatively short period.

[7]

Crown counsel on appeal contends that the earlier rulings were correct
    and that any differences between Springers preliminary inquiry evidence and
    his trial testimony did not warrant the exclusion of the evidence. She further
    submits that the excluded evidence was particularly important to the Crown
    because it could confirm a material part of Springers evidence. His evidence
    was crucial to the Crown and badly in need of independent confirmation.

[8]

For the reasons that follow, I would dismiss the appeal.


II



BACKGROUND

[9]

On July 16, 2003, Neil Armstrong was shot dead on Richmond Street in
    Toronto, near a nightclub known as Inside. The respondents were arrested after
    Cleavon Springer, who had been arrested on serious unrelated charges, gave a
    statement to the police in 2009 identifying K.C. as the shooter and J.B. as an
    aider in Armstrongs murder. According to Springer, he had also aided in the
    murder. Springers 2009 statement provided the basis for prosecution.

[10]

Springer
    had told the police a very different story in 2006. In his 2006 version of
    events, Springer implied that J.B. was the shooter. In his trial testimony, he
    admitted that he concocted his 2006 testimony to protect himself and his
    friends from prosecution.

[11]

At
    trial, Springer testified he was with a friend on July 15, 2003 when the friend
    received a phone call. As a result of the call, Springer and his friend loaded
    their 9mm semi-automatic handguns and drove downtown. They met K.C. and others,
    including J.B., in a parking lot near the Inside nightclub. K.C. was a friend
    of Springers. Springer knew J.B. but did not consider him a friend.

[12]

Springer
    testified that he and K.C. spoke in the car. J.B. and others were milling
    around in the parking lot near the vehicle.

[13]

K.C.
    told Springer that he had a brief altercation in the nightclub with two
    individuals he called Pentime and Poochi. According to K.C., the altercation in
    the nightclub was a continuation of bad blood between himself and a group
    that included Pentime and Poochi. The bad blood had begun when K.C., Pentime
    and Poochi were incarcerated together at TYAC.

[14]

K.C.
    did not say anything during his discussion with Springer about Armstrong and specifically
    did not suggest that Armstrong was involved either in the prior bad blood at
    TYAC or in the altercation in the nightclub.

[15]

Springer
    testified that after he spoke with K.C. in the vehicle, they both left the
    vehicle and spoke with the group in the parking lot. That group included J.B. K.C.
    made it clear that when the group with whom he had argued left the nightclub he
    wanted to confront them. He asked Springer for his handgun, explaining that his
    was not reliable. Springer testified that he gave his loaded handgun to K.C.

[16]

Springer
    testified that based on K.C.s statements in the parking lot, he understood
    that K.C.s group would confront the other group when it left the nightclub. Springer
    anticipated gunfire, as he knew that K.C. was armed and believed that persons
    in the other group would also be armed.

[17]

A
    group of young men including Armstrong eventually left the nightclub and stood
    on Richmond Street. That group split into two. The part of the group that
    included Armstrong walked into the street. Springer testified that K.C. and his
    group, which included J.B., approached the part of the group that had walked
    into the street. K.C. held the gun Springer had given him beside his leg.

[18]

There
    were at least two different versions of what happened when the two groups
    confronted each other. According to Springers testimony, K.C. said something
    to the group that included Armstrong and the group fled. K.C., J.B. and
    Springer gave chase. Springer testified that J.B. caught and tripped Armstrong.
    As Armstrong struggled to regain his feet, K.C. ran up to him and fired a
    single shot, striking and killing him.

[19]

Springer
    testified that he met K.C. about a week later in Markham, Ontario. K.C.
    returned Springers handgun. He told Springer that the wrong person had been
    shot and that Armstrong, unlike Pentime and Poochi, was not seen as a threat to
    K.C. and his group. K.C. told Springer that Armstrong, Pentime and Poochi hung
    together and were from the same area. K.C. had met Armstrong before, but did
    not say where he had met him.

[20]

Springer
    testified that K.C. also repeated the story about prior altercations with
    Pentime and Poochi at TYAC and the bad blood between his group and the group
    headed by Pentime and Poochi. Crown counsel asked Springer whether K.C. said
    anything about Armstrong in connection with these prior altercations at TYAC. Springer
    replied:

It was possible that there was also altercations with him
    [Armstrong], but he never really played a major role in the disagreement
    between the two groups.

[21]

Springers
    answer is not easy to understand. He appears to speculate about what K.C. may
    have said about Armstrong. The Crown did not ask any follow-up questions.

[22]

Springers
    evidence was crucial to the Crowns case. If the jury did not believe
    Springers evidence, the Crown did not have a case against either K.C. or J.B. Springers
    credibility was suspect for many reasons, not the least of which was his
    admitted role in a murder for which he entirely escaped prosecution. He was, by
    any definition, an unsavoury witness worthy of the strongest
Vetrovec
warning.

[23]

Springers
    evidence also conflicted in some respects with unchallenged physical evidence. For
    example, Springer described the person shot by K.C. as wearing a white t-shirt.
    Armstrong was dressed in dark clothing, including a black hoodie. Another person
    who was shot and wounded during the same melee but at a different place on the
    street was wearing a white t-shirt. Based on Springers evidence about the
    colour of the clothing and other details of the shooting, the defence argued
    that Springer was actually describing the shooting of that other person and not
    Armstrong.


III



THE EXCLUDED CROWN EVIDENCE

[24]

The
    Crown sought to lead evidence of a fight between two groups of inmates in a
    dormitory at TYAC. The fight took place on August 20, 2002, 11 months before
    the murder, and lasted less than 30 seconds. One group included Armstrong and
    the other included J.B. There was no evidence that K.C., Pentime or Poochi were
    involved in, present at, or aware of the fight. There was also no evidence on
    the cause of the fight or any subsequent interaction between J.B. and Armstrong.

[25]

The
    Crown also sought to lead evidence that K.C., J.B. and Armstrong were all
    housed in the same section of TYAC between August 28 and September 2, 2002. Armstrong
    and J.B. remained in that section until September 5. The evidence did not refer
    to any interaction among the three during this period.

[26]

At
    trial, the Crown offered the evidence primarily as capable of confirming
    Springers testimony that K.C. told him the murder stemmed from bad blood
    between K.C.s group and the Pentime/Poochi group. That bad blood, according
    to K.C., began with altercations between the two groups at TYAC.


IV



THE TRIAL RULINGS

[27]

As
    indicated above, the admissibility of the bad blood evidence was considered
    on three separate occasions at the trial level.  On the first occasion,
    Nordheimer J., relying on Springers preliminary inquiry testimony, held that
    the evidence was admissible:
R. v. K.C. and J.B.
, 2012 ONSC 5164.  In
    his preliminary inquiry evidence, Springer had testified that K.C. had told him
    that Armstrong was a part of the group  inside the club who [K.C.] had the
    altercation with.  Springer had also testified that K.C. categorized
    Armstrong with the people with whom he had bad blood from TYAC.

[28]

In
    ruling the evidence admissible, Nordheimer J. said, at para. 14-15:

There may be a qualitative difference in the minds of the jury
    between the suggestion that this murder occurred as the result of a single
    confrontation between the accused and the deceased and their respective
    associates in a club and the suggestion that this murder occurred as the result
    of a simmering animosity between the individuals involved and their associates.

If the jury is not provided with the evidence regarding the
    prior involvement between the deceaseds group and the accuseds group, they
    will be left with only a partial picture of the background between these
    individuals
. That might, in turn, lead the jury to wonder whether a single
    confrontation in a club would be sufficient reason for K.C. and J.B. to want to
    cause harm to the deceased. [Emphasis added.]

[29]

Nordheimer
    J.s ruling was premised on the evidence of Springer that K.C. identified
    Armstrong as part of the altercation in the nightclub. Because Springers
    testimony connected Armstrong to the Pentime/Poochi group and therefore to the
    altercations in TYAC, the evidence was probative of the bad blood motive. For
    the same reason, the evidence offered some independent confirmation of Springers
    testimony that K.C. gave bad blood as the motive for the confrontation
    outside of the nightclub.

[30]

McMahon
    J. presided over the second trial after Nordheimer J. declared a mistrial. The
    defence asked McMahon J. to reconsider the ruling made by Nordheimer J.
    pursuant to s. 653.1 of the
Criminal Code
. The defence relied on the
    same evidentiary record (Springers preliminary inquiry testimony) but argued
    that Nordheimer J. had misapprehended relevant evidence.

[31]

McMahon
    J. concluded that notwithstanding some misapprehension of the evidentiary
    record by Nordheimer J., the evidence was admissible. McMahon J., like
    Nordheimer J., thought the evidence could support the bad blood motive and
    help confirm Springers evidence that K.C. attributed the confrontation outside
    the nightclub to that bad blood.

[32]

The
    trial proceeded and Springer testified. His trial evidence differed from his
    preliminary inquiry testimony in at least two important respects. First,
    Springer did not testify that K.C. told him that Armstrong was involved in the
    altercation in the nightclub. According to Springers recollection at trial,
    K.C. said nothing about Armstrongs involvement in the altercation in the
    nightclub or with the group that was involved in the altercation. Second,
    Springer testified at trial that when he spoke with K.C. after the murder, K.C.
    did not suggest that Armstrong had been involved in the altercations at TYAC,
    but instead told Springer that Armstrong hung together with Poochi and
    Pentime and that the three men were from the same neighbourhood. K.C. also told
    Springer that he knew Armstrong but did not say how he came to know him.

[33]

McMahon
    J., at the defence request, reconsidered his ruling in light of the changes in
    Springers testimony. He excluded all of the evidence except for evidence that
    K.C. had been incarcerated at TYAC for about two weeks 11 months before the
    murder. McMahon J. admitted evidence of K.C.s incarceration at TYAC because,
    in his view, it could confirm to some extent Springers testimony that K.C.
    told him the murder arose from a feud that began when K.C. was incarcerated at
    TYAC.

[34]

In
    his ruling excluding the rest of the evidence, McMahon J. addressed the admissibility
    of the evidence separately as against each accused. With respect to J.B., he
    held that evidence of the fight involving J.B. and Armstrong may have some
    probative value as demonstrating J.B.s animus toward Armstrong. McMahon J. went
    on, however, to hold that the risk of prejudice to J.B. outweighed any
    potential probative value. The risk of prejudice flowed from the possibility
    that the jury might consider the evidence of the fight in combination with
    K.C.s statements that the murder originated in bad blood from TYAC. Those
    statements were not admissible against J.B. The trial judge explained the
    prejudice to J.B. in these terms:

The jury would have [J.B.] involved in a minor altercation at
    TYAC, which would be relevant and admissible against [J.B.], but they would
    then hear [K.C.s] statement that the bad blood goes back to altercations at
    TYAC with Pentime and Poochi. The jury would have to be instructed on the
    subtle differences on what evidence could be used against [J.B.] and what
    evidence could be used against [K.C.]. The risk of the jury linking [K.C.s]
    statement to [J.B.], though it would be inadmissible, would be great in the
    circumstances. As such, the prejudice to [J.B.] in that link would be extremely
    prejudicial to him, and I am not satisfied it could be overcome through a
    limiting instruction.

[35]

The
    trial judge next considered the admissibility of the evidence as against K.C. He
    held that absent any evidence linking Armstrong to the bad blood between K.C.s
    group and the Pentime/Poochi group, the evidence of the fight at TYAC between
    J.B. and Armstrong was inadmissible against K.C. and could not confirm any part
    of Springers testimony as against K.C.


V



THE ARGUMENTS ON APPEAL

[36]

The
    admissibility of evidence is a question of law. If the admissibility turns on
    weighing probative value against prejudicial effect, however, appeal courts
    will defer to the trial judges assessment as long as it is reasonable, free of
    identifiable errors in principle and not based on any material evidentiary
    errors:
R. v. Shearing
, 2002 SCC
    58,
[2002] 3 S.C.R. 33, at para. 73;
R. v. Stubbs
, 2013
    ONCA 514, 300 C.C.C. (3d) 181, at para. 58.

[37]

Crown
    counsel on appeal has raised essentially three arguments.

a)

The
    trial judge failed to appreciate the relevance of the evidence to the Crowns
    bad blood motive. That failure flowed from the trial judges misunderstanding
    of relevant parts of Springers trial testimony.

b)

The
    trial judge erred by failing to hold that even if the evidence could not
    support the bad blood motive, it was admissible as evidence of a prior
    relationship between Armstrong, K.C. and J.B.

c)

The
    trial judge overemphasized the potential prejudice to J.B. should the evidence
    of his altercation with Armstrong be admitted, and failed to give adequate
    weight to measures that could ameliorate any potential prejudice to J.B.

(a)

Did the trial judge fail to properly consider the relevant evidence?

[38]

Crown
    counsel argues that the trial judge did not appreciate the significance of the
    evidence to the bad blood motive because the trial judge failed to consider a
    relevant part of Springers testimony and misapprehended two other parts of his
    testimony. Counsel contends that on a proper understanding of Springers
    testimony, the evidence is admissible as part of the circumstantial picture
    supporting the bad blood motive and, more importantly, as independent
    evidence offering some confirmation of Springers testimony on K.C.s
    statements about bad blood.

[39]

I
    will begin with the alleged failure to consider relevant evidence. Counsel
    submits that the trial judges failure to mention Springers testimony that
    K.C. told him that Armstrong hung together with Pentime and Poochi indicates
    that the trial judge failed to consider that evidence. The failure to mention
    evidence can indicate a failure to consider it. Yet sometimes, perhaps most
    times, the failure to mention evidence is simply a reflection of the evidences
    minimal significance to the issue at hand.

[40]

Evidence
    that Pentime and Poochi hung together with Armstrong did show some kind of
    association among the three. It could not, however, place Armstrong within the
    Pentime/Poochi group at TYAC or in the nightclub. The trial judges failure to
    allude to the evidence that Armstrong hung together with Pentime and Poochi
    tells me that the trial judge did not think the evidence capable of linking
    Armstrong to the Pentime/Poochi group. I cannot disagree with that assessment.

[41]

Crown
    counsel next points to two alleged misapprehensions of evidence. First, she
    submits that the trial judge indicated that Springer testified K.C. told him the
    altercation in the nightclub involved K.C. on one side and Pentime and Poochi
    on the other side. Crown counsel says that, in fact, according to Springer,
    K.C. referred to the other group as including Pentime and Poochi.

[42]

I
    see no material difference between the evidence as summarized by the trial
    judge and as described by Crown counsel. What mattered for the purposes of the
    admissibility inquiry was the absence in Springers trial testimony of anything
    connecting Armstrong to the altercation in the nightclub or to the group
    involved in the altercation. The actual constitution of that group, and
    specifically whether it included unnamed persons other than Pentime and Poochi,
    was irrelevant to the ability of the evidence to support the Crowns bad
    blood motive.

[43]

The
    second alleged misapprehension relates to Springers testimony about any
    connection K.C. may have said Armstrong had to the prior altercations at TYAC.
    Springers entire evidence on this issue consists of the single answer set out
    above (see para. 20). Crown counsel submits that this answer, despite containing
    an element of speculation as to Armstrongs involvement in the altercations
    at TYAC, constituted evidence connecting Armstrong to the altercations at TYAC.
    She submits that the trial judge misapprehended the evidence when he held that
    there was no evidence connecting Armstrong to the altercations at TYAC.

[44]

The
    trial judges conclusion that there was no evidence in Springers trial
    testimony connecting Armstrong to the altercations at TYAC was a reasonable
    interpretation of Springers vague and somewhat nonresponsive answer to the
    single question posed by the Crown. I would defer to the trial judges
    understanding of the evidence.

[45]

In
    my view, the trial judge did not make any material errors in his review of
    Springers evidence. Put simply, Springers trial testimony did not connect
    Armstrong or his altercation with J.B. at TYAC to the bad blood motive
    advanced by the Crown.

(b)

Was the evidence admissible to show a prior relationship between
    Armstrong, K.C. and J.B.?

[46]

The
    Crown next submits that even if the trial judge correctly held that the
    evidence could not support the bad blood motive, he erred in failing to admit
    the evidence to show a prior relationship between Armstrong, J.B. and K.C. The
    Crown submits that it was important for the Crown to demonstrate that J.B.,
    K.C. and Armstrong were not strangers but rather had a shared history. On the
    Crowns argument, this shared history made it more plausible that K.C. and
    J.B. would act together to kill Armstrong, as Springer testified.

[47]

I
    start my analysis of this submission with the observation that at its best,
    this argument would justify admitting evidence establishing that Armstrong knew
    or had prior contact with K.C. and J.B. I do not think that the prior
    association argument could justify admitting evidence of a prior altercation
    between J.B. and Armstrong while they were in jail, or evidence that all three
    had been incarcerated together at TYAC. Consequently, even if evidence showing
    a prior connection and nothing more had some relevance, that relevance would
    justify only the admission of the evidence stripped of its strongly prejudicial
    elements unnecessary to establish the existence of a prior connection among the
    three. I do not understand the Crown at trial to have sought the admission of
    this evidence stripped of its prejudicial components.

[48]

Evidence
    of a prior association between an accused and a deceased is often admitted in a
    murder case because it will have some relevance to a fact in issue. That
    relevance does not, however, flow from prior association standing alone. The
    evidence of prior association is usually offered as part of a larger
    evidentiary package capable of proving a fact in issue such as motive or an
    accuseds state of mind: see, e.g.,
R. v. Griffin
, 2009 SCC 28, [2009]
    2 S.C.R. 42, at para. 61-63;
R. v. Johnson
, 2010 ONCA 646, 262 C.C.C.
    (3d) 404, at para. 99-101.

[49]

Evidence
    of a prior association between an accused and a deceased that begins and ends
    with evidence of some physical contact at some distant point in the past will
    have little, if any, probative value. With respect to the Crowns submission,
    it overstates the force of the evidence to describe it as evidence of a shared
    history. The evidence only indicates that Armstrong, K.C. and J.B. lived in
    the same place for a few days 11 months before the murder and that J.B. and
    Armstrong had a very brief altercation while living in the same place. If this
    fleeting intersection in the lives of Armstrong, K.C. and J.B. constitutes a
    shared history, it is not one that is reasonably capable of shedding much, if any,
    light on what happened 11 months later.

[50]

The
    distinction between evidence of prior association probative of motive and
    evidence of prior association not so probative is demonstrated by the two
    different evidentiary rulings in this case. Based on the preliminary inquiry
    testimony of Springer, the evidence of prior association between Armstrong,
    J.B. and K.C. at TYAC could be connected to the alleged bad blood between
    K.C.s group and the Pentime/Poochi group. However, considered in the context
    of Springers trial evidence, the prior association between Armstrong, J.B. and
    K.C. could not be connected in any way to the Pentime/Poochi group or the
    altercations at TYAC. Without that link, the evidence of the prior relationship
    had little probative value.
The potential prejudice of
    evidence placing J.B. and K.C. in jail and, in the case of J.B., engaged in
    criminal activity while in jail, is so obvious as to need no articulation.


(c)

Did the trial judge err in his assessment of the probative value/ prejudicial
    effect of the evidence of J.B.s altercation with Armstrong?

[51]

Crown
    counsels next submission focuses on the admissibility of the evidence of the
    fight between Armstrong and J.B. Counsel submits that the trial judge properly
    held that the evidence was potentially admissible against J.B. as evidence of
    personal animus towards Armstrong. Counsel contends, however, that the trial
    judge wrongly excluded the evidence by overemphasizing the potential
    prejudicial effect of the evidence and overstating the difficulty in crafting a
    proper limiting instruction.

[52]

A
    trial judges measurement of potential prejudice and his assessment of his
    ability to negate that prejudice by a proper limiting instruction are entitled
    to strong deference on appeal. Those assessments, particularly the latter,
    depend to some extent on the trial judges sense of the trial dynamic. This
    court cannot know that dynamic.

[53]

The
    trial judge correctly identified the risk that the jury would speculate that
    the fight at TYAC involving J.B. and Armstrong was part of the bad blood
    described to Springer by K.C., even though K.C.s statements about the
    altercations at TYAC were not admissible against J.B. Springers testimony that
    K.C. identified J.B. as part of his group increased the risk of misuse of
    K.C.s statements against J.B. That evidence was also inadmissible against J.B.

[54]

The
    risk of potential misuse was real. The extent to which the trial judge could
    overcome that risk by crafting an appropriate prophylactic instruction was very
    much for him to determine in the context of the case. I would defer to his
    assessment.



[55]

In
    any event, I am far from satisfied that the evidence of the altercation between
    J.B. and Armstrong had any real probative value. Evidence of prior assault or
    argument between an accused and a deceased can provide evidence of animus which
    may support the existence of a motive to kill. However, not every argument or
    assault involving an accused and a deceased has that evidentiary potential. It
    all depends on the nature of the evidence.

[56]

The
    evidence supported the inference that some 11 months before the murder, J.B.
    held animus against Armstrong or, perhaps more accurately, against a group that
    included Armstrong. That animus led to a very brief physical altercation at
    TYAC. The evidence offered no explanation for the source of the animus, no context
    in which to measure the nature and extent of the animus, and no basis upon
    which to infer that the animus continued, much less grew to a point where it
    motivated a murder. A jury asked to infer a motive for murder from the animus
    demonstrated by a brief altercation 11 months earlier would be asked to take a
    leap of faith rather than draw a reasonable inference.

[57]

Finally,
    even if the evidence of the altercation involving J.B. and Armstrong had some
    minimal probative value to show J.B.s animus toward Armstrong, the Crowns
    theory of the case undercut even that minimal value. The Crown did not argue
    that J.B. targeted Armstrong to settle any personal score. To the contrary, the
    Crowns position as expressed through Springers testimony was that Armstrong
    was not the intended target of the confrontation and that his death was more in
    the nature of collateral damage. Evidence that J.B. had some personal animus
    towards an unintended target adds nothing to the Crowns case against J.B.  The
    evidence of the fight is of course inadmissible as against K.C.


VI



Has the Crown shown that the verdict would not necessarily have been the
    same had the evidence been admitted?

[58]

As I think the evidence was properly excluded, I do not need to consider
    whether the Crown demonstrated that the verdict would not necessarily have been
    the same had the evidence been admitted. I will, however, briefly address that
    issue.

[59]

On
    a Crown appeal from acquittal, the Crown must demonstrate first, an error in
    law and second, that the error was sufficiently significant to allow the
    appellate court to conclude that the verdict would not necessarily have been
    the same had the error not been made. The onus on the Crown has been described
    as a heavy one:
R. v. Graveline
,
    2006 SCC 16,
[2006] 1 S.C.R. 609, at para. 15.

[60]

I
    think the Crown could only meet its burden on this appeal by demonstrating that
    the evidence was admissible to support the bad blood motive advanced at trial.
    The Crown initially secured a ruling granting admission on that basis. Arguments
    supporting the admissibility of the evidence on other grounds, even if correct,
    would not in my view afford the evidence sufficient probative value to permit
    the conclusion that the verdict would not necessarily have been the same had
    the jury heard the evidence.

[61]

For
    example, even if the Crowns prior association argument was accepted,
    evidence that J.B., K.C. and Armstrong were not strangers and had met some 11
    months earlier would barely move the Crowns case forward and would do nothing
    to confirm a material part of Springers testimony. I do not think there is any
    realistic possibility that evidence establishing no more than a prior connection
    among J.B., K.C. and Armstrong could have led to a different result.

[62]

Put
    bluntly, the Crown had a viable claim that the evidence was admissible to
    support the bad blood motive based on Springers preliminary inquiry
    testimony. When his testimony changed, the Crowns case for admissibility all
    but disappeared. Arguments for admissibility through some chain of reasoning
    other than as evidence to support the bad blood motive and thereby as
    evidence to confirm Springers testimony, even if legally tenable, could not
    satisfy the burden of demonstrating that the verdicts would not necessarily
    have been the same had the evidence been admitted.



VII



CONCLUSION

[63]

I
    would dismiss the appeal.

Released:  DD JAN 26 2015

Doherty J.A.

I agree E.E. Gillese
    J.A.

I agree P. Lauwers
    J.A.


