



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dodd, 2015 ONCA 286

DATE: 20150427

DOCKET: C55606

Sharpe, Simmons and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Michael Dodd

Appellant

Brian H. Greenspan and Naomi Lutes, for the appellant

R. Pinnock, for the respondent

Heard: March 3-4, 2015

On appeal from the conviction entered on February 18,
    2012 and the sentence imposed on June 8, 2012 by Justice Renee M. Pomerance of
    the Superior Court of Justice, sitting with a jury.

Benotto J.A:

[1]

Two men disappeared after last being seen or heard in the garage and
    backyard of a home in Windsor.  Their decomposed bodies were discovered many
    months later.  They had been beaten to death.

[2]

The appellant was convicted,
    along with his co-accused Timothy Carter, of murdering both men.  His position
    at trial  maintained on appeal - was that he was not present when the fatal
    beatings took place.

[3]

The appellant and Carter were convicted of second degree murder for the
    deaths of Peter Kambas and Vaois Koukousoulas. Carters appeal of his
    conviction and sentence was heard together with this appeal.  The reasons in
    both appeals are being released together.

[4]

The last place at which the two
    victims were seen or heard was Carters residence. There was no evidence of any
    other location at which the two victims were assaulted and killed. Therefore,
    the first question for the jury was whether the appellant was present at
    Carters residence at the time of the beatings.

[5]

The evidence relied on by the
    Crown to establish the appellants presence was  individually and collectively
     so frail that a thorough judicial scrutiny is triggered.  When the evidence
    is examined through the lens of judicial experience, it is apparent that the
    fact-finding exercise applied by the jury was flawed in light of the
    unreasonable result it produced.

[6]

For the following reasons, I would
    allow the appeal on the basis of an unreasonable verdict.

OVERVIEW OF THE CROWNS CASE

[7]

The theory advanced by the Crown may
    be summarized as follows:

·

Kambas, Koukousoulas and the appellant were together at Kambass
    residence in the early morning hours of June 29, 2008.  The three then
    travelled by taxi - which had been summoned by the appellant - to Carters
    residence.

·

While at this residence, the victims  Kambas and Koukousoulas 
    were killed by Carter and the appellant.  Witnesses saw or heard portions of
    assaults which took place in the garage and backyard of Carters home.  One
    witness thought she had heard Kambas moaning in pain, and the appellant
    threatening him. Another witness saw a thin man being assaulted in the backyard
    by a larger man that resembled the appellant in some respects.  Yet another
    witness observed Carter in his garage telling a distraught Koukousoulas to shut
    up, while a silent and unmoving body lay on the floor.

·

Carters vehicle was seen leaving his residence later that
    morning and was absent for several hours.  The same day, Carter left town with
    his girlfriend, driving a stolen pickup truck rather than his own vehicle. 
    That very evening, a fire consumed Carters garage and vehicle. Dentures
    belonging to Kambas were located in the burned remains of Carters vehicle.

·

The skeletal remains of Kambas and Koukousoulas were discovered
    together some months later.

EVIDENCE OF THE EVENTS OF JUNE 28 AND 29, 2008

[8]

On June 28, 2008, Timothy Carter
    was living with his girlfriend Krystal Hamelin and their three-month-old baby
    in a detached house in Windsor. A friend, Adelino Moreira, often slept in the
    house as well. Moreira was helping Carter build a garage in the backyard that
    faced onto a back alleyway. The backyard had a deck next to the house. An above-ground
    pool was situated between the deck and the garage.

[9]

In addition to Moreira, Carters
    friends included Kambas, Koukousoulas, George Mavrakakis, Dan Ross, and the
    appellant.  There was evidence that at least Carter, Moreira, and Kambas were
    in the drug dealing business.

[10]

The events of June 28 and the
    early morning hours of June 29 were the subject of evidence from Hamelin,
    Kambass girlfriend Mary McConnell, McConnells friend Manny Pereira, and
    Carters next-door neighbours Denisa Lamanna and Shawn Grubb.

Krystal Hamelin

[11]

On June 28, 2008, Hamelin was at
    home with her baby.  Although she was regularly using cocaine at the time, she
    did not recall if she was using on that day. She did not drink alcohol that day
    or night. At some point in the afternoon or early evening, Hamelin spoke with
    Carter, who was on the back deck having a beer with the appellant and another
    man.  She could not recall hearing the appellants voice.

[12]

Hamelin described the appellant as
    of medium or average build (not heavy or skinny), bald, tattooed, with a goatee
    that was five to six inches long.  She did not know the third man but described
    him as bigger than Carter and the appellant, heavyset, in his forties, with a
    long, scruffy, goatee-style beard, kind of [a] biker-looking type.  The
    third man was wearing a hat so Hamelin did not know if he was bald.

[13]

At around 9 or 10 p.m., Moreira
    came into the house appearing agitated.  He asked Hamelin for the base to the
    baby monitor, which detected noise. He walked out the back door with it.
    Moreira came back inside, without the baby monitor, and barricaded the door.  
    It was not clear where Moreira put the base. After he returned, Moreira and
    Hamelin listened to the receiver portion of the baby monitor for 10 or 20
    minutes.  They heard nothing. Moreira left out the back door.

[14]

Sometime in the early morning
    hours of June 29, 2008, around 1 or 2 a.m., McConnell came to the door. 
    McConnell appeared upset. They had a brief conversation and McConnell left.

[15]

Hamelin then heard what sounded
    like someone fighting in the backyard.  She heard no voices, just noises like
    banging or rustling. It sounded as though the fighting was coming from between
    the pool and garage.  She looked out the window but saw nothing.  She
    barricaded the door with a piece of wood, just as Moreira had done earlier.

[16]

Hamelin turned on the baby
    monitor.  She heard what sounded to be Kambass voice in pain, grunting and
    groaning.  She recognized Kambass voice because she had heard it at least 50
    times before; he had a rough, raspy, sandpaperish-type of voice and a Greek
    accent.  She also expected Kambas to be in the backyard or garage as Kambas was
    the person Moreira had been afraid of earlier.

[17]

She then heard a voice say, Keep
    your voice down.  Shut up or Ill stomp your head. The voice was speaking over
    the moaning. It spoke for anywhere from four to ten seconds. There was static
    on the baby monitor.  Hamelin agreed that voices heard over the baby monitor
    were not as clear as over a cell phone. She had a head cold at the time, but it
    was possible she was using cocaine that day.  Hamelin turned the monitor off
    because she was scared.

[18]

Hamelin testified that she
    recognized the threatening voice as the appellants.  It sounded like the appellants
    voice because it was loud, deep and obnoxious.

[19]

Hamelin admitted not liking the
    appellant. She could not recall ever speaking directly to the appellant,
    including on the phone.  She had heard his voice when she and Carter would go
    out to bars with the appellant and his girlfriend, Teri Brinn.  During these
    times, music would be playing and Hamelin would be using alcohol and cocaine. 
    She would talk with Brinn and Carter, but not the appellant. There were
    probably three occasions when they went out together, with the last occasion
    being possibly three to five years before June 2008.

[20]

Hamelins certainty that she heard
    the appellants voice had wavered in the lead-up to trial.  In September 2009,
    she had given a statement to Crown counsel that the voice could have been
    anyone else.  On re-examination, Hamelin said that she changed her story in
    September 2009 because she was scared.

[21]

After speaking to him on the deck
    in the afternoon or early evening of June 28, 2008, Hamelin did not see Carter
    until around 9 a.m. the next morning when he returned to the house and
    suggested that they go on a vacation.

Mary McConnell

[22]

Mary McConnell was Kambass
    girlfriend.  At about 9:30 p.m. on June 28, 2008, Kambas and Koukousoulas were
    with her at the bar where she worked.   At some point, Kambas and Koukousoulas
    left.  At about 2 a.m., Kambas called McConnell and asked for a ride to
    Carters residence. He was still with Koukousoulas. She told him she would not
    pick him up at home.

[23]

She expected that Kambas would
    come to the bar when her shift ended, but he did not arrive.   McConnell
    telephoned Kambas at 2:37 a.m. and 2:51 a.m. In at least one of those calls,
    Kambas told her that he was already at Carters and to come pick him up.   McConnell
    was alarmed when she overheard Kambas ask someone else, What are you talking
    about?  You dont trust me.

[24]

McConnell went to Carters house
    looking for Kambas. She knocked on the front door and Hamelin answered. 
    Hamelin told her Kambas was not there.  McConnell tried calling Kambas several
    times, with no success.  She drove to the nearby home of her friend, Manny
    Pereira, and returned a few minutes later.

[25]

McConnell and Pereira parked near
    Carters residence around 3:15 a.m. They approached the house from the back
    alley.  They heard male voices arguing in Carters backyard but could see
    nothing.  One of the voices was Kambass.  McConnell and Pereira looked through
    a small hole in the back wall of the garage.  The garages interior was lit,
    but there were no people inside.  They left Carters residence and McConnell
    drove Pereira home.

[26]

McConnell returned again to
    Carters residence by herself a few minutes later, around 3:22 a.m. She did not
    hear any noise in the backyard.  She again looked through the hole in the
    garage wall.  This time she saw Carter standing at the opposite end of the
    garage making circular motions with his hands, as if he was cleaning something
    in his hands.   She saw the arm of someone who was lying on the floor near her
    end of the garage, not moving, not making any sounds.  Her view of the rest of
    the body was obstructed. She did not recognize the arm and acknowledged, on
    cross-examination, that she did not think, at the time, it was Kambass arm.
    McConnell heard Koukousoulas, whom she could not see, ask Carter if he had a
    problem with him. Carter responded, No, I dont. Just shut up. Koukousoulas
    sounded distraught. McConnells car left the area around 3:26 a.m.

[27]

When McConnell returned to
    Carters residence around 3:49 a.m. with Pereira, the hole in the garage wall
    had been boarded up.

[28]

During cross-examination,
    McConnell stated that she knew the appellants voice from social occasions. 
    She agreed that his voice was high-pitched and [n]ot a deep voice.

Manny Pereira

[29]

Pereira did not testify at trial
    but his sworn police statement was admitted.  He told the police that when he
    and McConnell arrived (her second visit, around 3:15 a.m.), he heard Kambas
    saying in Carters backyard, What the fuck! What the fuck!   He heard another
    really loud voice say, Hold him! Hold him!  He heard a very violent
    struggle taking place, but couldnt see anything in the backyard.  He also
    looked in the hole in the garage and saw nothing of interest.  When he returned
    later that morning with McConnell, about 20-30 minutes after she saw the body
    in the garage, the hole was boarded up.

Denisa Lamanna

[30]

Carters next-door neighbour,
    Denisa Lamanna, was awakened by noises between 3:00 and 3:30 a.m. on June 29,
    2008.  She opened her bedroom window and heard very loud groaning coming from
    near Carters garage.  She heard a man yell, Stop hurting me. A different man
    yelled in an angry way, Shut the fuck up.  She also heard a third voice but
    it was muffled.  She could not see into Carters backyard due to a fence,
    trees, and shrubbery. She called 911, about 5-10 minutes after waking up.   The
    sounds stopped so she called 911 back to cancel her request for police. 
    According to call records, the calls to 911 were made at 3:33 a.m. and 3:51
    a.m.

Shawn Grubb

[31]

Carters other next-door
    neighbour, Shawn Grubb, had come home from work between 3:20 and 3:30 am.  He
    had been working as a bouncer at a club. He sat down to watch TV and heard a
    ruckus. He opened a window that faced onto Carters backyard. He heard two
    voices.  A submissive voice was saying, Leave me alone. Stop hitting me. Get
    away from me. A loud aggressive voice was repeatedly yelling, You think Im
    kidding? You think Im kidding around with you? Shut up.  Grubb saw that the
    aggressive voice belonged to a heavyset man in his thirties, around 5 foot 10
    inches tall and weighing 220 pounds or more, with very short, brown hair. He
    had a long goatee around three to four inches long tapering down from his
    chin.  This man was overpowering a thinner, older man in his fifties, kicking
    him and striking him in the head with an open hand. The older man was cowering,
    trying to protect his head and face with his hands, and fell to the ground on
    several occasions.  The two men were in between the pool and garage in Carters
    backyard.

[32]

Grubb also heard three or four
    thuds emanating from Carters garage.

[33]

Grubb yelled at the men to stop. 
    The younger man stopped his attack, but continued to occasionally open hand
    cuff the older man in the head.  Grubb called three or four times for Carter,
    who appeared after 10 or 15 seconds.  Carter was out of breath and using the
    fence for support.  Carter approached Grubb, who was above Carter in his open
    window, and the two men spoke across the fence.  Carter told the other two men
    to stop it and told Grubb that all was fine.   At this point, the older man was
    on the ground, behind the pool, but he later leaned up against the fence.  The
    younger man was at the pool, washing and rubbing his face and eyes with water.

[34]

There was some light in Carters
    backyard  emanating from Grubbs open window, from the inside of the garage
    through a door, and from the moon.  Light glistened off the surface of the
    pool.

[35]

When shown a photo line-up by the
    police, over two weeks after the night he saw the assaults, Grubb paused at the
    photo of the appellant but did not identify him as the man he saw in Carters
    back yard.  However, he testified at trial that the facial hair and the shape
    of the head, neck and shoulders in the photograph of the appellant matched his
    recollection of the man attacking the other.

The DNA evidence at Kambass apartment

[36]

It was admitted by the appellant
    that the DNA of the appellant, Kambas and Koukousoulas was isolated from
    drinking glasses found on a coffee table in Kambass apartment by police
    executing a search warrant following the disappearances. It was also admitted
    that the appellants DNA was found on cigarette butts found in an ashtray on
    the same coffee table. DNA from a fourth unidentified man was found on a
    cigarette butt. This DNA was not attributable to the appellant or either of the
    deceased.

The taxi

[37]

At 2:27 a.m. on June 29, 2008, a
    call was made from the appellants cellphone to a taxi company.  The same taxi
    company received a call that ordered a taxi at 2:29 a.m. to the apartment
    building where Kambas lived. A taxi was dispatched at 2:31 a.m.   Kambas and
    two other men got into a taxi in front of Kambass apartment.  The taxi dropped
    the three passengers off at Carters residence.

[38]

The appellants call to the taxi
    company registered at the cell tower closest to Kambass residence. The cell
    tower was also the closest one to the home of Brinn, the appellants
    girlfriend.

[39]

At 2:28 a.m., a call was placed
    from the appellants phone to Carters phone; the call lasted around two
    minutes.  The appellants phone records suggest that he made no calls after
    that until the following afternoon.

[40]

Allen Seguin was the taxi driver
    who picked up three men from Kambass apartment and drove them to Carters
    house.  Seguin was interviewed three times by the police: on June 30, 2008;
    July 5, 2008; and December 16, 2008.

[41]

On June 30, 2008, the day after
    the taxi ride, Seguin was shown three photographs by police officers: Kambas, Moreira,
    and Mavrakakis. Seguin identified Kambas and Moreira as two of the three
    passengers in the taxi and referred to one of them as elderly.  He described
    the third passenger to the police as [m]aybe 510, thin build, and the same
    age as the other two.

[42]

Five days later on July 5, 2008,
    he was shown photographs of two other men.  Seguin said that neither man was in
    the taxi but that the features of one of the men were similar to the third
    passenger. The photograph did not resemble the appellant, as the man in the
    photograph was not bald, did not have a goatee or beard, and was significantly
    older.

[43]

On December 16, 2008, Seguin was
    shown a line-up of photographs which included the appellant.   He did not
    identify any of the men as having been in the taxi.   But this time, he told
    the police that the third man was bald and husky.  Seguin also was shown a
    photo of Koukousoulas, but did not identify him as one of the men in his taxi.

[44]

At trial, Seguins testimony-in-chief was that the third
    passenger was bald and husky, but stated that he did not get a good look at
    him.  During cross-examination, Seguin said that he only saw the third passenger
    out of the corner of my eye. Seguin also acknowledged that it was possible
    his description on December 16, 2008, had been influenced subconsciously by the
    fact that he had just looked at a line-up of bald, stocky men.  He agreed that
    his memory would have been much better at the time of his initial
    description.

Subsequent events

[45]

Before she cancelled the 911 call
    at 3:51 a.m., Lamanna observed a SUV or truck leaving the area of Carters home
    and going down the back alley.

[46]

Carters GMC Jimmy truck was
    seen returning to the area at 4:27 a.m. At 4:59 a.m. his vehicle again left the
    area.  Carters vehicle returned home at around 9:30 a.m., which is about when
    Hamelin testified that she first saw Carter that morning.

[47]

That same evening, Carter and Hamelin
    left Windsor in a vehicle provided by Moreira, rather than driving Carters GMC
    Jimmy.  They drove to nearby Chatham for a vacation. They left the baby with
    Hamelins father.

[48]

Carters GMC Jimmy and garage were
    destroyed in a fire the night of June 29, 2008. Dentures and a shoe stained
    with blood were found in the burned-out vehicle. DNA and other evidence very
    strongly suggested that the dentures and blood were Kambass. The appellant
    does not dispute this on appeal.

[49]

The bodies of Kambas and Koukousoulas
    were found on December 8, 2008, near Harrow, about a 40 minute drive one way
    from Carters home.

[50]

The forensic evidence established
    that both men had died as a result of multiple blunt force injuries which would
    have damaged organs. In the case of Koukousoulas, his sternum had been broken
    and a severe skull fracture alone may have proved fatal.

EVIDENCE IMPLICATING THE APPELLANT

[51]

The first issue for the jury was
    whether the appellant was present at Carters residence at the time of the
    beatings.  There were four pieces of evidence relied upon by the Crown to establish
    his identity as a perpetrator:

·

DNA evidence placing the appellant at Kambass apartment before
    Kambas left for Carters residence;

·

cellphone records;

·

the evidence of voice recognition by Hamelin; and

·

the evidence of Grubb.

[52]

The Crown led no evidence of
    motive, post-offence conduct by the appellant, or forensic evidence connecting
    the appellant to the bodies or Carters backyard.

GROUNDS OF APPEAL

[53]

The appellant raises the following
    grounds of appeal:

1. The trial judge erred by admitting Hamelins voice
  identification evidence;
2. The trial judge erred in characterizing Grubbs evidence
  as identification evidence and by admitting it into evidence;
3.  The trial judge erred by not adequately instructing the
  jury with respect to the dangers of voice and eyewitness identification
  evidence;
4.  The verdicts were unreasonable.
ANALYSIS
[54]

As I agree with the appellant that
    the verdicts are unreasonable, it is not necessary for me to address the other
    three grounds of appeal.
[55]

The authority for a court of
    appeal to determine whether a jury reached an unreasonable verdict is found in
    s. 686(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46, which reads:
686. (1) On the hearing of an appeal against a
    conviction ... the court of appeal
(a) may allow the appeal where it is of the
    opinion that
(i) the verdict should be set aside on the
    ground that it is unreasonable or cannot be supported by the evidence,...
[56]

The test for an appellate court to
    determine whether the verdict of a jury is unreasonable or cannot be supported
    by the evidence has been explained by the Supreme Court of Canada.  In
R.
    v. Yebes
,
[1987] 2 S.C.R. 168, at p. 186, McIntyre J. wrote for the court:
The Court must determine on the whole of the evidence whether
    the verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. While the Court of Appeal must not merely substitute
    its view for that of the jury, in order to apply the test the Court must
    re-examine and to some extent reweigh and consider the effect of the evidence.
[57]

The Supreme Court in
R.
    v. Biniaris
,
2000 SCC 15, [2000] 1 S.C.R. 381, further explained that the test
    imports both an objective and a subjective assessment. The reviewing court
    first looks at the sufficiency of the evidence objectively to determine if it
    is capable of supporting the verdict.  The subjective element requires the
    reviewing court to examine the weight of the evidence rather than its bare
    sufficiency.   When a jury verdict which does not involve errors in the charge
    is perceived as unreasonable, it was held in
Biniaris
that the only rationale inference is that the jury
    was not acting judicially. Arbour J. explained this at para 39:
This conclusion does not imply an impeachment of the integrity
    of the jury.  It may be that the jury reached its verdict pursuant to an
    analytical flaw similar to the errors occasionally incurred in the analysis of
    trial judges and revealed in their reasons for judgment. Such error would of
    course not be apparent on the face of the verdict by a jury. But the
    unreasonableness itself of the verdict would be apparent to the legally trained
    reviewer when, in all the circumstances of a given case, judicial fact-finding
    precludes the conclusion reached by the jury.
[58]

It is thus through the lens of
    judicial experience that there is an additional safeguard against unwarranted
    convictions:
Biniaris
, at para.
    40.
[59]

Individual items of evidence are
    not, in general, required to be proven beyond a reasonable doubt.  In
R.
    v. Uhrig
, 2012 ONCA 470, at para. 13, this
    court summarized the approach to be taken to the standard of proof in a case
    such as this one:
When arguments are advanced, as here, that individual items of
    circumstantial evidence are explicable on bases other than guilt, it is
    essential to keep in mind that it is, after all, the cumulative effect of all
    the evidence that must satisfy the standard of proof required of the Crown.
    Individual items of evidence are links in the chain of ultimate proof:
R.
    v. Morin
, [1988] 2 S.C.R. 345 (S.C.C.), at p. 361. Individual items of
    evidence are not to be examined separately and in isolation, then cast aside if
    the ultimate inference sought from their accumulation does not follow from each
    individual item alone. It may be and very often is the case that items of
    evidence adduced by the Crown, examined separately, have not a very strong
    probative value. But all the evidence has to be considered, each item in
    relation to the others and to the evidence as a whole, and it is all of them
    taken together that may constitute a proper basis for a conviction:
R. v.
    Côté
(1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[60]

When these legal principles are applied to the
    evidence relied on by the Crown to prove the identity of the appellant as a perpetrator,
    I find that the verdict is unreasonable.  There is no evidence upon which a
    jury acting judicially could reasonably have been satisfied beyond a reasonable
    doubt that the appellant was one of the persons who caused the deaths of Kambas
    and Koukousoulas.
[61]

In coming to this conclusion, I have examined the
    Crowns evidence individually and in the context of the evidence as a whole. 
    The DNA and cellphone records, the eyewitness evidence of Grubb, and the
    evidence of Hamelin  considered individually and collectively  are not
    capable of establishing the identity of the appellant as one of the
    perpetrators.
DNA evidence and cellphone records
[62]

The DNA evidence on the coffee
    table at Kambass apartment in combination with the cellphone records suggests
    that the appellant was drinking with Kambas and Koukousoulas in the early hours
    of June 29, 2008, before Kambas, and presumably Koukousoulas, departed for
    Carters residence. The appellants presence at Kambass apartment when
    combined with the call from his phone to the taxi company and the dispatch of a
    driver to Kambass apartment, is capable of supporting an inference that the
    appellant was going to be a passenger in the taxi.
[63]

The Crowns theory was that the
    appellant called the taxi, got into the waiting vehicle with Kambas and
    Koukousoulas, called Carter to say they were coming and then arrived at
    Carters home.
[64]

However, the evidence of DNA and
    cellphone records must be assessed together with the whole of the evidence,
    including that of Seguin, the taxi driver. Seguin failed to identify the
    appellant as being in his car. Moreover, his initial description to the police
    of the third passenger did not correspond to the appellants appearance.
    Further, the DNA evidence indicated that a fourth man may have been present in
    Kambass apartment. All of this evidence is relevant to the Crowns assertion
    that the appellant travelled by taxi with the victims to Carters residence.
[65]

At law, an inference must be
    reasonably and logically drawn from a fact or group of facts established by
    the evidence:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.
[66]

On December 16, 2008, Seguin
    failed to recognize the appellants photograph from a photo line-up as one of
    the passengers in his taxi on June 29, 2008. Further, the appellant bore no
    resemblance to the third passenger Seguin originally described to the police. 
    Although Seguin testified in-chief that the third passenger was bald and
    husky, he reasonably agreed that his memory of this mans appearance would
    have been much better at his June 30, 2008, and July 5, 2008, police interviews
    when he described the third passenger as 510, thinly built and elderly.  Seguins
    descriptions given in the two early police interviews bore no relationship to
    the appellants appearance.  These descriptions made no note of two of the
    appellants most distinctive features at the time: he was bald and had a very
    long goatee.
[67]

Kambass apartment was a few short
    blocks from where the appellants girlfriend Brinn lived at the time.  There
    was evidence that this was where the appellant resided as well.  There were no
    further recorded calls from the appellants phone for the remainder of the
    morning.
[68]

Considered together, the DNA,
    cellphone records and evidence of Seguin provide minimal, if any, support for
    the proposition that Dodd travelled to Carters home in Seguins taxi.
Eyewitness evidence of Grubb
[69]

Grubbs evidence was relied on by
    the Crown to put the appellant in Carters backyard.  However, his evidence was
    riddled with frailties.
[70]

Grubb said the man he saw in the
    backyard was heavy-set, 220 pounds or more, in his mid-thirties, with cropped
    hair, as short as five oclock shadow, and a long goatee.  Hamelin described
    the appellant differently.  She saw the appellant that previous afternoon or
    early evening.  She testified that the appellant was bald and had an
    average-build, neither heavy-set nor skinny.
[71]

On July 16, 2008, the Windsor
    police conducted a photo line-up which included a photograph of the appellant. Grubb
    paused at the photo of the appellant.  He did not identify the appellant.  His
    comments recorded on the viewing form were: Thats more like the facial hair
    the one guy had, cant say 100%.
[72]

During his examination in chief,
    the Crown showed Grubb the video of the photo line-up and then asked him: Are
    you able to assist us with what you were thinking or why you paused on
    photograph number four?
[73]

He answered, Yes, there were a
    few reasons.  In response to Crown counsels request for these reasons, Grubb
    stated:
[T]he facial hair matched my recollection of the bigger
    gentleman who was having his way physically in the altercation with the skinnier
    gentleman.  And also, I was holding [the photograph] at a distance cuz I saw
    him at a distance and the lighting at the time was from the back and I saw a
    silhouette and I was judging proportionally neck, shoulders, head, cuz thats
    really all I could see in  in the photo, and I was closing my eyes and trying
    to recollect the proportions of the gentleman I saw that night.  So, I was
    trying to do my due diligence in identifying people as clearly as I could...it
    seemed to match my memory, um, of that night
[74]

Leaving aside the propriety of
    these questions by the trial Crown, Grubbs evidence could only establish that:
    (i) the facial hair in the photograph of the appellant matched [his]
    recollection of the facial hair on the assailant in Carters backyard; and
    (ii) the proportions of the appellants head and shoulders in the photograph
    matched those of the assailant.
[75]

In
    my view, Grubbs evidence was no more than resemblance evidence which has
    little probative value: As a general rule, a resemblance, without more, does
    not amount to an identification:
R. v. Rybak
, 2008 ONCA 354, 90 O.R.
    (3d) 81, at para. 121, leave to appeal refused, [2008] S.C.C.A. No. 311. 
    Indeed, [i]n the absence of some other inculpatory evidence, a resemblance is
    no evidence:
R. v. Boucher
(2000), 146 C.C.C. (3d) 52, at para. 19
    (Ont. C.A.).  I agree with the appellants submission that the other evidence
    relied upon by the Crown is so lacking in probative value that it fails to
    satisfy the test in
Rybak
and
Boucher
.
[76]

Even
    if Grubbs evidence is categorized as identification evidence, absent
    additional evidence supporting the identification, it is too frail to support the
    proposition that it was the appellant who was present in Carters backyard and
    a party to the beatings.
[77]

I
    turn to the propriety of the question.  The appellant, relying on
R. v. Tat
(1997), 35 O.R. (3d) 641 (C.A.), submits that Grubbs testimony as to the
    video in which Grubb perused the photo line-up was inadmissible in its entirety.
[78]

I do not need to address this
    issue.  Even assuming all of his testimony was admissible, Grubbs evidence is of
    little value.  He saw a person with facial hair and upper body proportions
    resembling that of the appellant in Carters backyard.  There was evidence from
    Hamelin of other men acquainted with Carter that had goatees. As a matter of
    everyday human experience, goatees and upper body proportions are not so
    uncommon or distinctive as to be capable of identifying an individual.  Grubbs
    description of the assailant at trial does not match the photograph of the
    appellant in that the appellant was totally bald - he did not have very short,
    brown hair. Grubbs description of the assailants hair and build was contrary
    to Hamelins description of the appellant contemporaneous to the beatings.
Voice Recognition by Hamelin
[79]

Voice identification evidence is
    even more fraught with dangers than eyewitness identification evidence. It
    ought to be treated with extreme caution:
R. v. Clouthier
, 2012 ONCA 636, at para. 19.
[80]

Hamelins identification of the
    appellants voice on the baby monitor had very little, if any, probative value.
    As largely exposed on cross-examination, the reliability and credibility of the
    appellants voice identification was dubious:
·

She heard the voice she said was the appellants for about four
    to ten seconds over static and the moaning of another man;
·

She could not recall speaking directly to the appellant or
    hearing his voice over the phone;
·

She could only recall overhearing the appellants voice speaking
    to Carter in bars where music was playing and where she was using alcohol and
    cocaine;
·

She had only spent time with the appellant a few times;
·

The last time she heard the appellants voice might have been
    three to five years before June 2008;
·

She did not like the appellant;
·

She gave a statement to the police, later recanted, that the
    voice could have been someone elses;
·

Her description of the appellants voice as deep was
    contradicted by McConnells testimony who described his voice as
high-pitched and [n]ot a deep voice.
[81]

The ability of a lay listener to
    correctly identify voices is subject to a number of variables.  The Court of
    Appeal of England and Wales commented on this in
R. v. Flynn and St.
    John
,
[2008] E.W.C.A. Crim. 970, [2008] 2 Cr. App. R. 20.  At para. 16, several
    factors are listed as relevant according to the expert evidence before that
    court.  Those applying here include:
·

The quality of the recording;
·

The gap in time between the listener hearing the known voice and
    the attempt to recognize the disputed voice;
·

The nature and duration of the voice which is sought to be
    identified;
·

The familiarity of the listener with the known voice.
[82]

There were four, possibly ten,
    seconds of a voice on a low quality broadcast purportedly belonging to a person
    the witness cannot recall speaking directly to or even hearing for three or
    more years.
[83]

Even if the trial judge did not err by admitting the
    evidence or by failing to give a sufficient caution to the jury in connection
    with it, the evidence was not capable of providing any meaningful support to
    the Crowns theory.
Combined effect of the evidence
[84]

When assessed as a whole, the
    evidence is not capable of supporting the inference that the appellant was present
    at the scene when the beatings took place. The frailties of each aspect of the
    evidence do not gain strength when considered together. The DNA and cell phone
    evidence have little, if any, probative value when considered in the light of
    Seguins evidence. The weaknesses of the evidence of Hamelin and Grubb are not
    cured by their combination. On the contrary, an attempt to use one to support
    the other  while potentially alluring to a finder of fact  is insupportable.
[85]

Hamelins
    voice identification evidence cannot raise Grubbs evidence beyond a finding of
    some resemblance between an assailant in Carters backyard and the appellant, a
    resemblance of little to no probative value given the conflicts between Grubbs
    description of the assailant and the appellants known appearance at the time. 
    Likewise, Grubbs evidence does little to address the frailties in Hamelins
    voice-identification.
[86]

Grubbs eyewitness evidence of resemblance between the
    appellant and the backyard assailant had no relevance at all unless supported
    by the evidence of Hamelin.
The evidence of Hamelin cannot support the
    identification of the appellant so it follows that it cannot make Grubbs
    resemblance evidence stronger.
[87]

The
    evidence as a whole indicates that the timing and perhaps the location of the
    two assaults were different.  Grubb and Hamelin could well have witnessed
    different assailants.
Conclusion
[88]

The evidence relied upon by the
    Crown to prove the appellants presence at the scene of the homicides, when
    viewed collectively, cannot reasonably support a finding that the appellant was
    in Carters backyard at the necessary times.
[89]

For these reasons, I have found that
    the jury could not have been acting judicially in determining that the
    appellant was at the scene of the murders and caused the deaths of the two
    victims. In my view, the verdict of guilt against the appellant is
    unreasonable.
DISPOSITION
[90]

I would allow the appeal, quash
    the convictions of the appellant and enter acquittals.
Released: R.J.S. April 27, 2015
M.L. Benotto J.A.
I agree Robert J.
    Sharpe J.A.
I agree Janet
    Simmons J.A.