



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cain, 2015 ONCA 815

DATE: 20151125

DOCKET: C53181 and C53369

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Cain and Mark Cain

Appellants

Jack Gemmell, for the appellant Jason Cain

James Lockyer, for the appellant Mark Cain

Alexander Alvaro and Karen Papadopoulos, for the
    respondent

Heard: November 2 and 3, 2015

On appeal from the convictions entered on December 21,
    2009 by Justice John B. McMahon of the Superior Court of Justice, sitting with
    a jury.

By the Court:

[1]

Colves Meggoe (the deceased) was murdered on Tuesday, November 14,
    2006. After a trial by jury, Jason Cain was convicted of first degree murder in
    respect of the killing and Mark Cain was convicted of second degree murder. Both
    appeal against conviction.

[2]

For the reasons that follow, the appeals are dismissed.

BACKGROUND

The Shooting

[3]

Shortly before 7:30 p.m. on November 14, 2006, three men invaded the
    living room of the deceaseds home. The lead assailant, wearing a bandana as a
    mask, carried a sawed-off 12-gauge shotgun. He ordered the people in the living
    room to get down on the floor.

[4]

The deceased was in the kitchen of his small home, just around the
    corner from the living room. He went into the living room and called out to the
    assailants, saying either Buju or Buju and Nookie, what are you doing? As
    the deceased approached the lead assailant, that assailant shot him in the
    abdomen with the shotgun. One of the other assailants fired a .22 calibre
    bullet through the deceaseds thigh or upper leg. The third assailant was at
    the door to the home throughout, keeping watch.

[5]

The assailants then fled.

[6]

The deceased died, prior to reaching hospital, as a result of the
    shotgun blast to his abdomen.

[7]

In convicting Jason Cain of first degree murder, the jury found that he was
    the lead assailant who fired the shotgun blast that killed the deceased. Mark
    Cain was convicted of second degree murder as an aider.

Events earlier in the Day of the Shooting

[8]

During the afternoon of the day of the murder, Jason Cain visited the
    deceaseds home and asked to buy crack cocaine. Jason Cain is also known by the
    nickname Buju. Following a confrontation with the deceaseds brother, Glenroy
    Meggoe, the deceased told Buju to leave and escorted him from the house.

[9]

Later that same afternoon, Mark Cain and Shaun Williams
[1]
went to the deceaseds house and asked to buy beer. The deceased said he did
    not have any beer and did not let them into the house. Mark Cain is Jason
    Cains uncle and has the nickname Nookie.

The Alibi Evidence

Jason Cain (Buju)

[10]

Jason
    Cain was arrested on November 27, 2006. In his police interview, he gave some
    details of what he was doing around the time of the homicide  that he was
    watching Tiger Claw movies  but he would not tell the police where he was or with
    whom he was watching the movies.

[11]

On
    December 3, 2006, Jason Cains mother, Loretta Cain Williams, went to Damion Mairss
    home. She told Mairs and his mother, Althea Richard,
[2]
that Jason Cains lawyer wanted to speak with them. Loretta Cain Williams drove
    Mairs and Richard to the office of Jason Cains lawyers, where they gave private
    videotaped statements to counsel.

[12]

The
    appellants were committed for trial on October 24, 2007.

[13]

Jason
    Cains counsel first advised the Crown and police of the existence of his alibi
    defence on December 3, 2007. However, the names of the alibi witnesses (Mairs
    and Richard) and the details of the alibi were not disclosed to the Crown and
    police until a year later  December 10, 2008  on the eve of the original
    trial date of January 4, 2009. The alibi witnesses made themselves available for
    a police interview on February 25, 2009.

[14]

The
    videotaped interviews that defence counsel for Jason Cain conducted of Mairs
    and Richard in December 2006 were not provided to the Crown until trial.

[15]

During
    Mairss cross-examination at trial, the Crown drew attention to several
    inconsistencies between Mairss videotaped statement from December 2006, his
    police interview in February 2009, and his trial testimony.

[16]

In
    Mairss videotaped statement, he said that he answered the door when Jason Cain
    arrived at his home on the evening of the shooting. He said he thought that Cindy,
    his daughters babysitter, was at his home that evening, and that his mother
    usually got home from work around 9:00 p.m. or 9:30 p.m. Mairs said that he
    received a call from his mother on his cell phone around 8:00 p.m., before she returned
    home from work, telling him that the shooting was on the news. He said that he
    watched the news in his bedroom with Jason Cain, and afterwards he and Jason
    Cain continued watching a Tiger Claw movie.

[17]

In
    Mairss interview with the police, he said that he was in his bedroom shortly
    before 6:00 p.m. on the evening of the shooting when he received a call from
    Jason Cain, who was on his way over to Mairss house. When Mairs walked out of
    his bedroom five or ten minutes later, Jason Cain was sitting at the computer
    desk near the front door. Mairs said that his mother was home at the time,
    because she finished work around 4:30 p.m. that day, and that she answered the
    door for Jason Cain. Mairs made no mention of Cindy in the police interview. He
    said that his mother called him on his cell phone, from her bedroom, and told
    him about the shooting. He and Jason Cain went into Richards bedroom, watched
    the news, and returned to Mairss bedroom.

[18]

Mairss
    testimony at trial was generally consistent with the statements he gave to
    police in February 2009. He also stated in cross-examination that Cindy was not
    at his home when Jason Cain arrived. He explained the inconsistencies between
    his testimony and the December 2006 videotaped statement by saying he must
    have mixed up the days.

[19]

Similarly,
    the Crowns cross-examination of Richard drew attention to inconsistencies
    between her videotaped statement from December 2006, her statement to the
    police, and her evidence at trial. In her videotaped statement, Richard stated
    that she first found out about the shooting around 10:00 p.m. while watching CP
    24 news on television in her bedroom. In her later statement to police, Richard
    said that she watched the breaking news at 8:00 p.m.

[20]

In
    all of her statements, however, Richard stated that she was home from work
    shortly after 4:30 p.m. on the day of the shooting. She spent most of the
    evening tending to her granddaughter and watching television in her bedroom. She
    acknowledged that she was not watching Jason Cain for the entire evening, but said
    that she never saw him leave the house.

Mark Cain (Nookie)

[21]

Mark
    Cain was arrested on November 18, 2006. That evening, police interviewed Paul
    Clancy, a tenant in the rooming house where Mark Cain lived. Paul Clancy, an
    admitted alcoholic, told police that he was home at 7:30 p.m. on the evening of
    the homicide and saw Mark Cain with another man. Paul Clancy said that Mark
    Cain and the other man were in the kitchen and offered him food, which he
    accepted. When he had finished eating, he walked to The Beer Store and then
    returned home. The Beer Store closed at 8:00 p.m. that day. Paul Clancy said he
    arrived at the store just before it closed.

[22]

On
    November 20, 2006, Shaun Williams provided Mark Cains counsel with a private videotaped
    statement under oath.

[23]

On
    November 27, 2007, Williams was killed.

[24]

On
    November 30, 2007, Mark Cains counsel told the Crown that his client would be
    relying on an alibi defence but provided no particulars.

[25]

On
    December 3, 2007, Mark Cains counsel advised the Crown that Williams was the
    alibi witness and that he was dead.

[26]

The
    Crown was given Williamss videotaped statement in June 2008.

[27]

At
    trial, Williamss statement was played to the jury and admitted for the truth
    of its contents. In his statement, Williams said that he spent most of the
    evening in question with Mark Cain. Around 5:30 p.m., they went to the
    deceaseds home to buy beer and were told that he didnt have any for sale. They
    left the deceaseds home and went to the home of Edmund Williams, arriving a few
    minutes before 6:00 p.m. They stayed there for 10 to 15 minutes, then went to a
    convenience store to buy some food. After leaving the convenience store, they
    took a bus to Mark Cains home, stopping at a liquor store along the way to buy
    beer. During his interview with counsel, Williams produced an LCBO receipt that
    placed the time of their purchase at 6:34 p.m. Williams said they arrived at
    Mark Cains house, which was a short walk from the LCBO, around 6:45 p.m. They
    had a beer in Mark Cains room, and Mark Cain went down to the shared kitchen
    to make food. Williams went downstairs after he finished his beer and noticed
    another tenant, Paul Clancy, in the kitchen speaking with Mark Cain. Williams
    and Mark Cain offered Paul Clancy some food, left the kitchen, and ate their
    meal in Mark Cains room. They spent the remainder of the evening in Mark
    Cains room, drinking and smoking cigarettes and marijuana. They were joined by
    an acquaintance of Mark Cain name Joe, who shared in the food and drink. After
    approximately one hour, Williams and Joe left the rooming house.

[28]

Paul
    Clancy testified at trial and stated that he saw Williams and Mark Cain in the
    kitchen around 7:30 p.m. on the evening in question. His testimony was
    generally consistent with his statement to police.

[29]

Mark
    Cain testified to having spent the evening with Williams in a manner similar to
    that described above. He was, however, unable to answer questions regarding the
    specific timing of events throughout the evening, noting that he wasnt
    looking at the time and was not wearing a watch.

THE ISSUES

[30]

The
    appellants raise the following grounds of appeal, with the exception of the
    sixth issue, which relates only to Mark Cain.

1.

Did the trial judge wrongly give late alibi adverse inference instructions?

2.

Did the trial judge err in allowing the Crown to undermine Jason Cains
    alibi by urging a speculative theory of concoction by its proponents?

3.

Did the trial judge err in permitting the Crown to allege that Mark
    Cains primary alibi witness (Shaun Williams) may have been a party to the
    murder?

4.

Did the Crown present a fabricated alibi theory in the absence of
    evidence of fabrication?

5.

Did the trial judge err in admitting an unrelated discreditable conduct
    allegation against Mark Cain?

6.

Did the trial judge err in failing to give a
Vetrovec
warning for
    the evidence of Mohamed Abbas?

7.

Was the jury properly directed on the dangers of reliance on voice and
    eyewitness identification evidence?

ISSUE #1: THE LATE ALIBI ADVERSE INFERENCE INSTRUCTIONS

[31]

The
    appellants contend that the trial judge erred by giving late alibi adverse
    inference instructions in the absence of Crown evidence that late disclosure of
    the alibis impeded their proper investigation. They contend that the police had
    sufficient time to investigate both alibis. As the Crown called no evidence in
    support of its contention that it had been prejudiced by the late disclosure,
    the appellants say the jury was left to speculate as to the nature of any police
    investigations into the alibis, the extent the investigations were impeded by
    the late disclosure, the effect any impediment might have had on the weight of
    the defence, and the effect of all these factors on whether one or both alibis
    raised a reasonable doubt.

[32]

In
    respect of Mark Cain, it is submitted that this error was a double whammy
    because of a further instruction to be cautious in considering Williamss
    videotaped testimony, which had not been subject to cross-examination.

[33]

We
    do not agree that the trial judge erred in giving late alibi adverse inference
    instructions.

[34]

It
    was obvious on the record that investigation of both alibis was hampered by the
    late disclosure. This was a case in which early disclosure was critical to a
    proper investigation of both alibis. The police had to be able to assess the
    accuracy of each alibi witnesss estimate of the timing of the movements of the
    accused. Witnesses who were present testified that the home invasion and murder
    occurred within a matter of minutes. The alibis of both accused involved being
    at a location close to the murder scene. From the perspective of the alibi
    witnesses, the events about which they would have been testifying would
    otherwise have been ordinary and easily forgettable.

[35]

Jason
    Cains alibi placed him at the home of Mairs and Richard during the evening the
    shooting took place. Had police been able to interview Richard and Mairs closer
    to the time of the murder, they may have been able to resolve significant
    discrepancies concerning the presence of Cindy the babysitter, the time that Richard
    returned home from work on the day in question, and the time at which the news
    of the shooting appeared on television.

[36]

Late
    disclosure of Mark Cains alibi deprived police of the ability to speak with
    Williams as disclosure that Williams was the alibi witness was not made until
    after he was dead. While the police were able to interview Paul Clancy, there
    was no hint that the defence was going to rely upon him as an alibi witness.

[37]

In
    any event, the instructions were appropriate and can scarcely be termed adverse.
    The jury was told that there was no evidence that police investigation was
    frustrated by the late disclosure or that the investigation was compromised by
    the delay and that, depending on their view of the timeliness of disclosure,
    they may, not must, accord less weight to the alibi. This can be seen in the
    trial judges instruction given in respect of Jason Cain:

Proper disclosure of an alibi has two components, adequacy and
    timeliness. In this case, the more important component is timeliness.

Depending on your view of the timeliness of the disclosure of
    the alibi, you may, not must, accord less weight to the alibi. It will be for
    you to determine whether the alibi was disclosed in adequate time to permit the
    police to conduct a meaningful investigation. You will recall that both Ms.
    Richard and Mr. Mairs were interviewed by the police in February of 2009. There
    is no other evidence of the police efforts to investigate, or evidence of their
    investigation being frustrated.

[38]

Accordingly,
    we reject this ground of appeal.

ISSUE #2: THE CONCOCTION THEORY

[39]

On
    September 26, 2006, Jason Cain was stabbed and severely injured. Dezroy
    Williams, a cousin of Mairs, was charged with Jason Cains attempted murder,
    but was discharged at his preliminary hearing.

[40]

In
    her closing address, the Crown suggested that Richard, Mairs, Jason Cain and his
    mother, Loretta Cain Williams, conspired to concoct an alibi for Jason Cain in
    exchange for Jason Cain refusing to identify Dezroy Williams as the man who
    stabbed him. She asked the jury to disbelieve the alibi witnesses because they
    had a motive to lie. She also invited the jury to reject the alibi as
    incredible and unworthy of belief.

[41]

The
    appellants submit that there was no evidentiary basis for the Crowns theory
    and no evidence that Dezroy Williams was Jason Cains assailant. Dezroy
    Williams was not called as a witness at trial. Jason Cain never identified
    Dezroy Williams as one of his assailants. Accordingly, the appellants contend, the
    Crowns jury address was improper and the trial judge erred in putting the
    Crowns theory to the jury.

[42]

In
    his jury charge, the trial judge stated:

The other case involving Dezroy Williams being charged with the
    attempt murder of Jason Cain has limited relevancy to your deliberations. It
    may be used in your assessment of the witnesses Althea Richard and Damion
    Mairs credibility. It may or may not assist you in assessing whether either or
    both had any motive to assist Jason Cain in providing an alibi. It may or may not
    help you understand the state of mind of either of these witnesses. The Dezroy
    Williams case cannot be used for any other purpose. In the end, you can accept
    some, all or none of what Ms. Richard and/or Damion Mairs said.

[43]

We
    do not accept this submission. In our view, neither the trial judges charge on
    this matter nor the Crowns closing address to the jury was inappropriate.

[44]

There
    was a basis in the record for the Crowns contention that the alibi evidence
    was not worthy of belief. Any possibility that the jury might have erroneously
    taken the impermissible step of inferring guilt from a rejected alibi was
    overcome by the trial judges strong instruction to the contrary.

[45]

Moreover,
    the Crown did not exceed the limits placed on Crown advocacy. While the Crown did
    suggest that the alibi witnesses had concocted their evidence, at no point did
    she ask the jury to use the concocted alibi against the accused. There was a
    reasonable, good faith basis for the Crown to pursue, as a line of
    cross-examination, a theory that the witnesses colluded to concoct an alibi for
    Jason Cain. The Crown was entitled to rely upon fabrication and collusion as an
    explanation for the frailties in the witnesses evidence.

[46]

Finally,
    deficiencies in a closing address may be overcome by a timely and focused
    correction by the trial judge. Here, the judge instructed the jury that there
    was no independent evidence of concoction and explained to them the limited use
    they could make of evidence that Richard and Mairs had a motive to lie.

ISSUE #3: THE ALLEGATION THAT SHAUN WILLIAMS WAS A PARTY TO
    THE MURDER

[47]

At
    trial, Mohamed Abass, a witness to the shooting, said that he saw three
    intruders during the home invasion. Abass said that he had lied when he told
    the police on November 14, 2006, that he saw only one or two, neither of whom
    he could identify. He testified that the third man stood on the porch of the
    home, holding the door open, and did not say anything. He recognized the man,
    but did not know his name.

[48]

At
    the preliminary hearing, Abass also testified that he saw three intruders at
    the shooting. A few weeks after testifying at the preliminary hearing, Abass
    told authorities that he had seen the third man at the Malvern Mall.
[3]
He gave them the licence plate number of the car which he saw the third man
    enter.

[49]

On
    June 30, 2007, Williams was investigated by police. He was in the company of
    three other men, one of whom was recorded as driving a car with the same
    licence plate number as that which Abass had given.

[50]

During
    cross-examination of Mark Cain, the Crown alleged that Williams was the third
    assailant. Mark Cains counsel requested that the trial judge instruct the jury
    that there was no evidentiary basis to the Crowns theory.

[51]

The
    trial judge ruled otherwise. He was satisfied that there [was] some evidence
    upon which the Crown could rely to make the assertion and that it [was] not
    speculation. In his charge, the trial judge put the Crowns theory to the jury
    and outlined the opposing position of Mark Cains counsel.

[52]

The
    appellants contend that the Crowns theory, if accepted, was devastating to the
    defence. The Crown was effectively alleging that Williams was a third party
    suspect. The appellants submit that the Crown was required to demonstrate, at a
    minimum, a
prima facie
case and proof on a balance of probabilities that
    Williams was the third assailant:
R. v. Evans
, [1993] 3 S.C.R. 653, 85 C.C.C.
    (3d) 97. While the trial judge found the evidence amounted to more than
    speculation, it is unclear whether he meant that it constituted a
prima
    facie
case of Williamss involvement.

[53]

The
    appellants submit that the trial judges ruling on this issue put Mark Cains
    defence in the position of having to raise a reasonable doubt that neither he
    nor Williams were involved in the homicide. They say that if a probative
    value/prejudicial effect analysis had been applied, the equities overwhelmingly
    favoured Mark Cains position. His right to a fair trial was undermined as a
    result of the Crown alleging Williams was a party to the murder.

[54]

We
    do not accept this submission. The Crown was not bound by any special test
    before it could call the evidence of Abass identifying Williams as the third
    party to the deceaseds murder. The evidence was relevant, admissible and
    possessed significant probative value, as it rebutted Mark Cains alibi. If the
    Crown was obliged to meet the sufficient connection test, it was met in this
    case. There was evidence that Williams was at the crime scene, aiding the
    appellants, when the deceased was murdered. Abass recognized Williams as he had
    previously met him  it was not a case of a stranger being identified.

ISSUE #4: THE FABRICATED ALIBI THEORY

[55]

The
    appellants say that after the Crown accused the appellants of having fabricating
    their alibis, the trial judge gave the jury the appropriate
Parrington
[4]
instruction for how to approach the alibi evidence if they were to disbelieve
    it. He explained that the jury could not conclude that the alibis were concocted
    because there was no independent evidence of concoction.

[56]

It
    is the appellants position, however, that this instruction only served to
    confuse the jury because the trial judge did not explain what constituted independent
    evidence of concoction. Relying on
R. v. OConnor
(2002), 62 O.R. (3d)
    263, 2002 CanLII 3540 (C.A.), they say that the trial judge was required to
    inform the jury of the danger of blurring the Crowns burden to prove the
    offence with the appellants failure to provide a credible alibi. They contend
    that if the jury accepted the Crowns theory of fabrication, it is likely that they
    would have moved straight to guilty verdicts without proper consideration of
    whether the Crown had proven its case beyond a reasonable doubt.

[57]

We
    see nothing in this ground of appeal. The jury was instructed that there was no
    independent evidence that either alibi was concocted and that, if they rejected
    the alibis, they could not use that as positive evidence of guilt. This would
    not have confused the jury.

ISSUE #5: THE UNRELATED DISCREDITABLE CONDUCT ALLEGATION

[58]

More
    than two years after the deceased was killed, Edmund Williams told police about
    an earlier altercation that he had witnessed between Mark Cain and the deceased.
    Edmund Williams, Mark Cain, the deceased and an unidentified fourth man were in
    Edmund Williamss kitchen. Mark Cain and the deceased became agitated. Mark
    Cain produced a gun and pointed it at the deceaseds stomach. Edmund Williams
    separated them and asked Mark Cain to leave.

[59]

It
    is unclear precisely when this event occurred. When interviewed by police,
    Edmund Williams stated it happened ten months before the homicide but during a
voir
    dire
he said that it occurred three or four months prior to the homicide.

[60]

Following
    the
voir dire
, the trial judge ruled that this discreditable conduct
    evidence was admissible. He found that the evidence was extremely relevant and
    probative of key issues in [the] trial  in particular the relationship
    between Mark Cain and the deceased  such that its probative value outweighed
    its prejudicial effect.

[61]

This
    ruling was made early in the trial. As the trial proceeded, further evidence
    indicated that Mark Cain visited the deceased often and attended the deceaseds
    birthday party, which was ten days before the homicide.

[62]

The
    appellants asked the trial judge to reconsider his ruling. They argued that the
    frequency of innocuous contact between Mark Cain and the deceased following the
    alleged incident removed any possibility that the incident contributed to the
    homicide.

[63]

The
    trial judge again found the evidence was admissible.

[64]

The
    appellants submit that the trial judges analysis of the probative value and
    prejudicial effect of admitting the evidence was unreasonable and undermined by
    legal error. The evidence, if true, described an isolated event in a setting of
    social contact and amicability between the deceased and Mark Cain. Edmund
    Williamss testimony suffered from a number of deficiencies which further
    undermined its probative value. He gave conflicting time frames for the event
    and did not report it until over two years after it occurred. He claimed there
    were witnesses but provided no names. Further, the trial judge relied on three
    decisions of this court concerning domestic violence in which a previous
    history of violence was alleged. The appellants say this was in error, in light
    of this courts more recent decision in
R. v. Johnson
, 2010 ONCA 646,
    262 C.C.C. (3d) 404.

[65]

In
Johnson
, Rouleau J.A. discussed the admissibility of motive evidence in
    the context of past misconduct allegations. At paras. 99-101, he stated:

It is not sufficient for the Crown to identify some past
    conflict between an accused and a victim, and then speculate that it
    establishes animus and therefore motive. The Supreme Court in

R.
    v. Barbour
,

1938 CanLII 29 (SCC)
,

[1938] S.C.R.
    465
, at p. 469
, warned that it is
    rather important that the court should not slip into a habit of admitting
    evidence which, reasonably viewed, cannot tend to prove motive or explain the
    acts charged merely because it discloses some incident in the history of the
    relations of the parties.

Thus, evidence of past misconduct that is woven into a
    speculative theory of motive does nothing more than bring in the bad character
    of the accused, and ought to be excluded on the basis that its prejudicial
    value exceeds any small probative value it might have: see, e.g.

R. v. Smith
,

1992 CanLII
    79 (SCC)
,

[1992]
2 S.C.R. 915
, at pp. 938-941
.

On the other hand, evidence that provides the trier of fact
    with real insight into the background and relationship between the accused and
    the victim, and which genuinely helps to establish a

bona
    fide

theory
    of motive is highly probative, even in the absence of similarity with the
    charged offence: see, e.g.

R. v. Moo

(2009),

247 C.C.C. (3d) 109 (Ont. C.A.)
, at paras. 70-109
.

[66]

The
    appellants say that evidence of a single previous act of threatening behaviour
    towards the deceased, months before the homicide, in an unknown context that
    differed from the homicide, should not have been admitted. They further contend
    that the trial judge erred in his prejudicial effect analysis. The lack of
    information provided by Edmund Williams meant that, besides denying that the
    event had occurred, there was little else Mark Cain could do. The chances of
    the defence being able to investigate such an incident with no date, no names
    and no leads, in the hope that it could prove the event did not happen, were
    virtually non-existent.

[67]

In
    our view, evidence that Mark Cain pressed a gun into the deceaseds stomach a
    few months prior to the shooting was plainly admissible. It was highly
    probative of the nature of the relationship between Mark Cain and the deceased;
    it showed some animus between the deceased and Mark Cain, which relates to
    motive; it was evidence of Mark Cains means to commit the offence; and it is
    some circumstantial evidence suggesting a disposition for the act in issue.

[68]

Further,
    the trial judge reasonably concluded that any prejudice flowing from admission
    of the evidence was limited. That limited prejudice was further reduced by the trial
    judges clear instruction to the jury that, if believed, the evidence was just
    one piece of evidence about the relationship between Mark Cain and the deceased
    and was to be assessed in light of its frailties.

ISSUE #6: NO
VETROVEC
WARNING ON MOHAMED ABASSS
    EVIDENCE

[69]

Mohamed
    Abass was a central Crown witness. The appellants contend that the trial judge
    should have viewed a
Vetrovec
warning for this witness as mandatory: the
    trial was lengthy, the verdict was likely to turn on Abasss testimony, and Abass
    was an admitted perjurer on the most material issue at trial, namely, the
    identification of Mark Cain and Shaun Williams as two of the perpetrators.

[70]

The
    appellants submit that the trial judge made three legal errors in exercising
    his discretion and failing to give a
Vetrovec
caution. First, he
    accepted the Crowns submission that lying under oath happens frequently in
    Scarborough, which was not a legitimate basis on which to deny a
Vetrovec
warning. Second, the trial judge apparently accepted Abasss explanation for
    his lies. (Abass testified that he did not tell the truth to police in the
    interview right after the shooting because he was afraid for his own safety and
    that of his family.)  It was for the jury, with the assistance of a
Vetrovec
caution, to decide whether Abass was truthful to the police or truthful at
    trial. Third, the trial judge incorrectly stated that he would have been
    obliged to list the evidence capable of supporting Abasss testimony had he
    given the
Vetrovec
caution.

[71]

We
    see nothing in this ground of appeal.

[72]

We
    accept that it would be improper for the court to proceed on that basis that
    lying under oath happens frequently in Scarborough.  However, we do not read
    the charge as indicating that the trial judge acted on that basis.

[73]

The
    trial judge acted within his broad discretion in refusing to give the standard
Vetrovec
caution. Abass was not an unsavoury character. The manner in which his
    final account of the shooting developed, as compared to his initial police
    interview, was fully explored during cross-examination, closing submissions and
    the jury charge. The trial judges caution was sufficient to equip the jury
    with an understanding as to why they should proceed with caution before relying
    on Abasss evidence. Moreover, had he given the formal warning, it would have
    been accompanied by a list of supporting evidence:
R. v. Khela
, 2009 SCC
    4, [2009] 1 S.C.R. 104, at para. 46. The prejudicial impact of repeating that
    evidence on the other appellant, Jason Cain, was necessarily a factor that the
    trial judge considered in deciding whether to issue the
Vetrovec
caution.

ISSUE #7: THE VOICE AND EYEWITNESS IDENTIFICATION EVIDENCE
    INSTRUCTION

[74]

Eron
    Oliver was in the deceaseds kitchen at the time of the shooting. He testified
    that he heard Jason Cain and Mark Cain in the living room, telling everybody to
    get down on the ground, and that he recognize[d] the voices, because [he] knew
    the voices. He also said that after the shots were fired, he went into the
    living room and saw Mark Cains back as he left through the front door. On the
    night of the homicide, however, Oliver told police that he could not see the
    person responsible, but recognized the voices.

[75]

The
    trial judge instructed the jury that they must be very cautious about relying
    on eyewitness or earwitness testimony to find Mark or Jason Cain guilty of the
    offence charged. He explained that wrongful convictions and miscarriages of
    justice have occurred because eyewitnesses have made mistakes in identifying
    persons who they saw committing a crime.

[76]

The
    appellants submit that the trial judges instruction regarding this type of evidence
    was insufficient. They say that Olivers voice identification evidence was of
    minimal probative value but dangerously convincing. His testimony changed
    significantly over time and a stronger caution was required on the basis of
    this courts statement in
R. v. Masters
, 2014 ONCA 556, at para. 47:

We agree that it might have been preferable for the trial judge
    to have cautioned the jury about the dangers inherent in voice comparisons and
    voice identification evidence. Such instructions might have included reference
    to the risk of relying on their own untrained ears, or those of a witness, none
    of whom had the benefit of equipment or training that would be available to an
    acoustic phonetician; the fact that witness confidence in voice identification
    does not make the identification reliable; the importance of considering the
    length and quality of the voice samples; the availability of high quality
    non-distorting playback systems; and, if applicable, the difficulties inherent
    in cross-racial voice identification:
Pinch
at para. 75.
Nonetheless,
    having regard to the other evidence implicating the appellant we are not
    satisfied that such a caution was mandatory in this case
. [Emphasis added.]

[77]

The
    appellants further submit that the trial judge should have instructed the jury
    that Olivers eyewitness testimony did not constitute evidence of eyewitness
    identification. They say the trial judges instruction that it would be
    dangerous to rely on Olivers eyewitness identification of Mark Cain by seeing
    the back of his head was insufficient.

[78]

Finally,
    the appellants submit that the trial judge erred by giving the jury
    insufficient instructions regarding the eyewitness evidence of Cecil Graham. Graham
    described the second assailant in a manner that starkly contrasted with Mark
    Cains appearance. He believed the man was six feet tall, built like a football
    player, and 18 years of age or younger. Mark Cain was five feet, six inches
    tall, 120 pounds, and 36 years of age at the time of the shooting. Graham also
    described a third person standing near the door.

[79]

The
    trial judge instructed the jury that [i]t is for you to decide, but [Cecil
    Grahams] description of [the second assailant] does not appear in any way to
    match Mark Cain either in age or height. He also noted that Graham described
    a third person at the front door, who he described as a person he believed was
    wearing something red.

[80]

The
    appellants contend that this instruction was insufficient. They say the trial
    judge should have explained that, if the jury accepted Cecil Grahams
    description of the second assailant as being inconsistent with Mark Cains
    appearance, there was a fatal flaw in the Crowns theory that Mark Cain was one
    of the men who entered the home.

[81]

Again,
    we see nothing in this ground of appeal.

[82]

The
    instructions to the jury generally, and with respect to Graham and Oliver
    specifically, were sufficient to highlight the potential dangers of relying on
    their evidence. The trial judge stressed that the jury was to be very
    cautious about relying on eyewitness and voice identification. He also told
    the jury to consider the circumstances in which the witness made the
    observation, the description given by the witness after making the
    observations, and the circumstances of the witnesss identification of the
    accused as the person whom he saw.

[83]

The
    appellants attacks on Olivers evidence were squarely before the jury as a
    result of cross-examination and both defence closing statements. Furthermore, in
    his instruction regarding Grahams identification evidence, the trial judge
    highlighted the very concerns raised by the appellants on appeal.

DISPOSITION

[84]

Accordingly,
    the appeals are dismissed.

Released: November 25, 2015 (E.E.G.)

E.E. Gillese
    J.A.

David Watt J.A.

G. Pardu J.A.





[1]
There is some discrepancy in the record as to whether Williamss first name is
    Shaun or Shawn. The spelling Shaun adopted in these reasons is that used
    in his videotaped statement to counsel dated November 20, 2006. For simplicity,
    we refer to him as Williams in these reasons. Other individuals with the same
    last name are referred to by their first and last names to avoid confusion.



[2]
There is some discrepancy in the record as to whether Altheas last name is
    Richard or Richards. The spelling Richard is used in these reasons, based
    on the trial transcript of her examination-in-chief.



[3]
Abass testified that he attempted to call a detective involved in the
    investigation to provide him with the licence plate, but the detective was
    unavailable so he called the victim-witness coordinator instead.



[4]

R. v. Parrington
(1985), 20
    C.C.C. (3d) 184 (Ont. C.A.).


