



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCracken, 2016 ONCA 228

DATE: 20160329

DOCKET: C54127

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian McCracken

Appellant

Philip Campbell and Saman Wickramasinghe, for the
    appellant

David Lepofsky, for the respondent

Heard: November 12, 2015

On appeal from the conviction entered by Justice Mary Lou
    Benotto of the Superior Court of Justice, sitting with a jury, on February 18,
    2011.

Tulloch J.A.:

A.

OVERVIEW

[1]

Following a three-week trial, the appellant, Adrian McCracken, was
    convicted of second degree murder and sentenced to life imprisonment with a 10-year
    period of parole ineligibility.

[2]

The deceased, Ricardo Kelly, and his girlfriend, Abimbola Nikki Bello,
    lived in apartment 2006 on the 20th floor of a Scarborough apartment building.
    Kelly was a 22-year-old student who sold marijuana in the building to
    supplement his income. Bello was also a student.

[3]

On April 24, 2008, Kelly left his apartment after receiving a call from
    Corey Stephens asking him to bring marijuana to apartment 1610. He got into an
    altercation in the stairwell and was stabbed in the hallway of the 20th floor.
    Bello witnessed the stabbing.

[4]

Bello provided numerous statements to police between April 24, 2008 and
    October 17, 2008, when she identified the appellant as Kellys killer upon
    viewing the buildings elevator security videos. The appellant submits that the
    identification process was tainted and resulted in an unreasonable verdict.

[5]

The appellant also raises the following arguments on appeal:

·

The jury charge on the frailties of the identification evidence
    was inadequate;

·

The trial judge failed to direct the jury on the exculpatory effect
    of Mohamed Nurs testimony in accordance with the principles in
R. v. W.
    (D).
, [1991] 1 S.C.R. 742; and

·

The trial judge misdirected the jury on the
mens rea
for
    murder and manslaughter.

[6]

A further ground of appeal, the alleged impropriety of the Crowns jury
    address on Stephenss evidence, was abandoned during oral arguments.

[7]

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

B.

Ricardo Kellys Death

[8]

At 12:09 a.m. on April 24, 2008, Ricardo Kelly received a phone call
    from Corey Stephens asking for some marijuana. Stephens lived in apartment 1610
    on the 16th floor of their building. Kelly left for the 16th floor, saying he
    would be back. Nikki Bello followed him to the door and looked out. She saw a
    tall man in black peeking out of the door to the staircase. Kelly walked past
    the elevators and Bello closed the apartment door. Earlier that evening, Bello saw
    that Kelly had between $300 and $400 in his pocket.

[9]

Bello heard Kelly arguing with someone and went back outside. She could
    not see either Kelly or the man he was arguing with. She called out to Kelly.
    Moments later, he came out of the staircase and was fighting with a
    light-skinned black man - not the tall man who peeked originally. The man Kelly
    was fighting with pulled out a knife and waved it near Kellys chest, saying
    something to the effect of [y]ou think youre bad.

[10]

Kelly
    told him to chill and the two men progressed down the hallway toward Bello,
    who was standing at the door. She tried to intervene twice but backed off when
    the man with the knife stabbed at her. She noticed that the tall man was
    standing near the elevator. He did not take an active part in the fight and
    told the assailant that they should leave.

[11]

Bello
    called out for help and for someone to call 9-1-1. She then saw the man stab Kelly
    twice in the chest. No blood was drawn from the first stab. The second time,
    Bello saw blood and ran to her apartment to get a knife to give Kelly to defend
    himself. When she returned, the stabber had left and the taller man commented
    that he was not involved.

[12]

Bello
    stopped Kelly from pursuing the two men and they returned to their apartment. Kelly
    said the men had taken his money. He was upset and said that he was going to
    get them back and that he could not believe they did this to him.

[13]

Kelly
    collapsed within minutes. The police were called at 12:18 a.m. Paramedics
    arrived shortly thereafter, but Kelly died in the ambulance on the way to the
    hospital. One of the two stab wounds had punctured his heart and caused fatal
    internal bleeding.

[14]

The
    knife used to stab Kelly was found by police on the ground behind the building
    the next morning. Blood on the knife matched Kellys DNA. Bellos description
    of the knife at trial matched the one found by police.

[15]

It
    was the Crowns theory that Stephenss phone call had been made to lure Kelly
    out of his apartment and that two of Stephenss friends, the appellant and
    Mohamed Nur, waited in the stairwell to rob him. During the fight that ensued,
    the appellant killed Kelly by stabbing him in the heart with a knife.

[16]

The
    appellant did not call any evidence and did not testify. The defence position
    at trial was that Bellos identification could not be relied upon. The defence
    argued that Bello disliked Stephenss friend, Tamen Hashimi (Tali), because
    of a dispute he had with Kelly over a marijuana transaction the night before
    the stabbing. When she learned, from her inquiries in the community, that Tali
    had said that the stabber did not intend to kill Kelly, she concluded that Tali
    knew the stabber. She then remembered having seen a light-skinned man in
    Stephenss 16th floor apartment in the days before the stabbing. It was the
    defence theory that she simply identified
that man
, the appellant,
    whom she had seen in the apartment, and not the stabber.

[17]

The
    overall defence contention was that Bellos descriptions were inconsistent and
    fatally tainted as a result of her own investigation and the flawed use of the
    elevator videos to identify the appellant.

C.

Analysis

(1)

The Reasonableness of the Verdict

(a)

Positions of the Parties

[18]

The
    appellant submits that the verdict in this case depends on the reliability of
    Bellos identification of the appellant as the man who stabbed Kelly. The
    appellant argues that the circumstantial evidence was not capable of supporting
    the verdict without her irredeemably flawed identification.

[19]

According
    to the appellant, Bellos identification evidence became tainted as of April
    27, 2008, when she initiated her own investigation into her boyfriends death.
    The appellant argues that it was only Bellos improper reliance on the
    inferences from her inquiries in the community that led to her identification
    of the appellant.

[20]

Further,
    the appellant argues that the identification procedure ultimately used by the
    police in relation to the appellant was fatally flawed. The appellant was
    identified as the stabber after Bello was shown security video footage from
    each of the three elevators on the night of the stabbing. She was asked to stop
    the video and comment on any individuals she recognized. This process meant that
    she observed a repeated series of sequential images of the suspected
    individuals.

[21]

Also
    contrary to the proper procedure for a photo line-up, she spoke with the
    officer throughout the process of reviewing the footage. She was not
    videotaped, though her comments were recorded. Bello had a unique linguistic
    pattern that made it sometimes difficult to understand what she said. She
    acknowledged that she had difficulty expressing herself and that English was
    not her first language. The process of reviewing the elevator footage was
    repeated with Bello at trial.

[22]

The
    Crown argues that the court must decide whether the evidence, in its totality,
    overcomes unreasonable verdict scrutiny and that Bellos identification
    evidence must be enriched by all of the circumstantial evidence and not viewed
    in isolation. Together, the identification evidence combined with
    circumstantial evidence provided a basis upon which a jury could convict.

(b)

Applicable Principles

[23]

The
    question for an appellate court assessing an unreasonable verdict argument is
    whether, on the whole of the evidence, the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered:
R. v.
    Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36;
R. v. Yebes
,
    [1987] 2 S.C.R. 168, at p. 186. The reviewing court is required to review,
    analyse and, within the limits of appellate disadvantage, weigh the evidence:
Biniaris
,
    at para. 36.

[24]

The
    issue is not whether the reviewing court would have convicted the appellant,
    but whether the evidence, viewed through the lens of judicial experience, was
    reasonably capable of supporting a finding of guilt. The reviewing court must
    ask itself whether the jurys verdict is supportable on
any
reasonable view of the evidence and whether proper judicial fact-finding
    applied to the evidence
precludes
the conclusion reached by the jury (emphasis
    in original):
R. v. W.H.,
2013 SCC 22, [2013] 2 S.C.R. 180, at paras.
    2, 26-28.

[25]

Even
    at the best of times, identification evidence is subject to well-known and
    inherent frailties:
R. v. Olliffe
, 2015 ONCA 242, 322 C.C.C. (3d) 501,
    at paras. 36-40;
R. v. Goran
, 2008 ONCA 195, 234 O.A.C. 283, at paras.
    19-20 and 31-33. Honest and convincing, but mistaken, eyewitness
    identification, has been the source of wrongful convictions because it appears
    deceptively reliable. Particular vigilance is therefore required in relation to
    this type of evidence. Although familiarity may enhance the reliability of
    evidence, the same cautions and concerns apply to recognition evidence:
R.
    v. Benson
, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 25.

(c)

Discussion

[26]

The
    reasonableness of the verdict must be considered in light of the identification
    evidence and the circumstantial evidence. I accept that the identification
    evidence alone cannot justify the conviction. Furthermore, I accept that Bellos
    identification evidence most likely became tainted once she formed the strong
    belief that an acquaintance, Tali, knew the killer. As I explain below, this
    occurred before her fourth statement to police on May 12, 2008, but after her
    third statement on May 7
[1]
,
    2008. I also accept that the identification evidence obtained by the police through
    the use of the video identification procedure on October 17, 2008 was tainted.

[27]

The
    question to be determined is whether the identification evidence, pre-May 12,
    2008, together with the circumstantial evidence, provides a satisfactory basis
    for the conviction. I have concluded that it does.

[28]

In
    my view, there are three crucial inferences that can reasonably be drawn from
    the evidence: (i) The robbers came from Stephenss apartment on the 16th floor
    immediately after the phone call to the victim; (ii) The appellant and Nur
    frequented the apartment and were in the apartment when the call to the victim
    was made by Stephens; and (iii) There were four people known to be in the
    apartment when the call was made. Of the four, two could be excluded as
    possible suspects, leaving only Nur and the appellant. I will discuss each of
    these inferences and conclude with an analysis of the identification evidence.

(i)

The robbers came from Stephenss apartment after the call to the victim

[29]

There
    is no question that Stephens knew Kelly and bought marijuana from him. The two
    also spent time together socially. Stephens testified that he called Kelly at
    around midnight on April 23, 2008. Kelly did not respond to the first call and
    Stephens called again. Telephone records show that the phone used by Stephens
    called Kellys phone at 12:08 a.m. and went to voicemail. Another call was made
    at 12:09 a.m., which was answered by Kelly. Stephens asked Kelly to bring him a
    dime of marijuana. Kelly agreed to bring it down to Stephenss apartment on
    the 16th floor of their building.

[30]

The
    timing corresponds to Bellos account of the events, which was that Kelly
    received a call, told her he would be back, and left the apartment. Bello
    walked Kelly to the door and saw a tall man peeking out of the stairwell.

[31]

Kelly
    was then confronted in the stairwell and involved in an altercation in the
    hallway of the 20th floor. Bello said she heard arguing and went back outside
    about five to ten minutes after Kelly left. Bello called the police at 12:18
    a.m., after Kelly had been stabbed.

[32]

It
    is reasonable to infer that the robbers knew Kelly would be leaving his
    apartment to deliver marijuana, and were waiting in the stairwell for him to
    come down. Bellos evidence that the taller man involved in the altercation was
    peeking out of the stairwell when Kelly left supports this. They then
    intercepted Kelly while he was on his way to the 16th floor. The elevator
    security videos confirm that the appellant and Nur would occasionally take the
    stairs up or down a few floors, as they would enter the elevator on a different
    floor than the one on which they last exited.

[33]

The
    telephone records establish that Stephens did not contact Kelly after 12:09
    a.m. to inquire where he was or when he would be delivering the marijuana to
    apartment 1610. This strengthens the inference that the call lured Kelly out of
    his apartment, and that the robbers knew Kelly would be descending to the 16th
    floor apartment with marijuana just after 12:09 a.m. It also indicates that
    those in the 16th floor apartment were not concerned that Kelly never arrived.

(ii)

The appellant and Nur frequented the apartment and were in the apartment
    when the call to the victim was made by Stephens.

[34]

First,
    the evidence indicates that the appellant and Nur were frequently in the
    building and, more specifically, apartment 1610. Stephens acknowledged that the
    appellant, Tali, and Nur would spend time in apartment 1610. Stephens is the
    godfather of the appellants child. The appellants child and the childs
    mother lived on the 9th floor of the same apartment building as Stephens and
    Kelly. Neither Tali nor Nur lived in the building.

[35]

Sherissa
    Newell was the official tenant at apartment 1610, but allowed Stephens to stay
    there with her. Newell was close friends with the mother of the appellants
    child, and testified that she spent the night at her friends 9th floor
    apartment on April 23, 2008.

[36]

Newell
    also testified that she would see the appellant at the apartment building two
    to three times a week, both at her friends 9th floor unit and in her own 16th
    floor apartment. She said the appellant would come to spend time with Stephens,
    Nur, and Tali.

[37]

Second,
    the evidence clearly supports that both the appellant and Nur were in the
    building on April 23, 2008. The appellant appears on the elevator security
    footage ten times between 8:49 p.m. and 12:02 a.m. Nur admitted he was in the
    building.

[38]

Finally,
    the phone records and the elevator security footage support the reasonable
    inference that the appellant and Nur were in Stephenss apartment on the night
    of April 23, 2008, and at the time of the call to Kelly.

[39]

Stephens
    admitted that he had seen the appellant on April 23, 2008, but claimed that
    both visits took place earlier that day. He also testified that he did not have
    the appellants phone number and that they had no reason to call each other.
    Yet telephone records showed that the appellant called Stephens four times on
    April 23, 2008, and that only one of these calls was not answered. The last
    call, at 11:13 p.m., lasted 28 seconds.

[40]

According
    to Stephens, Nur was also not in the apartment with Tali and himself when they
    called Kelly after midnight. He said he saw Nur coming out of the stairwell on
    the 16th floor at around 1 a.m. They then went to the store together, and spoke
    to the police who were in the lobby. Stephens said Nur spent the night in
    apartment 1610 and they left together in the morning, along with Tali, as they
    had to attend court.

[41]

Nur
    acknowledged that he was at Stephenss apartment with Stephens and Tali on
    April 23, 2008, but denied being involved in robbing Kelly. He was equivocal
    about whether the appellant was there as well.

[42]

There
    is no doubt that Nur and the appellant were captured on the apartment
    buildings three elevator security videos multiple times that evening. Newell
    identified both Nur and Tali from photographs taken from the videos. Nur and
    Stephens also identified themselves, Tali, and the appellant.

[43]

The
    elevator videos show the appellant on the 16th floor five times between 9:24
    p.m. and 12:02 a.m. that evening. At 11:27 p.m., the appellant exited the
    elevator on the 16th floor and turned left toward apartment 1610.

[44]

He
    was next seen entering the elevator with Nur on the 16th floor at 11:49 p.m.
    They spoke as they rode to the lobby. The appellant left the elevator but Nur
    returned to the 16th floor. Nur exited in the direction of Stephenss
    apartment.

[45]

The
    appellant was captured again, minutes later, at 12:02 a.m. He entered the
    elevator in the lobby, exited on the 16th floor, and headed in the direction of
    apartment 1610.

[46]

The
    elevator security videos support the inference that Nur and the appellant were
    together in Stephenss 16th floor apartment on the night of April 23, 2008.
    They are seen coming and going from that floor, together and separately.
    Shortly before the call was made to Kelly to bring down some marijuana, they
    separately took the elevator back up to the 16th floor.

[47]

There
    was no evidence that they had any reason to be on that floor except to see
    Stephens in apartment 1610. Rather, the evidence was that they would often
    spend time in apartment 1610. It is reasonable to infer that they were doing so
    on that night and, specifically, just after midnight when Kelly was called to
    deliver marijuana.

(iii)

Of the four people known to be in the apartment when the call was made,
    two could be excluded as possible suspects, leaving only Nur and the appellant.

[48]

There
    were four people known to be in the apartment when the call was made: Stephens,
    Tali, Nur, and the appellant. This is not to say there were definitely only
    four there, but the evidence was that there were four known persons.

[49]

Importantly,
    both Stephens and Tali were known to Bello. Bello spoke to the police about
    Tali on May 12, 2008, and identified him in a photo line-up on that day. She
    also testified that Tali and Kelly had a dispute over a marijuana transaction
    the night before Kellys death.

[50]

On
    May 17, 2008, Bello also identified Stephens in a photo line-up. She wrote no
    in relation to his photo, but also wrote that she knew this person and that he
    was not the one who killed Kelly. She wrote that he lived in her building on
    the 16th floor and that she thought he knew Tali.

[51]

Though
    I am not considering Bellos identification evidence from May 12, 2008 onwards
    with respect to the identification of the appellant, there is nothing to
    indicate that her identification of Stephens or Tali were tainted in any way by
    her inquiries in the community. The appellant admits that Bello easily
    selected Tali and Stephens from the photo line-ups and knew both of them
    through their association with Kelly.

[52]

Bello
    was not able to identify Nur in a photo line-up on May 17, 2008. She was never
    shown a photo line-up that included the appellant.

[53]

On
    appeal, the appellant argues that Bellos identification evidence should be
    considered as recognition evidence, and that her failure to immediately
    identify the appellant is exculpating. I do not agree.

[54]

Bello
    told police on May 17, 2008, that she had briefly seen a light-skinned person
    who kind of matches her description of the stabber a few days before Kellys
    death. At trial, she explained that she had gone with Kelly to an apartment on
    the 16th floor. A short man, later identified as Stephens, held the door open.
    She saw the light-skinned man through the doorway of the apartment as he walked
    past her line of vision. This is therefore not a recognition case in the
    traditional sense.

[55]

The
    circumstantial evidence, and in particular the elevator security videos,
    supports the reasonable inference that Stephens, Tali, Nur, and the appellant
    were in apartment 1610 at the time of the call: Two of these men, Tali and
    Stephens, were known to Bello and were not the robbers.

(iv)

Identification Evidence

[56]

This
    brings me to the identification evidence. Bello gave recorded statements to the
    police on April 24, April 27, May 7, May 12, May 17, and October 17, 2008.

[57]

In
    my assessment of the reasonableness of the verdict, I will consider only the
    circumstantial evidence and the descriptions given by Bello before May 12,
    2008. This is because Bello had formed the strong belief that Tali knew the
    killer by May 12. On May 17, 2008, she had associated the light-skinned man she
    saw in apartment 1610 with the man who stabbed Kelly. I am therefore willing to
    accept the appellants proposition that Bellos identification could have been
    contaminated by her own investigation and the use of the security video
    identification procedure.

[58]

I
    am not willing, however, to set aside all of the statements given by Bello as
    of April 27, 2008, as argued by the appellant. Though Bello stated then that
    she would collect information in the community about Kellys death, there was
    no evidence that the statements she made on that day or on May 7, 2008 were
    tainted.

[59]

She
    was forthright in telling police about her discovery of what she believed was a
    connection between Kellys death and Tali on May 12, 2008 and providing them
    with information about the light-skinned man she remembered from the 16th floor
    apartment on May 17, 2008. There is no indication that she had gathered
    relevant information before her May 7, 2008 interview or that her pre-May 12,
    2008 statements were tainted.

[60]

Bello
    first spoke to police on April 24, 2008, after having just been told that Kelly
    had died. She testified at trial that she had not given the police all the
    information she had because she was upset and wanted to leave.

[61]

She
    told police that she did not see the stabbers face. She said that he was not
    wearing a hat and, though she could not specify his height, he may have been a
    bit taller than Kelly. She said that she would not recognize him if she saw him
    again and that she did not know the people who stabbed Kelly.

[62]

On
    April 27, 2008, Bello told police that she was ready to provide a statement.
    She said that on the night of Kellys death, she was looking at Kelly and that
    her eyes were never fully on the stabber. It happened quickly and she only
    glimpsed at his face.

[63]

She
    added several details to her previous description of the stabber. She said he
    was: (i) a fair-complexioned, light-skinned, black man, (ii) skinny, and (iii)
    wearing a white t-shirt. She did not describe his facial features. Bello did
    not say anything about having recognized the stabber or that he was connected
    to Stephenss 16th floor apartment.

[64]

On
    May 7, 2008, Bello spoke to police again. She reiterated that the stabber was a
    skinny, light-skinned, black man wearing a short sleeved white t-shirt. Bello
    also said that he had nappy hair, cut close to his head. She noted that the
    stabber wore light-coloured jeans just below the ankle, though she was unsure
    of the colour. She also stated that he wore white shoes, though again she was
    not sure. She thought he had facial hair  maybe a goatee.

[65]

She
    also described the taller man who looked out from the stairwell. She described
    him as: (i) a black man, (ii) the tallest of the three men in the hallway,
    (iii) a little chubby but not too chubby, (iv) in his twenties to early
    thirties, (v) having some facial markings  maybe acne or facial hair, (vi)
    wearing long hair in a ponytail, and (vii) dressed in all black  black puffy
    vest, black pants and shirt, and a black baseball cap.

[66]

The
    potential cogency of the untainted part of Bellos identification evidence has
    to be weighed, not in the abstract, but in the context of the totality of the
    circumstantial evidence which was capable of narrowing the suspect pool
    significantly.

[67]

In
    all, Bellos description of the man who stabbed Kelly was that he was a skinny,
    light-skinned black man. He was one to three inches taller than Kelly and was
    wearing a white t-shirt. He had close cut, nappy hair, and some sort of
    facial hair.

[68]

Most
    of the descriptors given by Bello during her April 27 and May 7, 2008,
    statements matched the identifiable features of appellant on the night of the
    stabbing. The elevator footage showed the appellant wearing a white t-shirt in
    the late hours of April 23, 2008. He is skinny and has a fair, light-skinned
    black complexion. The appellant is five feet ten inches and Kelly was five feet
    seven inches tall.

[69]

At
    trial, the May 7, 2008, identification evidence was challenged by the defence
    on the basis that, in the elevator security videos, the appellant was not
    wearing light coloured pants. It was also noted that she had not described the
    stabber as wearing a hat, although the elevator footage showed the appellant wearing
    one throughout the evening.

[70]

With
    respect to Nur, Bello described him as the tallest of the three men in the
    hallway. He was black in complexion, in his twenties or early thirties, a
    little chubby but not too chubby, and possibly had facial hair like
    sideburns. He may have had a ponytail or a do-rag and wore all black  pants,
    shirt, puffy vest, and baseball hat.

[71]

The
    elevator footage showed Nur  who was six feet two inches tall, in his
    twenties, with brown skin and some facial hair  wearing black pants, a black
    shirt, a black hoodie, and a black baseball hat. He did not have a ponytail,
    and wore a black hoodie and not a puffy vest. The defence at trial also pointed
    out that his hat had light-coloured emblems on it.

[72]

In
    my view, Bellos initial descriptions of the stabber and his companion were
    reliable and largely consistent, despite that she was focused on Kelly and not
    the faces of the two men. That she did not recognize the appellant does not
    discount this evidence, as she had only briefly glanced at him through an open
    door on one occasion.

[73]

The
    reasonableness of the appellants conviction is based on Bellos uncontaminated
    identification evidence together with a constellation of circumstantial
    evidence and the inferences that can reasonably be drawn from that evidence. Because
    the circumstantial evidence pointed to the assailants coming from Stephenss 16th
    floor apartment, Bellos somewhat general description which was consistent with
    both Nur and the appellant, two of the four people known to be in the apartment
    on the 16th floor, could reasonably be given substantial weight despite its
    generalities and at least one inconsistency.

[74]

On
    the basis of this evidence, it is reasonable to conclude that the appellant was
    the fair-complexioned man in the white t-shirt who stabbed Kelly while he was
    on his way to deliver marijuana to the 16th floor. To infer otherwise would be
    to ignore a series of improbable coincidences. The jurys verdict is
    supportable on a reasonable view of the evidence.

(2)

The Adequacy of the Jury Charge on the Frailties of the Identification
    Evidence

[75]

The
    appellant submits that the trial judge erred by not specifically alerting the
    jury to the most fundamental shortcoming in the Crowns case: that Bello failed
    to identify a man she had recently seen. The appellant argues it was a
    non-direction amounting to misdirection, to not instruct the jury in language
    that reflects the dangers of that evidence.

[76]

I
    do not accept this argument. The trial judge properly and carefully instructed
    the jury on the dangers of identification evidence. In fact, counsel on appeal
    concedes that the jury charge was, in many respects, sympathetic to the defence;
    as well, it highlighted some of the major flaws which were evident in the
    identification process. I also note that experienced trial counsel took no
    objection to the charge on the identification evidence.

[77]

At
    trial, counsel did not submit that the factual issue had to be put to the jury
    in the manner now articulated on appeal. Counsel on appeal emphasizes the issue
    of Bellos observation of the appellant just days prior to the attack and her
    failure to identify him as the stabber until convinced by her own inquiries.

[78]

A
    jury instruction does not have to meet the standard of perfection:
R. v.
    Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The jury instruction
    on identification evidence given in this case both functionally and adequately
    informed the jury of all the considerations relevant to their analysis when
    dealing with the frailties of that evidence.

[79]

The
    trial judge first told the jury that they must be very cautious in relying upon
    eyewitness testimony to find the appellant guilty. She cautioned that mistakes
    in eyewitness identification have led to wrongful convictions and that even
    honest witnesses can be mistaken. The trial judge explicitly told the jury that
    they could not rely upon Bellos in-dock identification of the appellant as the
    man who had stabbed Kelly.

[80]

The
    trial judge then carefully reviewed all of the factors that a jury should
    assess in considering the reliability of a witnesss identification of an
    accused and before determining whether identity has been proven beyond a
    reasonable doubt.

[81]

The
    trial judge also provided a detailed review of Bellos evidence, not just in
    terms of what Bello said, but also when she said it. This was done to assist
    the jury in assessing whether [Bellos] recollection is being affected or, to
    be more blunt, tainted by information or from other sources.

[82]

The
    trial judge explicitly told the jury that it was the defences position that
    once Bello heard that Tali knew the identity of the stabber, she focused on the
    appellant. Bello knew that Tali frequented the 16th floor apartment so she
    identified the only light-skinned man that she associated with the apartment.
    The trial judge emphasized to the jury that because of the defences position,
    the timing of Bellos statements to the police was important.

[83]

The
    trial judge also reminded the jury that Bello had called the police on May 25,
    2008, and incorrectly identified a man who had nothing to do with the crime, as
    the stabber.

[84]

Importantly,
    the jury was reminded that it was not until several months later, in October
    2008, when Bello viewed the video surveillance from the elevator with the
    police, that she first identified the appellant as the stabber. At that time,
    Bello said he was the man she saw in Stephenss apartment. This aspect of the
    instruction alone counters the appellants position on appeal that the trial
    judge failed to alert the jury to Bellos failure to identify a man she had
    recently seen.

[85]

The
    trial judge also highlighted for the jury some of the key inconsistencies
    relied upon by the defence, including the details added by Bello about whether
    the man who stabbed Kelly was wearing a hat and the colour of his jeans.

[86]

The
    trial judge noted that it was against this general background that she referred
    to the factors to be considered in assessing a witnesss testimony,
    specifically telling the jury to consider the timing of the various statements
    in assessing the evidence. She then reviewed each of the factors against the
    specific circumstances of Bellos identification, including again the
    variations and specific timing of each of her descriptions. This review of the
    circumstances included whether the witness had seen the person on a prior
    occasion. The trial judge explicitly noted Bellos evidence that she had seen
    the appellant at Stephenss apartment and yet had not mentioned this to the
    police until May 17, 2008, after she became convinced of Talis involvement.

[87]

The
    trial judge then reviewed the specific frailties of the identification
    procedures used with Bello. She placed those concerns within the context of the
    known frailties of identification evidence and procedures at large and the
    rationale behind the preferred methods.

[88]

In
    all the circumstances, in light of the trial judges careful instruction on
    identification evidence, which emphasized caution and specifically set out the
    frailties of the evidence, I do not accept the appellants contention that the
    jury charge on identification evidence was insufficient.

(3)

The Lack of a
W. (D.)
instruction on the
    Exculpatory Effect of Mohamed Nurs Testimony

[89]

The
    appellant submits that the trial judge erred by failing to instruct the jury on
    the exculpatory effect of the testimony of Mohamed Nur in accordance with the
    principles in
R. v.

W. (D.)
. He argues on appeal that the
    jury should have been told that if they believed Nurs testimony or found that it
    raised a reasonable doubt, they must acquit. The appellant also submits that
    the trial judge did not adequately emphasize Nurs evidence.

[90]

A
W. (D.)
instruction is not mandatory, even when an accused testifies.
    It was proposed as a possible approach that may assist a trier of fact to not
    simply treat credibility as an either/or contest. It is an explanation of the
    legal effect of reasonable doubt.

[91]

This
    court recognized in
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    para. 105, that a
W. (D.)
instruction might also be applicable to
    cases where the accused did not testify. However, the
W. (D.)
decision
    itself and subsequent authorities make it clear that what is important is that the
    jury understood the burden and standard of proof. It is not necessary to
    slavishly follow the
W. (D.)
formula:
B.D.
, at paras.
    103-104.

[92]

The
    trial judge properly instructed the jury on the burden of proof beyond a
    reasonable doubt and then reiterated those principles in relation to the
    identification evidence. It is telling that defence counsel at trial did not
    request that the jury charge include greater reference to Nurs evidence or a
W.
    (D.)
instruction in relation to it. Nur had significant credibility
    problems and trial counsel may have had good reason not to want Nurs evidence
    emphasized.

[93]

Nurs
    evidence was not particularly cogent or necessarily exculpatory. He denied
    robbing Kelly and witnessing his stabbing.  He claimed he could not remember a
    number of details surrounding the stabbing, such as the day of the killing, who
    was at apartment 1610, what he was wearing, having used the stairs, whether he
    had a cell phone, being with the appellant on the elevator, what they talked
    about in the elevator minutes before the stabbing, why he didnt get off at the
    lobby, or where the appellant was going. He did not claim to be elsewhere with
    the appellant or otherwise provide the appellant with an alibi.

[94]

When
    the charge to the jury is considered as a whole, the jury would have understood
    the burden of proof and the standard of proof such that an explicit
W. (D.)
instruction on Nurs evidence was not required. In
B.D.
, the
    exculpatory evidence went to an essential element of the offence. There was
    nothing like that in Nurs evidence. The issue of whether the Crowns theory
    became untenable unless the jury rejected Nurs denial that he was present is a
    separate issue from how reasonable doubt was defined for the jury.

[95]

Moreover,
    the adequacy of a jury charge is assessed as a whole, in light of the charge
and
the entire trial:
Araya,
at para. 39. In this case, a significant
    portion of defence counsels closing address to the jury emphasized the high
    standard of evidence required to meet the necessary and standard of proof.
    Defence counsel also spent some time urging the jury to accept Nurs evidence
    and his forthright position that he did not do it. In light of the jury charge
    and the trial as a whole, the jury would have known to consider all of the
    evidence, including Nurs testimony, in deciding whether a reasonable doubt
    existed.

[96]

The
    failure to specifically instruct on
W. (D.)
in relation to Nurs
    evidence was not an error.

(4)

The Instruction on the
Mens Rea
for Murder and
    Manslaughter

[97]

The
    appellant argues that the trial judge erroneously instructed the jury on the
mens
    rea
for murder by using the language of possibility  that the stab
    could cause death  a reduced state of moral blameworthiness equivalent to
    the state of mind for manslaughter. The appellant also points to the trial
    judges direction under s. 229(a)(ii) that reckless means that he saw the
    likelihood that Mr. Kelly could die from the injury but went ahead anyway and
    took the chance.

[98]

The
    trial judge first instructed the jury correctly on the required state of mind
    for murder and then went on to define the term reckless. The use of the word
    could in the definition of reckless is an error without any prejudicial
    effect. This court has repeatedly noted that recklessness is not the essence of
    the provision and is largely redundant:
R. v. Rodgerson
, 2014 ONCA 366,
    309 C.C.C. (3d) 535, at para. 23, affd on other grounds 2015 SCC 38, [2015] 2
    S.C.R. 760;
R. v. Moo
, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 63.
    No harm was occasioned by this instruction.

[99]

The
    other impugned use of the word could arose later in the charge, after the
    trial judge reviewed Bellos description of the stabbing. The trial judge told
    the jury that they need to consider whether the facts that you accept
    establish this intent to kill, or an intent that he saw the likelihood that Mr.
    Kelly could die from these stab wounds and went ahead and stabbed anyway.

[100]

Importantly,
    this misstatement on the foreseeability requirement in s. 229(a)(ii) was preceded
    and followed by a correct instruction. The correct instruction that immediately
    followed the mistake invoked the proper probability language of likelihood
    that death would result from the stab.

[101]

Similar
    misstatements have arisen in a number of cases before this court: see
Rodgerson
,
    at para. 22;
R. v. MacDonald
, 2008 ONCA 572, 92 O.R. (3d) 180, at
    para. 46.

[102]

The key issue is
    whether the jury would, in the context of the charge as a whole, have
    understood that the accused must foresee a likelihood of death flowing from the
    bodily harm that he or she is occasioning the victim:
Rodgerson
, at
    para. 25;
MacDonald
, at para. 49.

[103]

Although the
    trial judge did say could when she should have said would, the jury charge
    started and ended with the proper language. The misstatement was not in
    response to a question by the jury on this point. It is my view that this
    misstatement did not constitute reversible error, as the jury would have understood
    that s. 229(a)(ii) requires that the appellant foresaw the probability of
    Kellys death.

[104]

The appellant
    also submits that the jury charge should have provided a more comprehensive
    definition of manslaughter. Defence counsel at trial did not make any such
    request. As indicated above, the intent for murder was adequately defined,
    leaving manslaughter, which does not require any foresight of the possibility
    of death, as the alternative. The instruction was adequate in the circumstances
    of this case.

D.

Conclusion

[105]

In all the
    circumstances and for the reasons stated, I would dismiss the appeal.

Released: DD MAR 29 2016

M. Tulloch J.A.

I argee. Doherty
    J.A.

I agree. J.I. Laskin
    J.A.





[1]
There are inconsistencies in the record on appeal about whether this statement
    was given to police on May 7, 2008 or May 8, 2008. For clarity and consistency,
    it will be referred to as the May 7 statement.


