



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vassel, 2018 ONCA 721

DATE: 20180904

DOCKET: C58497

Feldman, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Vassel

Appellant



Nathan Gorham and Breana Vandebeek, for the appellant

Karen Papadopoulos, for the respondent

Heard: March 12, 2018

On appeal from the conviction entered by Justice Michael
H. Tulloch of the Superior Court of Justice, sitting with a jury, on March 13,
2011 and the sentence imposed on November 18, 2011.



Watt J.A.:

[1]

Husam Degheim was a drug dealer. He sold marijuana. A middleman proposed
a deal. Degheim agreed.

[2]

The sale of one-quarter pound of marijuana was to take place near a
shopping centre in Mississauga. The buyers and seller would meet there. A
simple exchange. Money for drugs. Drugs for money. Or so Husam Degheim thought.

[3]

The buyers had different ideas. No money for drugs. No drugs for money.
Drugs for free. Get the drugs. And leave.

[4]

The buyers and seller made their separate ways to the appointed place of
sale. Three vehicles parked next to one another. As things began to unfold,
Husam Degheim sensed that the simple exchange of drugs for money and money for
drugs was not unfolding as it should. He started his vehicle. He intended to
frustrate whatever the buyers had in mind.

[5]

Husam Degheim was unable to escape. Two men approached his van. One man
had a gun. He shot Husam Degheim to death as he sat in the drivers seat of his
van, his wife beside him in the passenger seat.

[6]

The men stole the marijuana. They, and the others who were with them,
fled.

[7]

Among those arrested for the unlawful killing of Husam Degheim was Shawn
Vassel. The Crown alleged that he was the shooter. A jury found him guilty of
second degree murder. The trial judge sentenced him to imprisonment for life
without eligibility for parole until he has served at least 16 years of his
sentence.

[8]

Shawn Vassel appeals both his conviction and the period of parole
ineligibility fixed by the trial judge. He says that the trial judge made
several errors involving the admissibility of evidence and in his final
instructions to the jury. These reasons explain why I would give effect to some
of the appellants claims of error, set aside his conviction and order a new
trial. In these circumstances, I do not reach the appeal from sentence.

THE BACKGROUND FACTS

[9]

The central issue at trial was the identity of the killer.

[10]

The
case for the Crown at trial consisted of an amalgam of:

i.

the testimony of another participant in the robbery and shooting who
identified Shawn Vassel as the shooter and whose evidence was subject to a
Vetrovec

caution;

ii.

circumstantial evidence from several different witnesses, including
evidence of post-incident conduct by Shawn Vassel, which tended to link him to
the robbery and shooting; and

iii.

evidence
of eyewitness descriptions of the shooter generally coinciding with the
appearance of Shawn Vassel.

[11]

The principal defence advanced at trial was alibi, supported by:

i.

the testimony of Shawn Vassel concerning his whereabouts and activities
at the time of the shooting;

ii.

cellphone triangulation evidence indicating that a cellphone belonging
to Shawn Vassel (the 833 phone) was away from the crime scene; and the
testimony of a defence witness, Matthew Miller, which further confirmed Shawn
Vassels claim that he was elsewhere at the time of the shooting.

[12]

In
addition to the principal defence of alibi, defence counsel also invited the
jury to consider the possibility that either of two third parties who testified
as Crown witnesses  Michael Agba or David Grant  was the shooter.

The Principals and their Relationship

[13]

Shawn
Vassel and his girlfriend, Sabrina Sconci, lived in Unit 79 of a townhouse
complex located at 3480 Colonial Drive in Mississauga. Next door, Unit 81 was
vacant, a place known as the trap house where residents of the complex and
others hung out, listened to music and smoked marijuana.

[14]

Several
of the principals at trial lived at or frequented the townhouse complex, known
amongst them as the Ridgeway Complex. Shawn Vassel and Sabrina Sconci. David
Grant. Michael Agba. Tristan Palmer. Matthew Miller. In the complex, drug
trafficking and the possession of firearms was commonplace. All the principals
were linked to the drug trade. Some directly. Others indirectly.

The Planning of the Robbery

[15]

On
December 2, 2017, Tristan Palmer approached Michael Agba with a proposition 
to steal one-quarter pound of marijuana from a drug dealer whom Palmer did not
identify. Using Agbas cellphone, Palmer contacted Mohammed Odeh, a middleman
who could put the buyers in contact with a seller. In turn, Odeh contacted
Husam Degheim and arranged a deal between Palmer and Degheim. Odeh also
cautioned Degheim about the deal because of the quantity of drugs involved.

[16]

The
transaction was to take place later that evening in a public area, a parking
lot by a movie theatre across the street from the Square One shopping centre in
Mississauga. This location was about a ten-minute drive from the Ridgeway
Complex where Shawn Vassel lived.

[17]

The
purchasers had no intention of paying Husam Degheim for the quarterpound of
marijuana. Their plan was to show him the money, examine the marijuana, take
the marijuana and leave without paying.

Executing the Plan

[18]

Who
participated in the robbery and killing of Husam Degheim was controversial at
trial, particularly as it related to Shawn Vassel and David Grant. Although who
did what was contentious, what happened was markedly less so.

[19]

Neither
Michael Agba nor Tristan Palmer had a vehicle to get them from the Ridgeway
Complex to the appointed place of purchase. At about 7:30 or 8:00 p.m. on
December 2, 2007, Palmer went to the rear door of the Vassel/Sconci townhouse.
He asked to borrow Sconcis rental car. Vassel approached Sconci. He told her
Palmer needed a ride someplace. Sconci agreed to loan her vehicle, provided
Palmer drive. Vassel did not have a drivers licence.

[20]

Michael
Agba testified that he, Palmer and Vassel drove in Sconcis vehicle to the
parking lot where the deal was to take place. Shawn Vassel said that he
remained at the Ridgeway Complex in the trap house where he listened to music,
made and received some telephone calls and smoked some marijuana. He said that
David Grant went with Palmer and Agba. Grant testified that he never left the
Sconci townhouse.

[21]

Mohammed
Odeh, the middleman, was the first to arrive at the site of the deal. His
friends, John Hamwi, Asser Almassra and Salim Mohammad, were with him. Odeh
parked his vehicle. They waited for the others to arrive. The Sconci vehicle
arrived next, parking next to Odehs vehicle. In it, according to Agba, were
Agba, Palmer and Shawn Vassel, who was the driver. Husam Degheim was the last
to arrive. He parked to the right of Odehs vehicle. His wife was a front-seat
passenger.

[22]

Odeh
and Palmer approached the Degheim van. Palmer said, Show me the weight,
referring to the marijuana. Odeh explained that this was not how things were
done. Degheim said it was alright. He offered Palmer a sample of marijuana to
inspect. Palmer did not examine the sample. He walked back to the Sconci
vehicle.

The Shooting

[23]

Two
other men got out of the Sconci vehicle. They approached the Degheim van. One
of them pulled out a gun and pointed it. Odeh pleaded with the gunman not to
shoot over $500 of marijuana. Degheim, apparently aware that something was
amiss, turned on the ignition of his van. He tried to pull out of his parking
spot. The wheels of his vehicle began to spin. The gunman shot Degheim in the
chest. One of the men grabbed the marijuana. Then they fled. At 8:11 p.m.,
Degheims wife called 911 to report the shooting.

[24]

Husam
Degheim died of a single gunshot wound to his chest fired from a .40 calibre
Glock handgun.

[25]

Michael
Agba testified that Vassel remained in the drivers seat of Sconcis vehicle
after they arrived at the site of the proposed transaction. Agba saw him pull out
a black, .40 or .45 calibre Glock semi-automatic handgun and put a bullet in
the chamber. Agba and Vassel went to the Degheim van. Vassel shot Degheim as he
sat in the drivers seat. Vassel and Agba ran back to Sconcis vehicle. Grant
drove away towards the Ridgeway Complex.

The Evidence of Identity

[26]

The
principal evidence identifying Shawn Vassel as the person who shot and killed
Husam Degheim was the testimony of Michael Agba.

[27]

About
three weeks after the shooting, Agba agreed to speak to the police. He claimed
that he wanted to help them in their investigation in any possible way. He did
so out of self-interest. He fashioned a tale, embroidering it to portray
himself as a helpful citizen without any involvement in what happened. He did
so to lead the investigation in another direction.

[28]

About
ten days after his first police statement, Agba got arrested as he entered the
Brampton courthouse for a court appearance. He had some crack cocaine in his
possession. After several hours of questioning, punctuated by numerous pauses
during which he was left alone to consider his position, officers confronted
Agba with evidence that contradicted his previous self-serving account,
including his identification by Odeh at the scene of the robbery and shooting.
Agba acknowledged that he had been untruthful in his previous account. He
identified Shawn Vassel as the person who killed Husam Degheim.

The Arrests

[29]

Michael
Agba and Shawn Vassel were arrested on a joint charge of second degree murder.
They remained jointly charged until after the conclusion of the preliminary
inquiry when both were ordered to stand trial. Agba agreed to testify against
Vassel and to plead guilty to manslaughter. At the proceedings in which he
pleaded guilty, Agba admitted that he bent the truth by minimizing his
involvement in the robbery. He denied any knowledge that a gun would be used
until he arrived at the appointed place. At trial, he conceded that his claim
of ignorance was an effort on his part to obtain a lesser sentence on his
guilty plea.

The Other Eyewitnesses

[30]

At
trial, none of the others present at the shooting  the deceaseds wife, Odeh or
Hamwi  identified Shawn Vassel as the shooter. Each indicated that the shooter
was the driver of the Sconci vehicle. Each provided a description of some of
the mans features. These features generally coincided with those of Shawn
Vassel and David Grant. Odeh and Hamwi, who had confidently told police that
they would be able to identify the shooter, were shown photographic line-ups
that included Vassel but not Grant. Neither picked out Vassels photo, or any
other photo, as the shooter.

The Evidence of Sabrina Sconci and David Grant

[31]

Sabrina
Sconci, Shawn Vassels girlfriend, gave evidence that on the night of the
shooting, Vassel and Palmer left the townhouse with her car keys. They promised
they were only going a few minutes away and would be right back with her
vehicle. Shawn Vassel contended that he told Ms. Sconci that he needed her car
to go up the street with Palmer the night of the shooting. The killing occurred
shortly thereafter.

[32]

David
Grant was a good friend of Shawn Vassel. He was living with Vassel and Sconci
when the deceased was killed. Grant testified that Vassel and Palmer left the
townhouse together on the night of the shooting. About thirty minutes later,
Vassel returned. On his return, he said that something messed up had happened
and would be reported on the news. Grant also gave evidence that at some time
before the killing, he had seen the handle and clip of a gun in Vassels
pocket. Grant believed that it was a semi-automatic firearm. Vassel had described
the weapon as a .9 mm or .40 calibre Glock that his mother had given him.

The Post-incident Conduct

[33]

In
its attempt to establish the guilt of Shawn Vassel for the murder of Husam
Degheim, the Crown relied upon evidence of post-incident conduct, that is to
say, evidence of things Shawn Vassel did and said after the killing.

[34]

Shawn
Vassel, David Grant and Sabrina Sconci cleaned up Ms. Sconcis rented vehicle.
They removed marijuana crumbs said to have been left in the interior of the car
since the robbery. Ms. Sconci and Vassel were pulled over by police as they
were driving in Ms. Sconcis rental the day after the shooting. When asked to
identify himself, Shawn Vassel said his name was Shawn Seeram, a name by
which he had previously been known and one used on a cellphone contract.
Immediately after she learned of Palmers arrest on December 4, 2007, Sabrina
Sconci drove Shawn Vassel from their townhouse in the Ridgeway Complex to
Vassels mothers home on San Romanoway in the Jane and Finch area of Toronto. He
remained there until his arrest on January 9, 2008.

[35]

Police
arrested Sabrina Sconci on December 6, 2007. They questioned her. When she was
released, she found a payphone and called Shawn Vassel on the same 833 phone
whose location at the time of the shooting was introduced as alibi evidence for
Vassel. Within one-half hour of the call, the 833 phone went dead. No calls
made. No calls received. Vassel admitted that he removed the SIM card from the
phone and threw it in the garbage. The next day, Vassel registered a new
phone under the fictitious name Rose Marie. Sconci, who also obtained a new
cellphone under the fictitious name Christina Roberts, listed Vassels new
phone number as Jaylons on her cellphone.

[36]

Two
eyewitnesses described the shooter as wearing a hoodie with braids sticking
out. For at least eight years prior to the killing and on the day of the
killing, Shawn Vassels hair was braided. Soon after he left Ridgeway to live
in his mothers home, he got a very short haircut and removed his facial hair.

[37]

When
police arrived at his mothers 18
th
floor apartment on San Romanoway
on January 9, 2008 to arrest Shawn Vassel for the murder of Husam Degheim,
Vassel fled back into the unit. He climbed over the edge of the balcony and spidered
from balcony to balcony down 11 floors. When he reached the seventh floor, he
broke into an apartment, then fled the building barefoot to an adjacent mall.
After a brief pursuit and some resistance, he was arrested.

[38]

Shortly
after Husam Degheim was shot to death Shawn Vassel told David Grant that he
(Vassel) wanted to get rid of his Glock. Vassel exchanged the Glock for a .22
calibre handgun Grant saw on Vassel prior to Vassels arrest on January 9,
2008. It appeared to be the same silver .22 calibre handgun that police found
at the bottom of the San Romanoway balconies Vassel had scaled down when police
arrived at his mothers apartment to arrest him. The gun was loaded with ten
rounds of ammunition. Police found additional ammunition and shell casings in
the apartment.

[39]

At
trial, the Crown also relied upon evidence of conversations between Vassel and
Sconci and Vassel and Grant after the shooting. These conversations tended to
show Vassels involvement in the shooting and his attempt to distance himself
from what had occurred.

[40]

Sabrina
Sconci testified that two days after the killing, Vassel told her that
something bigger had happened. Tristan Palmer had turned himself in. Vassel
instructed Sconci that if anyone asked her about her car, she was to say that
it had been stolen. When Vassel was in custody, his friend, Matthew Miller,
reminded Sconci to stick to the story about her vehicle having been stolen.

[41]

Shawn
Vassel and David Grant smoked weed the same night Husam Degheim was shot to
death. Later, Vassel told Grant that he, Palmer and Lefty (Agba) had taken the
weed from somebody. When a warrant was issued for Palmers arrest two days
after the shooting, Vassel told Grant that he was leaving Ridgeway and hoped
Palmer did not say anything or involve him in the incident.

The Alibi

[42]

Shawn
Vassel testified at trial. He said he did not participate in the robbery or
shooting of Husam Degheim. He did not own or have a .40 calibre Glock handgun
at the time of the shooting. He was not at the place where the robbery and
shooting occurred.

[43]

Shawn
Vassel recalled that while he and Grant were watching television in Sconcis
townhouse, Palmer came to the back door and asked to borrow Sconcis car.
Palmer promised to pay $100 in cash for the use of the car. When Vassel asked
Sconci, she refused to provide her vehicle because Vassel did not have a
drivers licence. Sconci relented when she learned that Palmer, not Vassel,
would be the driver.

[44]

Shawn
Vassel gave the keys to Sconcis vehicle to Palmer. He told Grant that he
(Vassel) was going to the trap house. Palmer was on the phone arranging a
marijuana deal. He complained that someone from whom he had bought marijuana in
the past was trying to punk him on the price for the drugs. Vassel thought
that Palmer would probably rip off this supplier, someone whose name Grant recognized.

[45]

According
to Shawn Vassel, after Michael Agba arrived at the trap house, Palmer, Grant
and Agba left in Sconcis car. Vassel stayed in the trap house. He talked on
the phone with different people including his grandmother. He listened to
music. About one-half hour after the others had left, Matthew Miller arrived.
The men smoked some weed and talked. About 20 minutes later, Grant returned
without the $100 promised for the loan of Sconcis car. Vassel called Agba
about the money. Agba brought the money to the trap house and explained the chop
got fucked up. Vassel understood Agba meant that they had robbed the seller of
the marijuana.

[46]

Shawn
Vassel claimed that while he was at the trap house on the evening of the
robbery and shooting, he had his only cellphone with him. This was the 833
phone registered under his birth name, Shawn Seeram. To support his assertion
that his phone (and thus he) was at the trap house in the Ridgeway Complex and
not at the scene of the robbery and shooting, trial counsel called Kristi
Jackson, an employee of Rogers Wireless. She testified from company records
about the location of the 833 phone at the time of the robbery and shooting.
When Vassel called Miller and his grandmother, the phone was in the Ridgeway
Complex, not in the area where the robbery and the shooting occurred.

[47]

To
rebut the alibi advanced by Shawn Vassel, the Crown cross-examined Ms. Jackson
about the cellphone practices of drug dealers, including their use of multiple
phones, the distinction between drug phones and family and friends phones, and
whether the usage patterns on the 833 phone revealed that it was a drug or
family and friends phone.

[48]

The
Crown also called Ms. Sconci in reply to testify about the many phones Shawn
Vassel had and the names in which they were registered.

The Alternative (Third-Party) Suspect

[49]

At
trial, defence counsel advanced the theory that either Agba or Grant could have
committed the shooting while Vassel was elsewhere. According to the defence
theory, both Agba and Grant went with Palmer in Sconcis car. Both reported
back after the robbery. Grants evidence that he never left the townhouse
complex was contradicted not only by Vassel, but also by Sconci. According to
Vassel, Grant and Agba were members of a gang that had a reputation for
violence and gunplay. Grant had a history of robbing people and at the time of
trial was in custody for robbing a drug purchaser while armed with a .40
calibre Glock.

THE GROUNDS OF APPEAL

[50]

Shawn
Vassel (the appellant) challenges his conviction on five grounds. Three
arguments assert errors in the reception or rejection of evidence tendered at
trial. Two grounds involve complaints about the charge to the jury.

[51]

As
I would paraphrase, the grounds of appeal advanced in connection with the
reception or rejection of evidence are that the trial judge erred:

i.

in admitting what is said to be expert opinion evidence about cellphone
usage by drug traffickers;

ii.

in failing to admit evidence of the appellants prior out-of-court
statements; and

iii.

in
refusing to permit the appellant to re-open the defence case to respond to a
breach of the rule in
Browne v. Dunn
.

[52]

The
appellant also says that the trial judge erred:

i.

in instructing the jury to consider the appellants evidence with
caution or particular care; and

ii.

in failing to instruct the jury correctly about use of the exculpatory
evidence provided by eyewitnesses to the robbery and shooting.

Ground #1: The Cellphone Evidence of Kristi Jackson

[53]

This
ground of appeal has to do with evidence adduced by the Crown in
cross-examination of Kristi Jackson, an employee of Rogers Wireless. She was
called as a defence witness to testify about cellphone locations when certain calls
were made or received by the 833 phone said to have been in the appellants
possession at the time of the robbery and shooting.

[54]

The
purpose of the evidence adduced by the Crown was to rebut an alibi advanced by
the appellant, of which his usage of the 833 cellphone was a critical
component. The appellant claimed:

i.

that he was using only one cellphone on the evening of the killing, the
833 phone, although he had had several phones in the past and several phones
were recovered from his residences when arrested;

ii.

that he had the 833 phone with him in the trap house at the material
time, when he was smoking weed and listening to music; and

iii.

that
he talked on the phone with friends and relatives, including his grandmother,
at the material time.

[55]

Some
further background is essential to an understanding of the argument advanced
and a determination of its merits.

The Alibi Telephone

[56]

At
its core, the appellants alibi, as he testified at trial, was that he was in
the trap house, Unit 81 at 3480 Colonial Drive, when the robbery and shooting
occurred. Among his activities there was his use of the 833 phone, his only
cellphone. According to the uncontested triangulation evidence of Ms. Jackson,
the 833 phone was in the vicinity of the Ridgeway Complex, not the scene of the
shooting, when the shooting occurred at about 8:10 p.m. on December 2, 2007. If
the appellant and his phone were together at that time, he could not have fired
the fatal shot.

The Contradictory Evidence

[57]

At
trial, the Crown adduced evidence that others in the Ridgeway Complex, for
example, Sconci and Grant, used cellphones registered to others, including the
appellant. And when the appellant was arrested, searches conducted in Unit 79
and in his mothers apartment on San Romanoway yielded a total of 13
cellphones.

[58]

The
appellant denied the trial Crowns suggestion to him in cross-examination that
he had more than one cellphone on the evening of the robbery and shooting. The
Crown did not put to him the various cellphones on which Sconci later testified
she was able to contact him.

The Evidence of Kristi Jackson elicited by Crown Counsel

[59]

Kristi
Jackson testified as a defence witness. She was qualified as an expert in
interpreting records kept by her employer, Rogers Wireless, and in explaining
how cellphone towers interact when calls are made from cellphones.

[60]

Crown
counsel sought to cross-examine Ms. Jackson on whether drug dealers registered
cellphones in their own name, on the call patterns revealed on drug dealers drug
phones, and on whether those patterns were evident on the appellants 833
phone.

[61]

The
trial judge made no formal ruling with respect to the proposed lines of
cross-examination other than to say that it was not necessary for the Crown to
qualify the witness to testify on those subjects, but that it would be
advisable if the Crown established some more foundation.

[62]

In
cross-examination, Ms. Jackson explained that (known) drug dealers rarely
register their drug phones, of which they may have many, in their own name. Among
the many phones drug dealers typically have, Ms. Jackson testified, may be a
family and friends phone used for clean conversations. A review of company
records for phones identified by investigators as drug phones reveals a large
number of minutes of phone use, consisting of brief calls of 20 seconds or less
in duration, with few repeat contacts.

[63]

When
she reviewed the records associated with the 833 phone, Ms. Jackson found a
large number of minutes indicative of frequent use, but none of the other
indicia she associated with a (typical) drug phone. To her, the 833 phone was
a family and friends phone. The phone was not used after December 6, 2007
(the date of Sabrina Sconcis arrest) until December 14, 2007, when Rogers
disconnected it for non-payment. Ms. Jackson testified that she was familiar
with the pattern of frequent phone use suddenly coming to a complete stop
after a significant event, but she could not speculate about the reasons for
it.

The Arguments on Appeal

[64]

The
appellant reiterates the objection he advanced at trial in relation to Kristi
Jacksons evidence. He says here, as he did there, that the evidence Crown
counsel adduced from her in cross-examination was inadmissible expert opinion
evidence.

[65]

According
to the appellant, this evidence fails to satisfy the
Mohan
criteria at
the first step or stage of the expert evidence analysis.

[66]

The
evidence was not relevant because it was a sweeping conclusion about how all
drug traffickers operate based on a simple generalization from anecdotal
evidence. That other drug traffickers had and used multiple phones does not
make it more likely that the appellant did so or that he did so on December 2,
2007.

[67]

The
appellant also argued that in addition to its lack of relevance, the evidence elicited
from Ms. Jackson in cross-examination was not necessary. The appellant admitted
that in the past he had possessed and used several cellphones in connection
with his drug trafficking activities. Police located 13 cellphones at two
places where he was living before, at the time and within the month immediately
following the shooting. This evidence, all of which had been admitted prior to
the testimony of Ms. Jackson, supported an inference of multiple phone
possession on December 2, 2007 and put the lie to the appellants denials.
There was no need for this evidence from Ms. Jackson.

[68]

What
is more, the appellant continues, Kristi Jackson was never qualified as an
expert on modes and methods of drug trafficking. She thus was disentitled to
offer these opinions. The Crown conceded her qualifications on the subjects
upon which the defence sought to introduce her evidence, which were different.
But not then and not later, prior to eliciting the controversial evidence, did
the trial Crown seek to qualify her as an expert on modes and methods of drug
trafficking. No expert, no opinion.

[69]

Even
if this evidence of Ms. Jackson were to satisfy the threshold requirements for
the admissibility of expert opinion evidence, the appellant argues, it fails at
the second or gatekeeping stage. Its costs outweigh its benefits to the correct
disposal of this case. While not lengthy in its introduction, it adds no value
to the evidence already adduced. Further, it risks overvaluation by the jury
because it comes from a witness already qualified as an expert. In the end,
having been admitted, this inherent prejudice was compounded by the emphasis
placed upon it by the Crown in his closing address and its repetition by the
trial judge in his charge to the jury.

[70]

The
respondent rejects any suggestion that this evidence of Kristi Jackson was
improperly admitted. This testimony was probative, offered little prejudice and
fell well within the scope of Ms. Jacksons established expertise.

[71]

To
begin, the respondent says, it is of essential importance to a correct
determination of the admissibility issue raised that this evidence be put in
its proper perspective.

[72]

The
appellant testified. He said he was a drug dealer. He explained that, at times,
he had had several phones. Drug phones. And a family and friends phone. He
insisted that on the date of the robbery and shooting he had but one  the 833
phone  which was a family and friends phone.

[73]

In
cross-examination, Kristi Jackson testified that:

i.

drug dealers generally have multiple phones; and

ii.

from the usage pattern revealed by records from Rogers, the 833 phone
does not appear to be a typical drug phone.

Thus it is evident, the
respondent continues, that the impugned evidence of Kristi Jackson goes no
further than, and indeed not as far as, testimony out of the appellants own
mouth. No harm. No foul.

[74]

The
real controversy, the respondent says, was not the nature of the 833 phone, but
rather the truthfulness of the appellants claim that he had
only
the
833 phone on December 2, 2007. And on that issue, Kristi Jacksons evidence
said nothing. Other evidence  the appellants own admissions and evidence of
post-arrest cellphone seizures  contradicted the appellants denial.

[75]

The
respondent begins the expert evidence analysis with a reminder about the
deference owed to the trial judges decisions about relevance, Ms. Jacksons
qualifications, necessity, and the balancing of probative value and prejudicial
effect. Nothing has been said, the respondent urges, that displaces deference
and warrants intervention.

[76]

Taking
first the issue of qualifications, the respondent acknowledges imperfections in
the qualification of Kristi Jackson as an expert on the subject about which the
Crown wished to cross-examine her. But in the end, it was mission accomplished.
She had served as a consultant to police forces for 20 years in connection with
drug investigations. She had analyzed phone records to identify patterns of
use, and thus could compare those patterns with records for the 833 phone. And
she had lectured law enforcement agencies, prosecutors and the judiciary on the
intersect between phone records and drug investigations. Her qualifications were
rooted in two decades of on-the-job experience and training.

[77]

Turning
to the basis for the opinion Ms. Jackson expressed, the respondent contends
that it was not based on common sense and instinct, as the appellant argues,
but rather on her lengthy experience in analyzing patterns of phone usage as
revealed by the billings of a cellphone provider. Ms. Jackson also furnished
the jury with several factors which, in combination, were indicative of a drug
phone:

·

an inordinately high number of minutes;

·

a litany (predominance) of very short calls;

·

an absence of personal calls; and

·

little repetition of calls from the same number.

These criteria would assist the
jury in finding that the 833 phone was a family and friends phone, not a drug
phone.

[78]

The
respondent says that the evidence of Kristi Jackson also satisfied the
necessity requirement at the first stage or step of the admissibility inquiry.
The appellants insistence that the evidence be
essential
before it
satisfies this
Mohan
criterion sets the bar too high. To satisfy this
requirement, the opinion need only provide information which is likely to be
outside the experience and knowledge of the jury. And an analysis of cellphone
usage patterns settles comfortably within this sphere.

[79]

Nor
does the evidence of Kristi Jackson offend the anecdotal evidence prohibition
established by
R. v. Sekhon
, 2014 SCC 15, [2014]S.C.R.272.. Ms.
Jackson did not apply anecdotal evidence from prior cases to reach her
conclusion. Rather, she assessed the usage of the 833 phone against known
patterns of cellphone use to reach her conclusion. The appellant had already
testified and conceded that on previous occasions he had several phones, some
of which he used as drug phones, to traffic his wares. In addition, the
opinion she expressed did not offend the ultimate issue rule, or what remains
of it.

[80]

In
any event, the respondent concludes, even if the evidence should not have been
received, its admission caused the appellant no prejudice. After all, it
aligned with much of the appellants own evidence. He was a drug dealer. At other
times he had several phones. Drug phones. Family and friends phones. This
was a family and friends" phone. He denied having other phones. Ms.
Jacksons evidence did not and could not contradict that denial, but it was
otherwise aligned with the appellants own testimony. Hence the submission of
no prejudice from its reception. This evidence occupied no place of prominence
in either the Crowns closing address or in the judges charge, where it was
subject to a limiting instruction.

The Governing Principles

[81]

Basic
principles of the law of evidence inform the decision on this ground of appeal.

[82]

Relevance
.
An item of evidence is relevant if it renders the fact it seeks to establish by
its introduction slightly more or less probable than that same fact would be
without that evidence. Relevance is a matter of everyday experience and common
sense. It is assessed in the context of the entire case and the positions of
counsel:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras.
204-206.

[83]

Materiality
. An
item of evidence is material if it is offered to prove or disprove a fact in
issue:
Luciano
, at
para. 207. Whether an accused said to have committed an offence as a principal
was present at the scene of the offence is a fact in issue.

[84]

Admissibility
. Relevant
and material evidence is admissible if it satisfies all the existing tests and
extrinsic policies of the law of evidence, whether based on common law
principles, statutory provisions or constitutional precepts:
Luciano
, at para. 209;
R. v. Zeolkowski
, [1989] 1 S.C.R. 1378, at p. 1386.

[85]

The admissibility rule
said to be applicable here is the opinion rule. Like its siblings, hearsay and
character, the opinion rule is exclusionary by nature. It insists that
witnesses give evidence of facts, not make statements of opinions or inferences
drawn from those facts. It follows, at least as a general rule, that evidence
of a witnesss opinion is not admissible:
White Burgess
Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 14. The most convincing
rationale for the rule is that these ready-formed inferences offered by the
witness are unhelpful to the trier of fact and might be misleading:
R.
v. Graat
, [1982] 2 S.C.R. 819, at p.
836. See also
White Burgess
, at para. 14.

[86]

As
with other admissibility rules, the opinion rule is not unyielding. Not all
opinion evidence is excluded. We recognize that, so far as matters that require
special knowledge or skill are concerned, triers of fact, whether judges or
jurors, are not necessarily equipped to draw true inferences from facts stated
by witnesses. Assistance is necessary. And so it is that we permit witnesses to
state their opinions about these subjects, provided the witnesses are shown to
be experts in them:
White Burgess
, at para. 15;
R. v. Abbey
,
[1982] 2 S.C.R. 24, at p. 42.

[87]

Where
the opinion rule is put forward as the ground upon which evidence proposed for
admission should be excluded, the judge embarks upon a two-step inquiry into
admissibility:
White Burgess
, at para. 22; see also,
R. v. Abbey
,
2009 ONCA 624, 97 O.R. (3d) 330, at para. 76, leave to appeal refused, [2010]
S.C.C.A. No. 125 (
Abbey
09
).

[88]

At
the first step of the admissibility inquiry, the proponent of the evidence must
establish the threshold requirements of admissibility. These are the four
Mohan
factors:

i.

relevance;

ii.

necessity;

iii.

the
absence of an exclusionary rule; and

iv.

a
properly qualified expert.

See
White Burgess
, at
para. 23;
R. v. Mohan
, [1994] 2 S.C.R. 9, at p. 20;
R. v. Bingley
,
2017 SCC 12, [2017] 1 S.C.R. 170, at paras. 14-15.

[89]

At
this first step, the relevance factor refers to logical relevance:
White

Burgess
, at para. 23;
Abbey
09
, at para. 84. The necessity requirement endeavours to
ensure that the potential of expert opinion evidence to distort the
fact-finding process is not lightly tolerated.
White Burgess
, at para.
21;
R. v. D.D
.
, 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 46
and 57. As a result, the opinion evidence is unnecessary if on the facts
established by other evidence the trier of fact can reach their own conclusion
about the issue to which the proposed opinion evidence is directed without that
opinion:
Sekhon
, at para. 45. What is required is that the opinion
proposed for admission provide information that is likely to be outside the
experience and knowledge of a jury:
Mohan
, at p. 23. Mere relevance or
helpfulness is not enough:
R. v. D.D
.
, at para. 46.

[90]

Under
Mohan
, a duly qualified expert is a witness who by study or experience
has acquired special or peculiar knowledge of a subject about which a party
proposes the witness will testify:
Mohan
, at p. 25. As we have seen,
the extent of knowledge of the proposed expert must exceed the knowledge and
experience of the trier of fact about the same subject:
Bingley
, at
para. 22.

[91]

It
is the responsibility of the party who seeks to elicit expert opinion evidence
from a proposed (or actual) witness to qualify the witness as an expert in the
subject-matter about which the opinion is to be elicited:
R. v. Marquard
,
[1993] 4 S.C.R. 223, at p. 243. It is the obligation of opposing counsel to
object where appropriate and the task of the trial judge to ensure that the
expert stays within the scope of his or her expertise:
Marquard
, at p.
244;
Abbey
09
, at
para. 62;
Sekhon
, at paras. 46-47.

[92]

At
the second or gatekeeping step, the trial judge must balance the risks and
benefits of admitting the evidence, thereby to determine whether the proposed
evidence is sufficiently beneficial to the trial process to warrant its
admission despite the potential harm to that same trial process that may flow
from the admission of the expert evidence:
White Burgess
, at para. 24;
Abbey
09
, at para.
76. Relevance, necessity, and reliability, as well as the experts independence
and impartiality, continue to play a role in weighing the overall competing
considerations in admitting the evidence:
White Burgess
, at para. 54.

[93]

Sometimes
in giving evidence at trial, an expert may give opinions that extend beyond the
subjects on which the expert has been qualified to give evidence. To the extent
that an expert does so, the unqualified opinions are to be disregarded by the
trier of fact. Where the trier of fact is a jury, the trial judge should
instruct them accordingly:
Marquard
, at p. 244;
Sekhon
, at
para. 48.

[94]

A
final point concerns anecdotal evidence, which sometimes enters the record of
trial proceedings during the testimony of an expert. Anecdotal evidence is
testimony that does not speak to the facts of the case but reasons from the
witnesss prior experience to the probability of a particular result or
occurrence in the case at hand. Anecdotal evidence is not legally relevant. Nor
is it necessary. It lacks probative value. It is inherently prejudicial and
tends to shift the onus of proof to an accused:
Sekhon
, at paras. 41,
49 and 50.

The Principles Applied

[95]

As
I will explain, I would give effect to this ground of appeal. The evidence
elicited by Crown counsel in cross-examination of Kristi Jackson should not
have been received. I will approach the issue in a series of steps beginning
with a brief canvass of the substance of the evidence itself.

[96]

When
challenged by defence counsel, the Crown said that he wanted to cross-examine
Ms. Jackson about:

i.

whether drug dealers registered drug phones in their own name;

ii.

the call patterns revealed on Rogers billing records for drug phones;
and

iii.

whether the billing records for the 833 phone revealed a pattern of
usage consistent with a drug phone or a family and friends phone.

[97]

Kristi
Jackson testified that drug dealers have several cellphones they use as drug
phones. They rarely register these phones in their own name. They may also have
a family and friends phone on which they carry on clean conversations.
Known drug phones have three principal features:

i.

a large number of minutes in each billing period;

ii.

a
majority of calls of brief duration lasting less than 20 seconds; and

iii.

few repeat
callers.

Ms. Jackson added that apart from
a large number of minutes, the 833 phone lacked the other indicia of a drug
phone. It appeared to be a family and friends phone.

[98]

The
location of the 833 phone when the robbery and shooting occurred was a critical
part of the appellants alibi. At the time of the robbery and shooting, the
triangulation records were consistent with the phone being at the Ridgeway
Complex and not in the area where the shooting had occurred. This tended to
support the appellants testimony that he and the phone were at the trap house
when the robbery and shooting occurred and thus he could not have been the
shooter as alleged by Agba.

[99]

The
appellants challenge to the admissibility of Kristi Jacksons evidence was on
the ground that it was evidence of expert opinion adduced from a witness who
was not properly qualified to give it. I agree that the contested evidence
should have been excluded on this basis.

[100]

If the testimony
the Crown adduced from Kristi Jackson in cross-examination consisted in whole
or in part of expert opinion on a subject matter beyond the qualifications
defence counsel had already established, it was incumbent on the Crown to
qualify her as an expert on that subject matter. Crown counsel made no effort
to do so before eliciting the opinions he sought, although he did some
backfilling after the opinion was given. To the extent that Ms. Jacksons
evidence simply recounted what the Rogers billings revealed, it was not
evidence of expert opinion. But to the extent that she offered the opinion
about the character of the phone  drug vs. family and friends  her
testimony reflected an opinion that she had not been properly qualified to
give.

[101]

I will defer
consideration of the impact of the receipt of this evidence on the validity of
the conviction until I have examined the other alleged errors.

Ground #2: The Appellants Prior Statements

[102]

The second
ground of appeal challenges the trial judges refusal to permit defence counsel
to elicit evidence of prior out-of-court statements of the appellant as part of
the defence case. Trial counsel sought to adduce these statements on two
discrete bases:

i.

to rebut an allegation of recent fabrication in connection with the
number of phones in the appellants possession or control at the time of the
shooting; and

ii.

to
remedy a breach of the rule in
Browne v. Dunn
when Crown counsel
failed to put the multiple cellphone theory to the appellant in
cross-examination.

[103]

The common
relief sought favours consideration of these complaints as a single ground of
appeal preceded by a brief reference to how the claims arise.

The Essential Background

[104]

The appellant
denied robbing and shooting the deceased. He said he was someplace else at the
time: at the trap house in the Ridgeway Complex. He told the jury what he was
doing at the trap house. Among other things, he was talking on the telephone 
the 833 phone  the only phone he had on December 2, 2007. And he relied on the
cellphone triangulation evidence provided by Kristi Jackson to confirm that the
833 phone was in fact in the Ridgeway Complex at the time of the robbery and
shooting.

[105]

At trial, the
Crown sought to undermine the appellants alibi in a variety of ways. For
present purposes, those methods included cross-examination of the appellant and
Kristi Jackson, a defence witness, and the introduction of the evidence of
Sabrina Sconci in reply.

[106]

The Crown cross-examined
the appellant on his possession of or access to multiple cellphones to carry
out his drug trafficking activities. The appellant acknowledged having had
several cellphones for these purposes in the past, but he did not resile from
his claim that on December 2, 2007 he had only the 833 phone, a family and
friends phone, although he conceded that persons other than family and friends
called him on it. The Crown did not cross-examine the appellant about other
phones described by Sabrina Sconci in reply as phones on which she could
contact the appellant.

[107]

The Crown
cross-examined Kristi Jackson about drug dealers use of multiple cellphones
registered in different names, the use of both drug phones and family and
friends phones, and her conclusion that the 833 phone was a family and
friends phone, not a drug phone.

[108]

The Crown called
Sabrina Sconci in reply to establish that the appellant had access to more than
the 833 phone at the time of the robbery and shooting. During a police interview,
Ms. Sconci had said that the appellant had access to several phones. But in her
evidence at trial, despite a ruling that permitted the Crown to cross-examine
her on her prior statements, Ms. Sconci maintained that at the time of the
robbery and shooting the appellant only had the 833 phone. She explained her
statement references to multiple phones as relating to a period of time before
December 2, 2007.

[109]

During
cross-examination of Ms. Sconci in reply at trial, defence counsel sought to
adduce evidence about the appellants possession of or access to other phones.
Her explanation included a reference to things the appellant had said to her.
The Crown objected. The trial judge sustained the objection and refused to
permit Ms. Sconci to give evidence about what the appellant had told her about
the other phones.

[110]

Trial counsel
applied to re-open the defence case so that he could recall the appellant to
testify about the other phone numbers in Ms. Sconcis log at which she had
previously contacted him and whether those numbers were operable on the date of
the robbery and shooting. The trial judge dismissed the application and refused
to permit the defence to re-open its case after seven weeks of trial.

The Arguments on Appeal

[111]

At the outset,
the appellant acknowledges that, as a general rule, the prior consistent
statements of a witness, including an accused, are not admissible at trial for
sound policy reasons, but the rule is subject to various exceptions. Among
those exceptions, the appellant says, is one that permits reception of prior
consistent statements of a witness when the witness testimony is alleged to be
a recent fabrication or invention. And that, the appellant urges, is this case.

[112]

The appellant
points out that an allegation of recent fabrication need not be express, rather
can be implied from the manner in which the witness is cross-examined. Here,
the appellant continues, it was apparent from the tenor of the
cross-examination that the appellants claim that he had but one cellphone 
the 833 phone  at the time of the robbery and shooting was a recent
fabrication. As such, this permitted the defence to elicit evidence of the
appellants prior statements explaining how it was that his prior access to
other cellphones had ended by December 2, 2007. This evidence would have
rebutted the suggestion that he had access to several cellphones at the
material time, which, if accepted by the jury, blunted the support that the
triangulation evidence provided for his alibi.

[113]

According to the
appellant, he should have been permitted to introduce this evidence by
re-opening his case or through the testimony of Ms. Sconci. These remedies were
available not only because the Crown alleged that his single cellphone claim
was a recent fabrication, but also because the Crown breached the rule in
Browne
v. Dunn
by failing to put the specifics of other cellphone use to him in
cross-examination.

[114]

The respondent
says that the fundamental flaw in the appellants argument, is that the
appellants possession of or access to multiple phones on the day of the
shooting was not a new theory explored first during the cross-examination of
the defence witness, Kristi Jackson. During the case for the Crown, two police
officers testified about the seizure of 13 cellphones and a SIM card from the
two premises the appellant occupied contemporaneously with the killing and his
arrest. In his cross-examination of the appellant, which occurred before Ms.
Jackson testified, the Crown suggested access to several phones, pointing to
photographs of the phones seized on arrest. The appellant maintained that at
the time of the killing he had only one phone  the 833 phone.

[115]

The respondent contends
that the failure of the trial Crown to put each seized phone and its
corresponding records to the appellant in cross-examination does not amount to
a breach of the rule in
Browne v. Dunn
. The appellant was challenged
on his denial of access to other phones. His unequivocal denial did not oblige
the Crown to engage in protracted cross-examination on details. Substance
triumphs over form. The trial judges conclusion that the rule was not breached
is entitled to deference.

[116]

In addition, the
respondent continues, it was open to the appellant to explain the origins and
operability of the phones seized on arrest in re-examination at trial. He chose
not to do so, rather sought to adduce the evidence in cross-examination of
Sabrina Sconci when she was called in reply by the Crown or by asking the trial
judge to exercise his discretion to permit re-opening of the defence case so
that he could do so. Each application was rightly refused.

[117]

The respondent
also rejects the appellants argument that the prior statements should have
been admitted through Ms. Sconci to rebut an allegation of recent fabrication.
Once again, the respondent says, the factual predicate on which this exception
must be founded is absent. Although an allegation of recent fabrication need
not be expressly made, a canvass of the cross-examination furnishes no
evidentiary support for the claim that the appellants account was impeached on
the basis that it was a recent fabrication. The implication here was
straightforward: the appellant, as the person who killed the deceased, was
lying to avoid conviction. This does not amount to an allegation of recent
fabrication, thus does not engage the exception for prior consistent statements
in rebuttal.

The Governing Principles

[118]

The principles
that inform disposition of this ground of appeal are familiar and not the
subject of controversy between the parties. Needless to say, they do differ on
the result that should follow from their application.

[119]

To begin, the
rule in
Browne v. Dunn
(1894), 6 R. 67.

[120]

The rule is one
of fairness, thus not a fixed or invariable rule, much less a rule of
admissibility. The extent of its application rests within the sound discretion
of the trial judge, a discretion that is subject to significant deference on
appeal:
R. v. Quansah
, 2015 ONCA 237,
125 O.R. (3d)
81
, at paras. 76-77 and 80, leave to appeal refused, [2016] S.C.C.A. No.
203

[121]

Compliance with
the rule in
Browne v. Dunn
requires a cross-examiner to confront the
witness with matters of substance, not inconsequential detail, on which the
cross-examining party seeks to impeach the witness and call contradictory
evidence:
Quansah
, at para. 81. When it is apparent from the tenor of
counsels cross-examination of a witness that the cross-examiner does not accept
the witnesss version of events, the confrontation is general and known to the
witness, and the witness view on the contradictory matter is apparent,
specific confrontation of the witness is not necessary:
Quansah
, at
para. 82.

[122]

As a rule of fairness,
no fixed relation exists between a breach of the rule in
Browne v. Dunn
and the remedy available for that breach. No single or exclusive remedy follows
from the breach. It is for the trial judge to say what remedy is best suited to
maintain fairness in the trial process: Recall of the witness, for instance. A
jury instruction about the impact of the failure to cross-examine on the jurys
assessment of credibility and reliability. Or something else entirely. A remedy
decision also attracts deference on appeal:
Quansah
, at paras.
117-118.

[123]

Second, the
doctrine of recent fabrication.

[124]

An
allegation of recent fabrication need not be explicit; rather, it is sufficient
if it is evident from the circumstances of the case:
R. v. OConnor

(1995), 25 O.R. (3d) 19 (Ont. C.A.), at p. 28, leave to appeal refused, [1995]
S.C.C.A. No. 460;
R. v. Kailayapillai
,
2013 ONCA 248, 115 O.R.
(3d) 363, at paras. 40-41, leave to appeal refused, [2014] S.C.C.A. No. 35. On
the other hand, an allegation of recent fabrication does
not
arise from
an allegation of a fabrication
simpliciter
,
or where the allegation is that an accused, as the person
who committed an offence, is lying to avoid conviction for that offence. A bald
allegation of fabrication does not amount to an allegation of recent
fabrication because essential to the latter is an assertion that at some identifiable
point in time the witness began to make the claim being challenged. For
example, the allegation may be that a particular cause or event was the genesis
for the fabrication:
Kailayapillai
,
at paras. 43-45.
Proof of a consistent statement made prior to that
point in time rebuts the allegation of recent fabrication.


[125]

As a general rule, we do
not permit the introduction of prior consistent statements of a witness at the
instance of the party who calls the witness. These statements are self-serving
and lack probative value:
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5;
R.
v. Evans,
[1993] 2 S.C.R. 629, at p.
643;
R. v. B
é
land
, [1987] 2 S.C.R. 398, at pp. 409-410. But where a
witness is challenged for having recently fabricated his or her testimony, the
party calling the witness may introduce a consistent statement made by the
witness prior to the time when the fabrication is alleged to have occurred. Unless
an independent hearsay exception applies, the prior consistent statement is not
admissible to establish the truth of its contents:
R. v.
Simpson
, [1988] 1 S.C.R. 3, at pp.
22-25.

The Principles Applied

[126]

As I will
briefly explain, I would reject this ground of appeal.

[127]

First, the rule
in
Browne v. Dunn
.

[128]

Putting each
exquisite detail upon which the cross-examiner proposes to contradict the
witness by other evidence is not required to ensure compliance with the rule in
Browne v. Dunn
. Confrontation on matters of substance is what is
required. And that occurred here. It was apparent from the tenor of the Crowns
cross-examination of the appellant that the Crown did not accept the single-phone
version proffered by the appellant. In this case, this was sufficient
compliance with the requirements of the rule. No breach. No remedy.

[129]

In addition, as
in most cases where allegations of breach of the rule are made, the
cross-examiner could have descended into greater detail. But it does not follow
from his failure to do so that a breach of the rule occurred. I also have in
mind the concession of trial counsel, who is also counsel on appeal (not Ms.
Vandebeek), that the Crown was entitled to call contradictory evidence in
reply. Whither the breach?

[130]

Second, the
doctrine of recent fabrication. In my view, a careful canvass of the
cross-examination of the appellant does
not
support a finding that his
evidence denying access to multiple cellphones at the material time was
challenged as a recent fabrication. The allegation or implication was that, as
the principal, the person who shot the deceased to death, the appellant was
simply lying to avoid conviction. In other words, his motive to fabricate was
his involvement in the killing. No point in time when he would have decided to
lie to avoid conviction was suggested to him. Any alleged prior consistent
statement would therefore have nothing to rebut.

[131]

Apart from
allegations of recent fabrication and a breach of the rule in
Browne v.
Dunn
, the appellant advances no other basis upon which evidence of his
prior statements could have been admitted, either through Ms. Sconci or by
permitting the appellant to re-open the defence case. This ground of appeal
fails.

Ground #3: Jury Instructions on Defence Evidence

[132]

This ground of
appeal impugns a passage in the trial judges charge to the jury in which he
instructed jurors about the manner in which they should assess a portion of the
appellants testimony in making their decision. Critical to an informed assessment
of the merits of this complaint is a brief reference to some aspects of the
evidentiary backdrop and the positions of the parties at trial.

The Essential Background

[133]

The principal
defence advanced by the appellant was an alibi: he and his 833 cellphone were alone
together at the trap house in the Ridgeway Complex when the robbery and murder
occurred. But this testimony also tended to implicate Agba, Palmer and Grant
whom he indicated were the trio who borrowed Sconcis vehicle to get them to
the place where they planned to rip off a drug dealer.

[134]

Agba also
testified. He admitted he participated in the robbery along with Palmer and the
appellant. He identified the appellant as the shooter. Palmer was not called as
a witness. Grant testified and denied being present at the robbery. The
eyewitnesses descriptions of the shooter were consistent with the appearance
of both Grant and the appellant, but not Agba.

The Charge to the Jury

[135]

In his final
instructions to the jury, the trial judge left the defence position as advanced
by counsel in his closing address: alibi. No complaint is made about this
characterization of the defence position or what the trial judge said about it.

[136]

As part of his
instructions on the various types or kinds of evidence adduced at trial, the
trial judge told the jurors that they were to apply the same test and consider
the same factors in assessing the appellants testimony as they would with
respect to any other witness. The trial judge continued:

Subject to any specific contrary instructions that I may give
you, you may consider the testimony of Mr. Vassel as to what, in fact, took
place, and whether or not he was present, to help you decide this case.

Mr. Vassel has given evidence that may tend to show that either
Mr. David Grant or Mr. Agba was the shooter as he was not at the scene of the
crime on the night in question. You should consider that testimony of Mr.
Vassel with particular care because he may have been more concerned about
protecting himself than about telling the truth. Bear that in mind when you
decide how much or little you can believe of and rely upon what Mr. Vassel told
you about Mr. Grants involvement in deciding this case.

[137]

The trial judge
then briefly outlined the appellants evidence, in particular, that he did not
go in Sconcis car with Grant, Palmer and Agba and that he did not own or
possess a Glock handgun, before he instructed the jury:

If you believe Mr. Vassels evidence that he did not commit the
offence charged and that he was not at the scene of the crime, you must find
him not guilty.

Even if you do not believe Mr. Vassels evidence, if it leaves
you with a reasonable doubt about his guilt or about an essential element of
the offence charged or a lesser included offence, you must find him not guilty
of that offence.

Even if Mr. Vassels evidence does not leave you with a
reasonable doubt of his guilt about an essential element of the offence charged
or any lesser included offence, you may only convict him if on the rest of the
evidence that you do accept, you are satisfied beyond a reasonable doubt of his
guilt.

The Arguments on Appeal

[138]

The appellant
contends that the trial judge erred in his instructions to the jury about the
manner in which the jury was to assess the testimony of the appellant.

[139]

To begin, the
appellant reminds, it is impermissible to assume that an accused will lie to
secure an acquittal. Such an assumption flies in the face of the presumption of
innocence and creates an almost insurmountable disadvantage for an accused. As
a general rule, triers of fact should avoid consideration of an accuseds
interest in the outcome of a case as a factor influencing their determination
of the accuseds credibility and the reliability of his or her evidence. Any
instruction that directly or indirectly invites the trier of fact to consider
such interest is prejudicial and invites jury use of this impermissible
assumption as a basis upon which to reject an accuseds testimony.

[140]

In addition, the
appellant continues, a trial judge must not give a
Vetrovec
caution to
the jury in relation to evidence adduced by or favourable to the defence. Such
cautions are limited to Crown witnesses whose testimony is inculpatory of an
accused.

[141]

In this case,
the appellant says, the trial judge singled out the appellants testimony,
instructing the jury that it was to be assessed differently than the evidence
of other witnesses. This was wrong. And it was an error compounded by a lack of
balance and fairness in the remainder of the charge. To urge the jury to consider
the accuseds testimony, or any aspect of it, with special care is tantamount
to a
Vetrovec
caution and is legally wrong.

[142]

The respondent
disagrees with the appellants characterization of the instruction as the
functional equivalent of a
Vetrovec
caution, which the respondent
agrees would amount to legal error.

[143]

Reduced to its
essence, the appellants complaint, according to the respondent, fastens on two
lines in a 300-page charge and characterizes them as the functional equivalent
of a
Vetrovec
caution. But these lines cannot be ripped out of their
context, for jury charges are to be considered as a whole, in light of the
evidence adduced and the positions advanced at trial. Instructions must be
proper, but they need not be perfect.

[144]

The instruction
of which the appellant complains lacks the essential components of a
Vetrovec
caution. The jurors were not told that it was
dangerous
to act on the
evidence of the appellant in the absence of confirmatory evidence. They were
not instructed to search for confirmatory evidence. That this was not a
Vetrovec
-like
caution is perhaps best exemplified by the actual
Vetrovec
caution
that was given in connection with the Crown witnesses, Agba and Grant. This
distinction would not be lost on the jury.

[145]

The respondent
invites consideration of two further principles.

[146]

The first is
that a trial judge has the right to comment and to express opinions on factual
issues, including the credibility of witnesses and the reliability of their
evidence, provided the instruction leaves the ultimate resolution of these
issues to the jury. Viewed through this lens, the instruction does not exceed
the bounds of fairness.

[147]

The second is
rooted in an analogy to instructions given in joint trials where cutthroat
defences are advanced or disposition evidence is adduced. In such cases, it is
permissible for trial judges to caution jurors about placing reliance on those
portions of a co-accuseds evidence that exculpates him or her but inculpates another
co-accused. Common sense would support a similar caution where the inculpatory
evidence, necessarily exculpatory of the accused/witness, targets an
alternative or known third party suspect.

[148]

As a final
point, the respondent submits that the instruction given was responsive to the
unorthodox manner in which the appellant advanced the alternative or known
third party suspect issue at trial. Contrary to the usual practice, the
appellant did not bring a pre-trial application to introduce evidence in
support of this claim. Indeed, at first, trial counsel protested that he was
not making any such allegations. As a result, there was no inquiry into or
showing of the threshold requirement of a sufficient connection between the
alternative suspect and the offence. Counsel simply cross-examined various
Crown witnesses about the potential involvement of various individuals from the
Ridgeway Complex and adduced evidence from the appellant about others. In this
context, the trial judges two-line reference to taking care in connection
with the appellants evidence relating
only
to alternative suspects
was neither legally wrong nor unfair.

The Governing Principles

[149]

To inform our
assessment of the merits of this challenge, we have the assistance provided by
some well-established principles. Some have to do with the standards of review
we are to apply in our assessment. Others relate to
Vetrovec
cautions, and,
in particular, their application to defence evidence. Still others describe the
limits of judicial comments on factual issues, such as the credibility of
witnesses and the reliability of their evidence.

[150]

First, the
standard of review.

[151]

The parties in a
criminal trial are entitled to a properly instructed jury. No less. But no
more. No party can stake a claim to a perfectly instructed jury:
R. v.
Jacquard
, [1997] 1 S.C.R. 314, at para. 2. Appellate courts asked to
scrutinize a jury charge for error are to take a functional approach in their
assessment: to determine whether the instructions, read as a whole, fulfill
their function of equipping the jury with the necessary tools to render a true
verdict in the case presented to them. This assessment is also contextual, for
it must take cognizance of the reality that a jury charge is but part, albeit
an important part, of a criminal jury trial. There is also the evidence adduced
and the positions of the parties to consider:
R. v. Daley
, 2007 SCC
53, [2007] 3 S.C.R. 523, at paras. 30-31;
R. v. Araya
,
2015 SCC 11, [2015] 1 S.C.R. 581, at
para. 39
; and
R. v. Jaw
,
2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

[152]

In our
consideration of the language used in jury instructions, we must determine in
all probability the general sense the words used conveyed to the jury. We are
not to parse the language of a single sentence, or to adopt a construction that
resolves any ambiguity in an accuseds favour. What counts is the overall
effect of the charge, not whether a particular formula or word choice was used:
Daley
, at para. 30;
Araya
, at paras. 39 and 52;
Jaw
,
at paras. 32 and 37.

[153]

We must also
bear in mind that a jury charge may be so confusing that it constitutes an
error in law:
R
.
v.
Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 42.

[154]

Second,
Vetrovec

cautions.

[155]

Four features
are characteristic of a caution given in accordance with
R. v. Vetrovec
, [1982]
1 S.C.R. 811:

i.

identification
of the witness(es) whose evidence is subject to
the caution;

ii.

the
reasons
for the caution;

iii.

the
caution
, noting that it would be dangerous to convict on
unconfirmed evidence of this sort
; and

iv.

the
advisability, characteristics and illustrations of
confirmatory evidence
.

See
R. v. Khela
, 2009
SCC 4, [2009] 1 S.C.R. 104, at paras. 37-38;
R. v. Bevan
, [1993] 2
S.C.R. 599, at pp. 612-14; and
R. v. Suzack
(2000), 141 C.C.C. (3d)
449 (Ont. C.A.), at para. 187, leave to appeal refused, [2000] S.C.C.A. No. 583.

[156]

A
Vetrovec

caution is to be given only for unsavoury witnesses who testify for the
Crown and whose evidence is tendered in proof of guilt:
R. v. Yumnu
,
2010 ONCA 637, 260 C.C.C. (3d) 421, at para. 165, affd on other grounds, 2012
SCC 73, [2012] 3 S.C.R. 777;
R. v. Ryan
, 2014 ABCA 85, 307 C.C.C. (3d)
173, at para. 24, leave to appeal refused, [2014] S.C.C.A. No. 296. These
cautions are not to be given in relation to defence witnesses who give evidence
favourable to the defence:
Ryan
, at para. 24;
R. v. Hoilett
(1991), 3 O.R. (3d) 449 (C.A.), at pp. 451-452;
R. v. Tzimopoulos
(1986), 29 C.C.C. (3d) 304 (Ont. C.A.), at p. 340; and
R. v. Pilotte
(2002), 163 C.C.C. (3d) 225 (Ont. C.A.), at para. 92, leave to appeal refused, [2002]
S.C.C.A. No. 379.

[157]

Although, as a general rule, a trial judge must not give a
Vetrovec
warning in connection with defence witnesses, there are some instances in which
a caution may be required in connection with an accuseds testimony. For
example, in a joint trial involving cutthroat defences or where the accused
introduces disposition evidence against a co-accused:
R. v. Oliver

(2005), 194 C.C.C. (3d) 92 (Ont. C.A.),
at paras. 54-60, leave to appeal refused, [2005] S.C.C.A. No. 458;
R. v.
Pollock

(2004), 187 C.C.C.
(3d) 213 (Ont. C.A.), at para. 168, leave to appeal refused, [2004]
S.C.C.A. No. 405; and
Suzack
, at para. 127.


[158]

It does not
follow from the prohibition against
Vetrovec
cautions for defence
witnesses that nothing can or should be said beyond general instructions about
credibility and reliability determinants in connection with the testimony of an
accused.

[159]

The common sense
proposition that a witnesss interest in the proceedings may have an impact on the
witnesss credibility applies equally to an accused who testifies in his or her
own defence:
R. v. Laboucan
, 2010 SCC 12, [2010] 1 S.C.R. 397, at
para. 12. In many cases, however, an accuseds interest in not being convicted
is simply an unhelpful factor for the trier of fact to consider in its
assessment of the evidence. But not always. An absolute rule prohibiting a
trier of fact from considering, and being instructed that it may consider, a
motive to lie in order to secure an acquittal, regardless of the circumstances,
would artificially immunize the accused in a manner at odds with other rules of
evidence that provide an accused with special protections. And so it is that
whether it is appropriate for a trier of fact to consider and thus a jury to be
instructed that it is entitled to consider that an accused may have a motive to
lie because of his or her interest in the trial will depend on the evidence
adduced and the issues raised at trial:
Laboucan
, at paras. 14-15.

[160]

No one gainsays
the principle that a trial judge is entitled to express his or her own view of
the facts or the credibility of the witnesses, including the accused, and to
express that opinion in strong terms, provided that the judge does not use such
language as leads the jury to think that they must find the facts as the judge
indicates and provided the charge, taken as a whole, does not deprive the
accused of a fair presentation of his case to the jury:
R. v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 133, reversed on other grounds,
[1990] 2 S.C.R. 1421
.

[161]

In some
instances, it may be permissible for a judge to instruct the jury to be
especially cautious or extremely careful in considering defence evidence. This
is particularly the case when this instruction is linked to or accompanied by a
further instruction that is compliant with the Supreme Courts admonition in
R.
v. W. (D.)
, [1991] 1 S.C.R. 742, that the jury must not be left with the
impression that it needs to believe the evidence of the accused in order to
return a verdict of acquittal:
R. v. Wristen
(1999), 47 O.R. (3d) 66
(C.A.), at para. 45, leave to appeal refused, [2000] S.C.C.A. No. 419.

The Principles Applied

[162]

As I will
explain, I would give effect to this ground of appeal.

[163]

To begin, I
would reject the appellants submission that the impugned instruction was or
amounted to the functional equivalent of a
Vetrovec
caution.

[164]

Like every
instruction that has as its focus jury use of a type of evidence or the
testimony of a particular witness, this instruction identified its
subject-matter: the appellants evidence putting Grant and Agba at the scene of
the shooting. Jurors were told to use particular care in their evaluation of
this evidence. The reason for this particular care was also mentioned  the
prevalence of self-interest over truth. Thus it could be said that the first
two characteristics of a
Vetrovec
caution were present.

[165]

On the other
hand, absent from the instruction were two critical features of a
Vetrovec
caution: the full-throated dangerous admonition and the obligation to search
about for confirmatory evidence. This was also a case in which jurors heard a
Vetrovec
caution in relation to the evidence of Grant and Agba. It beggars belief that
they would fail to recognize the difference and subject the appellants
evidence to
Vetrovec
-level scrutiny.

[166]

On the other
hand, this instruction nestles uncomfortably close to a
Vetrovec
caution in its suggestion of the need for special scrutiny of the appellants
evidence. And as we know,
Vetrovec
cautions do not apply to
exculpatory defence evidence, including the testimony of an accused.

[167]

The real problem
with this instruction, however, is not with its proximity to a
Vetrovec
caution, but rather with its impact on the instruction on alibi and the jurys
consideration of the appellants testimony in support of alibi, his principal
defence. Let me explain.

[168]

The appellants
evidence about Grant and Agba leaving the Ridgeway Complex in Sconcis car to
rip off a drug dealer was an integral part of the appellants alibi. This is
because his alibi was that he was alone  along with his 833 phone  in the
trap house when the robbery and shooting occurred. His evidence that Grant and
Agba left, along with Palmer, if accepted, left it open for the jury to find:

i.

that the appellant was at the trap house with the 833 phone, and thus
could not have been the shooter;

ii.

that Grant, Agba and Palmer were at the scene of the robbery and
shooting; and

iii.

that
one of Grant, Agba or Palmer shot and killed the deceased.

[169]

In connection
with his defence of alibi, the appellant was entitled to and received an instruction
in accordance with
R. v. Parrington
(1985), 20 C.C.C. (3d) 184 (Ont.
C.A.), at p. 187, clarifying for the jury that they need not believe the alibi
evidence in order to acquit. But the jurors were also told that they were to
approach that aspect of the alibi that had Grant and Agba leaving in Sconcis
car with particular care. In these circumstances, the inclusion of this
reference had the effect of adding a level of scrutiny to the alibi evidence
that was unwarranted and constitutes error.

Ground #4: The Charge on the Non-identification Evidence

[170]

The final ground
of appeal also takes issue with an aspect of the trial judges final
instructions to the jury. The complaint alleges non-direction on what is said
to be a legal principle. To appreciate the nature of the objection, a brief
reference to the circumstances underlying it and relevant portions of the
charge are helpful.

The Essential Background

[171]

Among those
present at the robbery and shooting were two witnesses whose testimony was
singled out for specific instructions: Mohammed Odeh and John Hamwi. There was
no suggestion that either Odeh or Hamwi were involved in the robbery or
shooting. Odeh was the middleman who put the purchaser, Palmer, in contact
with the seller, Dagheim, and arranged the time and place of the purchase and
sale.

[172]

Odeh and Hamwi
provided descriptions of the shooter, who each said had been the driver of the
car. Neither knew the shooter. Each expressed confidence that he could identify
the shooter in a line-up. Each viewed a photo line-up, which included a
photograph of the appellant. Neither picked out the photograph of the appellant
as the shooter or even hesitated at his photograph. Each identified Agba as a
participant in the robbery, but said that Agba was not the shooter.

[173]

Odeh and Hamwi
described the shooter as a young, black man who wore dark clothing, a hoodie, a
toque or hat and had braided hair. It was common ground that this description
fit not only the appellant but also Grant.

The Charge to the Jury

[174]

The trial judge devoted
about ten pages of his charge to the jury to identification evidence. Among
other things, he told the jury that:

i.

only Agba, whose evidence was subject to several dangers and of which
confirmation was desirable, identified the appellant as the shooter;

ii.

even if the identification evidence left jurors with a reasonable doubt
about the appellants guilt, the circumstantial evidence could prove his guilt;

iii.

Odeh
and Hamwi recognized both Abga and Palmer, neither of whom they said was the
shooter; and

iv.

Grant
gave evidence of an admission by the appellant.

[175]

In Appendix A, I
have excerpted the passage in the trial judges final instructions to which trial
counsel objected at trial. In that passage, the trial judge reminded the jury
about frailties of eyewitness identification evidence in light of the
circumstances of this case. Among the reminders were that honest witnesses,
including more than one honest witness, could be mistaken in their
identification of an accused as the perpetrator, and that the degree of
certainty expressed by a witness about the correctness of their identification
was not an indicium of its accuracy or reliability.

The
defence objection was two-fold:

i.

that the caution provided was stronger than the evidence adduced at
trial warranted; and

ii.

that the instruction focused entirely on the unreliability of the
evidence and omitted any reference to the evidentiary significance of the non-identification.

[176]

The trial judge
acknowledged that the instructions reflected error. He proposed to recall the
jury, repeat the instruction on identification evidence in its entirety and add
two sentences:

However, you may rely on this evidence in support of the
defence position if it leaves you with a reasonable doubt. It is for you to
decide whether or not you accept Mr. Odehs and Mr. Hamwis identification
evidence or whether their evidence leaves you in a reasonable doubt.

[177]

Trial counsel
declined the trial judges offer, saying that the repetition of the charge
would exacerbate the prejudice and that the proposed addition did not
adequately address his concerns. No re-charge was given.

The Arguments on Appeal

[178]

The appellant
contends that the impugned instruction reflects prejudicial error.

[179]

The appellant
says that the traditional eyewitness identification instruction is intended to
caution jurors about the inherent dangers in eyewitness identification evidence
and their need to be cautious about relying on that evidence in finding guilt
proven beyond a reasonable doubt.

[180]

But according to
the appellant, these same concerns have no application when the eyewitness
identification is exculpatory, rather than inculpatory. The appellant
acknowledges that a trial judge is entitled to comment on the credibility of
defence witnesses and the reliability of exculpatory eyewitness evidence. But
such an instruction must be warranted on the evidence adduced and make it clear
that this evidence need only leave the trier of fact with a reasonable doubt
about an accuseds guilt.

[181]

In this case,
the appellant says, both witnesses were confident in their ability to identify
the shooter. Each had accurately identified Agba as one of the participants in
the robbery from another photographic line-up. But they did not even pause at
the appellants photo and were not shown a photo of Grant. This exculpatory
evidence should have been drawn to the jurys attention, together with a proper
direction on the burden of proof, as supportive of the appellants alibi.

[182]

The respondent
rejects any suggestion that the impugned instruction amounts to non-direction,
much less prejudicial misdirection. The evidence of Odeh and Hamwi was neutral,
not exculpatory. Neither picked out somebody else as the shooter. And their
descriptions of the shooter generally matched the appellant. A caution regarding
the frailties of eyewitness identification evidence was required in these circumstances.
No objection was raised at the pre-charge conference to an instruction that, as
it should, left the weight of the evidence to the jury for its consideration.

[183]

In this case,
the respondent continues, where the evidence of these witnesses supported
Agbas identification of the appellant as the shooter, at least to the extent
of not revealing any clear dissimilarity between the appellant and the shooter,
no further instruction was necessary. What was said sounded the appropriate
degree of caution and was a balanced discussion reflecting no shift in the
burden of proof. The amendment suggested by trial counsel during jury
deliberations would have placed undue emphasis on the evidence, according it a
prominence that exceeded its legitimate influence.

The Governing Principles

[184]

It is
uncontroversial that when the case for the Crown depends in whole or in
significant part on the correctness of eyewitness identification of an accused
as the perpetrator, the jury should be instructed on the inherent frailties of
eyewitness identification evidence. Although no specific word formula need be
followed, among other things, the instruction should explain the reasons
underlying the need for the caution, point out that faulty identifications by
honest witnesses in the past have resulted in miscarriages of justice through
wrongful convictions, stress the need for careful consideration of all the
circumstances, and identify the specific weaknesses alleged in the evidence
adduced at trial:
R. v. Sophonow
(1986), 38 Man. R. (2d) 198 (C.A.),
at p. 215;
R. v. Hay
, 2013 SCC 61. [2013] 3 S.C.R. 694, at para. 48
and
R. v. Jack
, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 13-16.

[185]

Traditional
instructions in eyewitness identification cases also make it clear that there
is no positive link between the confidence a witness expresses in the
correctness of his or her identification and the accuracy of that observation:
R.
v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 52; and
R. v.
Richards
(2003), 70 O.R. (3d) 737 (C.A.), at para. 33.

[186]

In some cases,
it may be necessary to instruct jurors on the impact of the failure of a
witness to identify a perpetrator in a line-up despite having been an
eyewitness to the events:
Richards
, at para. 31. In addition, where a
witness has provided a generic description of a perpetrator, a description that
generally fits the accused among others, but does not identify the accused as
the perpetrator, it may be necessary for a trial judge to instruct the jury
that the mere fact that the accused fits the generic description does not, on
its own, permit the jury to conclude that the accused is the perpetrator:
R.
v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 44.

[187]

The need for
special care concerning the evidence of eyewitness identification arises
because of the danger of wrongful conviction. That danger does not exist where
the eyewitness evidence tends to exculpate an accused. This situation might
arise when a
defence

witness
provides exculpatory evidence, or
when a
Crown

witnesss
failure to identify the accused tends to
leave the trier of fact with reasonable doubt about the accuseds guilt.

[188]

Since the
typical instruction on the frailties of eyewitness identification evidence may
leave the jury with an erroneous impression about the quality of evidence that
could leave them with a reasonable doubt, the traditional instruction should be
avoided. In its place, the preferable course is for the trial judge to alert
the jury to the reasons for the frailties of the evidence in the case at hand.
Needless to say, the trial judge must also make it plain that the jury need not
accept the defence or other exculpatory evidence, but that it is sufficient for
acquittal if that evidence leaves them with a reasonable doubt:
Wristen
,
at para. 46. See also,
R. v. Mariani
, 2007 ONCA 329, 220 C.C.C. (3d)
74, at para. 13; and
R. v. Bettencourt
, 2008 ONCA 337, at paras. 13-14,
leave to appeal refused,
[2009] S.C.C.A. No. 489
.

[189]

It is not an
error to instruct a jury to approach certain kinds of defence evidence,
including eyewitness identification evidence, with care or caution, and the
reasons for that caution, but two things must be avoided. The instruction must
not amount to the functional equivalent of a
Vetrovec
caution. And the
instruction must not expressly or by necessary implication undermine the
defence position or shift the onus of proof:
Mariani
, at para. 16;
Wristen
,
at para. 45; and
R. v. Jeffrey
(1989) 35 O.A.C. 321, at pp. 326-327.

The Principles Applied

[190]

I would give
effect to this ground of appeal.

[191]

The case for the
Crown at trial was that the appellant was the person who shot and killed the
deceased. The only person who identified him as the shooter was Agba, a witness
whose evidence was subject to a
Vetrovec
caution. The evidence of Odeh
and Hamwi provided a generic description of the shooter. But neither identified
the appellant as the shooter despite the inclusion of the appellants
photograph in a line-up each of them viewed. No forensic evidence linked the
appellant to the shooting.

[192]

The trial judge
instructed the jury about the need for special care concerning eyewitness
identification evidence. The need for special care arises in cases because of the
danger of a wrongful conviction. But that danger does not exist where the
eyewitness evidence tends to exculpate an accused. As
Wristen
teaches,
this instruction should not have been given. If the jury were to be alerted at
all to the specific features of the evidence in the case, it should have been
made clear to them that:

i.

they need not accept the defence evidence, but that it would be sufficient
for acquittal that the evidence left them with a reasonable doubt about the
appellants presence;

ii.

the failure of Odeh and Hamwi to identify the appellant in the line-up
should be considered along with the alibi evidence in determining whether the
Crown had proven its case beyond a reasonable doubt; and

iii.

the mere fact that the appellant fit the generic description the
witnesses provided did not constitute evidence identifying the appellant as the
shooter.

Conclusion

[193]

We were invited
to apply the proviso in s. 686(1)(b)(iii) to any errors in the admissibility or
exclusion of evidence and in the final instructions to the jury. In
combination, these errors were not harmless. The evidence against the appellant
was not overwhelming. Its principal source was the testimony of a
Vetrovec
witness. The jury deliberated over five days and twice reported a deadlock.
This is not a case in which the proviso can be applied.

[194]

I would allow
the appeal, set aside the conviction and order a new trial.

Released: DW Sep 4, 2018



David Watt J.A.

I agree. K. Feldman
J.A.

I agree. David M.
Paciocco J.A.

























APPENDIX A



Excerpt from the Jury Charge



The case against Mr. Vassel also
depends in part on the correctness of the observations by Mohammad Odeh, Muna
Osman and John Hamwi. You also had the opportunity to observe the photo line-up
identification procedure presented to Mr. Odeh and Mr. Hamwi, both of whom were
unable to identify Mr. Vassel as the shooter.

The Crowns case against Mr. Vassel is based on the theory that
he is the shooter. I have already outlined for you the varying descriptions
from each of these witnesses of the shooter as well as the results of the photo
line-up.

Both Mr. Odeh and Mr. Hamwi upon first speaking to the police
indicated they felt they could positively identify the shooter should they see
him or a photo of him again. There are inherent, and this is not just something
that is limited to Mr. Odeh and Mr. Hamwi, but what I am about to tell you is
something that is common to all of us. There are inherent difficulties with
these assertions, and I feel obliged to tell you about that, and a special need
for caution in relying upon the direct visual or eyewitness evidence of
identification.

That caution is required because all eye witness identification
evidence suffers from an inherent frailty. Human observation and recollections
are notoriously unreliable in this area. No doubt many of you have had the
experience of looking at or speaking to someone only to find that it was not the
person whom you believed it to be. Although recognition of a previously known
person is usually stronger than identification of a stranger, mistakes are
sometimes made in recognition of close relatives and friends. Many cases of
miscarriages of justice have been due to the identification by one or more
responsible witnesses whose honesty was not challenged and who had ample
opportunity for observation in which identifications were subsequently proved
erroneous.

The same can be said the
other way. You may have no doubt a person making the identification is certain
in his or her own mind he or she has identified the right person. You may find
that the evidence is convincing, but a convincing witness though perfectly
honest may also be mistaken. This caution is not limited to identification by a
single witness. More than one witness can be mistaken in identification. In
that context you must bear in mind the distinction between trustfulness and
reliability.

Now frailties in visual identification evidence go to the
weight of that evidence. You must, therefore, examine closely the circumstances
in which the visual identification was made. So consider how well the subject
was known to the person making the identification. Over what interval of time
was the observation made? From what distance? In what circumstances? In what
lighting?

What we know in this particular case is that, according to the
phone records, Mr. Degheim was on his phone at approximately, I think it was
8:07, and four minutes later around 8:11 there is a 9-1-1 call that he is shot.
So what we know is that it is a very, very narrow, very short period of time
for anyone to make any kind of identification. And if you do not know the
people it is pretty difficult. So you have to bear that in mind. Bear in mind
the lighting, the circumstances. Was the identification impeded by distraction,
inattention, fear, tension, turmoil? It is a shooting. You could, I think,
reasonably infer that there would be some tension and fear that would be
coupled with the circumstances when any kind of observations or identification
is made.

Did the person identified or subject to the identification
evidence have any special distinguishing features? Was the identification
wholly dependent and not induced by any suggestion through words, conduct or
circumstances? What time elapsed between the incident and the making of the
identification?

Now, in this case neither Mr. Odeh nor Mr. Hamwi knew or
recognized the shooter. Furthermore, the robbery and shooting were over a
period of a few minutes, and the phone records would suggest, as I just
indicated, within three to four minutes in total. It also occurred at night
somewhere between 8:07 p.m. to 8:11 p.m. A gun was pulled which would heighten
the tension of the situation and create an atmosphere of turmoil and fear. The
only identifiable features observed on the shooter was that he was a young
black man dressed in dark clothing wearing a hoodie and a toque and/or a hat
and having braided hair. These are some of the factors I would suggest to you
that would pose some difficulties in the identification evidence of both Mr.
Odeh and Mr. Hamwi.

However, it is for you to decide whether or not you accept Mr.
Odehs and Mr. Hamwis identification evidence and if so, how much weight to
give such evidence.

So, members of the jury, these then are only some of the
factors that you might want to keep in mind when you go to your jury room to
make your decision. These factors might help you decide how much or how little
you will believe and rely upon a witnesss evidence. You may consider other
factors as well. Remember that you do not have to just accept or reject a
witnesss evidence. You can accept some parts and reject other parts. Also keep
in mind that the Crown need not prove individual items of evidence beyond a
reasonable doubt, that you must weigh all the evidence as a whole and not in
isolation or individually.




