



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alvarez, 2021 ONCA 851

DATE: 20211130

DOCKET: C68202

Watt, Hoy, and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tesean Alvarez

Appellant

Delmar Doucette and Zahra Shariff, for
    the appellant

Andrew Cappell, for the respondent

Heard: March 22, 2021 by video conference

On appeal from the conviction entered by
    Justice Jamie K. Trimble of the Superior Court of Justice, sitting with a jury,
    on August 8, 2019.

Watt J.A.:


[1]

Two men in a pickup truck. Driving along a
    residential street. Each in his fifties. Each white. Brothers.

[2]

Two pedestrians. Walking along the same
    residential street. Both young. And Black.

[3]

Some insults. Anti-Black racial epithets. An argument
    starts. The passenger gets out of the truck. He picks up a baseball bat from
    the back of the truck. He moves forward. Maybe he puts the bat back. Maybe not.

[4]

One of the pedestrians fires four shots. The
    passenger from the truck was hit. The shooter and his companion leave in a car.
    Next day, police arrest two men. And they find the gun from which the shots
    were fired.

[5]

A jury found the appellant guilty of aggravated
    assault and possession of a weapon for a purpose dangerous to the public peace.
    He appeals his convictions. He says the judge made several mistakes in his
    charge to the jury. And the jurys verdict is unreasonable.

[6]

In these reasons, I explain why I would allow
    the appeal, set aside the convictions, and order a new trial.

The Background Facts

[7]

The central issue at trial was the identity of
    the shooter. What the jury had to decide was whether the Crown had proven
    beyond a reasonable doubt that the appellant shot and wounded Tyler Bradley.

[8]

For all practical purposes, the case for the
    Crown consisted of the testimony of Tyler Bradley and his brother, Shane, about
    the circumstances of the shooting. Some additional circumstantial evidence linked
    the handgun used in the shooting to premises in which the appellant had stayed
    the night after the shooting. But, on its own, the trial Crown acknowledged, this
    additional evidence fell short of the standard of proof required if the jury
    rejected or had a reasonable doubt about the Bradley brothers accounts of the
    shooting.

[9]

And so it was that the criminal liability of the
    appellant fell to be decided on the basis of the jurys assessment of the
    eyewitness identification evidence given by two
Vetrovec
witnesses. Each
    contemptuous, to a greater or lesser extent, of the court and its processes.
    Both, at best indifferent to truth-telling, save as a last resort.

[10]

Some background is helpful in understanding the
    grounds of appeal urged and how I suggest that they be resolved.

The Bradley Brothers

[11]

Tyler Bradley lived in a basement apartment at
    175 Morton Way, a D-shaped street that meets itself at a T-intersection. When
    he testified at trial, Tyler Bradley was in custody awaiting trial on unrelated
    charges. In over three decades, Tyler Bradley had been convicted of 70 criminal
    offences. Those convictions included 39 for offences of dishonesty and a
    further 19 for offences against the police or the administration of justice.

[12]

Shane Bradley is Tyler Bradleys older brother.
    Over a period of 37 years, he had been convicted of 25 criminal offences. Eleven
    convictions involved offences of dishonesty. Three were for offences against
    the administration of justice. And seven involved offences of violence. When
    Shane Bradley gave evidence at trial, he was in custody serving a sentence for
    an unrelated offence.

[13]

Both Bradley brothers were drug users, if not
    addicts. Each was enrolled in a methadone program.

The Relationship of
    the Parties: The Garage Incident

[14]

One or two nights before the shooting, an
    incident occurred in the garage at 175 Morton Way. Tyler Bradley and Brian
    Larman lived in the house at that address. Shane Bradley was a frequent
    visitor.

[15]

Tyler Bradley recalled that he and Shane were in
    the garage. Two Black youths, whom Tyler Bradley identified as O and Rico,
    were also there. O was Voshaun Grant. Rico was the appellant. As usual,
    Shane Bradley was arguing with both youths. Brian Larman, who lived on the main
    floor at 175 Morton Way, intervened. He told the youths to leave. They left.

[16]

Brian Larman remembered things differently. Tyler
    Bradley was yelling at a Black youth in the garage. Shane Bradley was not
    there. Tyler Bradley restrained the youth who was trying to leave the garage.
    They began to fight. Brian Larman restrained Tyler. He told the youth to leave.
    The youth ran away. Brian Larman noticed a second person on the street, but had
    no reason to think this person was connected to the youth fighting with Tyler
    in the garage.

[17]

Brian Larman did not recognize the youth in the
    garage. He asked Tyler the youths name. Tyler explained that the youth was
    Cs younger brother, Rico. Mr. Larman had seen Rico previously walking back
    and forth from 175 Morton Way. Rico, according to Brian Larman, was a small
    kid in his early or mid-teens, maybe five feet tall and about 100 pounds.

[18]

Brian Larman testified that Rico had a tattoo on
    his neck. When interviewed by police shortly after the shooting, Mr. Larman
    said that he did not notice whether Rico had a tattoo. At trial, he recalled that
    he had remembered seeing a tattoo on Rico right after he left the police
    station. In re-examination, after his memory had been refreshed, Mr. Larman further
    remembered that he had told the police about the tattoo before he left the
    police station.

[19]

An Agreed Statement of Facts (ASF) was filed
    at trial. The parties agreed that Brian Larman remained at the police station
    for three hours and fifteen minutes following the conclusion of his police
    interview. During that time, according to Larman, police officers kept coming
    into the room where he was sitting. They asked him questions. They showed him
    an array of six  eight

photographs on a single
    page. The officers asked whether Ricos picture was included in the array.
    Larman was unable to identify Rico among the photographs.

[20]

According to the ASF, the Crown was unable to
    refute:


i.

Larmans claim that he had been shown an array
    of photographs; and


ii.

if such photographs existed, they have been
    destroyed or lost.

There was no record of any
    interaction between the police and Larman after his interview had concluded and
    before he left the station over three hours later.

[21]

Shane Bradley did not give evidence that he had
    been in the garage when an altercation took place between his brother and Rico
    one or two days before Tyler was shot.

The Shooting

[22]

Late one afternoon in November, the Bradley
    brothers left 175 Morton Way in a pickup truck. Shane Bradley was driving. Either
    just before or shortly after they got underway, one of them got into an
    argument with two young Black men who were on foot. The two young men walked by
    the truck. They egged the Bradley brothers on. The exchange of words included
    racial epithets from Shane Bradley. Tyler Bradley got out of the truck. He took
    a baseball bat from the area behind the cab of the truck. He walked towards the
    two young men. Accounts differed as to whether he had the bat with him or had
    already returned it to the back of the truck.

[23]

The appellant, known to the Bradleys as Rico,
    fired four shots. According to the Bradleys, the first two shots struck Tyler
    in his left hand and arm, the last two in his abdomen.

[24]

Investigators recovered three spent .40 calibre
    cartridge casings and a spent bullet at the scene of the shooting. They found a
    second spent bullet on the gurney in the ambulance that transported Tyler
    Bradley to the hospital. The pickup truck received no bullet damage.

After the Shooting Stopped

[25]

Tyler Bradly either walked or was assisted back
    to the passenger side of the pickup truck. Rico dropped the gun. O picked it
    up. Rico and O headed towards a silver-grey car that was already parked or had
    just arrived on the street. They left in this vehicle.

[26]

Shane Bradley drove back to 175 Morton Way. He
    called 911. He identified the shooter as Rico, the other man as O. He explained
    that Tyler had argued with these men. He claimed not to know how Tyler knew his
    assailants.

[27]

The police arrived. They arrested Shane Bradley
    on an outstanding warrant and took him into custody.

The Arrest of the Appellant

[28]

Two police officers were assigned to find the
    silver-grey vehicle in which the appellant and O had left the area of the
    shooting. They noticed O in a line up at a Tim Hortons where they had stopped
    for coffee. They arrested O. They learned from a taxi driver that O had come
    from 92 Arizona Drive. Police began surveillance of that address.

[29]

About 45 minutes later, the appellant walked out
    of 92 Arizona Drive. He went to the same Tim Hortons where O had been arrested.
    As he headed back towards 92 Arizona Drive, a marked police cruiser drove by.
    The appellant ran back to 92 Arizona Drive. He was arrested there within
    minutes of his arrival.

[30]

Police seized the appellants jacket on arrest.
    They learned that the appellant was also known as S.T.. He was 55 in
    height. During a search of the residence, police found none of the appellants
    personal effects. However, secreted in a toque behind the cushions of a
    loveseat in a second floor living room, they found the .40 calibre handgun used
    to shoot Tyler Bradley. There was no round in the chamber, but 14 rounds in the
    magazine. No DNA or fingerprints of the appellant were found on the handgun,
    the magazine or the ammunition inside the magazine.

[31]

When arrested, the appellant was wearing a
    winter jacket. Forensic examiners found two particles of gunshot residue (GSR)
    on the jacket but none on his jeans. GSR can be transferred from one source to
    another, including police officers, their equipment, vehicles, and furniture in
    police stations. The appellant had contact with five armed police officers, the
    rear seat of a police cruiser, and an interview room at the police station.

The Identification Evidence

[32]

The identification of the appellant as the
    shooter  Rico  rested entirely on the eyewitness testimony of Shane and Tyler
    Bradley. Their evidence was also the subject of a
Vetrovec
caution.
    Each gave extensive evidence at trial about the circumstances of their
    identification of the appellant as the shooter. This included their contact
    with police after the shooting, the display of photographs, and their demands
    of police throughout the identification process.

Shane Bradley

[33]

In his 911 call, Shane Bradley told the operator
    that Rico shot Tyler Bradley and that O was with him.

[34]

Shane Bradley was arrested on an outstanding
    warrant when police arrived to investigate the shooting of his brother. He
    remained in custody during the course of the investigation. On several
    occasions, he spoke to police about the circumstances of the shooting and the identity
    of the shooter. Only some of the interviews were recorded.

[35]

In his first statement, recorded within hours of
    the shooting, Shane Bradley told police that he did not know either the shooter
    or his companion. He told the interviewer, Cst. Lovell, that if he (Lovell)
    wanted to know the identity of the shooter (he) Lovell should release him (Shane
    Bradley) on a promise to appear. He also said, I dont even know these fucking
    punksfuck off, go catch the fucking little n***ers yourself.

[36]

Shane Bradley also wanted his prescribed
    methadone. He demanded to be driven to a pharmacy to obtain his prescription. En
    route to the pharmacy, police took Shane Bradley by the scene of the shooting. Shane
    pointed to three houses, 69-71-73 Morton Way. He said that one of the three of
    them, Jay or Rico, who were brothers, or their friend, Chris, lived there. On
    the way to the pharmacy, Shane gave Cst. Lovell phone numbers for Jay and the
    appellant. Subsequent police investigation linked the numbers to 75 Morton Way
    through taxi dispatches.

[37]

Cst. Lovell showed Shane Bradley single photos
    of both O and Rico, Voshaun Grant and the appellant. This occurred in the
    cells. Shane Bradley said that the photos were of O and Rico. This exchange was
    not recorded. Prior to this discussion at the cells, Bradley said that Cst.
    Lovell had shown him an array of six  eight photographs which included
    photos of O and Rico. No documentation supports this display of an array. Nor
    could Bradleys claim of an array be refuted. When Shane Bradley confirmed in a
    brief recorded statement that the single photographs were of O and Rico, he was
    released from custody on a promise to appear.

[38]

Cst. Lovell knew that best practices required an
    independent non-investigating officer to show a randomized group of photographs
    to an eyewitness. Despite his role as the principal investigator, Cst. Lovell
    showed the single photographs to Shane Bradley. The officer considered the
    police protocol inapplicable. He was investigating a recognition case, not an
    identification case. Nor did the difference between Larmans description of
    Rico as a small kid, as short as 45, and the appellants actual age and
    height, being in his twenties and 55, cause Cst. Lovell any concern. He
    showed the single photographs to Shane Bradley in the cells because Bradley
    refused to come out of his cell. Cst. Lovell did not make efforts to preserve
    the video recording of the cell area.

[39]

At trial, Shane Bradley testified that the
    shooter was just a Black guy about 55 tall. He had a regular build and
    weighed between 140 and 150 pounds. Shane Bradley sort of knew the two men.
    They looked familiar. He then went on to say that their names were O and Rico.
    He had met them at different times to buy drugs from them. His testimony varied
    as to the number of times he had met them. However, despite these many prior
    meetings, Shane Bradley could not say whether Rico had a tattoo. At both the
    preliminary inquiry and trial, Shane Bradley identified the appellant as Rico.

Tyler Bradley

[40]

Tyler Bradley provided a statement to police
    three weeks after he had been shot. He refused to have the statement recorded.
    He told police that he had dealt with O through his brother Shane Bradley. He
    had seen Rico, but had never dealt with him. O and Rico looked the same. They
    always had the hoods of their hoodies up. He believed they were brothers. One
    of them had a tattoo around his face or neck. Both had been in the garage at
    Brian Larmans house to deal with Shane.

[41]

According to Tyler Bradley, the police showed
    him a bunch of photos, possibly when he gave his statement. However, in an
    ASF filed at trial, no police officer had any recollection, notes, or record
    that Tyler Bradley had been shown photographs, whether in an array or
    separately. If there had been any photographs displayed, they had been
    destroyed or lost.

[42]

When he testified at the preliminary inquiry,
    Tyler Bradley made an in-dock identification of both the appellant and Grant, the
    only two persons sitting in the prisoners box. This was the first time Tyler
    identified the appellant as the shooter. Tyler denied that his brothers
    comment You fucking put him away, Tyler. He, he done it, you seen him do it.
    Now you got to put him away influenced him in any way. Tyler also testified
    that both O and Rico had guns. This was something Shane had told him even
    though Tyler himself had not seen O with a gun. From the witness box, Tyler
    Bradley could see that the appellant had a tattoo on his neck. He testified
    that Rico had a tattoo on his neck.

[43]

Tyler Bradley was a problematic witness at
    trial. As a result of his antagonistic attitude and the substance of his early
    testimony, Crown counsel brought an application for leave to cross-examine
    under section 9(2) of the
Canada Evidence Act
, R.S.C., 1985, c. C-5,
and later sought
    admission of his preliminary inquiry testimony under
R. v. B.(K.G.)
,
    [1993] 1 S.C.R. 740.

[44]

On the first day of his testimony, Tyler gave
    evidence that he and his brother encountered two men with dark complexions at
    the T-intersection of Morton Way. The men, who were of medium size, wore
    hoodies. He could not tell whether they were Black or South Asian. He believed
    that his brother had referred to one of them as Rico and the other as O. He
    wasnt sure whether he had ever seen the men among those who came to 175 Morton
    Way to sell drugs to his brother. He had never spoken with these men.

[45]

Initially, Tyler Bradley testified that both men
    were about 58 tall. Then he described the shorter as maybe a foot shorter
    than the other man. He could not provide any identifying features of the
    shooter, such as facial hair or tattoos. He said he would be lying if he
    identified the appellant as the shooter. He explained that his brother
    pressured him to identify the appellant as the shooter at the preliminary
    inquiry. When asked whether he saw the shooter in the courtroom at trial, Tyler
    Bradley said that he did not see the shooter there. At one point, he indicated
    that one of the jurors could have been the shooter.

[46]

At this point, the Crown brought an application
    under s. 9(2) of the
Canada Evidence Act
seeking to cross-examine
    Tyler Bradley on his preliminary inquiry evidence, in which he identified the
    appellant as the shooter. During Crown counsels cross-examination of Tyler on
    his testimony at the preliminary inquiry, the witness said that he didnt know whether
    the shooter had a tattoo on his neck because he (Tyler) had not been close
    enough to see that and the shooter had the hood of his hoodie up. He identified
    the appellant and Grant as the shooter at the preliminary inquiry because they
    were the only two persons in the penalty box.

[47]

The Crown then brought a
B.(K.G.)

application
    to have Tyler Bradleys preliminary inquiry testimony admitted. During his
    testimony in-chief on the
B.(K.G.)

voir dire
, Tyler Bradley
    claimed that he had been subjected to general threats for being a rat. As he
    later clarified, the threats were not connected to the appellant. He also said
    that he didnt want to put a guy away if he didnt do it. He said he could
    not recall whether he knew the person who shot him.

[48]

A weekend intervened before Tyler Bradley
    resumed his testimony on the
B.(K.G.)

voir dire
. Tyler
    Bradley had a change of heart. Some court officers, as well as cell and
    transfer staff, warned him about the prospects of perjury or obstructing
    justice charges if he deviated from his testimony at the preliminary inquiry.
    The officers didnt want to see him charged. So, he decided to testify in
    accordance with his testimony at the preliminary inquiry. The parties agreed
    that the
B.(K.G.)
application should be dismissed. The
voir dire
ended and Tyler Bradley returned to the witness box in the presence of the
    jury.

[49]

On his return to the witness box, Tyler Bradley
    admitted that he had testified falsely for fear of being labelled a rat. He
    reiterated that none of the threats he received were connected to the
    appellant. He explained the information that he had received from the guards
    and his concern that, if he were charged with perjury or the obstruction of
    justice, his plan to plead guilty to an outstanding charge for a sentence of
    time served would be derailed.

[50]

Tyler Bradley then testified about his knowledge
    of Rico, whom he said was the appellant, and O. He had seen both during drug
    transactions at 175 Morton Way. The number of occasions varied widely as he
    tried to convey that I do know the people. The garage in which the drug
    transactions took place was small. He saw both Rico and O at close quarters and
    had also seen them several times on the street.

[51]

According to Tyler Bradley, the appellant was a
    light-skinned Black man about 52 or 54 tall. He had a tattoo about four or
    five inches long on the left side of his neck. Tyler Bradley saw the tattoo
    when he spun around between the second and third shots. Confronted with a
    front-view photograph of the appellant, with the hood of his hoodie down, Tyler
    Bradley admitted that the appellants tattoo was not visible. Nonetheless, he
    insisted that he had seen the tattoo at the time of the shooting. He was 100
    and fucking 50 percent sure that the appellant was the shooter.

The Defence Case

[52]

The appellant did not testify or call any
    witnesses in his defence.

The Position of the Parties
    at Trial

[53]

At trial, the Crown relied on the eyewitness
    identification evidence of the Bradley brothers to establish that the
    appellant, known to them as Rico, was the shooter. They were familiar with him
    from their drug purchases in the garage at 175 Morton Way and having seen both
    Rico and O around the neighbourhood where they lived. Their evidence was
    confirmed by the testimony of Brian Larman who also noted the tattoo on the
    appellants neck. Other evidence tended to link the appellant to the handgun
    used in the shooting and, through the GSR found on his jacket, to the discharge
    of a firearm.

[54]

In support of its submission that the appellant
    intended to kill Tyler Bradley, the Crown relied on the evidence of motive
    arising out of the altercation between the appellant and Tyler Bradley a couple
    of nights earlier. Bested by Tyler Bradley in the altercation, the appellant
    sought to get even by shooting him on the street. The appellant and O manoeuvred
    themselves into an advantageous position. The shots were fired from a matter of
    feet away and continued, according to Tyler, after the first two shots hit his
    hand and arm, and the last two the centre mass of his body. The appellant and O
    then escaped from the shooting ground by summoning a vehicle, already in the
    area, to execute their getaway.

[55]

The position of the appellant was that,
    initially, the evidence pointed to Voshaun Grant as the shooter. The critical
    inflection point occurred when Cst. Lovell became involved in the
    investigation. Cst. Lovell knew that the appellant and Grant were brothers. He
    formed the view that the appellant was guilty because he was Grants brother.
    From that point forward, the investigation was directed to verifying Cst.
    Lovells premature conclusion and not to determining the truth.

[56]

Defence counsel invited the jury to consider the
    descriptions of the shooter before Cst. Lovell gave the appellants picture to
    Shane Bradley. Prior to that inflection point, Shane Bradley had no motive to
    frame the appellant whom he didnt even know. Thereafter, the evidence of the
    Bradley brothers mutated to fit the person they had been told by Cst. Lovell
    was the shooter  the appellant. The description provided by the Bradley
    brothers and Brian Larman prior to the inflection point were truthful and more
    reliable because of their proximity to the shooting itself. And according to
    those descriptions, the shooter could not have been the appellant.

[57]

After the inflection point, the evidence of
    Shane, and then Tyler Bradley, evolved to fit the police theory that the
    appellant was the shooter. No records were maintained about interactions
    between the police and the Bradley brothers and Brian Larman. Police records
    contain no references to the appellant as Rico. The initial and subsequent
    in-dock identifications are worthless. The Bradley brothers are liars and
    bigots. Their identification of the appellant as the shooter is driven by
    vengeance  their desire to have a young Black man punished for shooting Tyler
    Bradley. They could care less that the person they identified was not in fact
    the shooter.

The Grounds of Appeal

[58]

The principal grounds of appeal allege deficiencies
    in the trial judges charge to the jury. In the result, the appellant says, the
    jury was not adequately equipped to make an informed evaluation of the
    credibility of the principal witnesses and the reliability of their evidence.

[59]

The appellant says that the trial judge erred:


i.

by failing to adequately instruct the jury on
    the reliability of the evidence of Shane and Tyler Bradley;


ii.

by misdirecting the jury on the evidence that
    was capable of confirming the testimony of the
Vetrovec
witnesses,
    Shane and Tyler Bradley;


iii.

by failing to instruct the jury in express terms
    that a single difference between the described and known features of an alleged
    perpetrator undermines the identification of that person as perpetrator and
    exonerates or raises a reasonable doubt about his participation; and


iv.

by failing to instruct the jury on the frailties
    of cross-racial identification and racism as a factor to consider in assessing
    the reliability of the identification evidence.

The final ground of appeal impeaches
    the reasonableness of the jurys verdict.

Ground #1: Jury Instructions on the Reliability
    of the Identification Evidence

[60]

This ground of appeal alleges several inadequacies
    in the trial judges charge on identification evidence, in particular, the
    reliability of that evidence. The substance of the evidence has been described
    already. A brief overview of the charge followed by the parties submissions
    about its adequacy will provide a suitable framework for the discussion that
    follows.

The Charge to the
    Jury

[61]

The trial judge provided counsel with drafts of
    his proposed charge in advance of its delivery. Discussions followed as the
    trial judge and counsel worked towards a final product that accommodated the
    parties concerns and equipped the jury to make an informed decision.

[62]

Early in his charge, the trial judge instructed
    the jury on the assessment of evidence. He introduced the terms credibility
    and reliability and explained the meaning of both before schooling the jury
    on the questions they should ask themselves in assessing the evidence of each
    and every witness who testified. The trial judge then explained the difference
    between inculpatory and exculpatory evidence and illustrated each with
    several examples drawn principally from the testimony of the Bradley brothers.
    This distinction had its origins in the closing address of defence counsel.

[63]

The trial judge included a modified
R. v. W.(D.)
, [1991] 1 S.C.R. 742,

instruction
    at the end of his discussion of the inculpatory and exculpatory evidence relating
    to the identity of the appellant as the shooter. Among other things, this
    instruction made it clear that even if the jury rejected the exculpatory
    evidence, they could only find that the appellant shot Tyler Bradley if the
    rest of the evidence that they accepted proved that fact beyond a reasonable
    doubt.

[64]

The trial judge instructed the jury at
    considerable length about eyewitness identification evidence. Its inherent
    frailties. Its link to miscarriages of justice. The difference between its
    apparent and actual reliability. The applicability of the same principles to
    recognition evidence, but not to exculpatory evidence. The trial judge included
    specific instructions about the essential worthlessness of in-court identifications
    and the impact of flawed identification procedures on the reliability of
    subsequent identifications.

[65]

As he had with his general instructions on the
    assessment of the evidence, the trial judge instructed the jury to consider a panoply
    of factors in assessing the eyewitness testimony. The circumstances in which
    the identification was made. Inconsistencies in the descriptions of the shooter
    and the events. And any explanation offered for them by the witnesses. The
    familiarity of the witness with the person identified. The reliability of the
    witnesses memories. The circumstances of the identification procedure such as
    the display of single or an array of photographs including any photographs of
    the appellant. The influence of others in the descriptions and identification
    by a particular witness.

The Arguments on Appeal

[66]

The appellant says that the key to an informed
    assessment of the reliability of the eyewitness identification evidence at
    trial was the process through which the identification was generated and
    documented. The focus of the instructions should have been directed to the crux
    moments where the witnesses first identified the appellant as the shooter and
    what led up to those crux moments. Several gaps are evident in the instructions
    such that the jurys verdicts cannot stand.

[67]

In his first statements, Shane Bradley told
    police that he did not know who shot his brother. During the next interview, he
    told the police that the photographs of others shown to him could be Rico. He
    looked for clues about what the officer wanted him to say. Shane Bradley spoke
    about a qualified memory of having been shown an array of six  eight
    photographs that probably included the persons the police suspected of the
    shooting. Then shown single photographs of the appellant and Grant, for the
    first time, at this crux moment, he identified the appellant as Rico. Then
    Shane Bradley got released on a promise to appear after he had been arrested on
    an outstanding warrant.

[68]

The appellant concedes that the trial judge
    reviewed
some
aspects of the process through which Shane Bradleys
    initial I dont know the shooter became an identification of the appellant as
    the assailant. But the judge failed to provide guidance on other aspects of the
    process when it was essential that he do so. Among the critical omissions were the
    failure to explain several inherent dangers:


i.

showing an eyewitness a single photograph of the
    suspect;


ii.

the absence of any record of what they officer
    said when he displayed the single photograph; and


iii.

the fact that the investigator, not an officer
    unconnected with the investigation, displayed the single and array of
    photographs.

[69]

Further, the appellant continues, the trial
    judges lengthy review of the provenance of the single photographs shown to
    Shane Bradley was inadequately linked to the failure of Cst. Lovell to follow
    the protocol of his own police service. The trial judge should have made it
    plain that, irrespective of the application of the protocol, the reliability of
    the purported identification was severely compromised.

[70]

In connection with Tyler Bradley who first
    identified the appellant and Grant as each sat in the penalty box at the
    preliminary inquiry, the trial judge failed to expand upon the traditional in-dock
    identification instruction to include a further specific danger. The additional
    danger left unsaid linked the identification to Shanes advice to Tyler about
    putting the shooter away, itself a product of a flawed identification based on
    a single photograph.

[71]

The final omission has to do with the absence of
    any record about the photographs shown to the Bradley brothers and Brian Larman
    that preceded their identification. The trial judge failed to point out that
    the parties agreed that the Crown could not refute that, as the witnesses
    claimed, other photographs were shown prior to the identifications being made.
    This absence of evidence was of critical importance to an informed assessment
    of the reliability of the identification witnesses evidence. It ought to have
    been brought to the jurys attention.

[72]

The respondent accepts that in a prosecution
    where the case for the Crown depends significantly on eyewitness identification
    evidence, the trial judge must instruct the jury about the inherent frailties
    of that evidence. The reasons underlying the need for caution. That faulty
    identification by honest witnesses have resulted in previous miscarriages of
    justice where accused persons have been wrongly convicted of crimes they did
    not in fact commit. That the confidence of witnesses in the correctness of
    their identifications is no measure of their accuracy. And that these same
    concerns and cautions apply to recognition evidence which is simply a form of
    identification evidence.

[73]

In addition to these general instructions about
    the inherent frailties of eyewitness identification evidence and its subset
    recognition evidence, the respondent acknowledges that a charge to the jury
    should identify the specific weaknesses alleged in the evidence adduced at
    trial. In this way, the decision-maker is informed not only of the inherent frailties
    of eyewitness identification evidence, but also the specific weaknesses in the
    evidence they are required to consider in reaching their verdict.

[74]

In reviewing the adequacy of the trial judges
    instructions, the respondent reminds us, we must keep in mind that trial judges
    are accorded significant latitude in the manner in which they apprise jurors
    about the inherent frailties of eyewitness identification evidence and the
    substance of what they say. These instructions must be examined in the context
    of the charge as a whole, the evidence adduced at trial, and the positions
    advanced by the parties.

[75]

In this case, the respondent continues, the
    trial judge carefully and correctly instructed the jury about the frailties of
    eyewitness identification evidence. He gave a mid-trial instruction during
    Shane Bradleys evidence and more extensive instructions in his charge. The
    charge made it clear that the inherent frailties in eyewitness identification
    evidence applied to recognition evidence, and thus to the testimony of the
    Bradley brothers at trial.

[76]

The respondent says that the trial judges
    instructions about the display of photographs to the eyewitnesses adequately
    canvassed the issue for the jury. He explained the role of the police directive
    or protocol and told the jury that if they found the directive applicable,
    failure to follow it, on its own, could cause them to reject Shane Bradleys
    identification of the appellant as the shooter. In addition, the failure to
    strictly adhere to the police directive did not undermine the reliability of
    the identification evidence of a witness who previously knew the person they
    identified.

[77]

According to the respondent, the trial judge was
    not required to warn the jury that Tyler Bradleys in-court identification of
    the appellant as the shooter might have been responsive to Shanes exhortation
    you got to put him away. This was nothing more than one brother urging
    another to testify against the person whom Tyler knew had shot him.

[78]

Nor was any further caution required in connection
    with the groups of photos that might have been shown by Cst. Lovell to the
    Bradley brothers and Brian Larman, but not preserved. The evidence is unclear
    whether this array of photographs was in fact shown to these witnesses. The
    uncertainty surrounding these alleged displays provides no basis upon which a
    warning or caution was required in the charge to the jury. To some extent at
    least, such an instruction would have been at odds with the defence theory at
    trial that Cst. Lovell showed Shane Bradley a single photo of the appellant to
    prompt identification of the appellant as the shooter.

The Governing
    Principles

[79]

The principles that control our conclusion on
    this ground of appeal spark little controversy between the parties. Typically,
    their divergence has to do with the result the application of these principles
    should yield in this case.

Appellate Review of
    Jury Instructions

[80]

The parties in a criminal jury trial are
    entitled to a properly instructed jury. Their due is not a perfectly instructed
    jury:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 2, 32;
R. v.
    Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. The function of jury
    instructions is to equip the jury as decision-maker to make an informed
    decision on the evidence adduced at trial. And so it is that, as a reviewing
    court, we test the adequacy of jury instructions according to their ability to
    achieve their purpose:
Jacquard
, at para. 32.

[81]

In our functional approach to evaluating the
    adequacy of jury instructions, we consider the charge as a whole in the context
    of the trial in which the charge was given. The context includes the evidence
    adduced, the positions advanced by the parties, and a recognition that the
    charge to the jury is but a part, albeit a critical part, of a criminal jury
    trial:
Jacquard
, at paras. 14, 20;
Daley
, at paras. 28, 58;
R.
    v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32;
R. v. Calnen
,
    2019 SCC 6, [2019] 1 S.C.R. 301, at para. 153,
per
Martin J. (dissenting
    but not on this point).

[82]

Complaints about non-direction amounting to
    misdirection are equally subject to a functional approach, and a contextual analysis,
    with a weather eye on the evidence adduced, the positions put forward by the
    parties, and the circumstances of the case under appeal.

[83]

Without more, non-direction is not misdirection.
    Misdirection occurs when the judge tells the jury something that is wrong, or
    when the judge tells the jury something that would make wrong what the judge
    has left the jury to understand:
R. v. Demeter
(1975), 25 C.C.C. (2d)
    417 (Ont. C.A.), at p. 436, affd [1978] 1 S.C.R. 538;
R. v. B.(P.)
,
    2015 ONCA 738, 127 O.R. (3d) 721, at para. 131;
R. v. Luciano
, 2011
    ONCA 89, 267 C.C.C. (3d) 16, at para. 70.

[84]

Nor is it non-direction, much less non-direction
    amounting to misdirection, for the judge to fail to tell the jury everything
    that could be said about a particular subject. But this general rule is not inviolable.
    It gives way in at least two instances.

[85]

Non-direction on the evidence adduced at trial
    will amount to misdirection where the item of evidence omitted constitutes the
    sole basis for a defence, justification or excuse advanced at trial:
Demeter
,
    at p. 437.

[86]

Non-direction may also amount to misdirection
    when the omission leaves the jury inadequately equipped to evaluate important
    evidence essential to determination of the issues raised at trial. Omissions of
    this kind cannot be overcome by the singular failure of counsel to object to
    the non-direction:
R. v. Bailey
, 2016 ONCA 516, 339 C.C.C. (3d) 463,
    at paras. 56-57.

Jury Instructions
    on Eyewitness Identification Evidence

[87]

Where the case for the Crown consists entirely
    or substantially of the evidence of eyewitnesses who purport to identify the
    accused as the perpetrator of the offence charged, the trial judge is required
    to caution the jury about the well-recognized frailties of eyewitness
    identification evidence. The instructions should explain the reasons underlying
    the caution and make it clear that the caution applies to all eyewitnesses who
    give this evidence, even those whose honesty and integrity is not challenged:
R.
    v. Hay
, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 40;
R. v. McFarlane
,
    2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 79.

[88]

Trial judges are afforded considerable latitude
    in the language they use in their instructions to the jury on eyewitness
    identification evidence. They are not required to adhere to any particular word
    formula:
Hay
, at para. 48;
R. v. Hibbert
, 2002 SCC 39, [2002]
    2 S.C.R. 445, at para. 52;
McFarlane
, at para. 79.

[89]

The specific weaknesses or problems associated
    with eyewitness identification evidence varies. In each case, the jury
    instructions should forge a link between the general instructions on the
    frailties of eyewitness identification evidence and the specific frailties of
    the evidence adduced at trial:
R. v. Bouvier
(1984), 11 C.C.C. (3d)
    257 (Ont. C.A.), at p. 271, affd [1985] 2 S.C.R. 485;
R. v. Brown
, 2007
    ONCA 71, 216 C.C.C. (3d) 299, at para. 18;
R. v. Vassel
, 2018 ONCA
    721, 365 C.C.C. (3d) 45, at para. 188;
R. v. Lewis
, 2018 ONCA 351, at
    para. 18.

[90]

In general terms, the problem in eyewitness
    identification cases is an honest but inaccurate identification by a credible
    and confident witness. In other words, the problem usually resides in the
    reliability of the witnesss evidence, not their credibility. Hence, the need
    to instruct the jury that the confidence of the witness in the correctness of
    their identification is no measure of its accuracy:
Hibbert
, at para.
    52;
R. v. Jack
, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 14;
McFarlane
,
    at para. 79.

[91]

The principles that apply to eyewitness
    identification evidence also apply to a subset of eyewitness identification
    evidence, recognition evidence:
R. v. Chafe
, 2019 ONCA 113, 371 C.C.C.
    (3d) 91, at para. 30;
R. v. Olliffe
, 2015 ONCA 242, 322 C.C.C. (3d)
    501, at para. 39.

[92]

In some cases, as for example where an
    eyewitness fails to identify a distinctive feature of an alleged perpetrator,
    or where there is a significant discrepancy between the description provided
    and the actual features, a trial judge may be required to instruct the jury
    about the importance of those omissions:
R. v. Huerta
, 2020 ONCA 59, 385
    C.C.C. (3d) 481, at paras. 35, 37;
Jack
, at paras. 16, 27;
R. v.
    Savoury
(2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para 14.

[93]

It is often necessary for the police in their
    search for the person responsible for a crime to display photographs to those
    who may be able to pick out the person responsible. But care must be taken in
    the manner in which any photographs are displayed. There is always the risk,
    especially with a single photograph, that the witness who has seen the
    photograph will have impressed upon their memory the face they saw in the
    photograph, rather than the face they saw when the offence was committed. This
    may impair the utility of that person as a witness. Equally, it would be
    improper to inform an identification witness beforehand of the features of an
    accused by showing that witness a photograph of the accused:
R. v. Goldhar
(1941), 76 C.C.C. 270 (Ont. C.A.), at p. 271;
R. v. Smierciak
(1946),
    87 C.C.C. 175 (Ont. C.A.), at pp. 178-179.

The Principles
    Applied

[94]

As I will explain, I would give effect to this ground
    of appeal. In my respectful view, the charge to the jury, taken as a whole,
    failed to adequately equip the jury to deal with the inherent and specific
    frailties of the identification evidence adduced at trial.

[95]

It is uncontroversial that the case for the
    Crown at trial depended substantially, better said, entirely, on the eyewitness
    testimony of the Bradley brothers. The trial Crown conceded that if the jury was
    not satisfied beyond a reasonable doubt on the basis of the evidence of the
    Bradley brothers that the appellant was the shooter, the balance of the
    evidence was insufficient to support a conviction. Thus, it became critical
    that the jury be fully equipped to deal with the inherent frailties and
    specific weaknesses of this evidence.

[96]

For the most part, in eyewitness identification
    cases, the problem is an honest but allegedly inaccurate identification by a
    credible and confident witness. Said in different words, the problem with
    identification evidence is its reliability, not the credibility of the
    eyewitness who gives that evidence. Thus, the need for instructions about the
    inherent weaknesses in eyewitness identification evidence lest the jury
    overvalue its reliability because of the honesty and integrity of the witnesses
    giving it.

[97]

In this case, the sources of the eyewitness
    testimony were not honest witnesses doing their best to provide reliable
    testimony about what they saw. Their evidence of claimed recognition was not
    only subject to the frailties associated with eyewitness testimony, but it was
    also testimony from witnesses whose credibility attracted a
Vetrovec
caution. They were dishonest, manipulative witnesses with a purpose of their
    own to serve and a disturbing undercurrent of racism. One of them, Tyler
    Bradley, admitted having committed perjury in his initial testimony before the
    jury.

[98]

To borrow the language of Miller J.A. in
McFarlane
at para. 80, this atypical eyewitness identification case required a bespoke instruction
    on the specific frailties of the eyewitness evidence. There were several badges
    of unreliability of the witnesses identification of the appellant as the
    shooter. It was incumbent upon the trial judge to identify these issues and
    link them to the reliability assessment the jury was required to undertake.

[99]

Critical to an informed assessment of the
    reliability or otherwise of this evidence were instructions about the impact of
    several flaws in the process through which police generated and then documented
    the identifications made by the Bradley brothers.

[100]

Shane Bradley first told the police that he didnt even know these
    fucking punks. But then he proposed a
quid pro quo
: their identity
    for his release from custody on a promise to appear. His claimed resemblance to
    the appellant of photos of others that could be Rico. His search for clues
    about what Cst. Lovell wanted him to say. His qualified memory of an array of
    photographs including those of the suspects. An array that was undocumented and
    unpreserved if it existed. And his identification of a single photograph of the
    appellant and Grant, followed by his release on a promise to appear.

[101]

In a narrative of the evidence, the trial judge did review some
    aspects of the identification process in connection with Shane Bradley. But the
    narrative lacked specific instructions on problematic aspects of the process.
    The inherent danger of Cst. Lovell showing a single photograph of a suspect to
    an identification witness who claimed he couldnt identify the shooter. The
    inherent danger created by the absence of any record of the discussions leading
    to the display of photographs, the single photograph, and Shane Bradleys
    identification of the appellant as the shooter. The reliability of the photo
    identification irrespective of the application of the governing police
    protocol.

[102]

A similar narrative was provided in connection with Tyler Bradley
    who did not identify the appellant as Rico until he saw the appellant and
    Grant, the only two persons in the penalty box, at the preliminary inquiry.
    The initial reliability concerns were exacerbated by the inconsistent and
    admittedly perjured testimony at trial.

[103]

One other aspect of the trial judges charge to the jury raises
    concerns about its adequacy.

[104]

The trial judge characterized the evidence adduced at trial as being
    either inculpatory evidence or exculpatory evidence. He explained what he
    meant by each term. As it seems to me, such a distinction is at once unhelpful
    and apt to mislead jurors in their deliberative process.

[105]

The distinction is unhelpful because individual items of evidence
    are unlikely to be exclusively inculpatory or exculpatory, and are more likely
    to be an amalgam of both. The distinction is apt to mislead because it tends to
    advocate an item by item evaluation of the evidence rather than an evaluation
    of the evidence as a whole and an assessment of whether it sustains or falls
    short of the standard of proof required. In this respect it comes uncomfortably
    close to violating the injunctions of
R. v. Morin
, [1988] 2 S.C.R. 345
    and
R. v. Miller
(1991), 68 C.C.C. (3d) 517 (Ont. C.A.).

[106]

I would give effect to this ground of appeal.

Ground #2: The
Vetrovec
Warning

[107]

The second ground of appeal assigns error to one aspect of the
Vetrovec
warning the trial judge included in his charge in connection with the testimony
    of Shane and Tyler Bradley. The complaint has to do with the evidence the trial
    judge told the jury they could consider as potentially confirmatory of the
    testimony of the
Vetrovec
witnesses.

[108]

Assessment of the merits of this ground of appeal does not require
    any further elaboration of the evidence adduced at trial. It is sufficient to
    recall some aspects of the charge and the arguments advanced about their adequacy.

The Charge to the
    Jury

[109]

Despite the objections of defence counsel (not counsel on appeal),
    the trial judge included a
Vetrovec
warning about the evidence of
    Shane and Tyler Bradley in his charge to the jury. He described them as
    witnesses of unsavoury character because of their criminal records, which
    included offences of dishonesty and offences against the administration of
    justice; their motive to ensure the appellants conviction; and their drug
    addiction and ongoing drug consumption.

[110]

The
Vetrovec
warning included the traditional components.
    The warning identified the evidence that required special scrutiny and
    explained why this added scrutiny was required. It cautioned the jury that it
    was dangerous to convict on unconfirmed evidence of this kind, but that it was open
    to the jury to do so, provided they were satisfied that the evidence was true.
    The warning concluded with an instruction that, in determining the veracity of
    the unsavoury witnesses accounts, the jury should look for evidence from
    another source tending to show that the witnesses were telling the truth about
    the appellants participation as the shooter.

[111]

In his instructions about confirmatory evidence, the trial judge
    explained that to be confirmatory, evidence must be independent of the
    unsavoury witness, that is to say, it must come from a witness or witnesses
    other than the unsavoury witness himself. To be confirmatory, the evidence must
    also tend to show the unsavoury witness is speaking the truth. The evidence of
    one unsavoury witness could corroborate that of another, provided the
    corroborating witnesss evidence was trustworthy.

[112]

In illustrating the potential confirmatory evidence, the trial judge
    told the jury that the fact Shane Bradley was also confident about the
    appellants identity as the shooter could confirm Tyler Bradleys
    identification of the appellant as the shooter. No similar instruction was
    given about Tylers identification as confirmatory of the identification of the
    appellant by Shane.

The Arguments on
    Appeal

[113]

The appellant does not concede the appropriateness of a
Vetrovec
instruction concerning the testimony of the Bradley brothers. However, he takes
    no issue with the basis for or form of the warning, the definition of
    confirmatory evidence, the availability of mutual confirmation, or the mixed
    witness instruction given later.

[114]

The principal complaint the appellant advances relates to the trial
    judges illustration of evidence that the jury could find confirmed the
    identification by each brother of the appellants identity as the shooter. In
    particular, the trial judge told the jury that Shanes evidence that he was
confident
that the appellant was the shooter confirmed Tylers identification of the
    appellant as the shooter. Tylers identification did the same for Shane.

[115]

The suggestion that the confidence level of each and the correctness
    of his identification of the appellant as the shooter could constitute
    confirmatory evidence of the others identification was at once wrong as a
    matter of law and at best confusing. It was inconsistent with the instruction
    that the degree of confidence expressed by an eyewitness about the accuracy of
    their identification was not evidence of the reliability or accuracy of their
    observations.

[116]

The respondent points out that a trial judge has a well-established
    discretion whether to include or omit a
Vetrovec
caution about
    witnesses called by the Crown. On appellate review, the decision of the trial
    judge, one way or the other, is subject to significant deference. In this case,
    the decision was well grounded in the evidence adduced at trial. The testimony
    of the Bradley brothers was central to the proof of guilt. They were witnesses with
    lengthy criminal records including convictions for offences with a material
    bearing on their credibility. They were drug users with a motive to fabricate
    the appellants involvement and unabashed racists.

[117]

The manner in which the trial judge dealt with the confirmatory
    evidence, the respondent says, caused the appellant no unfairness. Both Tyler
    and Shane Bradley were confident about the correctness of their identification
    of the appellant as the shooter. This was an accurate characterization of their
    evidence. It was not left as an enhancement or makeweight, simply a description
    of their evidence. The trial judge made it clear in a mid-trial instruction, as
    well as in final instructions before and after the reference about which the
    appellant complains, that little connection existed between the great
    confidence a witness had in the correctness of their identification and the
    accuracy of that identification. These instructions were sufficient to
    eliminate any danger that the jury would rely on the confidence level of each
    brother in their identification of the appellant as shooter as confirmatory of
    the reliability of the other brothers evidence.

The Governing
    Principles

[118]

Among the foundational elements of a
Vetrovec
warning is an
    instruction that, in determining the veracity of the suspects evidence, the
    jury should look for evidence from another source tending to show that the
    untrustworthy witness is telling the truth about the guilt of the accused:
R.
    v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19;
R. v.
    Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 37.

[119]

It does not follow from the fact a
Vetrovec
warning is
    given that the trial judge must in all cases go on to point out in exquisite
    detail every item of evidence which is capable of confirming the testimony of
    the tainted witness. The evidence itemized is illustrative, not exhaustive:
R.
    v. Vetrovec
, [1982] 1 S.C.R. 811, at p. 832;
R. v. Bevan
, [1993]
    2 S.C.R. 599, at p. 612.

[120]

Trial judges are accorded considerable discretion in charging
    juries on the evidence of unsavoury witnesses. This includes the manner in
    which they deal with confirmatory evidence:
Vetrovec
, at pp. 823, 831;
Bevan
, at pp. 610-611;
R. v. Ranglin
, 2018 ONCA 1050, 370
    C.C.C. (3d) 477, at paras. 32, 46.

[121]

Two components are essential to confirmatory evidence.

[122]

The first is independence. This defines the kind of evidence that
    can provide comfort to the trier of fact that the tainted witness is telling
    the truth. Evidence that is not sufficiently independent of the
Vetrovec
witness, due to its connection to the witness, cannot serve as confirmation of
    that witnesss evidence:
Khela
, at para. 39;
R. v. Spence
,
    2018 ONCA 427, 360 C.C.C. (3d) 425, at para. 48, leave to appeal refused, [2019]
    S.C.C.A. No. 7;
R. v. Magno
, 2015 ONCA 111, 321 C.C.C. (3d) 554, at
    para. 30, leave to appeal refused, [2015] S.C.C.A. No. 145.

[123]

The second, materiality, is somewhat more elusive. To be material,
    the evidence need not implicate the accused. But, when looked at against the
    background of the case as a whole, the items of confirmatory evidence should give
    comfort to the trier of fact that the tainted witness can be trusted when they
    say that the accused is the person who committed the offence:
Khela
,
    at paras. 40-42;
Kehler
, at para. 15;
Vetrovec
, at p. 833.

[124]

The presence of tainting does not, without more, disqualify a
    witnesss evidence from being confirmatory of another witness. The taint is a
    factor, to be sure an important factor, to be considered by the trier of fact
    when assessing whether the evidence of the witness can play any role in
    restoring the trier of facts confidence in the veracity of the tainted
    witnesss testimony:
Spence
, at para. 48.

[125]

It is not enough that mutually confirmatory
Vetrovec
witnesses are tainted by allegations of collusion to disqualify their evidence
    from being mutually confirmatory. The evidence they provide that has mutually
    confirmatory potential must be so tainted by collusion that it lacks
    independence and thus cannot reasonably be of service as confirmation:
Magno
,
    at para. 30.

The Principles
    Applied

[126]

I would not give effect to this ground of appeal.

[127]

To begin, whether to give a
Vetrovec
warning, as well its
    content, nature, and extent are all matters that reside within the sound
    discretion of the trial judge. This decision, absent an error of law or of
    principle, or a decision that is plainly unreasonable is entitled to
    significant deference in this court.

[128]

In this case, the testimony of Shane and Tyler Bradley, as eyewitnesses
    to the shooting, occupied a central role in the demonstration of guilt. As the
    trial Crown conceded, the balance of the evidence could not sustain the
    standard of proof required if the jury rejected the testimony of the Bradley
    brothers.

[129]

In addition, there was ample reason to be suspicious of the
    testimony of both Bradley brothers. They had lengthy criminal records. Their convictions
    included offences of dishonesty and offences against the administration of
    justice. They had purposes of their own to serve and a motive, which they made
    little effort to hide, to implicate the appellant as the shooter. Each was
    either addicted to or a frequent user of drugs. They showed little regard for
    the investigative process and a casual indifference to the obligation to
    testify truthfully.

[130]

The principal complaint about the trial judges
Vetrovec
caution relates to his instructions about confirmatory evidence. The
    instructions properly described the essential qualities required of
    confirmatory evidence  independence and materiality  as well as the
    relationship between collusion and independence. However, according to the
    appellant, the trial judge erred when he said that Tyler Bradleys
    identification could be confirmed by the fact that Shane Bradley
also
was
confident
about the identity of the shooter as Mr. Alvarez
    (emphasis added).

[131]

The reference to confident would have been better omitted. The
    level of confidence a witness expresses in the correctness of their identification
    is not itself confirmatory evidence. The level of confidence adds no plus value
    or enhancement to the substance of the evidence. It says nothing about its
    accuracy. In an eyewitness identification case, such an instruction can work mischief
    because it is at odds with the instruction given on the same subject in
    connection with eyewitness testimony. However, in this case, I am satisfied
    that the appellant suffered no prejudice in light of the repeated instructions
    that the confidence expressed by the witness was no measure of the accuracy of
    their observations.

[132]

Neither did the trial judge err in saying [t]he identity of the
    shooter is
confirmed
by Tyler Bradley
as well
 (emphasis
    added). This reference occurred in the trial judges catalogue of evidence that
    was potentially confirmatory of Shane Bradleys testimony. It is neither more
    nor less than a recitation of the substance of Shanes evidence. It says
    nothing of the confidence level of Shane in his identification. It reflects no
    error.

Ground #3: The Exculpatory Evidence
    Instruction

[133]

This ground of appeal also focuses upon the trial judges final
    instructions on eyewitness identification evidence. In particular, the
    appellant says that the instructions were fatally flawed because they failed to
    draw the jurys attention to significant discrepancies between the eyewitness
    testimony and the actual physical appearance of the appellant. These
    discrepancies tended to exculpate the appellant as the shooter and supported
    his claim of misidentification. The principal disparities related to the
    shooters height and whether he had a tattoo that would have been visible at
    the time the shots were fired.

The Essential
    Background

[134]

Shane and Tyler Bradley were the only two eyewitnesses to the
    shooting who testified at trial. Brian Larman did not see the shooting. He did
    not become involved until Tyler and Shane Bradley returned to 175 Morton Way
    after the shooting. However, Larman had seen Rico in the garage at 175 Morton
    Way when Rico and Tyler had an altercation. The evidence of the Bradley
    brothers was that Rico was the shooter and that Rico was the appellant.

[135]

On the first day of his trial testimony, Tyler Bradley testified
    that Rico was maybe a foot shorter than O, the co-accused Grant who absconded
    during the trial and who was around 56 tall. Brian Larman confirmed that Rico
    was shorter than O. Rico could have been as short as 45 or maybe five feet
    tall.

[136]

Tyler Bradley said that he noticed the tattoo on Ricos neck as he (Tyler)
    turned to face the shooter between the second and third shots fired at him. In
    his police statement, Brian Larman said Rico had no tattoo. However, his recall
    changed before he left the police station hours after having completed his
    statement. Shane Bradley had frequent contact with Rico in drug transactions.
    He did not notice any tattoo.

The Charge to the
    Jury

[137]

During the pre-charge conference, defence counsel sought an
    instruction that the difference between the known attributes of the appellant
    and the described features of the shooter, in particular, height and the
    presence of a tattoo on the neck, undermined the claimed identification of the
    appellant as Rico, the shooter. This evidence, defence counsel argued, was
    exculpatory of the appellant as the shooter and should have been the subject of
    an express instruction to the jury to that effect. The trial judge gave no such
    instruction. Instead, he pointed out that Brian Larmans testimony corroborated
    Shane and Tyler Bradleys testimony that Rico was the shooter. However, the
    instruction did not go further and point out that his description of Rico was
    at odds with the features of the appellant.

[138]

Defence counsel also requested an express instruction about the presence
    of a tattoo on the shooters neck, a critical feature of Tyler Bradleys
    description of his shooter. Although the evidence was somewhat unclear about
    whether Rico, thus the appellant, had such a tattoo, there was evidence from
    Shane Bradley that Rico did not have a tattoo on his neck. Defence counsel
    sought an instruction that if the jury concluded or had a reasonable doubt
    whether Rico had a tattoo on his neck, then they must acquit since the
    appellant had a tattoo on his neck.

The Arguments on
    Appeal

[139]

The appellant contends that the trial judge erred in failing to
    instruct the jury in express terms that differences between the known
    attributes of the appellant, and the described attributes of the shooter, Rico,
    such as height and the absence of a tattoo, undermined the identification of
    the appellant as Rico and thus exonerated or raised a reasonable doubt about
    the appellant as the shooter.

[140]

If the jury accepted or had a reasonable doubt that the shooter,
    Rico, was between 45 and five feet tall, as Brian Larman testified and as
    Tyler Bradleys initial testimony indicated, the appellant, who is 55 in
    height, could not have been the shooter. This was important evidence
    exculpatory of the appellant and should have been drawn to the jurys
    attention.

[141]

Although the evidence about the tattoo was less clear, there was
    evidence from Shane Bradley that the shooter did not have a tattoo. In his
    police statement, Brian Larman said that Rico did not have a tattoo, although
    Larman claimed that he later realized that Rico did have a tattoo on his neck. Thus,
    there was evidence that contradicted Tyler Bradleys evidence that the shooter
    had a tattoo, a characteristic he shared with the appellant. The failure to provide
    such an instruction was non-direction amounting to misdirection on the critical
    issue at trial  identity.

[142]

The respondent resists the appellants claims of prejudicial
    omissions from the charge. The trial judge instructed the jury at length about
    the exculpatory evidence and its impact on the Crowns burden to establish the
    appellants guilt beyond a reasonable doubt. The trial judge divided up the
    evidence into inculpatory and exculpatory evidence, defined each category,
    and explained their impact on proof of guilt. The judge pointed out that to the
    extent that aspects of the description of the shooter differed from the
    appellant, those aspects were exculpatory of the appellant. Defence counsel was
    content with the manner in which this issue was left to the jury. The trial
    judge was not required to have done more.

[143]

Further, the respondent says, the trial judge was not wrong in
    instructing the jury that Brian Larmans evidence could corroborate the Bradley
    brothers identification of the appellant as the shooter. To be sure, Larmans
    estimate of Ricos height as he observed it during the earlier altercation in
    the garage with Tyler Bradley did not match the appellants actual height. But
    other descriptives provided by Brian Larman did match the appellant, in
    particular, the tattoo on his neck. In the end, the instruction given was
    appropriate.

[144]

A final point concerns the substance of the evidence of Shane
    Bradley and the police statement of Brian Larman about the absence of a tattoo
    on Ricos neck. In each case, the witness did not
notice
a tattoo on
    the shooters neck. This is not the same as a positive statement that the
    shooter did not have a tattoo. And, before he left the police station, Brian
    Larman remembered that Rico had a tattoo and advised the police of that fact.

The Governing
    Principles

[145]

This ground of appeal has its origins in the decision of the Supreme
    Court of Canada in
Chartier v. A.G. Québec
, [1979] 2 S.C.R. 474.

[146]

Chartier
was not a criminal case, much
    less an appellate review of the adequacy of jury instructions on eyewitness
    identification evidence. In particular, it did not decide what if anything
    should be said to a jury about the effect of discrepancies between an
    eyewitnesss description of a suspects features and the actual features of the
    suspect.

[147]

Chartier
involved a petition of right
    against the respondent claiming damages for the injuries resulting from a false
    arrest and wrongful charge. On appeal, it was alleged that the judge at first
    instance had misapprehended the evidence of a witness. The judge had
    mischaracterized the evidence as a positive recognition when in fact the
    witness had pointed out a feature  hair colour  that differed. Thus, the
    witnesss testimony was of a resemblance, not an identification. In that
    context, the majority said:

Regardless of the number of similar
    characteristics, if there is one dissimilar feature there is no identification.

See,
Chartier
at page 494.

[148]

In
R. v. Boucher
(2000), 146 C.C.C. (3d) 52 (Ont. C.A.),
    the appellant challenged the decision of a judge of the superior court of
    criminal jurisdiction. The judge refused to quash a committal for trial on
    counts charging robbery and other offences. The charges arose out of a bank
    robbery. As against one of the alleged robbers, the case for the Crown depended
    upon the nexus provided by a pair of tear-away pants worn by one of the robbers
    and the clothing worn by a person said to be that robber as he ran into a hotel
    shortly after the robbery. The descriptions of the pants did not match.

[149]

This court applied the principles in
Chartier
to hold that
    the discrepancy meant that there was
no
evidence of an identification,
    only evidence of a resemblance. In the absence of some other inculpatory
    evidence, a resemblance is no evidence:
Boucher
, at para. 19. If there
    was other inculpatory evidence, a trier of fact may have had a good reason for
    finding the testimony about the robbers pants unreliable. But, in the absence
    of other inculpatory evidence, the dissimilarity at worst rendered the
    resemblance of no probative value and possibly stood as an exculpatory feature:
Boucher
, at para. 19. See also,
Jack
, at para. 16.

The Principles
    Applied

[150]

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

[151]

This court has previously decided that a notable dissimilarity in
    identification evidence, absent some other inculpatory evidence, renders the
    identification evidence of a resemblance of no probative value:
R. v. Bennett
(2003), 67 O.R. (3d) 257, at p. 259. The impact of the dissimilarity varies.
    Some are of greater significance than others. And the impact must also be
    assessed in light of the balance of the description and the evidence as a
    whole. However, no one gainsays that such dissimilarities are of significance
    for the trier of fact in the evaluation of the reliability of the
    identification evidence.

[152]

In this case, there were significant differences between the height
    estimates provided by Tyler Bradley and Brian Larman about the shooter  Rico 
    and the person alleged to be Rico  the appellant. Defence counsel sought an
    instruction that linked this dissimilarity to the reliability of the
    identification evidence. No instruction was given. This was an error. This
    evidence, if accepted, generated a clear dissimilarity in the identification
    evidence, impacting, in turn, its reliability. And the omission was exacerbated
    by an instruction that permitted the jury to use Larmans evidence to confirm
    the identification evidence of Tyler Bradley, a
Vetrovec
witness. This
    was a further error. While Larmans evidence corroborated Tylers evidence that
    the shooter was someone named Rico, it undermined Tylers evidence that the
    appellant was Rico insofar as Tyler described Rico as being substantially
    shorter than the appellants height. However, unlike in some cases such as
Bennett
,
    there was other evidence, albeit subject to a
Vetrovec
warning, that
    the appellant was the shooter. That said, the dissimilarity between the
    estimated height of the shooter and the actual height of the appellant was of
    sufficient significance to warrant an instruction to the jury.

[153]

The presence of a tattoo on the shooters neck was an essential
    feature of Tyler Bradleys identification of Rico as the shooter. And the fact
    that the appellant has a tattoo on his neck tends to link him with Rico, thus
    to his involvement as the shooter. Shane Bradley did not notice a tattoo on
    Ricos neck despite several meetings with him to purchase drugs. And Brian
    Larman first told police that Rico had no tattoo, but later reversed course
    while he remained at the police station, hours after concluding his interview
    there.

[154]

It is debatable whether the principles the appellant seeks to invoke
    about the impact of a notable dissimilarity in appearance   between the
    alleged shooter and the appellant on the reliability of identification  apply
    to the tattoo evidence. Unlike the evidence with respect to the shooters
    height, where there was evidence that the shooter was substantially shorter
    than the appellant, there was no affirmative evidence to the effect that the
    shooter did not have a tattoo. Tyler Bradley said the shooter was Rico. The
    shooter had a tattoo. Rico is the appellant who also has a tattoo. Brian
    Larman, after an initial denial later told police Rico had a tattoo. Shane
    Bradley did not notice a tattoo on Rico. He did not say that Rico did not have
    a tattoo. Trial counsel did not object to the instruction now said to have been
    omitted in error. This aspect of the complaint fails.

Ground #4: The Instruction on Cross-Racial
    Identification

[155]

This ground of appeal also fastens upon an omission in the charge to
    the jury. The evidentiary background upon which the claim of non-direction
    amounting to misdirection rests are the statements of the Bradley brothers to
    police. Shane Bradley denied knowing who his brothers assailants were, adding
    a racial epithet consistent with his proclaimed and palpable anti-Black racism.
    Tyler Bradley claimed that the two young Black men involved in the shooting
    look the same.

The Arguments on
    Appeal

[156]

The appellant contends that the trial judge erred in failing to
    instruct the jury on the frailties of cross-racial identification. This
    instruction was necessary because of Shane Bradleys comment in his first
    recorded police statement I dont know who the fucking n***ers are. And Tyler
    Bradleys observation in his police interview that the two young Black men
    looked the same. Further, the instruction was necessary because of Shane
    Bradleys palpable anti-Black racism.

[157]

The respondent acknowledges that Shane Bradley repeatedly uttered
    vile and racist epithets. They began in the argument preceding the shooting. They
    continued unabated through various police interviews. However odious and
    hateful these comments were, they did not trigger an obligation to caution
    jurors about the frailties of cross-racial identification. There was nothing in
    the evidence adduced to suggest the cross-racial nature of the identification
    was a source of potential error. Neither witness suggested any difficulty in
    distinguishing between individual Black people. Trial counsel, with ample
    opportunity to do so, did not ask for inclusion of such an instruction in the
    charge.

The Governing
    Principles

[158]

Where cross-racial identification is an issue in a jury trial, it
    may be appropriate to caution the jury about the difficulties it can present
    for particular witnesses. The evidence of some witnesses may raise a concern
    that they are experiencing difficulty with cross-racial identification:
R.
    v. Richards
(2004), 70 O.R. (3d) 737, at p. 746, citing
R. v. McIntosh
(1997), 35 O.R. (3d) 97 (Ont. C.A.), at p. 105-106, leave to appeal refused, [1997]
    S.C.C.A. No. 610.

[159]

Where cross-racial identification is an issue, it may be helpful to
    include an instruction about it in describing these specific features of the
    identification evidence that may compromise its reliability in the case under
    consideration:
R. v. Bailey
, 2016 ONCA 516, 339 C.C.C. (3d) 463, at
    para. 49.

The Principles
    Applied

[160]

In my respectful view, this ground of appeal cannot prevail on the basis
    on which the claim is advanced.

[161]

In support of the submission that the trial judge should have
    instructed the jury on the potential frailties of cross-racial identification,
    the appellant points to two comments made by the Bradley brothers in their police
    statements. The vile racist epithet of Shane Bradley, I dont know who the
    fucking n***ers are. And Tyler Bradleys comment that the two young Black men 
    O and Rico  look the same.

[162]

The jury was well aware of Shane Bradleys overt racism. It began
    with the racial epithets uttered shortly before the shooting. Equally so, his
    apparent motive to identify a Black man as his brothers shooter. This was made
    plain to the jury.

[163]

The appellant seeks support for the instruction on the basis of
    Tyler Bradleys comment in his police statement. But it is important to bear in
    mind that Tyler said more than the two young Black men  O and Rico  look the
    same. The remark was both look the same, they always have hoodies up, believe
    they are brothers. O and Rico are, in fact, related.

[164]

The central issue at trial was the identity of the shooter. Critical
    to the determination of that issue was the jurys assessment of the credibility
    of the Bradley brothers and the reliability of their testimony. Prior to
    delivery of his final instructions, the trial judge and counsel conducted lengthy
    pre-charge conferences. Drafts of the instructions proposed for delivery were
    provided to counsel. Discussions followed. At no time did trial counsel request
    or complain about the omission of an instruction about the frailties of the
    cross-racial identification. In these circumstances, I am not satisfied that
    such an instruction was required or that its omission caused the appellant any
    prejudice.

Ground #5: Unreasonable Verdict

[165]

The final ground of appeal does not involve a complaint about what
    the trial judge said or failed to say in his final instructions to the jury.
    The challenge here is to the verdict of guilt rendered by the jury. Each is
    said to have been unreasonable, unsupported by the evidence adduced at trial.

[166]

A repetition of the substance of the evidence adduced at trial is
    unnecessary to determine this allegation of error.

[167]

The central issue at trial was whether the Crown had proven beyond a
    reasonable doubt that the appellant was the person who shot Tyler Bradley. Proof
    of this issue depended on the jurys assessment of the evidence of witnesses
    who identified the appellant as the shooter. There were significant problems
    with these witnesses and the chameleon-like characteristics of their evidence.
    Some additional evidence was also adduced, but the trial Crown conceded it was
    not sufficient to sustain the standard of proof required in the event the jury
    rejected the identification evidence or had a reasonable doubt about its
    accuracy.

[168]

The verdict of the jury indicates that they were satisfied beyond a
    reasonable doubt that the appellant shot Tyler Bradley but were unsure that he
    intended to kill him when he shot him. The jury was also satisfied beyond a
    reasonable doubt that the appellant had the handgun in his possession for a
    purpose dangerous to the public peace.

The Arguments on
    Appeal

[169]

The appellant says that there was no evidence upon which a
    reasonable jury, acting judicially, could render guilty verdicts. The single
    photograph identification of the appellant by Shane Bradley was worthless,
    devoid of probative value and the stuff of wrongful convictions. A single
    photograph shown by the investigating officer bankrupt of any evidence about
    the circumstances of the showing and the claimed identification. The in-dock
    identification by Tyler Bradley was equally barren of any probative value. The
    only men in the penalty box in the courtroom. And an identification made
    after Shane Bradleys direction to Tyler to make an identification. The
    remaining evidence, as the trial Crown acknowledged, could not meet the
    standard of proof required. Acquittals should follow.

[170]

The respondent contends otherwise. It was reasonably open to the
    jury to conclude beyond a reasonable doubt that the appellant was the person
    who shot Tyler Bradley. Shane Bradley said so. And so did Tyler Bradley,
    eventually. Considered individually or in combination this evidence was
    sufficient to establish the appellants guilt. But there was more. A body of
    circumstantial evidence was supportive of the identification evidence including
    expert evidence linking the appellant to the gun used in the shooting.

The Governing
    Principles

[171]

A verdict is unreasonable or cannot be supported by the evidence if
    it is one that a properly instructed jury acting judicially could not reasonably
    have rendered:
R. v. H.(W.)
, 2013 SCC 22, [2013] 2 S.C.R. 180, at
    para. 26;
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para.
    36.

[172]

To persuade an appellate court that a verdict rendered at trial is
    unreasonable, an appellant must show that no properly instructed jury acting
    judicially could reasonably have found him guilty:
R. v.
Arias-Jackson
, 2007 SCC 52, [2007] 3 S.C.R. 514,
    at para. 2.

[173]

In deciding whether a verdict rendered at trial is unreasonable, an
    appellate court may consider the failure of an accused to testify as indicative
    of the absence of an exculpatory explanation:
R. v. George-Nurse
, 2018
    ONCA 515, 362 C.C.C. (3d) 76, at para. 33, affd 2019 SCC 12, [2019] 1 S.C.R.
    570.

The Principles
    Applied

[174]

I would not give effect to this ground of appeal.

[175]

As a general rule, a properly instructed jury may conclude, despite
    the frailties of eyewitness identification evidence, that the eyewitnesses
    testimony is reliable and may enter a conviction on that basis. Admittedly,
    this general rule is not free of exception. A jury may not convict on the basis
    of eyewitness testimony alone where that testimony, even if believed, would
    necessarily leave a reasonable doubt in the mind of a reasonable juror:
Hay
,
    at paras. 40-41.

[176]

In this case there was eyewitness identification evidence, confirmed
    to some extent by circumstantial evidence, that identified the appellant as the
    shooter. It was open to the jury to rely on that evidence in reaching its
    verdict. They did so, but not unqualifiedly, since they acquitted the appellant
    of attempted murder. This is not a case in which it can be said with any degree
    of confidence that the identification evidence, even if believed, would
    necessarily give rise to a reasonable doubt in the mind of a reasonable juror.

[177]

It is also not without significance that the appellant did not
    testify at trial, thus did not provide an alternative narrative to that
    furnished by the eyewitnesses.

Disposition

[178]

For these reasons, I am not satisfied that the instructions to the
    jury, taken as a whole, properly equipped them to engage in an informed
    assessment of the reliability of the identification evidence adduced at trial. This
    is not a case for the application of the proviso. The evidence is not
    overwhelming. Nor are the errors harmless. I would allow the appeal, set aside
    the convictions, and order a new trial on the indictment.

Released: November 30, 2021 D.W.

David
    Watt J.A.

I
    agree. Alexandra Hoy J.A.

I
    agree. I.V.B Nordheimer J.A.


