



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dadollahi-Sarab, 2021 ONCA
    514

DATE: 20210719

DOCKET: C64701 & C64827

Doherty, van Rensburg and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahyar Dadollahi-Sarab and John Jansen

Appellants

Maija Martin, David Butt and David Reeve,
    for the appellant Mahyar Dadollahi-Sarab

Mark C. Halfyard and Breana Vandebeek,
    for the appellant John Jansen

Holly Loubert and Gavin
    MacDonald, for the respondent

Heard: April 26, 2021 by video
    conference

On appeal from the convictions entered by
    Justice Laura A. Bird of the Superior Court, sitting with a jury, on May 12,
    2017.

Doherty J.A.:


I



OVERVIEW

[1]

At about 10:30 p.m. on February 13, 2014, the
    appellant, John Jansen, had a confrontation with Richard Palmer in the parking
    lot of Mr. Palmers apartment building. There was a long history of bad blood
    between the two and they had exchanged heated words by cellphone earlier that
    evening. Both were ready and willing to fight it out. A fist fight ensued.

[2]

The appellant, Mahyar Dadollahi-Sarab, drove his
    friend, Mr. Jansen, to the parking lot in his SUV. Mr. Dadollahi-Sarab remained
    in the SUV when Mr. Jansen exited the vehicle, challenged Mr. Palmer and the
    fight started.

[3]

The fight between Mr. Palmer and Mr. Jansen had
    gone on for a few minutes when Mr. Ronidy Roseborough, a friend of Mr. Palmers
    who was staying in his apartment, came down to the parking lot and became
    involved in the fight. The Crown alleged that Mr. Dadollahi-Sarab left the SUV
    and joined the fight shortly after Mr. Roseborough arrived on the scene. Within
    a minute of Mr. Roseboroughs arrival, he had been fatally stabbed. Seconds after
    Mr. Roseborough was stabbed, Mr. Palmer was stabbed and wounded. Mr. Jansen and
    Mr. Dadollahi-Sarab ran back to the SUV and fled the scene.

[4]

Mr. Roseborough died from his wounds later that
    evening. Mr. Palmer suffered three stab wounds, one of which was potentially
    serious.

[5]

The appellants were charged with one count of first-degree
    murder and one count of attempted murder. The jury convicted on the included
    offences of second-degree murder and aggravated assault. The appellants appeal
    their convictions.

[6]

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


II



the evidence

[7]

Mr. Palmer and Mr. Jansen had been on bad terms
    for many years, but had little to do with each other for quite some time before
    the evening of February 13, 2014. Their animosity boiled to the surface that
    night as a result of a dispute between Mr. Palmer and a friend of Mr. Jansens,
    arising out of a drug debt. Mr. Jansen was angry with the way Mr. Palmer had
    verbally abused his friend and decided to confront him. They exchanged angry
    words in two or three calls that evening.

[8]

According to Mr. Palmer, Mr. Jansen said he was
    coming to Mr. Palmers apartment and he would be strapped. Mr. Palmer understood
    this to mean Mr. Jansen would be armed. Mr. Palmer was only too happy to fight
    with Mr. Jansen. He left his apartment and headed to the parking lot armed with
    a baseball bat. Mr. Roseborough remained in the apartment with Mr. Palmers
    girlfriend.

[9]

Mr. Jansen had communicated with Mr.
    Dadollahi-Sarab during the evening prior to the fight with Mr. Palmer. Mr. Dadollahi-Sarab
    had agreed to drive Mr. Jansen to Mr. Palmers apartment. Mr. Jansen drove to
    Mr. Dadollahi-Sarabs residence and they drove together to Mr. Palmers
    apartment in Mr. Dadollahi-Sarabs SUV.

[10]

When Mr. Jansen and Mr. Dadollahi-Sarab arrived
    at the parking lot, Mr. Jansen exited the front passenger seat of the SUV. He
    and Mr. Palmer approached each other and argued. Mr. Jansen said he was not
    armed and opened his coat to prove the point. Mr. Palmer told Mr. Jansen he was
    there to kick his ass and the fight began. The two men traded punches, and
    each had possession of the baseball bat at different times. Mr. Dadollahi-Sarab
    remained in the SUV. As the two combatants moved through the parking lot
    exchanging blows, Mr. Dadollahi-Sarab slowly manoeuvred the SUV through the
    parking lot, keeping the SUV close to the fight.

[11]

Mr. Palmer testified he began to get the best of
    Mr. Jansen after the fight had gone on for several minutes. Mr. Palmer noticed his
    friend, Mr. Roseborough, had arrived on the scene of the fight. At the same
    time, a second man got out of the vehicle and grabbed Mr. Palmer. Mr. Palmer
    described the second man as Middle Eastern and wearing a red jacket.

[12]

According to Mr. Palmer, Mr. Dadollahi-Sarab
    pulled Mr. Palmers shirt over his face as they struggled near the SUV. Mr.
    Palmer heard Mr. Roseborough yell, stop, enough. He saw Mr. Jansen strike Mr.
    Roseborough several times near the bottom of Mr. Roseboroughs ribcage. Mr.
    Palmer could not see a knife in Mr. Jansens hand when he struck Mr.
    Roseborough.

[13]

Mr. Palmer testified he continued to struggle
    with Mr. Dadollahi-Sarab. Mr. Jansen came toward him, and Mr. Palmer felt three
    hot pinches in his lower right side. He did not actually see Mr. Jansen stab
    him, but he knew it was not Mr. Dadollahi-Sarab because he still had a hold of Mr.
    Palmer as they struggled by the SUV.

[14]

Immediately after Mr. Palmer was stabbed, Mr.
    Dadollahi-Sarab let go of him and returned to the SUV. Mr. Palmer testified Mr.
    Dadollahi-Sarab seemed shocked and yelled, lets go. Mr. Jansen jumped into
    the passenger seat and the vehicle sped away. The entire fight lasted about
    five minutes.

[15]

Mr. Palmer identified Mr. Jansen as the person
    who stabbed him and Mr. Roseborough. There were many reasons to doubt the
    credibility and reliability of Mr. Palmers evidence, especially insofar as it
    implicated Mr. Jansen. Mr. Palmer obviously hated Mr. Jansen. I will address
    Mr. Palmers evidence in more detail when I consider the ground of appeal challenging
    the trial judges 
Vetrovec
 caution.

[16]

In addition to Mr. Palmers evidence describing
    the fight, there were two independent witnesses who saw a part of what happened
    in the parking lot. Ms. Veronica Holm had parked her car in the parking lot.
    She witnessed part of the fight from behind her car. According to her, four
    people were involved in the fight, and a fifth person was seated in the
    drivers seat of the SUV. She did not see that person leave the SUV.

[17]

Ms. Holm testified two older men were fighting
    with two younger men. The older men matched the descriptions of Mr. Palmer and
    Mr. Roseborough. Ms. Holm indicated one of the younger men had the baseball
    bat. Her description of that person matched Mr. Jansen. Ms. Holm described the
    fourth person involved in the fight as between 25 and 35 years old, white, with
    short dark hair. Mr.
Dadollahi-Sarab
could be
    described as Middle Eastern.

[18]

Ms. Holm testified the fight ended when the man
    with the bat (Mr. Jansen) and his partner returned to the SUV. The vehicle sped
    out of the parking lot. The two older men (Mr. Roseborough and Mr. Palmer) told
    Ms. Holm they had been stabbed.

[19]

Mr. Stefan Kerr, the second independent witness,
    saw the immediate aftermath of the fight from his apartment on the fourth
    floor. Mr. Kerr testified that five people were involved in the altercation.
    Two men who appeared to have been injured were moving toward the apartment
    building. The other three men got into the SUV and sped away from the parking
    lot. Two men got into the backseat and one got into the drivers seat.

[20]

The day after the homicide, the police located a
    14.5 inch steel knife with an 8 inch blade, a baseball bat, and a shirt stained
    with Mr. Palmers blood and Mr. Jansens DNA at various places along a street
    near the parking lot where the homicide occurred. A bystander told the police
    he had seen a baseball bat thrown from a vehicle the night before.

[21]

The defence admitted at trial the bat was thrown
    from Mr. Dadollahi-Sarabs SUV as it sped away from the scene of the fight. The
    defence also agreed the bloody shirt and knife were found on the same street.

[22]

Although there was no forensic evidence connecting
    the knife to the stabbings, the appellants did not seriously argue the knife
    was not the weapon used to inflict the wounds. The real controversy was over
    who brought the knife to the fight.

[23]

Neither appellant testified.


III



A.

the crowns theory

[24]

The Crown maintained Mr. Jansen had decided to
    kill Mr. Palmer and enlisted the assistance of his friend, Mr. Dadollahi-Sarab.
    They planned the murder in the hour or so before it occurred. On the Crowns
    theory, Mr. Jansen and Mr. Dadollahi-Sarab drove to the parking lot, intending
    to kill Mr. Palmer. They had the large steel knife with them.

[25]

The Crown maintained that when Mr. Roseborough
    arrived on the scene and joined the fight, he became collateral damage in the
    plan to murder Mr. Palmer.

[26]

The Crown alleged Mr. Dadollahi-Sarab, who had
    initially remained in the car ready to assist Mr. Jansen if necessary, came to
    his aid very shortly after Mr. Roseborough arrived on the scene. Within less
    than a minute, Mr. Roseborough had been fatally stabbed and Mr. Palmer had been
    stabbed three times.

[27]

The Crown argued the jury could conclude either Mr.
    Dadollahi-Sarab or Mr. Jansen was the stabber. The Crown further argued,
    however, that to convict, the jury did not have to decide whether Mr. Jansen or
    Mr. Dadollahi-Sarab had inflicted the knife wounds. The jury could convict as
    long as it was satisfied beyond a reasonable doubt one of them was the stabber.
    On the Crowns theory, Mr. Jansen and Mr. Dadollahi-Sarab were potentially
    guilty of murder and attempted murder through the operation of s. 21(1)(a) as
    co-perpetrators, or as parties to a common unlawful purpose under s. 21(2). The
    Crown also alleged that Mr. Dadollahi-Sarab was potentially liable as an aider
    to Mr. Jansen under s. 21(1)(b).

B.

the defence positions

[28]

Counsel for Mr. Dadollahi-Sarab submitted, that
    while Mr. Dadollahi-Sarab  drove Mr. Jansen to the parking lot and drove him away
    from the parking lot after the stabbings had occurred, the Crown had not proved
    Mr. Dadollahi-Sarab knew Mr. Jansen intended to fight with Mr. Palmer, much
    less intended to kill him. Counsel submitted Mr. Dadollahi-Sarab did not know
    Mr. Palmer and had no reason to become involved in any longstanding feud between
    Mr. Palmer and Mr. Jansen. Counsel argued there was no evidence Mr.
    Dadollahi-Sarab had participated in a plan to kill anyone, and no evidence that
    if there was a knife in the SUV, Mr. Dadollahi-Sarab had any knowledge of that knife.

[29]

Counsel for Mr. Dadollahi-Sarab relied on independent
    evidence, which he argued supported a finding Mr. Dadollahi-Sarab had remained
    in the SUV throughout the fight. He had also shouted out, more than once,
    during the fight that he wanted to leave. Counsel further asserted even if the
    evidence indicating Mr. Dadollahi-Sarab had become involved in the fight were accepted,
    it offered no support for the claim he wielded the knife. Counsel maintained
    there was no evidence Mr. Dadollahi-Sarab was even aware anybody had been hurt
    when he drove away from the scene.

[30]

Counsel for Mr. Jansen argued Mr. Jansen had
    gone to see Mr. Palmer about the debt owed to Mr. Palmer by Mr. Jansens
    friend. Mr. Palmer arrived in the parking lot armed with a baseball bat looking
    for a fight. Mr. Jansen obliged him. The fight went on for several minutes.

[31]

Counsel for Mr. Jansen submitted that Mr.
    Roseborough, who became involved in the altercation, must have brought the
    knife to the fight. Counsel submitted Mr. Jansen had no physical contact with
    Mr. Roseborough, although he may have struck him with the baseball bat.

[32]

Counsel for Mr. Jansen maintained, that at some
    point during the melee, a second person, who was never identified, got out of
    Mr. Dadollahi-Sarabs SUV and went to Mr. Jansens assistance. The fight
    escalated and counsel submitted that unidentified person somehow got possession
    of the knife and stabbed Mr. Palmer and Mr. Roseborough. Mr. Jansen and this
    unidentified person jumped back into the SUV and the driver drove away.

[33]

Counsel for Mr. Jansen acknowledged the baseball
    bat, knife and shirt were thrown from Mr. Dadollahi-Sarabs SUV as it fled the
    scene of the homicide. He submitted that the occupants of the vehicle were
    obviously afraid. There had been a fight and people had been injured. Counsel also
    agreed Mr. Jansen took steps to hide from the police in the immediate aftermath
    of the homicide, and to change his physical appearance. Counsel suggested Mr.
    Jansen was lying low until he could arrange his surrender to the police.

C.

the verdicts

[34]

There was little evidence of planning and
    deliberation. The jury acquitted both appellants on the first-degree murder
    charge. Their convictions on the included offence of second-degree murder indicate
    the jury was satisfied both appellants were parties to Mr. Roseboroughs
    homicide. The jury could have been satisfied both appellants were parties to
    murder, as defined in s. 229(a)(ii) as co-perpetrators (s. 21(1)(a)), or aiders
    (s. 21(1)(b)). The jury may also have concluded the appellants had agreed to
    assault Mr. Palmer and, in furtherance of that agreement, one of the appellants
    had stabbed Mr. Roseborough with the
mens rea
required for murder,
    while the other appellant had known it was probable the stabber would commit
    murder in the course of carrying out the assault. On that finding, the stabber
    was guilty of murder as a perpetrator, and the non-stabber was guilty of murder
    under s. 21(2).

[35]

The jurys acquittal of both appellants on the charge
    of attempting to murder Mr. Palmer indicates the jury was not satisfied the
    Crown had proved the appellants had the specific intent to kill Mr. Palmer, as
    required on a charge of attempted murder: see
R. v. Ancio
, [1984] 1
    S.C.R. 225;
R. v. Logan
, [1990] 2 S.C.R. 731. The conviction of both
    appellants on the included offence of aggravated assault indicates the jury was
    satisfied beyond a reasonable doubt both appellants were parties to the stabbing
    of Mr. Palmer under s. 21(1) or s. 21(2).


IV



the grounds of
    appeal

[36]

Most of the grounds of appeal arise out of the
    trial judges instructions to the jury. Some of the arguments are advanced by
    both appellants and some are put forward only by Mr.  Dadollahi-Sarab. Each
    appellant also raises one ground of appeal that does not involve the jury
    charge. I will address those two grounds of appeal and then move to the grounds
    arising out of the jury instructions.

A. was mr.
    Dadollahi-Sarabs conviction for second- degree murder unreasonable?
[1]

[37]

Counsel submits a properly instructed jury,
    acting judicially, could not have found Mr. Dadollahi-Sarab guilty of second-degree
    murder. This argument focuses on whether the finding that Mr. Dadollahi-Sarab
    had the
mens rea
necessary for murder, under either s. 21(1) or s.
    21(2), was reasonable on the evidence. Counsel does not suggest the conviction
    for aggravated assault in respect of Mr. Palmer is unreasonable, or that it
    would have been unreasonable for the jury to convict Mr. Dadollahi-Sarab of
    manslaughter in relation to Mr. Roseboroughs death. Indeed, Mr.
    Dadollahi-Sarab seeks a new trial limited to the charge of manslaughter.

[38]

The reasonableness standard set down in s. 686(1)(a)(i)
    is well known. An appellate court considers whether a properly instructed jury,
    acting judicially, could have arrived at a guilty verdict on the evidence
    adduced. In making that assessment, the appellate court does not engage in an
    independent
de novo
evaluation of the evidence. It does, however,
    consider the reasonableness of the verdict through the lens of accumulated
    judicial experience. In doing so, the court, to a limited extent, engages in a
    qualitative evaluation of the evidence and the verdict arrived at by the jury:
R.
    v. Biniaris
, 2000 SCC 15, at paras. 40-42.

[39]

The Crown argued Mr. Dadollahi-Sarab could be
    found guilty of murder through different legal routes. If any one of them was
    available on the evidence, the submission the verdict was unreasonable fails.

[40]

There was ample support in the evidence to
    enable the jury to make the following findings of fact necessary to justify the
    conviction of Mr. Dadollahi-Sarab on a charge of second-degree murder:

·

Mr. Jansen and Mr. Dadollahi-Sarab travelled to
    the parking lot of Mr. Palmers apartment in Mr. Dadollahi-Sarabs SUV. Mr. Jansen
    intended to fight with Mr. Palmer and Mr. Dadollahi-Sarab intended to provide
    assistance, if needed;

·

The knife was in the SUV;

·

Mr. Jansen exited the vehicle and the fight with
    Mr. Palmer started;

·

Mr. Jansen did not have the knife in his
    possession when he exited the SUV and the fight began;

·

Mr. Palmer had a baseball bat in his possession when
    the fight started, but did not have a knife in his possession;

·

Mr. Roseborough arrived on the scene and became
    involved in the altercation at about the same time that Mr. Palmer began to get
    the best of Mr. Jansen. Mr. Roseborough did not have a knife in his possession;

·

Mr. Dadollahi-Sarab left the SUV to go to the
    assistance of Mr. Palmer very shortly after Mr. Roseborough arrived. The
    appellants, Mr. Palmer and Mr. Roseborough were the only four people involved
    in the fight;

·

Within a minute of Mr. Dadollahi-Sarab becoming
    involved in the fight, both Mr. Palmer and Mr. Roseborough had been stabbed;

·

Mr. Dadollahi-Sarab had the knife in his
    possession when he exited the SUV;

·

Immediately after Mr. Palmer and Mr. Roseborough
    were stabbed, Mr. Jansen and Mr. Dadollahi-Sarab fled the scene together in the
    SUV, taking the knife used to stab Mr. Palmer and Mr. Roseborough with them;
    and

·

Mr. Jansen and Mr. Dadollahi-Sarab discarded the
    knife a short distance away.

[41]

Based on the findings outlined above, a jury
    could reasonably have concluded Mr. Dadollahi-Sarab left the SUV armed with the
    knife and stabbed both men. If Mr. Dadollahi-Sarab was the stabber, the nature
    of the weapon used and the injuries inflicted on Mr. Roseborough provided ample
    evidence from which the jury could infer that Mr. Dadollahi-Sarab had the
    requisite
mens rea
for murder under s. 229(a)(ii).

[42]

As it was reasonable for the jury to conclude Mr.
    Dadollahi-Sarab fatally stabbed Mr. Roseborough with a very large knife, it
    cannot be said the conviction on the charge of second-degree murder was
    unreasonable. That is enough to dispose of this ground of appeal. I will,
    however, address his liability assuming the jury was not satisfied he was the
    stabber.

[43]

The jury could also have reasonably concluded
    that when Mr. Dadollahi-Sarab left the SUV, he had the knife and gave it to Mr.
    Jansen, knowing that Mr. Jansen intended to stab Mr. Palmer and/or Mr. Roseborough.
    Given the size of the knife, and the intensity of the fight that had been going
    on for at least a few minutes, the jury could reasonably have concluded Mr.
    Dadollahi-Sarab assisted Mr. Jansen by giving him the knife, knowing Mr. Jansen
    intended to commit murder, as defined in s. 229(a)(ii).

[44]

The jury could also have reasonably concluded,
    on the totality of the evidence, that Mr. Jansen and Mr. Dadollahi-Sarab formed
    an intention in common to carry out an assault on Mr. Palmer. The jury could
    further have concluded that the introduction of the knife into the melee by Mr.
    Dadollahi-Sarab compelled the conclusion that he knew the commission of murder,
    as defined in s. 229(a)(ii), would be a probable consequence of the carrying
    out of the common unlawful purpose.

[45]

The factual findings outlined above were not the
    only findings a jury could have made on this evidence. However, the existence
    of an evidentiary road leading to an acquittal does not make a conviction
    unreasonable. In virtually all trials, a trier of fact may come to a different
    view as to the appropriate verdict depending on the assessment of the evidence.
    For example, depending on the jurys view of the evidence, it could have found
    that Mr. Dadollahi-Sarab never left the SUV. Had the jury come to that
    conclusion, they may well have acquitted on the murder charge.

[46]

Mr. Dadollahi-Sarabs conviction on the murder
    charge is not, however, rendered unreasonable because the evidence afforded an
    opportunity for an acquittal. When a verdict is said to be unreasonable, the
    question is not whether the jury could reasonably have acquitted, but whether
    the jury, acting judicially, that is applying the law as provided by the trial
    judge to the facts as found by the jury, could reasonably have concluded the
    accuseds guilt was the only reasonable conclusion available on the totality of
    the evidence: see
R. v. Spencer
, 2020 ONCA 838, at para. 44.

[47]

Mr. Dadollahi-Sarabs conviction on second
    degree murder was not unreasonable.

B. was mr.
    Jansens right to a trial within a reasonable time violated?

[48]

This is yet another case in which a prosecution
    started long before the pronouncement in
R. v. Jordan
, 2016 SCC 27 is
    challenged subsequent to
Jordan
as unconstitutionally slow. The
    application judge found the delay exceeded the 30-month ceiling laid down in
Jordan
,
    rendering the delay presumptively unreasonable. He further held, however, that
    the transitional exception created by
Jordan
applied, meaning there
    was no breach of s. 11(b). Mr. Jansen argues that the application judge erred
    in characterizing certain delays as defence delay and misapplied the
    transitional exception.

[49]

The application judge gave extensive reasons on
    the s. 11(b) application:
R. v. Jansen and Hall
, 2017 ONSC 2954. I am
    in substantial agreement with those reasons.

[50]

The application judge concluded the total trial delay
    was 39 ½ months. He found Mr. Jansen had waived 2 ½ months of the delay (June 
    September 2015) and caused one month of the delay (May  June 2016), resulting in
    a net delay of 36 months. As the delay was presumptively unreasonable under
Jordan
,
    he turned to a consideration of whether the Crown had demonstrated the delay
    was not unreasonable.

[51]

The application judge first considered the
    complexity of the case. He concluded, that while the case was somewhat complex,
    even for a murder case, it was not sufficiently complex to warrant a finding
    under
Jordan
that the complexity of the case constituted an
    exceptional circumstance justifying the delay beyond 30 months:
R. v.
    Jansen and Hall
, at paras. 58-74;
R. v. Jordan
, at para. 77;
R.
    v. Roberts
, 2020 BCCA 307, at paras. 85-87.

[52]

The application judge next considered whether
    certain discrete events, which occurred in the course of the prosecution,
    amounted to exceptional circumstances under the
Jordan
analysis. He found
    that short delays were the product of unanticipated events, but that the net
    delay remained about 35 months, still over the 30-month presumptive ceiling:
R.
    v. Jansen and Hall
, at paras. 75-80.

[53]

The application judge turned to the transitional
    exception carved out in
Jordan
. As the prosecution had commenced well
    before
Jordan
was released, the parties are presumed to have relied on
    the pre-
Jordan
law as laid down in
R. v. Morin
, [1992] 1
    S.C.R. 771: see
R. v. Jordan
, at paras. 92-96, 99;
R. v. Cody
,
    2017 SCC 31, at paras. 67-69.

[54]

The application judge conducted a detailed
    analysis of the
Morin
factors as they applied in the context of this
    case:
R. v. Jansen and Hall
, at paras. 81-119. He determined that the
    institutional/Crown delay fell well within the range of tolerable delay
    contemplated in
Morin
:
R. v. Jansen and Hall
, at paras. 105,
    112.

[55]

In his analysis of the
Morin
factors,
    the application judge considered the very serious nature of the charges and the
    prejudice, actual and inferred, suffered by Mr. Jansen. He had been in custody
    throughout the prosecution:
R. v. Jansen and Hall
, at paras. 115-19.
    Ultimately, the application judge determined that the delay, as measured by the
    analysis dictated by
Morin
, was not unreasonable. Consequently, the
    transitional exception applied in Mr. Jansens right to a trial within a
    reasonable time was not infringed.

[56]

Counsel for Jansen accepts that the s. 11(b)
    application turned on the applicability of the transitional exception. He
    alleged three errors by the application judge.

[57]

First, he submits the application judge erred in
    holding Mr. Jansen had waived the 2 ½ month period between June and September
    2015. Counsel argues, that while Mr. Jansen made an express waiver of that time
    period, he did so without knowledge of the status of the investigation involving
    Mr. Dadollahi-Sarab, who had not been charged at that stage. Counsel submits,
    without that knowledge, Mr. Jansen could not make an informed s. 11(b) waiver.

[58]

This argument fails on the facts. As the
    transcript of the relevant proceeding shows, the waiver was made on consent to
    streamline the preliminary inquiries of Mr. Jansen and another co-accused named
    Hall. The state of the ongoing investigation against Mr. Dadollahi-Sarab was
    not relevant to Mr. Jansens decision to agree to the adjournment of the
    preliminary inquiry. The express waiver made on behalf of Mr. Jansen was a
    valid waiver. In any event, if the 2 ½ months flowing from the adjournment was
    added to the institutional delay in the provincial court, it would have had no
    effect on the ultimate analysis of the reasonableness of the delay under the
Morin
criteria.

[59]

Counsel for Mr. Jansen next argues the
    application judge was wrong in characterizing this as a complex case. This
    submission confuses complexity as a stand-alone exceptional circumstance under
    the
Jordan
analysis and complexity as a factor to be taken into
    consideration in the context of the
Morin
analysis. As indicated above
    (para. 51), the application judge did not find the case was sufficiently
    complex to warrant a finding of exceptional circumstances under the
Jordan
analysis. He did characterize the case as moderately complex, even for a murder
    case, for the purposes of the
Morin
analysis. I see no error in this
    characterization.

[60]

Third, counsel for Mr. Jansen submits the Crown
    took far too long to obtain the consent of the Attorney General to prefer an
    indictment against Mr. Dadollahi-Sarab so he could be tried with Mr. Jansen.
    Counsel points out that even though Mr. Dadollahi-Sarab was arrested on the
    charge in the summer of 2015, an indictment against him was not preferred until
    May 2016, some five months after Mr. Jansen was committed for trial. Counsel
    contends, there is no reason the indictment against Mr. Dadollahi-Sarab was not
    preferred by the time Mr. Jansen was committed for trial.

[61]

I accept, even allowing for an extenuating
    circumstance, that the Crown took too long to obtain the authorization to
    prefer the indictment against Mr. Dadollahi-Sarab. However, even if the Crown
    had preferred the indictment against Mr. Dadollahi-Sarab by December 2015, when
    Mr. Jansen was committed for trial, Mr. Jansen had an outstanding motion to
    quash his committal for trial. He could not reasonably expect the court to set
    a trial date while his application was outstanding. To a large extent, the time
    period during which the Crown was waiting for authorization to prefer the
    indictment coincided with the time period during which Mr. Jansens motion to
    quash his committal for trial remained outstanding. The two events effectively
    cancelled each other out for the purposes of the s. 11(b) calculation under
Morin
.

[62]

There was no violation of Mr. Jansens s. 11(b)
    rights.

C. the alleged
    errors in the charge to the jury

[63]

This was not an easy jury instruction to give. Not
    only were there two accused and two charges, there were various bases upon
    which either or both of the appellants could be found liable for one or both of
    the offences charged. Crafting the instruction presented a formidable
    challenge.

[64]

Counsel and the trial judge had a lengthy pre-charge
    discussion, during which counsel made submissions on the draft charge provided
    by the trial judge. The trial judge made several changes in the charge as a
    result of these discussions. It is fair to say, counsel and the trial judge
    worked diligently to prepare a charge that was satisfactory to all parties and
    met the necessary legal requirements. The appellants submit, despite these
    efforts, the trial judge made several reversible errors in her instructions.

(i)

Did the Trial Judge Err in Her Instructions on
    Circumstantial Evidence?

[65]

The appellants take issue with the trial judges
    instructions on circumstantial evidence. They submit, the trial judge was
    obliged to tell the jury that drawing a reasonable inference inconsistent with
    guilt from a lack of evidence did not amount to impermissible speculation as
    long as the inference was a reasonable one. Counsel contend, that by failing to
    instruct the jury that exculpatory inferences need not be drawn from proven
    facts, the trial judge improperly placed an onus on the appellant to prove
    exculpatory facts.

[66]

A jury instruction on circumstantial evidence
    must first explain the nature of circumstantial evidence and the
    inference-drawing process. Second, the instruction must describe the
    relationship between proof based on circumstantial evidence and the Crowns
    obligation to prove the essential elements of the offence beyond a reasonable
    doubt:
R. v. Villaroman
, 2016 SCC 33, at paras. 22-31. This ground of
    appeal focuses on the second of those two requirements.

[67]

In
R. v. Ali
, 2021 ONCA 362, at paras.
    97-98, the court explained the relationship between drawing inferences from
    circumstantial evidence and the Crowns obligation to prove its case beyond a
    reasonable doubt:

An inference of guilt drawn from
    circumstantial evidence must be rooted in the evidence and must be the only
    reasonable inference available on the totality of the evidence. However, when
    the jury is considering whether the Crown has met its burden to show that guilt
    is the only reasonable inference, the jury is not engaged in fact- finding and
    is not limited to considering alternative explanations founded on the evidence.
    Instead, the jury is testing the force of the inference urged by the Crown
    against the reasonable doubt standard. In doing so, the jury can consider other
    reasonable alternative explanations for the conduct. Those alternative
    explanations may or may not lead the jury to conclude the Crown has failed to
    prove that guilt is the only reasonable inference available on the evidence:
R.
    v. Villaroman
, 2016 SCC 33, at paras. 28, 35-42.

In determining whether the Crown has met the
    burden in a circumstantial evidence case, the jury may apply its logic and
    common sense to the totality of the evidentiary picture, including gaps in that
    picture and consider whether other reasonable possibilities not only exist, but
    preclude a finding that an inference of guilt is the only reasonable inference
    available: As explained in
Villaroman
, at para. 36:

a reasonable doubt or theory alternative
    to guilt, is not rendered speculative by the mere fact that it arises from a
    lack of evidence  a certain gap in the evidence may result in inferences other
    than guilt. But those inferences must be reasonable given the evidence and the
    absence of evidence assessed logically, and in light of human experience and
    common sense.

[68]

The trial judges instructions on circumstantial
    evidence followed the usual format. She explained what circumstantial evidence
    was and how it could and could not be used to make findings of fact. She then
    turned to the relationship between circumstantial evidence and the Crowns
    burden of proof:

You are entitled to draw
    reasonable and logical inferences from established facts
. In order to find either Mr. Dadollahi-Sarab or Mr. Jansen guilty
    of an offence on the basis of circumstantial evidence, you must be satisfied
    beyond a reasonable doubt that his evidence is the only reasonable inference
    that can be drawn from the whole of the evidence.
Reasonable
    inferences that are inconsistent with guilt can arise on the evidence or from
    the lack of evidence
. [Emphasis added.]

[69]

In the above-quoted passage, the trial judge drew
    a clear distinction between factual inferences relied on by the Crown to
    establish guilt and reasonable inferences inconsistent with guilt. The trial
    judge told the jury the former must be based on established facts. The latter
    could, however, arise on the evidence or lack of evidence.

[70]

The trial judges reference to lack of
    evidence as a basis for a reasonable doubt harkened back to her earlier
    instruction in which she defined reasonable doubt as a doubt that logically
    arises from the evidence or lack of evidence.

[71]

Nor, as counsel for Mr. Dadollahi-Sarab suggests,
    can the instruction quoted above be dismissed as a throwaway line. When the
    trial judge instructed the jury on after-the-fact conduct, a kind of circumstantial
    evidence, she repeatedly told the jury, that in determining what inference, if
    any, to draw from the evidence, they must consider other explanations. The
    trial judge told the jury the after-the-fact circumstantial evidence could
    assist the Crown in proving its case, only if the jury rejected any other
    explanation for the conduct.

[72]

The trial judge reviewed each piece of evidence
    relied on by the Crown as after-the-fact conduct. In that review, she
    highlighted several non-culpable explanations for each of the acts relied on by
    the Crown. The trial judge did not suggest to the jury that these explanations
    had to be rooted in the evidence. Instead, she reminded the jury to consider
    explanations which, as a matter of common sense and human experience, could offer
    a non-culpable explanation for the conduct. To give just one example, when
    referring to the evidence about a certain gesture made by Mr. Jansen, which the
    Crown relied on as inculpatory circumstantial evidence, the trial judge told
    the jury:

Is it possible that Mr. Jansen had another
    reason for having his fingers near his mouth, such as to smoke a cigarette?

[73]

There was no evidence Mr. Jansen was gesturing
    about smoking a cigarette. Nor did the trial judge suggest there had to be any
    such evidence before the jury could consider that explanation. To the contrary,
    she told the jury to consider that kind of common sense explanation when deciding
    whether it should draw the inculpatory inference from the gesture urged by the
    Crown. The trial judges instructions repeatedly applied the
Villaroman

dicta
to the specific circumstantial evidence the jury heard in this
    case.

[74]

I see no error in the trial judges instructions
    on circumstantial evidence.

(ii)

The instruction on after-the-fact conduct

[75]

The Crown relied on several things done or said
    by one or both of the appellants after the stabbings as evidence the appellants
    had participated in the stabbings. That evidence included:

·

the flight from the scene;

·

discarding the knife and other incriminating
    evidence capable of connecting the appellants to the stabbings;

·

Mr. Jansens attempts to hide from the police
    and change his physical appearance after the stabbings;

·

Mr. Dadollahi-Sarabs attempts to dispose of
    and/or hide the distinctive red coat worn by Mr. Dadollahi-Sarab at the time of
    the stabbings; and

·

ongoing communications between the appellants
    after the stabbings.

[76]

The trial judge reviewed the after-the-fact
    evidence at length. She instructed the jury the evidence was relevant to prove
    the appellants participation in the stabbings. At other times, she described
    the evidence as relevant to whether the appellants committed the offences
    charged.

[77]

The trial judge singled out the evidence of the
    ongoing communications between the appellants after the stabbings for a
    specific instruction. She told the jury the ongoing communication between the
    appellants could provide evidence on the issue of planning and deliberation.
    The trial judge specifically told the jury that none of the other
    after-the-fact conduct was relevant to planning and deliberation.

[78]

The appellants submit, that with the exception
    of the evidence of the ongoing communications between the appellants, the
    after-the-fact evidence had no probative value with respect to the appellants
    state of mind at the relevant time. The appellants argue the jury should have
    been told none of the evidence, other than the conversations between the two
    appellants, could assist the Crown in proving that either appellant had the
mens
    rea
for murder.

[79]

The Crown accepts that the after-the-fact
    conduct evidence was not probative on the
mens rea
issue. The Crown
    also acknowledges there was no express instruction to the effect that the jury
    could not use the after-the-fact evidence as evidence of intent. The Crown submits,
    however, that the charge, read as whole, made it clear that the after-the-fact
    conduct, with the one exception noted above, could assist the jury only in
    determining whether the appellants had participated in the stabbings.

[80]

When evidence of after-the-fact conduct is
    admissible for a specific limited purpose, the jury should be so instructed. In
R. v. Calnen
, 2019 SCC 6, at para. 113, the court said:

Evidence is to be used only for the particular
    purpose for which it was admitted. When evidence is admissible for one purpose,
    but not for another, the finder of fact, whether judge or jury, needs to be
    mindful and respectful of its permissible uses.
In such
    cases, a specific instruction to a jury that certain evidence has a limited use
    or is of no probative value on a particular issue is required
. [Emphasis
    added.]

[81]

Calnen
was
    decided years after the trial judge gave her jury instructions in this case. It
    would have been better had the trial judge, as she did in respect of the issue
    of planning and deliberation, specifically advised the jury that the
    after-the-fact conduct had no probative value with respect to the
mens rea
for murder. Considering the charge as a whole, however, I am satisfied the
    trial judge adequately identified the limited use the jury could make of the after-the-fact
    conduct as required by
Calnen
. I come to that conclusion for several
    reasons.

[82]

First, the trial judges repeated use of the
    phrase participation in the stabbings and similar phrases suggested the
    evidence was relevant to the conduct of the appellants rather than their state
    of mind when they engaged in the conduct. Second, when the trial judge instructed
    the jury on the evidence relevant to the
mens rea
for murder, she
    began by telling the jury:

You should look at Mr. Dadollahi-Sarab and Mr.
    Jansens words and conduct before and at the time of the unlawful act that
    caused Mr. Roseboroughs death.

[83]

Notably, the trial judge did not tell the jury it
    could look to the appellants conduct after the stabbings when considering
    their state of mind.
[2]

[84]

Third, the trial judge gave the jury a detailed
    review of the evidence relevant to the
mens rea
for murder. In that
    review, she made no reference to any of the after-the-fact conduct evidence.

[85]

Fourth, after the trial judge identified the one
    piece of after-the-fact conduct evidence relevant to planning and deliberation,
    she went on to say:

None of the other after-the-fact conduct
    evidence is relevant to the issue of planning and deliberation. It cannot be
    considered by you on this question. That evidence cannot assist you in
    determining whether the murder was planned and deliberate that is because
a person may flee from a scene, discard evidence or otherwise
    distance himself from an offence regardless of his level of culpability. A
    person who has participated in a manslaughter may be just as likely to do those
    things as a person who has committed a first degree murder
. [Emphasis
    added.]

[86]

Although the instruction was given in the
    context of planning and deliberation, the trial judge went beyond the relevance
    of the evidence to that element of first-degree murder. She effectively told
    the jury that the after-the-fact conduct could not assist in determining the
    level of culpability. The appellants state of mind is what would determine
    their level of culpability.

[87]

Lastly, in response to a jury question about the
    meaning of recklessness in s. 229(a)(ii) as applied to certain acts, the trial
    judge told the jury that flight from the scene could not assist in determining
    intent. She said:

Leaving the scene afterwards cannot be used to
    determine the intent of a principal or a party at the time of the stabbings.

[88]

I am satisfied the jury understood the after-the-fact
    conduct evidence could not assist in establishing that either appellant had the
    necessary
mens rea
for murder.

(iii)

The instruction on Mr. Dadollahi-Sarabs
    potential liability for manslaughter under s. 21(2)

[89]

The trial judge instructed the jury on the
    appellants liability for manslaughter as an included offence in the murder
    charge. Counsel for Dadollahi-Sarab accepts that the trial judge adequately
    defined manslaughter and explained Mr. Dadollahi-Sarabs potential liability
    for manslaughter through s. 21(1)(a) and s. 21(1)(b). He contends, however, the
    trial judge erred in law by failing to give a manslaughter instruction under s.
    21(2). Counsel submits it was important that the jury understand Mr.
    Dadollahi-Sarab could be convicted of manslaughter, as opposed to murder, even
    if he had formed an intention in common with Mr. Jansen to assault Mr. Palmer,
    and even if Mr. Jansen had murdered Mr. Roseborough in the course of carrying
    out that common plan.

[90]

The trial judge distinguished between the
    definitional elements of murder and manslaughter. She related that distinction
    to the modes of participation described in ss. 21(1) and (2). After an
    explanation of the
mens rea
for murder, the trial judge turned to the
mens
    rea
for manslaughter. She said:

A person may be guilty of manslaughter where
    he participates in an assault which leads to the death even if the person knew
    the assault was likely to cause some harm short of death or in circumstances
    where a reasonable person would have foreseen the risk of bodily harm of a
    non-trivial or non-transitory nature.

[91]

On the facts of this case, this jury instruction
    captured the necessary
mens rea
for manslaughter regardless of whether
    Mr. Dadollahi-Sarabs participation fell under s. 21(1) or s. 21(2):
R. v.
    Sarrazin
, [2011] 3 S.C.R. 505, at para. 18;
R. v. Jackson
(1993),
    86 C.C.C. (3d) 385, at pp. 391, 394 (SCC).

[92]

In respect of s. 21(2), specifically, the trial
    judge told the jury:

It is for you to determine based on all of the
    evidence whether Mr. Jansen and/or Mr. Dadollahi-Sarab formed an agreement in
    common with the stabber to assault Mr. Palmer and whether during the course of
    carrying out the assault the offences of murder and attempted murder or the
    included offences of manslaughter and aggravated assault occurred. If so, and
    if Mr. Jansen and/or Mr. Dadollahi-Sarab actually knew that it was likely that
    the stabber in carrying out their original agreement or plan to commit assault
    would commit murder and attempted murder or an included offence they would be
    guilty as parties to the offence.

[93]

This instruction, considered on its own, is
    arguably overly favourable to the appellants. The trial judge told the jury it
    could convict the non-stabber of the included offence of manslaughter, only if satisfied
    the non-stabber knew it was likely the stabber would commit the included
    offence of manslaughter. On a proper application of s. 21(2) to the offence of
    manslaughter, the non-stabber is guilty of manslaughter if he knew or ought to
    have known the stabber would commit manslaughter in the course of committing the
    agreed upon assault: see
R. v. Jackson
, at pp. 393-4.

[94]

One of the questions asked by the jury during
    its deliberations concerned the knowledge required to make a non-stabber a
    party to the offence committed by the stabber. After discussion with counsel,
    the trial judge instructed the jury in these terms:

If the non-stabber participated either as a
    co-principal or a party in a dangerous unlawful assault which led to death he
    is guilty of manslaughter if he knew the unlawful assault was likely to cause
    some bodily harm short of death or if a reasonable person in those same
    circumstances would have foreseen the risk of bodily harm short of death.

[95]

In my view, the trial judges language describes
    potential liability for manslaughter under both s. 21(1) and s. 21(2). The
    trial judges reference to what a reasonable person would have foreseen is the
    equivalent to an instruction as to what the accused ought to have known.

[96]

Counsel submits that the decision tree provided
    to the jury would inevitably have confused the jury as to the availability of manslaughter
    through s. 21(2). The trial judge told the jury the decision tree was provided as
    an aid in understanding the instructions given. The jury received a written
    copy of the trial judges actual instructions for use during their
    deliberations. To the extent the decision tree, on its own, may have been less
    than clear, any confusion between the decision tree and the actual instructions
    would no doubt have been resolved by the jury by reference to the written
    instructions: see
R. v. B. (P.)
, 2015 ONCA 738, at paras. 142-43.

[97]

Finally, I see no danger the jury did not
    appreciate it must consider the case against each appellant separately on each
    count and could return different verdicts as against each appellant on each count.
    The trial judge continually separated the two appellants when outlining for the
    jury the elements of the offences and the potential bases for liability. Even
    more to the point, he told the jury:

In this case, two persons are each charged
    with two offences. You must return a separate verdict for each person on each
    charge. Your verdicts may but do not have to be the same for each person and
    each charge.

Although two persons are charged and are being
    tried together, each person is entitled to be treated separately on each
    charge. Each is presumed innocent on each charge. And each is entitled to have
    his or her case decided on the basis of evidence and legal principles that
    apply to him. It is that evidence and those principles that determine what your
    decision will be for each person on each count.

(iv)

The trial judges 
Vetrovec

    instruction

(a)

The trial proceedings

[98]

Mr. Palmer was an important Crown witness. His
    credibility was suspect for several reasons, especially as it related to his
    evidence concerning Mr. Jansens involvement in the stabbings. Mr. Palmer had
    an extensive criminal record, including crimes of dishonesty, and he lived a criminal
    lifestyle. His testimony at trial was inconsistent in material ways with
    statements he made to the police, and his testimony at the preliminary inquiry.
    Most significantly, Mr. Palmer hated Mr. Jansen and clearly wanted to see him convicted.
    He all but admitted he was prepared to tailor his evidence to inculpate Mr.
    Jansen.

[99]

Mr. Palmers evidence against Mr. Jansen was
    highly inculpatory. He identified Mr. Jansen as the stabber. Mr. Jansen wanted
    a strong 
Vetrovec
 caution with respect to Mr. Palmers evidence.
    Counsel for Jansen does not allege any error in the 
Vetrovec

    instruction.

[100]

Mr. Dadollahi-Sarab was in a different position with respect to Mr.
    Palmers evidence. Some of Mr. Palmers evidence implicated Mr. Dadollahi-Sarab
    in the stabbings. For example, Mr. Palmer testified Mr. Dadollahi-Sarab joined
    the altercation seconds before the stabbings occurred. Other parts of Mr.
    Palmers evidence tended to exculpate Mr. Dadollahi-Sarab. Not only did Mr.
    Palmer identify Mr. Jansen as the stabber, he also testified that Mr.
    Dadollahi-Sarab appeared shocked and scared immediately after the stabbings.

[101]

Although parts of Mr. Palmers evidence potentially helped Mr.
    Dadollahi-Sarab, none of his evidence was exculpatory in the sense that it
    presented a narrative which, if not rejected, compelled the acquittal of Mr.
    Dadollahi-Sarab. This was not a case in which Mr. Palmers evidence that Mr.
    Dadollahi-Sarab was not the stabber necessitated an acquittal if that evidence
    left the jury with a doubt as to the identity of the stabber: see
R. v. Charlton
,
    2019 ONCA 400. Even if the jury believed Mr. Palmers evidence that Mr.
    Dadollahi-Sarab was not the stabber, the jury could still have convicted Mr.
    Dadollahi-Sarab of murder and aggravated assault either as an aider or as a
    party to a common unlawful purpose. A 
W.D.
 instruction in respect of
    the parts of Mr. Palmers evidence that were helpful to Mr. Dadollahi-Sarab
    would not have been appropriate: e.g. see
R. v. L.(T.)
, 2008 ONCA 673,
    at para. 7;
R. v. D.(B.)
, 2011 ONCA 51, at paras. 103-14.

[102]

The trial judge and counsel discussed the content of the 
Vetrovec
instruction in the pre-charge meeting. Everyone agreed a 
Vetrovec
 caution
    should be given. Counsel for Mr. Dadollahi-Sarab, however, argued the trial
    judge must distinguish between the parts of Mr. Palmers evidence that were
    potentially incriminatory and those parts that were potentially helpful to Mr.
    Palmers defence. Counsel argued the 
Vetrovec
 instruction should
    apply only to the potentially incriminatory evidence. As counsel put it, the
    jury should be told it would not be dangerous to acquit on Mr. Palmers
    evidence.

[103]

After hearing submissions from counsel, the trial judge indicated
    she would revise the draft 
Vetrovec
 caution to make it clear, that
    despite the problems with Mr. Palmers credibility, his evidence might still
    leave a jury with a reasonable doubt. The instruction given to the jury
    contained the following:

Common sense also tells you that, in light of
    these circumstances, there is good reason to look at Mr. Palmers evidence with
    the greatest care and caution. You are entitled to rely on his evidence even if
    it is not confirmed by another witness or other evidence, but it is dangerous
    for you to do so.
Accordingly, you should look for some
    confirmation of Mr. Palmers evidence from somebody or something other than him
    before you rely upon his evidence in deciding whether Crown counsel has proven
    the case against Mr. Dadollahi-Sarab or Mr. Jansen beyond a reasonable doubt.
    There is a distinction between relying on Mr. Palmers evidence to support a
    conviction and having it raise a reasonable doubt about the guilt of either Mr.
    Dadollahi-Sarab or Mr. Jansen. Regardless of the frailties of Mr. Palmers
    evidence, it may be capable of raising a reasonable doubt in relation to one or
    both of them. It is for you to say taking into account all of the evidence
.
    [Emphasis added.]

[104]

There was no objection to this instruction.

(b)

The submissions

[105]

Counsel for Mr. Dadollahi-Sarab argues the trial judge erroneously failed
    to tell the jury the 
Vetrovec
 caution had no application to the
    parts of Mr. Palmers evidence the jury found to be helpful to Mr.
    Dadollahi-Sarab. Counsel submits, that by failing to distinguish between the
    inculpatory and exculpatory portions of Mr. Palmers evidence, the trial judge
    left the jury with the understanding that it had to approach all of Mr.
    Palmers evidence with caution and search for confirmatory evidence before
    relying on any part of his testimony. He contends that this instruction would
    leave the jury looking for confirmatory evidence of the parts of Mr. Palmers
    evidence that assisted Mr. Dadollahi-Sarab. This approach effectively shifted the
    evidentiary burden to the defence.

[106]

Counsel contends the trial judge was obliged to go through Mr.
    Palmers evidence and identify and separate the potentially inculpatory
    evidence from the potentially exculpatory parts of the testimony. The trial
    judge should then have told the jury the 
Vetrovec
 caution applied
    only to the inculpatory parts of the evidence.

[107]

In support of his submission, counsel places heavy reliance on the
    dissent of Scanlan J.A. in
R. v. Riley
, 2019 NSCA 94, at paras. 138, 144.
    In allowing the appeal, the Supreme Court of Canada unanimously adopted the
    dissent: 2020 SCC 31.

(c)

Analysis

[108]

Mr. Palmer was what is known for the purposes of the 
Vetrovec

    instruction as a mixed witness. Some of his evidence potentially helped Mr. Dadollahi-Sarab,
    and some potentially implicated him in the stabbings. Several cases from this
    court have described the instruction to be given when a 
Vetrovec

    witness provides both potentially inculpatory and exculpatory evidence:
R.
    v. Gelle
, 2009 ONCA 262;
R. v. Tran
, 2010 ONCA 471, at para. 28;
R.
    v. Rowe
, 2011 ONCA 753, at paras. 33-34;
R. v. Murray
, 2017 ONCA
    393, at para. 125; see also
R. v. Ryan
, 2014 ABCA 85, at para. 25. I
    propose to address this ground of appeal by first examining the case law from
    this court and then considering whether
R. v. Riley
changes the law.

[109]

The 
Vetrovec
 caution is intended to guard against
    miscarriages of justice arising out of misplaced reliance on the evidence of
    unsavoury witnesses. The 
Vetrovec
 caution is not intended to place
    any kind of burden, evidentiary or otherwise, on an accused. A 
Vetrovec

    caution that does not distinguish between exculpatory and inculpatory portions
    of the witnesss evidence may lead to the improper rejection of exculpatory
    evidence because it is not confirmed by other evidence. Rejection of
    exculpatory evidence for that reason undermines both the presumption of
    innocence and the requirement that the Crown prove the case beyond a reasonable
    doubt.

[110]

In
R. v. Rowe
, at para. 33, this court explained the proper
    approach to be taken to a 
Vetrovec
 witness who gives both
    inculpatory and exculpatory evidence:

The above cited cases indicate that a Vetrovec
    caution will often be appropriate in respect of the testimony of a mixed
    witness. The specifics of that caution and the format of the instruction are
    left very much in the discretion of the trial judge.
The
    jury instruction will be sufficient if, considered in its entirety, that
    instruction makes clear to the jury both that it is dangerous to rely on the
    inculpatory portion of the Vetrovec witnesss evidence without confirmatory
    support and that the jury must acquit if the exculpatory portions of that
    witnesss evidence, alone or taken in combination with the rest of the
    evidence, leave the jury with a reasonable doubt
. [Emphasis added.]

[111]

The court in
Rowe
, at para. 34, stressed that no single formula
    had to be used, as long as the jury understood that to the extent the evidence
    of the 
Vetrovec
 witnesss evidence helped an accused, the question
    was not whether that evidence was confirmed by other evidence, but whether that
    evidence alone or in combination with other evidence left the jury with a
    reasonable doubt.

[112]

The resistance in
Rowe
to a requirement that the instruction
    follow a specific pre-set formula is consistent with the long-accepted
    functional approach to jury instructions. As with all jury instructions, the
    question is not whether the trial judge uttered specific words or followed a
    specific formula, but whether the charge as a whole, in the context of the
    particular case, served its purpose by delivering the necessary message:
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14;
R. v. Daley
, 2007
    SCC 53, at para. 53;
R. v. Khela
, 2009 SCC 4, at paras.
13-15, 47;
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545, at
    paras. 27-28 (Ont. C.A.);
R. v. Vassel
, 2018 ONCA 721, at paras.
151-52.

[113]

When tested against the language in
Rowe
and the other
    authorities from this court, the trial judges instruction passes muster. The
    jury was told the search for confirmatory evidence should take place when
    deciding whether Crown counsel has proven the case against Mr. Dadollahi-Sarab
    for Mr. Jansen beyond a reasonable doubt: see
R. v. Rowe
, at paras.
    36-37. The jury was next told to distinguish between using Mr. Palmers
    evidence to support a conviction and using his evidence to raise a
    reasonable doubt. The trial judge told the jury that regardless of any
    frailties associated with Mr. Palmers evidence, they must decide whether his
    evidence, considered with the rest of the evidence, left the jury with a
    reasonable doubt.

[114]

Based on the instructions, I am satisfied the jury understood the two
    important components of the proper approach to Mr. Palmers evidence. First, to
    the extent the Crown relied on that evidence, it was dangerous to accept that
    evidence, absent confirmatory evidence. Second, to the extent Mr. Dadollahi-Sarab
    relied on Mr. Palmers evidence, that evidence must be considered, regardless
    of any frailties, along with the rest of the evidence in deciding whether the
    Crown had proved its case beyond a reasonable doubt.

[115]

The trial judges instruction is consistent with the case law from
    this court. I turn next to the submission that
R. v. Riley
changes the
    law, and the trial judges instruction does not accord with the pronouncement
    in
Riley
.

[116]

Counsels first submission based on
Riley
goes to the
    formatting of the jury instructions in respect of the 
Vetrovec

    witness. Counsel argues that after
Riley
, in cases where a 
Vetrovec

    witness gives potentially inculpatory and exculpatory evidence, the jury
    instruction must proceed in three steps. The trial judge must tell the jury to
    approach the exculpatory and inculpatory parts of the evidence differently. Next,
    the trial judge must identify and catalogue for the jury the evidence which
    falls into each category. Finally, the trial judge must tell the jury to look
    for confirmatory evidence before accepting the inculpatory portions of the
    evidence. Counsel argues it is now mandatory for the trial judge to separate
    and exhaustively list all inculpatory and exculpatory evidence given by the 
Vetrovec

    witness.

[117]

I do not accept that
Riley
imposes a single formula on
    trial judges required to instruct on the evidence of a 
Vetrovec

    witness who gives both inculpatory and exculpatory evidence. As explained above
    (para. 112), Canadian jurisprudence has long strongly favoured jury instructions
    tailored to the specific circumstances of the case. In
R. v. Khela
,
    the Supreme Court of Canada applied that approach to jury instructions given in
    respect of 
Vetrovec
 witnesses. The Courts adoption of the dissent
    in
Riley
cannot reasonably be read as signaling an about-face from the
    Courts long-standing functional approach to the adequacy of jury instructions.
    As always, the issue is not whether the trial judge used a certain formula or
    turn of phrase, but whether the instruction given adequately equipped the jury
    to return a true verdict.

[118]

Accepting that
Riley
does not impose a single mandatory
    formula to be used when providing a 
Vetrovec
 caution in respect to a
    mixed witness, the question becomes whether
Riley
has altered the
    substantive requirements of that instruction.

[119]

Counsel for Mr. Dadollahi-Sarab relies on the words of Scanlan J.A.,
    at para. 138:

As I note below, even if a witness is a mixed
    witness, a trial judge has a duty to separate the inculpatory from the
    exculpatory evidence and explain the different application of the special
    instruction as it relates to the different types of evidence.

[120]

I note first, that on the facts,
Riley
did not involve a
    mixed witness. The 
Vetrovec
 witness in
Riley
, although
    called by the Crown, gave entirely exculpatory evidence for the accused. On the
    well-established case law, there should have been no 
Vetrovec

    instruction at all: see
R. v. Chenier
, 2006 O.J. No. 489, at para. 45;
R. v. Vassel
, 2018 ONCA 721, at para. 156;
R. v. Riley
, at
    para. 165.

[121]

I also see no inconsistency between the language of Scanlan J.A. at
    para. 138, and the authorities from this court. The reference by Scanlan J.A.
    of a duty to separate the inculpatory from the exculpatory evidence refers to
    the obligation on the trial judge to distinguish between the two kinds of
    evidence for the purposes of the 
Vetrovec
 caution. The distinction
    is made to ensure that the jury appreciates the different approach it must take
    to the inculpatory versus the exculpatory evidence. The duty to separate the
    inculpatory from the exculpatory does not, in my view, mean that a trial judge
    must provide an exhaustive cataloguing of the inculpatory and exculpatory
    evidence.

[122]

The second requirement of the jury charge, as described at para. 138
    of Riley, requires that the trial judge explain the different application of
    the special instructions as it relates to the different types of evidence. I
    take this to mean that the jury must be told the caution associated with the
    reliance on the unconfirmed evidence of a 
Vetrovec
 witness applies
    only when considering whether that evidence assists the Crown in proving its
    case. The same point is made in
Rowe
, at paras. 34, 38-42.

[123]

Not only does the language in para. 138 of
Riley
not suggest
    any departure from the case law in this court, the reasons of Scanlan J.A.
    reveal significant reliance on that case law:
R. v. Riley
, at paras.
    142-44, 163-65.

[124]

I also question the practical value and workability of obliging a
    trial judge to exhaustively characterize and catalogue the evidence given by a
    
Vetrovec
 witness into two separate lists for the jury. In some
    cases, the task would be relatively straightforward and helpful to the jury: e.g.
    see
Rowe
; at para. 34. In many other cases, however, the same evidence
    may be potentially exculpatory or inculpatory, depending on what the jury made
    of the totality of the evidence. Any attempt by the trial judge to provide an
    exhaustive list of the two categories of evidence could well end up with two
    long lists, both of which contained much of the same evidence.

[125]

One example from the evidence in this case makes the point. Mr.
    Palmers evidence that Mr. Dadollahi-Sarab was not the stabber was exculpatory
    when considering his liability as a perpetrator of the stabbings. The same
    evidence was, however, arguably inculpatory insofar as his liability as an
    aider was concerned. If the jury concluded Mr. Dadollahi-Sarab had exited the
    SUV with the knife, but Mr. Jansen was the stabber, the case for making Mr.
    Dadollahi-Sarab an aider was powerful indeed. On that view of the case, Mr.
    Palmers evidence that Mr. Dadollahi-Sarab was not the stabber is not
    exculpatory.

[126]

I would think that in many cases, any attempt to separate and
    exhaustively catalogue the inculpatory and exculpatory evidence given by a 
Vetrovec

    witness could significantly lengthen and complicate the jury instruction. It
    would also run the risk of the trial judge improperly intruding upon the jurys
    function by characterizing evidence as inculpatory or exculpatory. That, of
    course, is not to say that in some cases, it would not be helpful and
    appropriate for the trial judge to catalogue the exculpatory and inculpatory
    evidence given by a 
Vetrovec
 witness. As with so many aspects of a
    jury charge, it all depends on the evidence, the issues, and the positions of
    the parties.

[127]

It will be for the trial judge to decide which approach works best
    in any given case. When an appellate court is asked to review the choice made
    by the trial judge, that court is entitled to take into account the positions
    taken by counsel at trial. The positions of counsel are particularly important
    when, as here, counsel had an opportunity to vet the proposed charge and make
    detailed submissions: see
R. v. Polimac
, 2010 ONCA 346, at para. 89. The
    ultimate charge given by the trial judge reflected many of those submissions.
    Counsel were content with the formulation of the 
Vetrovec

    instruction ultimately used by the trial judge.

[128]

The 
Vetrovec
 instruction with respect to Mr. Palmers
    evidence as it applied to Mr. Dadollahi-Sarab was correct in law and worked no
    unfairness.

conclusion

[129]

I would dismiss the appeal.

Released: DD July
    19, 2021

Doherty J.A.

I agree K. van Rensburg J.A.

I agree Thorburn J.A.





[1]

In his factum, counsel for Mr.
Dadollahi-Sarab
    also argued the trial judge should have directed verdicts of not guilty at the
    end of the Crowns case on the murder charge and the attempted murder charge. I
    do not propose to address these arguments separately. The jury acquitted on the
    attempt murder charge. With respect to the murder conviction, there is no need
    to consider whether a directed verdict should have been granted. No defence
    evidence was called. If a directed verdict should have been granted, clearly,
    the conviction is unreasonable under s. 686(1)(a)(i).



[2]

Interestingly, when the trial judge instructed the jury on
    the
mens rea
for attempted murder, as it
    related to the stabbing of Mr. Palmer, she told the jury they could consider
    the appellants conduct after the stabbing, although in her review of the
    relevant evidence the trial judge did not refer to any of the after-the-fact
    conduct. The jury acquitted on the attempted murder count.


