Court of Appeal for Ontario

Citation: R. v. Dadollahi-Sarab, 2021 ONCA 514 Date: 2021-07-19 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. Palmer's 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. Palmer's 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. Roseborough's 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. Jansen's, 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. Palmer's 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. Palmer's 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. Palmer's apartment. Mr. Jansen drove to Mr. Dadollahi-Sarab's residence and they drove together to Mr. Palmer's apartment in Mr. Dadollahi-Sarab's 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. Palmer's 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. Roseborough's ribcage. Mr. Palmer could not see a knife in Mr. Jansen's 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, "let's 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. Palmer's evidence, especially insofar as it implicated Mr. Jansen. Mr. Palmer obviously hated Mr. Jansen. I will address Mr. Palmer's evidence in more detail when I consider the ground of appeal challenging the trial judge's "Vetrovec" caution.

[16] In addition to Mr. Palmer's 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 driver's 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 driver's 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. Palmer's blood and Mr. Jansen's 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-Sarab's 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 CROWN'S 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 Crown's 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 Crown's 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. Jansen's 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-Sarab's SUV and went to Mr. Jansen's 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-Sarab's 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. Roseborough's 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 jury's 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 CanLII 69 (SCC), [1984] 1 S.C.R. 225; R. v. Logan, 1990 CanLII 84 (SCC), [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 judge's 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-Sarab's 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. Roseborough's 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. Palmer's apartment in Mr. Dadollahi-Sarab's 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 jury's 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-Sarab's 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 accused's 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-Sarab's conviction on second degree murder was not unreasonable.

B. Was Mr. Jansen's 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 CanLII 89 (SCC), [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. Jansen's 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. Jansen's 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. Jansen's 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. Jansen's 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 judge's 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 Crown's 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 Crown's 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 judge's 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 Crown's 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 judge's 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 judge's 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 judge's 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. Jansen's attempts to hide from the police and change his physical appearance after the stabbings;
• Mr. Dadollahi-Sarab's 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 judge's 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. Jansen's words and conduct before and at the time of the unlawful act that caused Mr. Roseborough's 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-Sarab's Potential Liability for Manslaughter Under s. 21(2)

[89] The trial judge instructed the jury on the appellant's 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-Sarab's 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-Sarab's participation fell under s. 21(1) or s. 21(2): R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 18; R. v. Jackson (1993), 1993 CanLII 53 (SCC), 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 judge's language describes potential liability for manslaughter under both s. 21(1) and s. 21(2). The trial judge's 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 judge's 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 Judge's "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. Jansen's 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. Palmer's 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. Palmer's 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. Palmer's evidence. Some of Mr. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's evidence that were potentially incriminatory and those parts that were potentially helpful to Mr. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's evidence, the trial judge left the jury with the understanding that it had to approach all of Mr. Palmer's 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. Palmer's 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. Palmer's 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 witness's 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 witness's evidence without confirmatory support and that the jury must acquit if the exculpatory portions of that witness's 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" witness's 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 CanLII 374 (SCC), [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), 1999 CanLII 1723 (ON CA), 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 judge's 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. Palmer's 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. Palmer's 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. Palmer's 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. Palmer's 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 judge's 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 judge's instruction does not accord with the pronouncement in Riley.

[116] Counsel's 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 Court's adoption of the dissent in Riley cannot reasonably be read as signaling an about-face from the Court's 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 CanLII 3560 (ON CA), 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. Palmer's 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. Palmer's 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 jury's 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. Palmer's evidence as it applied to Mr. Dadollahi-Sarab was correct in law and worked no unfairness.

CONCLUSION

[129] I would dismiss the appeal.

Released: 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 Crown's 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.