Court of Appeal for Ontario

Date: 2022-05-02 Docket: C66422 & C66629

Hoy, Brown and Coroza JJ.A.

Docket: C66422

Between

Her Majesty the Queen Respondent

and

Alton Grant Appellant

Docket: C66629

And Between

Her Majesty the Queen Respondent

and

Shaqwan Kawano Appellant

Counsel: Anil K. Kapoor and Dana Achtemichuk, for the appellant Alton Grant Paul Alexander, for the appellant Shaqwan Kawano Christine Bartlett-Hughes and Joanne Stuart, for the respondent

Heard: November 15, 2021

On appeal from the convictions entered on November 8, 2017, by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I. Overview

1Rala Fedrick was shot and killed around 1:50 a.m. on July 6, 2014. He was standing with several people on George Street, in Toronto, just south of Seaton House, a shelter for homeless men. Although numerous CCTV cameras populate George Street, the area in which Fedrick [1] was shot was not covered by any camera.

2The appellants, Shaqwan Kawano and Alton Grant, were friends. They were tried and convicted by a jury of first-degree murder for Fedrick’s death. Both appeal their convictions. For the reasons set out below, I would allow the appeals and direct new trials.

II. Outline of Events

3The key events took place on George Street during two periods of time: the afternoon of July 5, 2014, and the early morning hours of July 6, 2014.The events took place near Seaton House, a place where many congregate to socialize. Many of those involved in the events had consumed drugs and alcohol.

A. The hug

4Around 4:00 p.m. on the afternoon of July 5, 2014, Kawano saw Fedrick grab the buttocks of Tasha Simpson while hugging her near Seaton House.

5The Crown alleged that Simpson was Kawano’s girlfriend; Kawano disputed the point. The evidence disclosed that five days after Fedrick was killed, Simpson and Kawano together moved into a rental condo on Park Lawn Road.

6Neither Simpson nor Kawano testified.

7Two witnesses to the hug did: Sherece Brown-Love and Monia Cargioli.

8Brown-Love was ten steps away from Kawano and Simpson when she heard Simpson say to Kawano “There’s no need to get mad. He’s just a friend.” Kawano then “stomped off”. Brown-Love testified that it was a “mild argument” and neither Simpson nor Fedrick looked upset afterwards.

9Cargioli witnessed the hug and described it as “a bit inappropriate.” According to her, Kawano said to Simpson, “You’re hugging a fucking crackhead”, which elicited a laugh from Fedrick. Simpson then told Cargioli that Kawano was her boyfriend and “I think he’s kind of mad.” Cargioli told Fedrick to apologize to Kawano. Fedrick later told Cargioli that he had apologized. Cargioli agreed that neither Simpson nor Fedrick thought the hug was a big deal.

10It was the Crown’s theory that Kawano took such offence to Fedrick hugging Simpson that he enlisted his friend, Grant, in a plan to kill Fedrick and, early the following morning, Kawano shot Fedrick in retaliation for the inappropriate hug.

B. The shooting

11According to surveillance cameras, Kawano and Grant went together to George Street just after 7 p.m. At Seaton House, they sat near Fedrick but did not engage him. There was no apparent argument or confrontation between them. Simpson was also in the vicinity. Surveillance captured her leaving the area at 7:46 p.m.

12A photo was taken at 8:01 p.m. of the appellants together on Pembroke Street, one block east of George Street. After that, cell tower information showed that Grant remained in and around the downtown core while Kawano went to Scarborough.

13Fedrick was killed in the early morning hours of July 6, 2014 by a single shot fired by a person at a location on George Street, south of Seaton House men’s residence. It was the Crown’s theory that Kawano was the person recorded by various CCTV cameras around that time wearing a scarf wrapped around his head, which led to that individual being called “Scarfman” during the trial. It also was the Crown’s position that Kawano, the Scarfman, shot Fedrick.

CCTV and cell phone evidence leading up to the shooting

14CCTV cameras did not capture the shooting of Fedrick. However, they recorded the movements of: Scarfman; a person wearing a bucket hat whom the Crown contended was Grant and whom Grant’s counsel referred to as Grant in her closing submissions; the victim, Fedrick; and others, both before and after the shooting.

15A Samsung cellphone alleged to be Grant’s received a call from a Blackberry cellphone alleged to be Kawano’s at 10:43 p.m. on July 5, 2014. Surveillance footage from 10:37 p.m. showed Grant, together with girlfriend Jayda Marshall, attending Sherry Crocker’s apartment at 150 Elizabeth Street, Toronto, a location about one kilometre west of Seaton House. Cameras showed Grant leaving the apartment alone at 12:56 a.m. on July 6, 2014. Cell tower records show that Grant’s phone moved from the cell tower at 111 Chestnut (near 150 Elizabeth Street) to the cell tower at 145 Mutual Street near Seaton House at 1:33 a.m. Cell towers similarly traced the return of Kawano’s cellphone to the same Mutual Street cell tower near Seaton House.

16CCTV footage and cellphone records showed the following:

• 1:33:23 a.m.: Grant’s cellphone received a call from Kawano’s;
• 1:34:44 a.m.: Grant, wearing the bucket hat, jeans and a shirt, ran along a laneway from George Street to Jarvis Street; the laneway was just south of where the shooting would occur;
• 1:35:24: Grant came back along the laneway toward George Street with Scarfman, who had a scarf around his head, a dark hoodie, and lighter pants;
• 1:36:23: Scarfman walked north on George Street towards what was known as the “Centre Island” at the entrance to Seaton House and then walked back south;
• 1:37:24: Grant walked north on George Street. As he passed Centre Island, he looked towards a group of people that included Fedrick. He then walked south on George Street, where he ran into Fedrick. The two walked together for a few seconds, then separated. Grant continued south, while Fedrick crossed George Street, where a man with a white towel joined him and they continued south on George Street. At this point Grant was not in view;
• 1:40:07 and 1:42:16: There were calls from Grant’s Samsung cellphone to Kawano’s Blackberry cellphone.
• 1:40:07: Both cellphones pinged on the Mutual Street cell tower near Seaton House;
• 1:46:27 - 1:48:30: Scarfman walked north on George Street past the Centre Island at Seaton House and then walked back in a southerly direction;
• 1:50: The shooting occurred near 305 George Street, a few doors south of Seaton House.

Eyewitness evidence at the time of the shooting

17Seven persons testified who were either with or in the immediate vicinity of Fedrick at the time he was shot. Only one of them, David Kamkin, saw the actual shooting. I shall review their evidence in detail when dealing with the ground of appeal concerning the charge on eyewitness identification evidence.

Cellphone records up until the time of the shooting

18Cellphone records showed 32 calls on July 5, 2014 between the Blackberry cellphone alleged to be Kawano’s and the Samsung cellphone alleged to be Mr. Grant’s, and seven calls between midnight and 1:50 a.m. on July 6, 2014, when the shooting occurred. There was no evidence of what was discussed during those calls. More specifically, from 8:58 p.m. on the evening of July 5 until 1:33 a.m. in the early morning of July 6, cellphone records showed that Kawano called Grant fifteen times.

19Evidence was adduced at trial by the Crown about the calling patterns between the Blackberry and Samsung cellphones. From June 29, 2014 to July 4, 2014, leading up to the murder, there were between five and 28 calls per day between the phones. On July 5, 2014, there were 32 calls between the phones, including 10 between 8:58 p.m. and 10:43 p.m. Another seven were from midnight on July 6, 2014 to the time of the murder at approximately 1:50 a.m. After the murder the calls between the phones dropped off sharply; on several days there were no calls.

CCTV camera evidence following the shooting

20At around 1:50:22, just after the shooting, CCTV recorded Scarfman and the person wearing a bucket hat, jeans and a shirt, running west in the alleyway from George Street towards Jarvis Street.

21At approximately 2:02 a.m., less than 15 minutes after the shooting, CCTV showed Grant and Kawano at 150 Elizabeth Street, the building in which Grant’s friend, Crocker, had an apartment. CCTV cameras showed that Kawano did not have a scarf on his head. Grant and Kawano stayed the night at Crocker’s apartment.

22Kawano left Crocker’s apartment at 1:19 p.m. on July 6; Grant left at 3:55 p.m.

C. The trial

23The trial started on September 11, 2017. At trial, the appellants applied for a directed verdict, which the trial judge dismissed. On November 8, 2017, the jury rendered its verdict finding the appellants guilty of first-degree murder.

24A month prior to trial, Grant initiated an application for a stay of the proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms. The trial judge heard the application after the verdict was rendered. By reasons dated April 30, 2018, the trial judge dismissed the application: R. v. Grant, 2018 ONSC 2447.

III. Issues

25The appellants, separately and together, raise several grounds of appeal:

(i) Grant contends that the verdict against him as the aider of the offence of first-degree murder was unreasonable; (ii) Grant submits that the trial judge erred in dismissing his application for a stay of proceedings by reason of a violation of his rights under s. 11(b) of the Charter; (iii) Both appellants argue that the trial judge erred in instructing the jury on how to assess the exculpatory evidence of an eye-witness, Kamkin; (iv) Both appellants contend the charge on post-offence conduct was tainted by legal error; and (v) Both appellants submit the trial judge erred in admitting certain evidence, specifically: (a) a written statement recorded by Robert Robinson; (b) evidence given by Brown-Love about Kawano’s reaction to a statement made to him by Simpson; and (c) investigative hearsay evidence elicited by the Crown in its re-examination of the officer-in-charge, Det. David Dickinson. In respect of items (a) and (b), the appellants also submit that the trial judge failed to provide proper instructions on the use of such evidence.

26As I explain in the reasons that follow, I am not persuaded that the trial judge erred in dismissing Grant’s s. 11(b) application. However, I conclude that the trial judge’s instructions on Kamkin’s exculpatory identification were tainted by legal error. I am not satisfied that the verdict against Grant was unreasonable. I therefore would direct new trials of the appellants. In light of those conclusions, it is not necessary to deal with grounds of appeal (iv) and (v).

First Issue: Did the Trial Judge Err in Dismissing Grant’s s. 11(b) Charter Application?

A. Issue stated

27Grant was arrested on July 17, 2014. The trial of the appellants commenced on September 11, 2017 and the jury rendered its verdict on November 8, 2017. The parties agreed that the matter took 1,210 days (40 months, 10 days) from the appellant’s arrest until the jury’s verdict, an amount of time that exceeded the presumptive ceiling of 30 months set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which was released on July 8, 2016, following the laying of the charges but before the trial.

28Under the Jordan framework, the defence is not allowed to benefit from its own delay-causing conduct or from its tactics aimed at causing delay: R. v. Ste-Marie, 2022 SCC 3, at para. 11. In her reasons dismissing Grant’s s. 11(b) application, the trial judge concluded that defence delay amounted to 398 days which, when deducted from the total delay of 1,210 days, left a net delay of 812 days (27 months, 2 days), which was below Jordan’s presumptive ceiling. [2] She concluded that there was no evidence that Grant tried to expedite the proceedings or that the matter took markedly longer than it should have: at para. 113. In any event, she held that any delay in excess of the ceiling could be explained by the particularly complex nature of the case, including being a joint trial with a co-accused: at para. 127.

29Grant’s ground of appeal focuses on 366 of the 398 days of delay attributed to his defence by the trial judge. Grant submits that the trial judge made three errors in so doing:

(i) She mischaracterized the delay of 164 days between the anticipated and actual end of the preliminary inquiry as attributable to Grant; (ii) She erred in characterizing the delay of 202 days resulting from Kawano’s adjournment of the trial by reason of his retainer of new counsel as attributable to Grant; and (iii) She erred in finding that the delay caused by Kawano’s adjournment application was an exceptional circumstance.

30Assessing these grounds of appeal requires applying a standard of review under which deference is owed to the trial judge’s underlying findings of fact, while the characterization of the periods of delay and the ultimate decision as to whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Boulanger, 2022 SCC 2, at para. 4; R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; and R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27.

B. The rescheduled preliminary inquiry

31The preliminary inquiry was scheduled for four weeks, starting on February 2, 2015, with a break during the week of February 16, 2015, and concluding on March 6, 2015. On January 30, 2015, Grant’s counsel moved for an adjournment for two reasons: (i) she had been ill; and (ii) she had double-booked her time for Grant’s preliminary inquiry with a trial that was not scheduled to end until February 13, 2015. For reasons detailed in depth in the trial judge’s reasons, [3] the preliminary inquiry did not start until February 23, 2015 and continued on a variety of dates, not concluding until August 27, 2015. In the result, a preliminary inquiry that had been scheduled to start on February 2, 2015, did not begin until February 23, and its March 6 scheduled conclusion was pushed out until August 26, 2015.

32The trial judge attributed to Grant not only the 21 days of delay in rescheduling the start of the preliminary inquiry to February 16, but the entire delay until August 27, 2015. As she explained at para. 102 of her reasons:

Furthermore, the adjournment application and subsequent illness of counsel for the applicant resulted in the end of the preliminary inquiry being delayed from Match 6 , 2015 to August 27, 2015. This delay should be attributed to the applicant. In R. v. Picard, 2017 ONCA 682, at para. 117, the Court of Appeal found that "a party who causes an adjournment is responsible for the entire period of delay until the matter can be rescheduled, unless the other party is unavailable for an unreasonable length of time". None of the other parties in this matter were unavailable for unreasonable amounts of time. Small blocks of dates had to be chosen due to the challenges of synchronizing the schedules of all counsel and the presiding justice. Despite these challenges, the preliminary inquiry continued within two months of the originally anticipated end date. Evidence was heard in May, June and August of 2015. Therefore, the additional 164 days (March 6, 2015-August 27, 2015) that were required to complete the preliminary hearing as a result of Ms. Freeman's scheduling conflict and illness should be attributed to the defence.

33Grant submits that trial judge erred by attributing these 164 days to him. He contends that this court’s decision in R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, limits the attribution of delay to the defence only to the period between the original and rescheduled starts of the preliminary inquiry (in this case, 21 days).

34I am not persuaded by this submission.

35First, I do not read Picard in the way the appellant does.

36In Picard, this court considered the characterization of the delay in the start date of a trial in a first-degree murder case. Two senior Crowns were assigned to the case. The Crown was not prepared to accept the first dates when the defence and court were available (in February 2016) because both Crown counsel were not available for those dates. In the result, the court scheduled pre-trial motions to start some seven months later, in September 2016, followed by trial commencing in November 2016.

37Although this court set aside the trial judge’s stay of the proceeding based on a violation of the accused’s s. 11(b) Charter rights, it did agree with the trial judge’s attribution to the Crown of the entire seven-month delay in the start of the trial. The delay in the trial’s start did not arise from Crown unavailability on a single date but unavailability on any of the dates offered during a five-month period: at para. 113. This court deferred to the trial judge’s finding that had the Crown accepted the earlier dates, the trial would have concluded before the summer break and, as a result, the Crown had to accept responsibility “for the entire period of the delay”: at para. 118.

38In reaching that result, the Picard court referred to the earlier decision in R. v. M. (N.N.) (2006), 141 C.R.R. (2d) 95, 209 C.C.C. (3d) (Ont. C.A.) where “this court made it clear that a party who causes an adjournment is responsible for the entire period of delay until the matter can be rescheduled, unless the other party is unavailable for an unreasonable length of time”: Picard, at para. 117. Grant relies on this sentence in Picard to submit that defence delay must be limited to the delay between the originally scheduled start of a preliminary inquiry and its actual start. Implicit in the appellant’s argument is that the overall effect of an adjournment on the actual conclusion of a preliminary inquiry is legally irrelevant for purpose of the analysis called for by Jordan.

39Such a principle cannot be extracted from Picard for the simple reason that Picard did not deal with a situation where the adjournment of the start of a hearing resulted in a longer overall period in which to conduct the hearing to its conclusion. The trial in Picard did not take place because the charges against the accused were stayed. But there is no suggestion in Picard that the delay in the start of the trial resulted in a longer trial, had one occurred. By contrast, in the present case the delay in the start of the preliminary inquiry resulted in a much longer period of time over which it was conducted.

40Second, Grant’s submission departs from the analytical framework established by Jordan as it ignores the entirety of the delay that in fact was caused by Grant’s adjournment request. The dates for the preliminary inquiry originally were booked as a block – a difficult enough feat to accomplish when coordinating the calendars of the court, Crown counsel, and counsel for the co-accused. The adjournment obtained by Grant not only pushed back the start of the preliminary inquiry, it led to the inevitable unbundling of the originally set block of court time resulting, as the trial judge observed, in scheduling “small blocks of dates … due to the challenges of synchronizing the schedules of all counsel and the presiding justice”.

41In those circumstances, to limit the inquiry into the amount of defence delay only to the “front-end” delay in the start of the preliminary inquiry would be an artificial exercise as it would ignore the larger ripple effect an adjournment could work on the “back-end” conclusion of a preliminary inquiry, an integral component of overall delay. Here, the ripple effect of Grant’s adjournment was to push back the scheduled conclusion of the preliminary inquiry from March until late August 2015. The trial judge properly examined and took into account this larger litigation effect of Grant’s adjournment, all the while satisfying herself that the long delay in concluding the preliminary inquiry was not due to the conduct of other parties. As she wrote: “None of the other parties in this matter were unavailable for unreasonable amounts of time.” [4]

42Consequently, I see no basis for appellate interference with the trial judge’s decision to attribute the entirety of the delay in the preliminary hearing to Grant’s adjournment request.

C. The rescheduled trial

43The trial initially was set to start on September 6, 2016. In May and June 2016, Kawano retained new counsel and sought to adjourn the trial. On a May 6, 2016 attendance, Crown counsel hoped that new counsel would be available for and be in a position to continue with the set trial date. On a June 8, 2016 attendance, the court advised that it was available in late February 2017, Grant’s counsel advised that her schedule was filled until the end of June 2017 and she opposed the adjournment request, and the Crown advised that it was anxious for the matter to proceed and was ready to proceed. The court granted Kawano’s adjournment request and rescheduled the trial to start on September 11, 2017.

44The decision in Jordan was released a month later.

45McMahon J. was case managing the trial of these matters. At the next attendance on September 7, 2016, the case management judge expressed concern about the one-year adjournment of the trial date and stated he would not automatically remand the matter to September 11, 2017 but wanted to revisit the issue. An agent appearing for Grant’s counsel suggested deferring the discussion to the next judicial pre-trial conference when all counsel could be present. However, on the September 23 JPT conference date, counsel for Grant advised she was not aware of the date and could not attend. The JPT was rescheduled for December 6, 2016 and again adjourned to January 5, 2017, when the September 11, 2017 trial date was confirmed.

46In her reasons denying Grant’s stay application, the trial judge explained why she attributed the 202 days of delay from the first available rescheduled trial date in February 2017 until the actual start of the trial to Grant:

[O]n the date of the adjournment application brought by counsel for Mr. Kawano, counsel for [Grant] indicated that she would not be available until the fall of 2017. The first available date offered by the court for the new trial was the third week of February, 2017. However, due [to] Ms. Freeman's lack of availability, the trial was delayed for an additional 202 days to September 11, 2017. This delay was solely caused by Ms. Freeman's unavailability.

47Grant submits the trial judge committed two errors in reaching this conclusion. First, she failed to take an individualized approach to the attribution of defence-caused delay in cases of jointly-charge accused, as adopted by the majority of this court in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 128. Second, the trial judge failed to take into account the lateness of the adjournment request, the opposition of Grant’s counsel to Kawano’s adjournment request, as well as counsel advising the court on the adjournment application of her unavailability for a year in the event the adjournment was granted.

48I am not persuaded by Mr. Grant’s submissions.

49First, the trial judge applied the individualized approach used by the majority in Gopie. This is clear from her reasons where she stated, at para. 103:

As per Justice Rouleau in Picard, supra, at para. 117, while [Grant] did not cause the initial adjournment, she was "unavailable for an unreasonable length of time" which resulted in a year-long delay.

And then again at para. 104:

It is the applicant's position that he should not be responsible for the delay stemming from the unavailability of counsel for the co-accused for the original trial date in September of 2016. I disagree - especially in light of the fact that Ms. Freeman was not available until the fall of 2017 and, also in light of Justice Brown's [concurring] and Justice Gillese's [majority] reasons in Gopie. Both methods of calculating the delay - either as defence delay or as exceptional circumstances - result in the same thing in this case. [Emphasis added.]

50As to Grant’s second submission, it is apparent from the trial judge’s reasons that she accurately understood and took into account the various events in the trial date-setting chronology. She further noted that neither co-accused applied for severance and, in any event, “there could never have been a legally justifiable severance in the circumstances”, with the interests of justice requiring a joint trial. As well, while counsel may not be required to hold themselves in a perpetual state of availability, a court is entitled to take into account, as the trial judge did, the reasonableness of the length of time a holder of the s. 11(b) right wishes to delay the start of a trial in order to have counsel of his choice. In those circumstances, I see no basis for appellate intervention in the trial judge’s characterization of 202 days of the pre-trial delay as attributable to Grant.

D. Conclusion

51Given that I would not disturb the trial judge’s finding of delay by Grant of 398 days, which results in a net delay of 27 months, 2 days – under the presumptive ceiling of 30 months – I see no need to deal with Mr. Grant’s final submission that concerned the trial judge’s alternate conclusion that delay caused by the adjournment of the trial would be reasonable due to exceptional circumstances pursuant to Gopie. Accordingly, I would not give effect to Mr. Grant’s s. 11(b) ground of appeal.

Second Issue: Did the Trial Judge Err in Her Instructions Regarding the Identification Evidence Given by Kamkin?

A. Issue stated

52Only one witness saw the shooting: an ex-soldier named David Kamkin. Both appellants submit the trial judge misdirected the jury on the exculpatory eyewitness evidence provided by Kamkin, an error that goes to the heart of the verdict and necessitates a new trial.

53To examine this ground of appeal, I shall review the material eyewitness evidence, then describe the charge and the objections made to it and, finally, set out and analyse the parties’ positions regarding the charge. As I shall explain, I conclude that the trial judge erred in law by misdirecting the jury on Kamkin’s exculpatory eyewitness evidence.

B. Eyewitness evidence

54Earlier in these reasons, I described the evidence about the movements of Kawano and Grant, as well as Scarfman and the man with the bucket hat (whom the Crown alleged were Kawano and Grant, respectively), in the period of time leading up to Fedrick’s killing.

55Seven persons testified who were either with Fedrick at the time he was shot or in the immediate vicinity. To assist in understanding their evidence, mention should be made of the photograph entered as an exhibit at trial that showed the appellants standing side-by-side. Both appellants are Black, with Kawano’s skin colour lighter than that of Grant. [5]

56At the time of the shooting, present with or near Fedrick were:

(i) Robert Robinson, who was wounded by the shot that killed Fedrick. Robinson heard a “pop”, turned around, and saw one man, to the west, running south along George Street. He variously testified that: the person was “a white guy”; he could tell he was white “because he was not black”; and he could not say if the person was white or if he was “mulatto,” he could “just say that he wasn’t black”. The person had a scarf covering his face except for his eyes; (ii) Sule McClymont: Fedrick was standing in front of him. McClymont heard a “boom” and saw Fedrick fall to the ground. McClymont did not see the shooting or anyone running from the scene; (iii) Trevor Clarke: He was standing 15-20 feet away from Fedrick, who was on his left. Clarke heard a bang from the north and saw Fedrick fall to one knee. He saw one man run south, “fairly quick”, “as in a sprint”, at a faster pace than the others who were scattering. That person was not of a muscular build. Clarke could not see his face as the person had their hood up and was wearing dark clothing;

In the vicinity were:

(iv) Sherece Brown-Love, who was at the corner of George and Gerrard Streets when she heard something like a firecracker. She did not see the shooting or the shooter; (v) Michael McDermott, who was in his apartment on George Street when he heard a bang. From his window he saw two individuals running towards a gate on the west side of George Street. One was black skinned, while the other was white skinned. McDermott did not recall what they were wearing; and (vi) Matthew Procter, who was working as a security guard at 291 George Street, just south of the scene of the shooting. Procter heard a loud bang, went outside, went back in to get his cell phone and, on returning outside, saw two individuals walking fast southbound on George Street. Procter could not tell whether they were male or female or whether they were wearing face coverings.

57None of those six witnesses saw the actual shooting or the shooter.

58The seventh witness, David Kamkin, did see the shooting. The trial judge’s treatment of Kamkin’s evidence in the charge is the focus of this ground of appeal by both appellants.

C. David Kamkin’s evidence

59Kamkin could not be located for the trial so, on consent, his preliminary inquiry evidence was played for the jury.

60Kamkin was not intoxicated or under the influence of drugs at the time of the shooting, whereas some other witnesses were.

61Kamkin testified that he was standing on the east side of George Street, south of Fedrick, who was standing on his right. He noticed a man pacing back and forth on the west side of the street. The man was slim, tall, approximately 5’8” - 5’9” in height, and looked young; was wearing a dark tracksuit, perhaps charcoal grey or a dark grey, and his pants were darker than his top; he wore a long-sleeve tank top with a hood on it, or a hoodie, and he had his hand in his hoodie pocket. The hood was pretty well up in front and it was hard or almost impossible to see his face. He could not see the person’s face from across the street. But, the person’s race was black, “Afro background,” a person of colour; he had a dark complexion.

62The man walked across the street towards a group of people turning sharply towards Fedrick. Kamkin then heard a bang, like a powerful firecracker, saw smoke, smelled gunpowder and saw a blue light from the area of the front pockets of the shooter’s hoodie, but he did not see a gun.

63People started running, clearing the street. The shooter then turned around and jogged diagonally, across the street.

64Another person, who was standing north of Fedrick, on the east side, left the scene jogging in the same direction as the shooter. This second person was a person of color (although he could not see the face), not as slim as the shooter, had a light grey tracksuit on, no hoodie, and was wearing a baseball cap. (A photograph filed as an exhibit at trial showed Grant wearing a bucket hat that bore a Blue Jays logo.)

65Both went in the direction of the “little gate” on the west side of George Street, where another person opened the gate for them. He did not see where they went after that.

66Kawano submits that Kamkin’s description of the shooter differed in several respects from his actual appearance or from the person whom the Crown alleged was Kawano, namely Scarfman:

a. Skin colour: Kamkin described the shooter as a Black man with a dark complexion. By contrast, Kamkin described himself as having a fair complexion, and he described Kawano as “a lot fairer” than himself. At the preliminary inquiry, when asked whether he recognized either co-accused before the court, Kamkin testified that he did not recognize either Kawano or Grant either from the night of the occurrence or from George Street. b. Clothing: Kamkin testified that the shooter wore a charcoal grey tracksuit with darker pants. He was clear that the shooter’s pants were darker than his top. The man whom the Crown alleged was Kawano, namely Scarfman, wore a dark zip-up hoodie with significantly lighter pants. Kamkin testified that the shooter had the hood of his sweatshirt drawn around his face. He did not report seeing glasses on the man’s face or any kind of scarf around the man’s head. The man whom the Crown alleged was Kawano wore a large scarf or garment conspicuously wrapped around his head, covering his face, and Kawano wore glasses. Kamkin testified that the shooter did not take his hands out of the sweatshirt’s pocket and he saw the blue flash emanate from the pocket. No bullet holes or residue were found on the sweatshirt seized from Kawano’s condominium. c. Direction of approach: Kamkin testified that the shooter was lurking south of the shooting scene for a number of minutes before the shot was fired. The shooter approached from the south, crossed the street toward the deceased in a north-easterly direction, and shot the deceased. In contrast, the man whom the Crown alleged was Kawano was seen on video walking from north to south on George Street just before the shooting. d. Escape: Kamkin testified that after the shooting, the shooter and the other man jogged together to the gate. A third person opened the gate for them, and all three jogged off together. He found it remarkable that they were “jogging away. Not really running.” The two men alleged to be Kawano and Grant are seen on video running in a full sprint down the laneway, and there is no third person with them. Robert Robinson did not see anyone else running with the man in the scarf, whom the Crown alleged was Kawano.

D. The pre-charge conference, charge, and objections to the charge

67The trial judge did not provide counsel with a draft of her charge for use during the pre-charge conference. However, at the conference she identified for counsel the sections of Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), that she planned to include in her charge. The sections included Final 30, dealing with the use of preliminary inquiry evidence pursuant to s. 715 of the Criminal Code and Final 32 concerning eyewitness identification evidence.

68Neither appellant sought any instruction that the jury be cautious about Kamkin’s evidence because it was given at the preliminary inquiry and not at the trial. Nor did they seek a Vetrovec [6] caution in respect of his evidence.

69The trial judge initially queried the need for an instruction on eyewitness identification evidence. Kawano thought an instruction was necessary, and counsel suggested changes to the standard instruction.

70Counsel went to the jury with their closings without a copy of the trial judge’s final charge. The Crown did not make any submission in its closing about the need to treat Kamkin’s evidence cautiously or in a special way. Grant made only passing reference to Kamkin’s evidence and did not refer to Kamkin as having exculpatory evidence or the need for caution in respect of his evidence.

71By contrast, Kamkin’s evidence played a central role in Kawano’s closing to the jury. Kamkin was the only witness who saw a person shoot Fedrick. According to Kawano’s counsel, Kamkin’s description of the shooting demonstrated beyond any doubt that the shooter could not have been Kawano:

[Y]ou remember that I told you that it was, it was not really a circumstantial case because there is direct evidence? Yes, there is, there is direct evidence from David Kamkin … And the amazing thing about that, that direct evidence from probably the only sober person on George Street that night, that from - on that particular night is that that person could not possibly be Shaqwan Kawano and I'll show you why when I take you to the description of that. The reality of this is, is that David Kamkin's evidence, if accepted, and there's no reason why not to accept it, it shows, demonstrates beyond any doubt that the shooter could not possibly have been Shaqwan Kawano. The Crown's entire case has to be to ignore the evidence of David Kamkin for all of those reasons.

72Kawano’s counsel stressed several aspects of Kamkin’s evidence: (i) Kamkin testified that the shooter moved northward toward Fedrick, whereas security footage shortly before the shooting showed Scarfman – the person whom the Crown contended was the shooter – walking around the Centre Island of Seaton House, which was north of the shooting site; (ii) Kamkin testified the shooter’s pants were darker than his top, contrary to the theory advanced by the Crown of a shooter whose pants were lighter than his top; [7] and (iii) Kamkin’s description of the shooter as a dark complexioned Black man was at variance with Kawano’s actual appearance. As Kawano’s counsel put it in his closing:

If it's a rational conclusion that David Kamkin is telling you the truth, and if it's a rational conclusion that he got it right, then that's the end of it. Lights out, go home quickly, and that no cell phone evidence, no tower evidence, no anything can do anything about that.

73The trial judge commenced her charge to the jury on November 1, 2017. The following day she instructed the jury on eyewitness identification evidence, stating in part: [8]

Now you’ve all heard, I’m sure, of eye-witness identification evidence. This case against Alton Grant and Shaqwan Kawano depends to some extent on eye-witness testimony. No one in the trial has actually identified either of the two men as the one with his head covered or the other that witnesses said was nearby at the time of the shooting. No one has actually identified the two accused as the shooter or the person helping him to do the shooting or there with him. Most of the identification evidence the Crown relies on about the shooting and who did it comes from video surveillance cameras on George Street and the access and egress routes leading to and from George Street. There were no video cameras, however, at the scene of the shooting, only witnesses. They were Mr. Robinson (Stutter), Mr. Kamkin, Trevor Clark (who’s Boxer), Mr. Sule McClymont (Snake), and Ms. Brown-Love and Mr. McDermott (Schoola). You must be cautious about relying on eye-witness testimony to find Alton Grant and Shaqwan Kawano guilty of the offence. In the past, there have been miscarriages of justice because eye-witnesses have made honest mistakes in describing and identifying persons whom they saw committing a crime. [Emphasis added.]

74The trial judge then enumerated various factors the jury could take into account when assessing the reliability of the eyewitness evidence. The trial judge concluded this part of her charge by stating:

Crown counsel must prove beyond a reasonable doubt that it was Alton Grant and Shaqwan Kawano who committed the offence charged. It is not necessary that a witness be free from doubt about the correctness or certainty of his or her description about what they described. What is required, however, before you find Alton Grant and Shaqwan Kawano guilty of any offence is that you be satisfied beyond a reasonable doubt that on the whole of the evidence that it was Alton Grant and Shaqwan Kawano who committed the offence.

75Later in the charge, the trial judge summarized Kawano’s counsel’s position:

[Kawano’s counsel] Mr. Derstine has submitted to you that the Crown’s case ignores David Kamkin’s evidence that describes the shooting. Mr. Kamkin describes the shooting and actually saw it. He described the shooters clothes as a tracksuit, fleecy, a dark grey, long-sleeve hoodie with his hood drawn and it was hard to see the person’s face from across the street. He also described the two-piece outfit as complimentary, but the pants were dark. The man was slim, tall, and young, mid-to-late 20s. He did not see the glasses on the man – he did not see glasses on this man. The man was south of them and he was going to pass him (Rala). Rala was north and the man turned sharply towards Rala. He heard a bang. Mr. Kamkin also testified that he didn’t see a gun. That the man had a tank top or vest with a hood, with huge pockets from which he saw a blue like – a blue light like a spark plug come from. Mr. Kamkin also testified that there was another man there standing north of Rala. Mr. Derstine submits that based on the description by Mr. Kamkin of the shooter, you cannot be satisfied beyond a reasonable doubt that Mr. Kawano caused the death of Rala Fedrick. The other evidence the Crown has about the murder does not matter.

76During a break in the charge, Kawano’s counsel identified some mis-statements in the charge of Kamkin’s evidence, which the trial judge subsequently corrected. Upon completion of the charge, Kawano raised two related objections to the part of the charge dealing with identification evidence.

77The first objection was based on the decision of this court in R. v. Wristen (1999), 47 O.R. (3d) 66 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 419. Counsel submitted:

Your Honour gave a caution to the jury, which is entirely appropriate, about the question about identification evidence and using identification evidence and what have you, but if the evidence of identification exculpates the defence, then it is not subject to the similar charge.

[T]he warning that was given about the frailties of identification evidence ought not to be given in terms of the, in terms of the statements which can materially assist the defence … [T]here is no need for the same caution if it is defence exculpatory evidence because there is no risk of a wrongful conviction … [T]he first thing it would be my submission Your Honour should say to the jury is that to the extent that eyewitness identification is exculpatory is not subject to the same caution that you would have for anything that might benefit the Crown. [Emphasis added.]

78The second objection was based on the decision of the Supreme Court of Canada in Chartier v. A.G. Quebec, [1979] 2 S.C.R. 474. Counsel submitted:

[B]ecause it is defence exculpatory evidence … I would ask for an instruction … that if they find that the shooter described by Mr. Kamkin bears characteristics which Mr. Kawano cannot bear, then they would have to conclude from that there is no identification of the shooter.

[I]f … they accept Mr. Kamkin’s direct identification of that, and for the sake, for example, very dark track pants, dark complexion, and the absence of a scarf or glasses among other things … if they accept those portions of the evidence, then identification is not only not made out, but identification has been disproven pursuant to Chartier, that it is not that person. [Emphasis added]

79Counsel for Grant joined in the objections.

80On its part, the Crown submitted there was no need for a further instruction because, as observed in Wristen at paras. 44 and 45, it was not misdirection for a trial judge to direct a jury to approach certain kinds of defence evidence with care - a principle that would apply equally to exculpatory evidence - so long as it was clear that exculpatory evidence need only raise a reasonable doubt and the burden of proof remained on the Crown at all times.

81After considering these submissions, the trial judge declined to further charge the jury as requested by Kawano.

82During the course of its deliberations on November 3, the jury requested a replay of a significant part of Kamkin’s preliminary inquiry evidence, including the cross-examination by defence counsel. That evidence was replayed. The jury then informed the trial judge that it was having difficulty reaching a unanimous verdict and requested a replay of the evidence of Robinson and Clarke. On November 7, the jury again informed the trial judge it could not reach a unanimous verdict. The trial judge gave an exhortation. Finally, on the morning of November 8, the jury rendered its verdict.

E. The governing principles

83Jury instructions regarding the assessment of eyewitness identification evidence traditionally involve several components: a direction that the jury approach eyewitness testimony with caution or special care to find anyone guilty of a criminal offence, as there have been miscarriages of justice in the past where innocent people have been wrongly convicted because eyewitnesses have made honest mistakes in identifying the person whom they saw committing a crime; a reminder that even an honest witness can be mistaken; the lack of connection between the confidence of a witness in the correctness of their identification and the accuracy of the identification; and the enumeration of a variety of factors the jury may consider in assessing eyewitness identification testimony: see, for example, Final 32, Watt’s Manual of Criminal Jury Instructions.

84As this court has pointed out, the need for special care concerning eyewitness identification evidence arises because of the danger of a wrongful conviction: Wristen, at para. 46; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 187. That danger does not exist where the eyewitness evidence tends to exculpate the accused: Wristen, at para. 46; Vassel, at para. 187. Consequently, where the eyewitness evidence tends to exculpate the accused, the traditional instruction regarding eyewitness identification evidence should be avoided as it could leave the jury with an erroneous impression about the quality of evidence that could leave them with a reasonable doubt: Wristen, at para. 46; Vassel, at para. 188.

85The decisions of this court in Wristen, Vassel, and R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 22, provide guidance on how a trial judge should instruct a jury on eyewitness identification evidence that tends to exculpate an accused:

• The traditional instruction regarding eyewitness identification evidence and the risk of a miscarriage of justice or wrongful conviction should not be given;
• A jury should be given a proper caution about the inherent frailties of both eyewitness identification evidence and eyewitness description evidence and in respect of both inculpatory and exculpatory evidence. Accordingly, a trial judge may instruct a jury to approach certain kinds of defence evidence, including eyewitness identification evidence, with care or caution and explain why caution is needed due to the frailties of the evidence;
• While the trial judge should make it plain that the jury need not accept the defence or other exculpatory evidence, the judge must instruct the jury that it is sufficient for acquittal if that evidence leaves them with a reasonable doubt;
• A trial judge must not direct the jury that it is dangerous to act on defence identification evidence alone. The instruction must not amount to the functional equivalent of a Vetrovec caution;
• As well, the instruction must not expressly or by necessary implication undermine the defence position or shift the onus of proof;
• Accordingly, where the trial judge merely instructs the jury to be especially cautious or extremely careful in considering defence evidence and where that instruction is accompanied by an instruction that accords with R. v. W. (D.), [1991] 1 S.C.R. 742, no error of law occurs.

See also: Matthew Gourlay et al., Modern Criminal Evidence (Toronto: Emond, 2022), at p. 621-622.

86As for the principle emanating from the Chartier decision that a jury should be told there was no identification by a witness because of significant dissimilarities between the witness’s description of the person observed and the accused, this court stated in R. v. Dimitrov (2003), 68 O.R. (3d) 641 (C.A.), at para. 18, that the principle only applies to cases in which there is a clear dissimilarity in the witness’s identification coupled with a lack of supporting evidence implicating the accused: see also, R. v. Browne, 2021 ONCA 836, at para. 48.

87The legal treatises also recognize the limited application of the Chartier principle. David M. Paciocco, Palma Paciocco and Lee Stuesser, in The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), state, at p. 680: “If there is a notable dissimilarity between the initial description furnished by the witness and the suspect who is identified, and if there is no other evidential support for that identification, then jurors should be cautioned that the purported identification will have no probative value.” Gourlay et al., in Modern Criminal Evidence, write, at p. 621:

Description evidence tendered through an eyewitness that, at best, amounts to mere resemblance, often has value. This evidence can assist the trier of fact “along the road toward a determination of identity.” Relevance will therefore depend on the existence of other inculpatory evidence of identification. This position represents a clarification, if not a modification, of the Supreme Court's statement in Chartier that where an identifying witness observes a feature that is dissimilar to that of the accused, there can be no identification ... As observed by Harradence J in Doliente, generally Chartier has been “held to its facts” and is not always instructive. In most cases where there are alleged discrepancies between a description provided by a witness and the actual appearance of an accused, a judge may highlight them accordingly, but the significance of these discrepancies should be left to the trier of fact to resolve. [Emphasis in original.]

F. Analysis

88I accept Kawano’s submission that the trial judge misdirected the jury on the exculpatory eyewitness evidence provided by Kamkin.

89The Crown’s theory was that Kawano was the “Scarfman” shown on the video surveillance both before and after Fedrick was shot on George Street. While no witness testified that Scarfman was the shooter, according to the Crown circumstantial evidence strongly pointed to Scarfman, and therefore Kawano, as Fedrick’s killer.

90Kamkin was the only witness who saw the shooting. Several aspects of his description of the shooter arguably were inconsistent with the Crown’s theory that Scarfman shot Fedrick, in particular: (i) Kamkin described the shooter as a Black man with a dark complexion, whereas he described Kawano as “a lot fairer” than himself, whom he self-described as having a fair complexion; (ii) the shooter’s pants were darker than his top, whereas Scarfman wore a dark zip-up hoodie with significantly lighter pants; (iii) the shooter had the hood of his sweatshirt drawn around his face, whereas Scarfman wore a large scarf or garment conspicuously wrapped around his head, covering his face; and (iv) the shooter was lurking south of the scene of the shooting before approaching Fedrick, whereas the last surveillance footage of Scarfman showed him walking from the north, near Seaton House, south on George Street towards the scene of the shooting. Based on the Crown’s theory that Scarfman was Kawano, those aspects of Kamkin’s testimony arguably tended to exculpate Kawano as the shooter of Fedrick. As a result, at most Kamkin was a “mixed witness”, some of whose evidence tended to be exculpatory in character, some of which might be inculpatory.

91Notwithstanding the exculpatory tendency of several aspects of Kamkin’s evidence, the trial judge included his evidence in her traditional charge on eyewitness identification evidence. That was an error for several reasons.

92First, the trial judge’s instruction on eyewitness identification evidence did not acknowledge that some of Kamkin’s evidence tended to be exculpatory in nature. That was a material omission, given the otherwise circumstantial nature of the evidence against Kawano and the centrality of Kamkin’s evidence to Kawano’s defence.

93Second, the charge did not offer the jury any assistance about how to distinguish exculpatory from inculpatory evidence and assess the exculpatory evidence. Instead, it treated Kamkin’s evidence as a single whole. In R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, this court stated, at para. 34, regarding the content of a Vetrovec charge, that where the inculpatory portions of a witness’s testimony are easily demarcated from the exculpatory portions, the best course is to specifically refer the jury to the exculpatory portions. In R. v. Dadollahi-Sarab, 2021 ONCA 514, this court recalled, at paras. 108 to 118, that no mandatory formula applies since the instructions should be tailored to the specific circumstances of the case. Those comments apply with equal force to instructions regarding eyewitness identification evidence. Accordingly, where some of the eyewitness evidence is exculpatory the issue on appeal is whether the charge as a whole, in the context of the particular case, clearly informed the jury that they must determine whether the exculpatory evidence alone, or in combination with other evidence, left them with a reasonable doubt about the accused’s guilt.

94Third, given the exculpatory tendency of aspects of Kamkin’s evidence, by including his evidence in the traditional instruction for eyewitness identification evidence the trial judge ignored the directions of this court in Wristen, at para. 46 – later repeated, albeit after the trial, in Vassel, at para. 192 – that the traditional instruction should not be used for exculpatory evidence, which does not give rise to the danger of a wrongful conviction.

95The Crown submits that if there were any deficiencies in the instruction regarding eyewitness identification evidence, no unfairness was worked on the defence. I do not accept that submission for two reasons.

96First, while in Wristen this court was not prepared to characterize as an error of law a charge that merely instructed a jury to be especially cautious or extremely careful in considering defence or exculpatory evidence where the instruction was accompanied by an instruction that accorded with R. v. W.(D.), the circumstances of the present case differ from those in Wristen. Here, while the section of the charge instructing on eyewitness identification evidence concluded with a reminder that the burden of proof remained on the Crown, that was not the functional equivalent of a W.(D.) instruction nor was it the equivalent of a reminder that while the jury did not need to accept the defence evidence, it was sufficient if the defence evidence left them with a reasonable doubt: Written, at para. 46.

97Second, it is true, as the Crown submits, that the trial judge summarized for the jury Kawano’s position that the Crown case against him was a purely circumstantial one that could not come close to proving guilt beyond a reasonable doubt. The trial judge’s summary included the following statements:

On the other hand, David Kamkin provides direct evidence of the shooter. He watches the shooter across the street, sees him shoot and sees him leave. He describes a person that could not possibly be Mr. Kawano. Circumstantial cases require you to be convinced beyond a reasonable doubt that guilt is the only, only rational conclusion based on the evidence you do accept. Mr. Kamkin’s evidence alone should – shows that this standard cannot be met.

98Certainly, any instruction on eyewitness identification evidence must be read in the context of the charge as a whole. Accordingly, if an appellate court is satisfied that when the charge is considered as a whole, an “especially cautious” type of instruction did not unfairly undermine the defence position, the appeal may be dismissed: Wristen, at pp. 22-23; R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74, at para. 16. Indeed, in Mariani, where the trial judge gave the traditional instruction on eyewitness evidence, this court concluded that his failure to instruct that certain eyewitness evidence might raise a reasonable doubt regarding identity was overcome by the trial judge’s summary of the defence position to that effect: at paras. 16-18.

99Each case will turn on its specific circumstances. In the present case, I do not regard the trial judge’s summary of the defence’s position on Kamkin’s evidence towards the end of the charge as overcoming the earlier errors in the charge on eyewitness identification evidence. Here, Kamkin was the only witness who saw the shooting and the shooter. His evidence was critical. Indeed, after they retired, the jury requested that Kamkin’s evidence be replayed for them. His evidence about the appearance and movement of the shooter arguably was largely exculpatory in nature. In those circumstances, a short reference to the defence’s position on Kamkin’s evidence at the end of the charge did not offset the earlier erroneous instruction on exculpatory eyewitness identification evidence.

100Kawano further submits that the trial judge erred by failing to instruct the jury in accordance with the Chartier principle. I see no such error. Chartier stands for the proposition that if there is a clear dissimilarity between the initial description furnished by the witness and the suspect who was identified, and if there is no other evidential support for that identification, then jurors should be cautioned that the purported identification will have no probative value: Mariani, at para. 20; Dimitrov, at para. 18; and R. v. Browne, 2021 ONCA 836, at para. 48. In the present case, there was other evidential support for the identification of Kawano as the shooter – Scarfman – that was left with the jury, specifically the surveillance camera and cell phone tracking evidence. Accordingly, the principle in Chartier does not apply in the circumstances of this case.

101In regard to the erroneous instruction on eyewitness identification evidence, in my view the error is not one that can attract the application of the curative proviso: Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii). The error was a serious one, related to key evidence, and the Crown’s case was not overwhelming.

102Before considering the consequences of that error, I must first deal with Grant’s submission that the verdict against him was unreasonable and an acquittal should be entered.

Third Issue: Was the Verdict Against Grant for First-Degree Murder Unreasonable?

A. Issue stated

103The Crown’s theory identified Kawano as the principal who killed Fedrick, with Grant liable as a party to that offence pursuant to s. 21(1) of the Criminal Code. Grant advances, as a discrete ground of appeal, that the evidence, taken cumulatively, is incapable of proving beyond a reasonable doubt that he aided Kawano in murdering Fedrick. As a result, the verdict that Grant was guilty of first-degree murder is not one that a properly instructed jury, acting judicially, could have rendered. Therefore, the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence and an acquittal entered: Criminal Code s. 686(1)(a)(i).

104Kawano supports this ground of appeal.

B. Positions of the parties

Grant

105In support of his submission that the verdict against him was unreasonable, Grant points to several features of the Crown’s evidence:

• Fedrick’s hug of Kawano’s girlfriend, Simpson, could not have ignited a murderous intent on Kawano’s part because Simpson was not upset by the hug and Fedrick later apologized to Kawano;
• The frequency of the cellphone calls between Grant and Kawano on July 5, 2014 was not unusual. On previous days, such as July 2, 2014, there were 28 calls between the cellphones;
• The surveillance camera footage did not show that Grant escorted Fedrick to the site of the shooting. Instead, it showed that Fedrick parted company with Grant as he continued south on George Street shortly before the shooting;
• There was no CCTV of the shooting and the eyewitnesses did not implicate Grant – the wearer of a bucket hat – in the shooting;
• Although witnesses saw two persons fleeing the scene of the shooting together, their evidence only described the persons as going through one of two gates on the west side of George Street. As there were multiple paths the persons could have taken once through those gates, the alleyway on which CCTV recorded two persons running was not the only escape route; and
• Crocker could not say whether she received Grant’s call inquiring about spending the night at her apartment with a friend before or after the time of Fedrick’s hug of Simpson. In the absence of evidence that the call took place after the hug, it cannot be concluded that staying at Crocker’s apartment was part of the murder plot.

106Grant submits that, at its highest, the Crown’s evidence is equivocal regarding his participation in the killing of Fedrick and, therefore, the verdict should be set aside.

The Crown

107The Crown disputes Grant’s submission. It takes the position that there was support in the evidence to enable the jury to make the findings of fact necessary to justify Grant’s conviction as a party to a planned and deliberate murder.

C. Governing principles

108Several principles guide an inquiry under s. 686(1)(a)(i) of the Criminal Code into whether a verdict is unreasonable:

• The standard for establishing an unreasonable verdict is high: R. v. C.L., 2020 ONCA 258, 62 C.R. (7th) 313, at para. 39;
• In applying the reasonableness standard in s. 686(1)(a)(i), an appellate court considers whether a properly instructed jury, acting judicially, could have arrived at a guilty verdict on the evidence adduced: R. v. Biniaris, 2000 SCC 15, [2000] 1 SCR 381, at paras. 40-42; Dadollahi-Sarab, at para. 38. Or, phrased differently, a verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 30;
• Appellate review of a jury’s verdict is conducted within two boundaries. First, the reviewing court must give due weight to the advantages of the jury as the trier of fact who saw and heard the evidence as it unfolded. On the other hand, the review is not limited to the sufficiency of the evidence. Instead, the court must review, analyse and, within the limits of appellate disadvantage, weigh the evidence in order to consider, through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the jury. To a limited extent, the reviewing court engages in a qualitative evaluation of the evidence and the verdict reached by the jury: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28; R. v. McDonald, 2017 ONCA 568, 39 C.R. (7th) 344, at para. 133; and Dadollahi-Sarab, at para. 38;
• In evaluating the reasonableness of the jury’s verdict in a case that turns on findings of credibility, the reviewing court must ask whether the jury’s verdict is supportable on any reasonable view of the evidence. The reviewing court must remain mindful that the trier of fact is best-placed to assess the significance of any inconsistencies in the witnesses’ testimony and their motive to lie: R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 61. This approach applied equally to a case that turns on findings of reliability, such as the present one;
• The review for reasonableness must pay attention to the burden and standard of proof. As a result, where the case for the Crown depends principally or wholly on circumstantial evidence, the issue becomes whether a trier of fact, acting judicially, could be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence, including any potentially exculpatory evidence: McDonald, at para. 136;
• However, the assessment of circumstantial evidence does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest. All the pieces have to be considered, each in relation to the whole. It is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 70. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Lights, at para. 39;
• In deciding whether a verdict rendered at trial is unreasonable, an appellate court may consider the failure of an accused to testify as indicative of the absence of an exculpatory explanation: R. v. Alvarez, 2021 ONCA 851, 159 O.R. (3d) 1, at para. 173; Lights, at para. 33; and
• When an appellate court is required to determine the alleged unreasonableness of a jury’s verdict, it must assume the correctness of the underlying jury charge: Biniaris, at para. 38; R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 27.

D. Analysis

109Since the Crown’s theory was that Grant was liable for the first-degree murder of Fedrick as an aider to the shooter, Kawano, pursuant to s. 21(1) of the Criminal Code, the Crown had to prove beyond a reasonable doubt that: (i) Grant provided Kawano with actual assistance, by doing something to assist him in the murder of Fedrick; (ii) he did so with the intent to help Kawano commit a planned and deliberate murder; and (iii) Grant knew that Kawano intended to commit a planned and deliberate murder: R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445, at paras. 98-99.

110Applying the principles governing the review of a jury’s verdict under s. 686(1)(a)(i) to the record as a whole, I am not satisfied that a properly instructed jury acting judicially could not reasonably have rendered the verdict of first-degree murder against Grant. There was support in the evidence to enable the jury to make the following findings of fact to justify Grant’s conviction on a charge of first-degree murder:

• Grant and Kawano were friends;
• Simpson was Kawano’s girlfriend;
• On the afternoon of July 5, 2014, in the vicinity of Seaton House, Fedrick gave Simpson a hug and buttock squeeze that Kawano regarded as disrespectful;
• Kawano called Grant on his cellphone at 10:37 p.m. Grant was at Crocker’s Elizabeth Street apartment, which he left at 12:56 a.m.;
• Grant went to George Street. He received a cellphone call from Kawano at 1:33 a.m. and promptly went along the laneway from George Street to Jarvis Street. Grant was wearing a bucket hat that bore a Blue Jays logo;
• At 1:35 a.m., Grant and Kawano, who was disguised as Scarfman, walked back along the laneway from Jarvis Street to George Street. Kawano’s disguise was evidence that he intended to retaliate against Fedrick for the latter’s disrespectful hug and squeeze of Simpson the previous afternoon and supported an inference that Grant knew of Kawano’s intention;
• When Grant and Kawano arrived at George Street, Fedrick was in the vicinity of Seaton House;
• Grant and Kawano walked separately north along George Street to the area of Seaton House;
• Grant turned south, met Fedrick, and walked south along George Street with him before they separated. Both continued south on George Street out of the range of the CCTV cameras;
• Grant called Kawano twice on his cellphone;
• Kawano walked north along George Street and then walked back south past Seaton House;
• Shortly thereafter, Fedrick was shot just south of Seaton House;
• Kampkin then saw the shooter jog diagonally across the street and another person wearing a baseball cap jog in the same direction as the shooter;
• Immediately thereafter, Grant, wearing the bucket hat, and Kawano, who was still wearing the Scarfman disguise, were captured by video surveillance camera running west along the laneway from George Street to Jarvis Street;
• About 15 minutes later, both Grant and Kawano arrived at Crocker’s apartment, which they did not leave until later on the afternoon of July 6, 2014.

111The testimony of those present at or near the scene of Fedrick’s shooting conflicted. McClymont did not see the shooting or anyone run from the scene. Some saw one or two people running from the shooting scene: Robinson – a person who had a scarf covering his face, who was not black but perhaps white or “mulatto”; Clarke – a person whose hood covered his face; McDermott – two persons, one black skinned and one white skinned; Procter – two individuals whose faces he could not see.

112One person, Kamkin, saw the shooter, as well as the shooter and another person leaving the scene. The shooter wore a hoodie, which was up making it almost impossible to see his face, but he was a person of colour, with a dark complexion. The shooter jogged west across George Street. A second person, who was wearing a baseball cap, jogged in the same direction.

113A properly instructed jury may conclude, despite the frailties of eyewitness identification evidence, that the eyewitnesses’ testimony is reliable and may enter a conviction on that basis, although a jury may not convict on the basis of such evidence alone where that testimony, even if believed, would necessarily leave a reasonable doubt in the mind of a reasonable juror: Alvarez, at para. 175. In the present case, some of the eyewitness evidence tended to implicate Kawano, disguised as Scarfman, as the shooter, while some was exculpatory in nature. As the triers of fact, the jury would have to sort out the conflicting eyewitness evidence and make the necessary credibility and reliability findings regarding that evidence. The jury would then have to consider those findings together with the other evidence, including the evidence of a possible motive, as well as the significant body of CCTV, cellphone call, cell tower evidence regarding the locations of and the timing of the contact between the appellants during the latter part of July 5 and the early morning hours of July 6, 2014.

114It is not without significance to the unreasonable verdict analysis that the appellants did not testify at trial to provide an alternative narrative to that furnished by some of the eyewitness testimony, as well as the CCTV and cellphone evidence.

115Based on the findings outlined above, a jury could reasonably have concluded that the only reasonable conclusion was that: Kawano, in response to Fedrick’s inappropriate touching of Simpson, planned and deliberated to cause Fedrick’s death or cause him bodily harm that Kawano knew was likely to cause his death and was reckless whether death ensued or not; Kawano shared his plan with Grant, who assisted Kawano by directing Fedrick to the location of the shooting, where Kawano, disguised as Scarfman, shot Fedrick, and then left the scene with Grant.

116To echo the comments made by Doherty J.A. in Dadollahi-Sarab, the factual findings outlined above were not the only findings a jury could have made on this evidence. However, as Doherty J.A. went on to state at paras. 45 and 46:

[T]he existence of an evidentiary road leading to an acquittal does not make a conviction unreasonable ...

[A verdict] 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.

117Given that a reviewing court must remain mindful that the trier of fact is best-placed to assess the significance of inconsistencies within and amongst witnesses’ testimony, and given the high standard to establish an unreasonable verdict, I cannot say that no properly instructed jury, acting judicially, could reasonably have rendered the verdict finding Grant guilty of first-degree murder.

118Consequently, for the reasons set out above, I would not give effect to the unreasonable verdict ground of appeal.

Disposition

119By way of summary, I am not persuaded by Grant’s grounds of appeal involving the dismissal of his s. 11(b) Charter application and his assertion the jury rendered an unreasonable verdict. However, I conclude that the trial judge erred in her instruction to the jury regarding eyewitness identification evidence and the curative proviso cannot apply in the circumstances. As that error affects the verdicts against both appellants, I would set aside those verdicts and order a new trial.

Released: May 2, 2022 “A.H.” “David Brown J.A.” “I agree. Alexandra Hoy J.A.” “I agree. Coroza J.A.”

Appendix “A”: Charge on Eyewitness Identification Evidence

Now you’ve all heard, I’m sure, of eye-witness identification evidence. This case against Alton Grant and Shaqwan Kawano depends to some extent on eye-witness testimony. No one in the trial has actually identified either of the two men as the one with his head covered or the other that witnesses said was nearby at the time of the shooting. No one has actually identified the two accused as the shooter or the person helping him to do the shooting or there with him. Most of the identification evidence the Crown relies on about the shooting and who did it comes from video surveillance cameras on George Street and the access and egress routes leading to and from George Street. There were no video cameras, however, at the scene of the shooting, only witnesses. They were Mr. Robinson (Stutter), Mr. Kamkin, Trevor Clark (who’s Boxer), Mr. Sule McClymont (Snake), and Ms. Brown-Love and Mr. McDermott (Schoola).

You must be cautious about relying on eye-witness testimony to find Alton Grant and Shaqwan Kawano guilty of the offence. In the past, there have been miscarriages of justices because eye witnesses have made honest mistakes in describing and identifying persons whom they saw committing a crime. As I have said, there was no identification of the two accused by anyone, but there were descriptions of the shooter and another man made by persons at the scene. When you decide how much or little to believe of or rely upon this evidence, everything that I told you earlier about assessing evidence applies to evidence of persons on the scene of the shooting describing what they saw.

In addition, you should keep in mind several factors that relate specifically to the witnesses and their description of the persons who committed the offence charged. Ask yourself did the witness have good eyesight? Was the witness wearing his or her glasses? Was the witness’s ability to observe impaired by the consumption of alcohol or drugs? How reliable is the witness’s memory? How capable is the witness of communicating his or her observations? Is the witness an accurate judge of distance?

You have heard the evidence of the people around Rala Fedrick that night and the various descriptions they gave of the person with their face covered and another man on the sidewalk at around the same time. The circumstances which the witness made his or her observations are relevant. How long did the witness watch the person? How good or bad was the visibility? Was there anything that prevented or hindered a clear view? How far apart were the witness and the person whom he or she saw? How good was the lighting? Did anything distract the witness’s attention at the time he or she made the observations?

Crown counsel must prove beyond a reasonable doubt that it was Alton Grant and Shaqwan Kawano who committed the offence charged. It is not necessary that a witness be free from doubt about the correctness or certainty of his or her description about what they described. What is required, however, before you find Alton Grant and Shaqwan Kawano guilty of any offence is that you be satisfied beyond a reasonable doubt that on the whole of the evidence that it was Alton Grant and Shaqwan Kawano who committed the offence.

1I have adopted the stylistic convention of referring to persons by their last names. In doing so, I intend no disrespect to any person.

2The trial judge also found 13 days of delay due to discrete events, which left a net delay of 799 days or 26 months and 19 days.

3R. v. Grant, 2018 ONSC 2447, at paras. 28 to 57.

4As put by the Supreme Court of Canada in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23: “Scheduling requires reasonable availability and reasonable co-operation.” (emphasis added)

5Exhibit 5, Appeal Book, p. 694.

6R. v. Vetrovec, [1982] 1 S.C.R. 811.

7Crown counsel acknowledged that he had mis-stated Kamkin’s evidence about the shooter’s pants and that Kawano’s counsel had correctly recited Kamkin’s evidence on the point.

8The entirety of the portion of the trial judge’s charge on eyewitness identification evidence can be found at Appendix “A” to these reasons.