COURT OF APPEAL FOR ONTARIO
Rouleau, Miller and Paciocco JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Mustafa Al-Qaysi
Appellant
Mindy Caterina, for the appellant
Andrew Hotke and Martin Heslop, for the respondent
Heard: March 25, 2026
On appeal from the conviction entered by Justice Kirk W. Munroe of the Superior Court of Justice on September 26, 2023.
OVERVIEW
1After a judge-alone trial, Mr. Al-Qaysi was convicted of second degree murder in the October 19, 2019, stabbing death of Justin Turnbull-Greenwood. Despite the strong representation Mr. Al-Qaysi received before us, I am not persuaded that the trial judge made a reversible error in reaching that verdict, and I would dismiss his appeal.
THE MATERIAL FACTS
2The only live issue at the trial was whether the Crown had proven beyond a reasonable doubt that Mustafa Al-Qaysi was the stabber. The identification case against him was primarily circumstantial, thereby engaging the principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, which the trial judge properly described. Crucial evidence against Mr. Al-Qaysi included:
Surveillance footage captured the stabbing, which occurred at 3:22 p.m. on Tecumseh Road in the City of Windsor.
At 3:21 p.m., surveillance footage showed two men who were passengers in a silver Dodge van exit the van as it pulled into an alley that runs parallel to Tecumseh. Both men exited from passenger doors. In the words of the Crown, the driver was a “person unknown”. The two men walked together with their hoods up through an apartment building parking lot to Tecumseh, intercepted Mr. Turnbull-Greenwood, and immediately began attacking him. One of the two men is shown making stabbing motions towards the deceased.
The stabber was wearing white shoes, a grey hoodie with a dark logo, and matching grey pants with a dark logo on their upper left leg. A friend of Mr. Turnbull-Greenwood, who was with him at the time of the stabbing, noticed that one of the men appeared to have a Roots logo on his sweater.
Immediately after the stabbing, the two men fled back to the alley and re-entered the van, which had been turned around by the driver to face the entrance it had used. No issue is taken with the trial judge’s conclusion that the attack was targeted.
The van used in the killing was owned by Mr. Al-Qaysi. During the morning before the killing, the van was captured on video footage near Mr. Al-Qaysi’s family home, and it is seen to depart from a laneway behind the home at 3:04 p.m., just over 15 minutes before it stopped and dropped off the assailants. Its path can be traced by intermittent video footage to the alley where that drop off occurred.
The parties agreed at trial that evidence confirms that the second man who accompanied the stabber during the attack was H.H., a young person who was separately charged for the killing. Video footage shows H.H. to have been around Mr. Al-Qaysi’s home in the hours before the stabbing, including entering the van at 2:55 p.m., about 30 minutes before the stabbing.
At 3:02 p.m., someone wearing a Roots tracksuit and white shoes can be seen walking up the side alley adjacent to Mr. Al-Qaysi’s home.
The day after the stabbing, the police spotted the van that was connected to the stabbing and signaled the driver to stop. Mr. Al-Qaysi was driving. Instead of stopping the van, he fled and engaged in evasive driving during a police pursuit for approximately eight blocks, including accelerating his speed and ignoring stop signs. In contrast, the day before the stabbing, when he had also been signaled to stop for traffic-related reasons while driving the same van, he did so without incident. The trial judge concluded, given the contrast in behaviour between the incidents before and after the stabbing, that Mr. Al-Qaysi’s attempt to flee the police was admissible after-the-fact conduct evidence that he “was a perpetrator of the killing”.2
Mr. Al-Qaysi’s cellphone was seized after he was apprehended following the police chase, and it was searched. A video dated two days before the stabbing that was found on the phone shows Mr. Al-Qaysi “rapping” in his van, wearing a grey hoodie with a Roots logo on the front (the “rap video”). This logo is in the same location as the dark logo on the grey hoodie worn by the stabber. H.H. is in the back seat of the van at the time. Recall that the victim’s friend thought he saw a Roots logo on clothing worn by one of the assailants.
Upon the execution of a search warrant for Mr. Al-Qaysi’s family home on October 22, 2019, multiple items of Mr. Al-Qaysi’s identification were found in a second-floor bedroom (the “bedroom”). Across from the bedroom, in a common hallway, the police seized two white Nike Air sneakers from a shoe rack containing multiple shoes. These two sneakers were selected for seizure as they were similar to the white sneakers worn by the stabber and appeared to have blood on them. It was later determined that the two Nike Air sneakers that were seized were not a pair, with the right shoe being size 10.5 and the left shoe size 11. There were another two white Nike Air sneakers to the left of the seized sneakers, and an additional pair of white Nike Air sneakers on a higher rack. None of these shoes appeared to have blood on them and were not seized. Police also seized a pair of black Nike slides that resembled those worn by H.H. during the murder.
Only the left shoe of the seized Air sneakers was tested forensically. Testing was done of samples taken from two locations on the shoe, one from a bloodstain on the sole of the shoe, and the other from several small stains on the toe area. Both tests yielded results. They showed that the odds that the DNA found in the two samples came from anyone other than Mr. Turnbull-Greenwood were greater than one trillion to one.
During the search, the police also seized from a shelving unit across from the bedroom a pair of grey pants with a Roots logo in the same location on the upper left leg as the grey pants worn by the stabber. No Roots sweater was ever found.
3After a K.G.B. voir dire,3the trial judge admitted recognition evidence that was provided during the preliminary hearing testimony of recanting witness Jaylah Browne, whom the trial judge found to have been Mr. Al-Qaysi’s “girlfriend …for years until early 2019.” Ms. Browne’s evidence was that she dated Mr. Al-Qaysi for approximately five years. In her preliminary inquiry evidence, Ms. Browne attested to recognizing Mr. Al-Qaysi as the rapper in the rap video, and as the man wearing white shoes who exited the van one minute before the stabbing with H.H. The trial judge did not conduct a voir dire to determine the admissibility of this K.G.B. testimony at the trial as recognition evidence. In considering her testimony, the trial judge found Ms. Browne to be a dangerous Vetrovec witness, 4 given her disregard for the integrity of the trial process, clear animus towards Mr. Al-Qaysi, and many instances of untruthful evidence.
4Mr. Al-Qaysi’s trial counsel argued that Ms. Browne’s evidence should be given “no weight” and that there were too many gaps in the evidence to prove that he was the stabber. Trial counsel also offered a number of alternative inferences. First, that friends of Mr. Al-Qaysi borrowed his van to carry out the killing without his knowledge. In support of this inference, she relied on evidence that Mr. Al-Qaysi’s van was driven by others on the day of the killing. Second, trial counsel further suggested that H.H. deposited Mr. Turnbull-Greenwood’s blood on the seized sneakers when he changed clothes at Mr. Al-Qaysi’s residence after the murder. She submitted that this could have occurred through direct contact between H.H.’s Nike slides as H.H. changed into Mr. Al-Qaysi’s white sneakers. She supported these inferences with the fact that the Nike slides found during the search resembled those worn by H.H., and the fact that H.H. was spotted eight hours after the killing with white sneakers on.
5In his Reasons for Judgment, the trial judge did not address the blood-transference theory, and he rejected the defence submission that Ms. Browne’s evidence should be given “zero weight”, concluding that it was entitled to “some weight, albeit small” or “little weight”. In deciding not to reject Ms. Browne’s recognition evidence entirely, the trial judge consulted and applied the factors articulated by this court in R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, which provide guidance on the ultimate reliability that should be given to recognition evidence.
6In his reasons, the trial judge said: “This attack included at least three participants: the two assailants and the van driver. All parties agree that the van driver was neither Mr. Al-Qaysi nor H.H. It is unknown whether there were additional persons in the van at the time of the attack.”
7He concluded that the cumulative force of the circumstantial evidence showed that Mustafa Al-Qaysi was the stabber whose attack caused Mr. Turnbull-Greenwood’s death. Before forming this conclusion, he considered “whether there [were] any rational or reasonable inference[s] other than guilt that may be drawn from the circumstantial evidence”. He directly addressed and rejected the alternative inference that friends may have taken Mr. Al-Qaysi’s van as “birthed from speculation”.
ISSUES
8Mr. Al-Qaysi made multiple arguments before us relating to the following grounds of appeal:
(a) Did the trial judge err in considering whether Mr. Al-Qaysi could have been the driver?
(b) Did the trial judge provide insufficient reasons in his treatment of the “shoe evidence”?
(c) Did the trial judge fail to consider reasonable alternative inferences inconsistent with guilt?
(d) Did the trial judge err in his treatment of Ms. Browne’s recognition evidence?
9I would not give effect to any of these grounds of appeal.
ANALYSIS
A. Did the trial judge err in considering whether Mr. Al-Qaysi could have been the driver?
10Mr. Al-Qaysi’s appeal counsel argues that the trial judge:
(1) Materially misapprehended his position as to whether he was the driver and thus misapprehended critical evidence;
(2) Committed a Villaroman error by failing to consider whether it could reasonably be inferred that he was the driver who remained in the vehicle during the stabbing; and,
(3) Committed a Beaudry error, contrary to R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 97,5 by engaging in fundamentally flawed reasoning and thereby rendering an unreasonable verdict.
11I would not give effect to any of these submissions.
1. Was there a material misapprehension?
12In recounting Mr. Al-Qaysi’s position relating to whether he had been driving the van in connection with the stabbing, the trial judge said, “All parties agree that the van driver was neither Mr. Al-Qaysi nor H.H.” Mr. Al-Qaysi argues before us that this impugned statement discloses a material misapprehension of his position by the trial judge, as he never affirmatively agreed that he was not the driver. Instead, his trial counsel simply urged the trial judge not to make an affirmative finding that he was the driver, which is a materially different submission.
13A misapprehension of a party’s position on a state of fact may constitute a misapprehension of evidence where it causes a judge to fail to give proper effect to that evidence: Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174, 171 O.R. (3d) 41, at para. 35, leave to appeal refused, [2024] S.C.C.A. No. 47; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218; and see R. v. Richardson, 2005 CanLII 18185 (Ont. C.A.). However, for a misapprehension to constitute a miscarriage of justice, as Mr. Al-Qaysi argued before us,6 it “must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, citing Morrissey, at p. 221. As Zarnett J.A. reaffirmed in R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462, at para. 54: “If a misapprehension … was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard.” If met, appellate intervention may be warranted under s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.
14An appeal based on a misapprehension should therefore be approached in two stages that ask two questions: was there a misapprehension, and if so, was that misapprehension material? I am persuaded the trial judge misapprehended Mr. Al-Qaysi’s position, but I am not persuaded that the misapprehension was material and would dismiss this ground of appeal.
a. The misapprehension
15The Crown submits that we should not interpret this impugned statement –“All parties agree that the van driver was neither Mr. Al-Qaysi nor H.H.” – as a finding by the trial judge that the parties had actually agreed, as a fact, that the van driver was not Mr. Al-Qaysi. It argues that we should read this statement as nothing more than a compendious expression the trial judge used to describe Mr. Al-Qaysi’s submission that it “would be speculative to say … that [he] was the driver of the van”.
16In my view, the impugned statement cannot bear the interpretation the Crown proposes. On its face, it is an unambiguous assertion that the parties agree upon a state of fact, including that Mr. Al-Qaysi was not the driver. It is not reasonable to conclude that the trial judge used the term “agree” to describe a submission made before him by one of the parties about what he should find. Moreover, the passage addressed whether Mr. Al-Qaysi or H.H. was driving. If the trial judge was attempting to express Mr. Al-Qaysi’s submission about whether he should be found to be the driver, the trial judge would not have addressed whether H.H. was driving.
17It is evident, in my view, that the trial judge misapprehended Mr. Al-Qaysi’s position. At no time did Mr. Al-Qaysi make a formal admission that he was not the driver, which is what would have been required before this factual issue could be taken as settled. There are two kinds of formal admissions that can resolve a factual issue without the need for proof. The first is a formal admission in writing, pursuant to s. 655 of the Criminal Code. The second is a common law admission, made through an “unequivocal” or clear and unambiguous statement plainly made on the record by the party against whom that fact operates, which, in substance, communicates an intention to accept that fact as true: R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at paras. 45-46. Although the parties did agree to file two Agreed Statement of Facts documents as exhibits (each of which would satisfy s. 655), neither of those documents addressed whether Mr. Al-Qaysi was the driver, and his counsel made no statements on the record that communicated an unequivocal intention to accept as a settled fact that he was not the driver.
18Mr. Al-Qaysi’s trial counsel addressed the issue of whether he was the driver after she argued that he was not proved to have been in the car. The transcript shows that she did so because of her understanding, based on an exchange between the trial judge and the Crown, that the trial judge was considering the implications for the prosecution if he was to find that Mr. Al-Qaysi was the driver and not the stabber. In that context, she argued that there was no evidence that the driver had the knowledge needed to be convicted as a party to the stabbing, saying, “I would say [there is] a lack of evidence on motive or planning or intention”, and she confronted the trial judge’s suggestion that the knife may have been visible when the stabber was in the van. She then argued that it would be “speculative” to find that Mr. Al-Qaysi was the driver on the evidence presented.
19In my view, the fact that Mr. Al-Qaysi’s trial counsel presented arguments about whether Mr. Al-Qaysi could be convicted as a party if he was found to be the driver is flatly inconsistent with the suggestion that she and the Crown agreed that Mr. Al-Qaysi was not the driver. If any such agreement had been made, there would have been no need for such submissions.
20I am therefore persuaded that the trial judge misapprehended Mr. Al-Qaysi’s position relating to whether he was the driver.
b. The misapprehension did not result in a material misapprehension of evidence
21As noted above, for this misapprehension to have been a reversible miscarriage of justice, it must have caused the trial judge to misapprehend the evidence in a manner that was essential to his reasons for convicting Mr. Al-Qaysi: Halton, at para. 35; Kwok, at para. 54. This would require us to accept that the trial judge may not have convicted but for his conclusion that Mr. Al-Qaysi was not the driver. Logically, the only way that the elimination of Mr. Al-Qaysi as the driver could have played an essential role in the reasoning is if the trial judge found that there were only three people in the van and then reasoned that since Mr. Al-Qaysi was not H.H. and not the driver, he must have been the stabber. There is no indication that the trial judge followed this reasoning path. Indeed, his reasons are to the contrary.
22First, the trial judge made and relied upon eight factual findings on eight categories of evidence to conclude that the Crown had proved that Mr. Al-Qaysi was the stabber. Notably, the evidence he enumerated did not include or even allude to the admission that Mr. Al-Qaysi was not the driver. This is a strong suggestion that the misapprehended admission was unimportant to his reasoning.
23Second, the trial judge acknowledged that “[i]t is unknown whether there were additional persons in the van at the time of the attack”, yet he made no attempt to explain why Mr. Al-Qaysi could not have been one of these additional people instead of the stabber. This is also a strong indication that he did not infer that Mr. Al-Qaysi was more likely the stabber because he could be eliminated as having been in the van in any other capacity.
24Third, all the evidence that the trial judge enumerated was affirmative proof that helped establish not only that Mr. Al-Qaysi was in the car, but that he was the stabber. Items that assisted in performing the latter function included: 1) the discovery opposite his bedroom of grey pants with a logo on the upper left leg like those worn by the stabber; 2) Mr. Al-Qaysi’s ownership of a grey Roots hoodie with a dark logo in the same location as the grey hoodie worn by the stabber; 3) the presence of white Nike Air shoes similar to those worn by the stabber, found “just outside” his bedroom and bearing the DNA of the victim; and 4) the recognition evidence offered by Jaylah Browne. Although the trial judge gave only “limited” weight to Ms. Browne’s evidence, all this evidence together shows that the trial judge based his analysis on the assessment of the affirmative circumstantial evidence that Mr. Al-Qaysi was the stabber, and not on his elimination as the driver.
25I am therefore persuaded that the misapprehension was not material and would not give effect to this ground of appeal.
2. Was there a Villaroman error?
26Mr. Al-Qaysi argues that the trial judge’s reasoning was flawed because, by proceeding on the mistaken assumption that Mr. Al-Qaysi admitted he was not the driver, the trial judge necessarily failed to consider the possible alternative inference that Mr. Al-Qaysi could have been the driver instead of the stabber and was therefore not guilty on that basis. He argues that this is contrary to the decision in Villaroman, which requires judges to consider alternative innocent inferences: see paras. 35-43.
27In support of this submission, he points to evidence that could support a finding that he may have been driving, including the fact that it was his vehicle, he had been operating it the day before and the day after the stabbing, and the testimony of a police officer that the person captured by video operating the vehicle near Mr. Al-Qaysi’s house at 11:52 a.m. on the day of the stabbing could have been him. He argues relatedly that if he had been the driver, this could account for the victim’s blood being on the white shoe found in his home.
28I am not persuaded that the trial judge’s misapprehension that Mr. Al-Qaysi admitted that he was not the driver resulted in a Villaromanerror. The Villaromananalysis requires judges in circumstantial evidence cases to consider the range of “reasonable” inferences that can be drawn from all the evidence and the absence of evidence, and to acquit if there are reasonable inferences other than guilt: Villaroman, at paras. 35-37, 41. In my view, on the whole of the evidence, the inference that Mr. Al-Qaysi could have been the driver and without adequate knowledge to be a party to the homicide is not a reasonable one that the trial judge was obliged to consider.
29Mr. Al-Qaysi’s counsel did not ask the trial judge to consider this line of reasoning. Indeed, she asked him not to find Mr. Al-Qaysi was the driver, thereby disavowing the factual premise now argued before us as grounding reasonable doubt. In my view, it is unfair to expect the trial judge to probe an inference that is based on the possibility of a state of fact that defence counsel actively dissuaded him from considering.
30More importantly, although there are generic indications in the trial judge’s reasons that suggest, in isolation, that Mr. Al-Qaysi was a usual driver of the vehicle:
(1) There is no case-specific evidence that he was driving on this occasion;
(2) If he was driving, the stabber who was also in his vehicle would have to look enough like him to be “recognized” by his girlfriend of five years as Mr. Al-Qaysi;
(3) The stabber would have to either be wearing Mr. Al-Qaysi’s clothes at the time of the stabbing, or, by coincidence, have a grey hoodie with a dark logo in the same location as the grey Roots hoodie that Mr. Al-Qaysi was wearing two days before the stabbing, as well as shoes indistinguishable from those later found at Mr. Al-Qaysi’s house; and,
(4) Similar shoes later found at Mr. Al-Qaysi’s home would somehow have to get the victim’s blood on them, even though Mr. Al-Qaysi was not the stabber. In this regard, any inference that Mr. Al-Qaysi could have acquired the victim’s blood on both the top and the bottom of his shoe while driving is hampered by the fact that the stabbing took place some distance from the vehicle and the police search of the vehicle yielded nothing of forensic interest in the vehicle, such as blood on the driver’s side or elsewhere in the vehicle.
31I also note that the trial judge found that given the way the attack occurred, it was “obviously planned” and clearly “targeted”, with the driver dropping off the attackers and assisting in their escape. The driver had sufficient knowledge of what was about to happen to get the vehicle ready for that escape. While the state of the driver’s prior knowledge relating to the nature of the pending attack could affect the extent of his party liability, accepting that Mr. Al-Qaysi could have been the driver and not the stabber is not a full and may not even be a partial path to exculpation.
32To be clear, I accept that it is likely the trial judge did not himself go through the exercise of considering whether Mr. Al-Qaysi could be the driver and what that could mean for his culpability, given his belief that the parties agreed he had not been the driver. But in my view, he did not have to. I would find that he did not commit a Villaroman error because the exculpatory inference pressed before us is not a reasonable one that required consideration.
3. Was there a Beaudry error?
33There are two avenues to a successful unreasonable verdict appeal.
34First, “[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; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. Mr. Al-Qaysi does not argue that this avenue is available to him, so I will say no more about it.
35Second, and alternatively, a verdict will be unreasonable if the reasons for it are “illogical on their face, or contrary to the evidence”: Beaudry, at para. 97. This is the unreasonable verdict path that Mr. Al-Qaysi takes before us, arguing that the driver error led to “fundamental flaws” in the trial judge’s reasoning that rendered the verdict unreasonable under s. 686(1)(a)(i) of the Criminal Code.
36In my view, this line of argument adds nothing to the analysis. The “fundamental flaws” that Mr. Al-Qaysi relies upon are the same alleged errors I have just discussed: the misapprehension and the Villaroman error. The Beaudry branch of the unreasonable verdict doctrine was not meant to reach these kinds of alleged reasoning errors. It was meant to address situations where judges draw inferences about guilt that are contradicted by the very evidence relied on for those inferences, or which are inconsistent with evidence that has not been contradicted or rejected: see e.g., R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 29; Lights, at para. 31. Beaudry therefore addresses those errors in logic that render a verdict unreasonable, but it does not provide a catch-all doctrine that applies to all reasoning errors. In my view, whether misapprehensions of the evidence amount to reversible reasoning errors should be addressed by the body of authority that addresses material misapprehensions, and Villaroman errors should be assessed using that branch of the law. In any event, I have explained why these alleged “reasoning errors” do not give rise to a basis for reversal under the law dedicated to addressing them. In my view, neither do they do so under the Beaudry line of authority. I would not find that any errors that were made amounted to a Beaudry error and resulted in an unreasonable verdict.
4. Conclusion on the “driver error”
37Therefore, I am not persuaded that the trial judge committed any reversible errors in his treatment of whether Mr. Al-Qaysi may have been the driver and would therefore reject this ground of appeal.
B. Did the trial judge provide insufficient reasons in his treatment of the “shoe evidence”?
38The presence of the victim’s DNA on a Nike Air shoe found immediately outside of what can reasonably be inferred to have been Mr. Al-Qaysi’s bedroom was particularly damning evidence.Mr. Al-Qaysi’s trial counsel attempted to undermine the damage it could do by arguing repeatedly that the blood could have been transferred from H.H. to the Nike Air sneaker when H.H. changed out of his bloody clothing at Mr. Al-Qaysi’s home, possibly by transference from H.H.’s black Nike slides to the Nike Air shoe or from the bloody knife to the Nike Air shoe.
39To support this theory, she argued that the police had found a pair of black Nike slides immediately under the shoe bearing the blood stains that yielded the DNA results. She suggested that these Nike slides may have been the shoes H.H. wore during the stabbing. She also argued that there was a basis for inferring that H.H. could have been staying in Mr. Al-Qaysi’s room and may have returned to the house after the stabbing. Specifically, H.H. was of no fixed address, there was an extra mattress observed in Mr. Al-Qaysi’s bedroom, and he had been observed on surveillance video in the vicinity of Mr. Al-Qaysi’s home shortly before the killing. Video footage captured in a local bar eight hours after the stabbing confirmed that H.H. had changed into entirely different clothes than the ones he wore during the attack, including what appeared to be white Nike Air sneakers. Defence counsel used this video evidence to suggest that H.H. changed into new clothes at Mr. Al-Qaysi’s home, including the very same white Nike Air sneakers eventually seized from the shoe rack, and in doing so, got blood on the shoe.
40Notwithstanding that the transference theory was a significant plank in Mr. Al-Qaysi’s defence, the trial judge did not address it in his Reasons for Judgment. Mr. Al-Qaysi argues that the trial judge’s failure to address significant, potentially probative evidence supporting this theory leaves it unclear how he reached his verdict, thereby frustrating meaningful appellate review: see R. v. Lagace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.). He argues that the reasons leave him unable to argue on appeal that the trial judge materially misapprehended the “shoe evidence”. Relatedly, he argues that the trial judge mischaracterized this submission as an alternative inference that friends of Mr. Al-Qaysi did the attack using his van and deposited the DNA-laden shoe in his house. Both of these arguments must be rejected.
41I accept that reasons may be insufficient and frustrate the right to appellate review where “the path taken by the trial judge through confused or conflicting evidence is not at all apparent”, or where there are conflicting theories as to how the trial judge reached their verdict, some of which may disclose reversible error: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46. I also accept that the transference theory was central to Mr. Al-Qaysi’s submissions and that it would have been better if the trial judge had addressed it overtly in his reasons. However, I would not find that the reasons were inadequate in the circumstances of this case.
42The sufficiency of reasons “follows a functional approach and, proceeding with deference, requires the reading of the reasons in the context of the evidence, the submissions of counsel and the live issues at trial”: R. v. J.C., 2023 ONCA 101, at para. 5, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55. I am persuaded that when the Reasons for Judgment, which clearly proceeded on the basis that the blood on the sneaker came from the scene of the bloody attack, are read in light of the evidence and arguments made, the trial judge’s reasoning path is clear.
43Most significantly, there were extensive exchanges between the trial judge and Mr. Al-Qaysi’s trial counsel on this issue during submissions that consumed over twenty pages of transcript. In these exchanges, the trial judge posed questions to make sure he understood trial counsel’s position and then paraphrased it to make certain he did. There can be no realistic concern about him misapprehending her position.
44Nor can there be any doubt that the trial judge considered and rejected the transference theory. He was frank in his exchange with Mr. Al-Qaysi’s trial counsel that he was not persuaded that the transference theory was reasonable. He said he thought it was “a jump”, and he questioned whether the absence of evidence about H.H. going to the home after the stabbing could “be stretched the way [trial counsel was] stretching it”, by filling in blanks with speculation about what “could have happened”. He then said to trial counsel that he was “having a hard time drawing [this inference] … the way you’re drawing it”, and he commented that he “diverge[d] from … where you’re … seeking to have me go.”
45In what is a manifest rejection of the transference theory, the trial judge also made clear in his reasons that he was persuaded that Mr. Turnbull-Greenwood’s blood got on the white Nike Air shoe during the attack. He said he was persuaded by the evidence that Mr. Al-Qaysi wore the white shoes worn by the stabber. The evidence that was before the trial judge supports that finding. It confirms that Mr. Turnbull-Greenwood was bleeding profusely when he fell, and the video evidence shows the stabber running by him after concluding his attack, making it highly likely that a transfer of blood would occur at the scene. And there, outside of Mr. Al-Qaysi’s room, in his own home, in the face of evidence that H.H. had been “dropped off” some distance from the Al-Qaysi home after the stabbing, and in the absence of evidence showing that H.H. had gone to the Al-Qaysi home after the stabbing, were white sneakers, one of which was confirmed to bear Mr. Turnbull-Greenwood’s DNA in blood. These shoes were proximate to a pair of grey Roots pants that are not distinguishable from those pants worn by the stabber, thereby increasing the prospect that it was Mr. Al-Qaysi who had stowed clothing worn during the stabbing in the hallway.
46It is in the context of this evidence that the judgment must be read. In my view, while the trial judge did not explicitly explain why he rejected the transference theory, this does not compromise Mr. Al-Qaysi’s ability to appeal. When the trial judge’s reasons for concluding that Mr. Al-Qaysi was the stabber are read in the context of the record and the submissions before him, it is obvious why he rejected this alternative inference.
C. Did the trial judge fail to consider reasonable alternative inferences Inconsistent with guilt?
47Mr. Al-Qaysi recognizes that the trial judge addressed the suggested inference that his friends may have used his van to commit the attack without his prior knowledge but argues that the trial judge failed to consider two other reasonable alternative inferences.
48The first such inference is that Mr. Al-Qaysi may have been the driver and got blood on his sneaker while driving the van. I have already explained why the trial judge’s reasons necessarily reject this theory.
49The second reasonable inference he argues that the trial judge failed to consider is the transference theory. As just discussed, it is apparent when the trial judge’s reasons are considered in the context of the entire record that he considered and rejected this theory.
50I would also note that the second submission reflects a misunderstanding of the Villaroman principle. Villaroman poses “the basic question [of] whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38 (emphasis added). The Villaroman principle is therefore about whether the totality of the circumstantial evidence taken together can “justify a conviction”:Villaroman, at para. 41. While the case provides general guidance relating to the difference between reasonable inferences and speculation, and the significance of the absence of evidence, it does not require that every inference drawn from every piece of evidence be consistent only with guilt: see e.g., R. v. Wu, 2017 ONCA 620, at paras. 14-15. This would be tantamount to relating the reasonable doubt standard to individual pieces of evidence, something the Supreme Court of Canada expressly prohibited in R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361, and subsequent cases. It is up to triers of fact to determine the weight they give to individual items of circumstantial evidence. The trial judge’s factual inference that the stabber wore the same white shoes worn by Mr. Al-Qaysi does not engage the Villaroman principle, as it was but one inference in a chain of inferences that led to the inference of guilt.
51I would deny this ground of appeal.
D. Did the trial judge err in his treatment of Ms. Browne’s recognition evidence?
1. The nature of the evidence and the trial judge’s reasons
52As noted above, at the preliminary inquiry, Ms. Browne identified Mr. Al-Qaysi as one of the assailants shown in surveillance footage of the stabbing. She also identified him in the rap video. This mirrored past identifications she gave to the police. She testified that she was Mr. Al-Qaysi’s girlfriend for approximately five years before they broke up. She also testified that Mr. Al-Qaysi called her multiple times from jail, asking her to change her evidence. Jail phone logs confirmed the existence of these calls. Ms. Browne also testified to reading a Windsor Star article prior to giving her police statements. This article said that Mr. Al-Qaysi had been arrested in connection with the killing, requested the public’s help in catching other suspects, and contained a screenshot of surveillance footage capturing the alleged killers.
53At trial, Ms. Browne recanted her preliminary inquiry testimony, testifying that her repeated identifications of Mr. Al-Qaysi were lies concocted to hurt a man she hated. She also testified that Mr. Al-Qaysi called her from jail, not to get her to change her truthful evidence, but to convince her to stop telling lies about him. As noted above, the Crown was successful in admitting the preliminary inquiry evidence for the truth of its contents.
54The trial judge recognized that Ms. Browne was “a classic Vetrovec witness” whose identification could not be trusted without confirmation that it was truthful. He found other pieces of circumstantial evidence relating to identity, along with evidence that the jail phone calls occurred, to be sufficiently confirmatory. Ultimately, he attributed little weight to Ms. Browne’s identification evidence.
55Mr. Al-Qaysi attacks this conclusion on two fronts, arguing generally that the trial judge erred in giving Ms. Browne’s recognition evidence any weight. The first avenue of attack relates to Ms. Browne’s status as a dangerous Vetrovec witness whose evidence was inherently untrustworthy, not adequately corroborated, motivated by animus, and tainted by the Windsor Star article. The second avenue of attack relates to Ms. Browne’s status as a recognition witness, a category of witness that merits special caution because recognition evidence is merely a species of notoriously dangerous identification evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. On this ground, Mr. Al-Qaysi contends that the trial judge erred in admitting this evidence without sufficient confirmation of Ms. Browne’s familiarity with him. He also argues that the trial judge misapplied the Hudsonfactors going to the ultimate reliability of this evidence.
2. Analysis
56I would not give effect to these grounds of appeal. Most of these arguments represent attempts by Mr. Al-Qaysi to reargue the case relating to evidence that the trial judge was entitled to accept. In my view, the admissibility arguments are formalistic. It is also evident that the trial judge asked the correct questions before giving the recognition evidence the little weight that he gave it.
57Although Mr. Al-Qaysi merged his reliability and admissibility arguments, and comingled his Vetrovec and Hudson submissions, I find it helpful to address the Vetrovec issue first, before moving to the reliability of Ms. Browne’s testimony qua recognition witness.
58The trial judge was not insensitive to the reliability problems with Ms. Browne’s testimony. He found her to be a “classic Vetrovec witness”. A Vetrovec witness, of course, is a witness whose credibility is so impaired that special instructions are required in jury trials that identify why particular scrutiny of their evidence is required and which warn jurors of the risk of accepting their evidence without confirmation or support: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 3-5, 34. The trial judge’s recognition that Ms. Browne was a Vetrovec witness was based on the very concerns that Mr. Al-Qaysi raises before us. This alone makes clear that the trial judge recognized and considered the problems with her evidence that required special scrutiny of her testimony.
59The trial judge also appreciated the importance of independent confirmatory evidence, explicitly affirming that he would not believe anything Ms. Browne said without adequate independent confirmation. In this context, the call for support or confirmation of the testimony of a Vetrovec witness does not require satisfaction of the technical requirements of corroboration: Khela, at paras. 31, 39-40. What is needed is evidence that is “independent”, in that it is not tainted by a connection to the witness, and “material” in that it gives the trier of fact comfort that the evidence in question can be trusted or that the witness is telling the truth: Khelaat paras. 39-40, 42-43. I have no doubt that if this had been a jury trial and a jury charge had tracked the points raised in the trial judge’s reasons, that jury direction would have met the Vetrovec requirements. The trial judge was fully attuned to the caution Ms. Browne’s evidence required.
60Nor do I see any error in the way the trial judge applied the Vetrovec considerations. I note that once a sufficient Vetrovec direction is provided, jurors are left to decide whether to act on the evidence: R. v. Chenier (2006), 2006 CanLII 3560 (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.), at pp. 353-54. The trial judge was therefore entitled to come to the decision that he came to after canvassing the reliability problems with Ms. Browne’s testimony, and there was nothing unreasonable about the decision he made to give her evidence limited or small weight. He had the benefit of seeing Ms. Browne’s testimony and observing the progression of her evidence, and this provided a sound basis for preferring her preliminary inquiry recognition evidence over the recanting testimony she offered at trial. He was not required, as Mr. Al-Qaysi implies, to reject the preliminary inquiry evidence entirely because of her recantation.
61Before making the decision that he did, the trial judge found independent confirmation for the identification she provided at the preliminary inquiry. He found it both in the van evidence and the shoe DNA evidence, as he was entitled to do. Logically, it is unlikely that Ms. Browne would inaccurately identify Mr. Al-Qaysi as the person in the video, when he is the very man who owned the vehicle that transported the assailants to the scene, and the very man who had possession in his home of a shoe bearing Mr. Turnbull-Greenwood’s DNA. I see no error in the trial judge’s decision to treat this independent evidence as confirmatory.
62The trial judge was also entitled to overcome the risk of tainting based on Ms. Browne’s strong familiarity with Mr. Al-Qaysi, who had been her long-time boyfriend. Although only Ms. Browne testified to this relationship, her testimony about this was not unsupported or unconfirmed, as Mr. Al-Qaysi submits. Confirmatory evidence need not relate to the specific fact testified to. It need only provide comfort in the witness’s evidence as a whole: R. v. Tubic, 2024 ONCA 833, at para. 35. Here, the trial judge had evidence before him of several jailhouse phone calls between Mr. Al-Qaysi and Ms. Browne, which he used to confirm her preliminary inquiry evidence of witness tampering. Specifically, he said “I believe and accept Ms. Browne’s preliminary hearing evidence regarding the calls from Mr. Al-Qaysi.” This evidence was thus generally confirmatory of Ms. Browne’s truthfulness during the preliminary inquiry and specifically confirmed the existence of these calls. The calls, in turn, presuppose an existing relationship. Additionally, while not mentioned explicitly by the trial judge, he had evidence before him that Ms. Browne’s photo was on Mr. Al-Qaysi’s phone. This too confirms an existing relationship. The trial judge also had the benefit of seeing the quality of the video and judging whether someone with that level of familiarity could make an untainted evaluation, and he found that she could. I would defer to his finding.
63I now turn to Mr. Al-Qaysi’s submission that the trial judge erred by admitting Ms. Browne’s recognition evidence and erred in assigning it any weight because it lacked indicia of reliability. These submissions are based on the two-step test for reliance upon recognition evidence articulated in Hudson, at para. 29, which says:
To begin, the trial judge must determine whether the evidence meets the threshold requirements for admissibility. If this test is met, the trier of fact must then assess the evidence to determine its ultimate reliability and the appropriate weight, if any, that can be properly attributed to it.
64The first question, which is the admissibility question, is answered by asking whether the witness, by virtue of their familiarity with the accused, is in a better position to identify the accused than the trier of fact: Hudson, at paras. 30-31. Once this threshold is met, the witness will be permitted to testify, and the trier of fact must then determine that testimony’s ultimate weight by reference to certain non-exhaustive indicia of reliability: Hudson, at para. 33.
65I would not accept Mr. Al-Qaysi’s submission that the trial judge erred in admitting the evidence by failing to resolve the threshold question. Although the trial judge did not hold a voir dire to assess whether Ms. Browne’s evidence was admissible due to her familiarity with Mr. Al-Qaysi, trial counsel did not object to this or dispute that such familiarity existed. Indeed, trial counsel’s submission, accepted by the trial judge, that Ms. Browne harboured animus towards Mr. Al-Qaysi is essentially a concession of familiarity. There was therefore no controversy at trial on the familiarity issue. In general, appellate courts should not entertain arguments raised for the first time on appeal: R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 40. More importantly, the trial judge addressed familiarity in his reasons. As I have explained, he found that Ms. Browne had strong familiarity with Mr. Al-Qaysi because he had been her boyfriend for years. He was therefore clearly satisfied that the threshold standard had been met.
66I emphasize that a voir dire should be held before admitting this kind of evidence, even if not requested by the defence, but failing to do so is not a reversible error where the evidence is clearly admissible in any event, as it is here: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at paras. 15, 24 and 27. I would find that the trial judge did not err in admitting the recognition evidence.
67Similarly, I would not accept Mr. Al-Qaysi’s remaining submission that the trial judge erred by assigning weight to the recognition evidence because it lacked adequate indicia of reliability. The Hudsonfactors, which are intended to guide the assessment of the reliability of recognition evidence, require consideration of: 1) the circumstances of the identification, 2) the level of detail provided, 3) the quality of the video or photographic evidence on which the identification is based, and 4) the existence of any corroborative evidence: Hudson, at para. 33. The trial judge spoke directly to the ultimate reliability of the evidence and the appropriate weight it would be given, citing and applying the “suggested Hudsonfactors”. In addressing each of these factors, he was attentive to the frailties Mr. Al-Qaysi now points to, including the relatively undetailed nature of Ms. Browne’s identification and the quality of the video footage. Absent palpable and overriding error, this court will not reweigh these factors: see Hudson, at para. 45. Mr. Al-Qaysi has failed to identify any palpable or overriding errors.
68In my view, there is no basis to interfere with the decision of the trial judge to admit and assign weight to the recognition evidence. I would deny this ground of appeal.
CONCLUSION
69I would dismiss the appeal.
Released: June 26, 2026 “P.R.”
“David M. Paciocco J.A.”
“I agree. Paul Rouleau J.A.”
“I agree. B.W. Miller J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 110(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 with respect to any information that would identify H.H.
- No issue was taken before us with this finding.
- Pursuant to R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.
- Pursuant to Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.
- Per Fish J. (dissenting, but not on this point). Although Fish J. dissented in the result in Beaudry, he wrote for the majority on this issue, and his analysis has been repeatedly reaffirmed by the Supreme Court of Canada: see e.g., R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 44-45; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 29.
- A misapprehension of evidence can also contribute to an unreasonable verdict, leading to a reversible error pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46; or lead to a reversible error of law pursuant to s. 686(1)(a)(ii): Morrissey, at pp. 219-20. Mr. Al-Qaysi contends that the misapprehension of evidence contributed to an unreasonable verdict. I address this issue below. He did not argue that the misapprehension constituted an error of law.