Court of Appeal for Ontario

Date: September 4, 2018 Docket: C58497

Feldman, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Shawn Vassel Appellant

Nathan Gorham and Breana Vandebeek, for the appellant

Karen Papadopoulos, for the respondent

Heard: March 12, 2018

On appeal from the conviction entered by Justice Michael H. Tulloch of the Superior Court of Justice, sitting with a jury, on March 13, 2011 and the sentence imposed on November 18, 2011.

Watt J.A.:

[1] Husam Degheim was a drug dealer. He sold marijuana. A middleman proposed a deal. Degheim agreed.

[2] The sale of one-quarter pound of marijuana was to take place near a shopping centre in Mississauga. The buyers and seller would meet there. A simple exchange. Money for drugs. Drugs for money. Or so Husam Degheim thought.

[3] The buyers had different ideas. No money for drugs. No drugs for money. Drugs for free. Get the drugs. And leave.

[4] The buyers and seller made their separate ways to the appointed place of sale. Three vehicles parked next to one another. As things began to unfold, Husam Degheim sensed that the simple exchange of drugs for money and money for drugs was not unfolding as it should. He started his vehicle. He intended to frustrate whatever the buyers had in mind.

[5] Husam Degheim was unable to escape. Two men approached his van. One man had a gun. He shot Husam Degheim to death as he sat in the driver's seat of his van, his wife beside him in the passenger seat.

[6] The men stole the marijuana. They, and the others who were with them, fled.

[7] Among those arrested for the unlawful killing of Husam Degheim was Shawn Vassel. The Crown alleged that he was the shooter. A jury found him guilty of second degree murder. The trial judge sentenced him to imprisonment for life without eligibility for parole until he has served at least 16 years of his sentence.

[8] Shawn Vassel appeals both his conviction and the period of parole ineligibility fixed by the trial judge. He says that the trial judge made several errors involving the admissibility of evidence and in his final instructions to the jury. These reasons explain why I would give effect to some of the appellant's claims of error, set aside his conviction and order a new trial. In these circumstances, I do not reach the appeal from sentence.

The Background Facts

[9] The central issue at trial was the identity of the killer.

[10] The case for the Crown at trial consisted of an amalgam of:

i. the testimony of another participant in the robbery and shooting who identified Shawn Vassel as the shooter and whose evidence was subject to a Vetrovec caution;

ii. circumstantial evidence from several different witnesses, including evidence of post-incident conduct by Shawn Vassel, which tended to link him to the robbery and shooting; and

iii. evidence of eyewitness descriptions of the shooter generally coinciding with the appearance of Shawn Vassel.

[11] The principal defence advanced at trial was alibi, supported by:

i. the testimony of Shawn Vassel concerning his whereabouts and activities at the time of the shooting;

ii. cellphone triangulation evidence indicating that a cellphone belonging to Shawn Vassel ("the 833 phone") was away from the crime scene; and the testimony of a defence witness, Matthew Miller, which further confirmed Shawn Vassel's claim that he was elsewhere at the time of the shooting.

[12] In addition to the principal defence of alibi, defence counsel also invited the jury to consider the possibility that either of two third parties who testified as Crown witnesses – Michael Agba or David Grant – was the shooter.

The Principals and their Relationship

[13] Shawn Vassel and his girlfriend, Sabrina Sconci, lived in Unit 79 of a townhouse complex located at 3480 Colonial Drive in Mississauga. Next door, Unit 81 was vacant, a place known as the "trap house" where residents of the complex and others hung out, listened to music and smoked marijuana.

[14] Several of the principals at trial lived at or frequented the townhouse complex, known amongst them as the "Ridgeway Complex". Shawn Vassel and Sabrina Sconci. David Grant. Michael Agba. Tristan Palmer. Matthew Miller. In the complex, drug trafficking and the possession of firearms was commonplace. All the principals were linked to the drug trade. Some directly. Others indirectly.

The Planning of the Robbery

[15] On December 2, 2017, Tristan Palmer approached Michael Agba with a proposition – to steal one-quarter pound of marijuana from a drug dealer whom Palmer did not identify. Using Agba's cellphone, Palmer contacted Mohammed Odeh, a middleman who could put "the buyers" in contact with a seller. In turn, Odeh contacted Husam Degheim and arranged a deal between Palmer and Degheim. Odeh also cautioned Degheim about the deal because of the quantity of drugs involved.

[16] The transaction was to take place later that evening in a public area, a parking lot by a movie theatre across the street from the Square One shopping centre in Mississauga. This location was about a ten-minute drive from the Ridgeway Complex where Shawn Vassel lived.

[17] The "purchasers" had no intention of paying Husam Degheim for the quarterpound of marijuana. Their plan was to show him the money, examine the marijuana, take the marijuana and leave without paying.

Executing the Plan

[18] Who participated in the robbery and killing of Husam Degheim was controversial at trial, particularly as it related to Shawn Vassel and David Grant. Although who did what was contentious, what happened was markedly less so.

[19] Neither Michael Agba nor Tristan Palmer had a vehicle to get them from the Ridgeway Complex to the appointed place of "purchase". At about 7:30 or 8:00 p.m. on December 2, 2007, Palmer went to the rear door of the Vassel/Sconci townhouse. He asked to borrow Sconci's rental car. Vassel approached Sconci. He told her Palmer needed a ride someplace. Sconci agreed to loan her vehicle, provided Palmer drive. Vassel did not have a driver's licence.

[20] Michael Agba testified that he, Palmer and Vassel drove in Sconci's vehicle to the parking lot where the deal was to take place. Shawn Vassel said that he remained at the Ridgeway Complex in the trap house where he listened to music, made and received some telephone calls and smoked some marijuana. He said that David Grant went with Palmer and Agba. Grant testified that he never left the Sconci townhouse.

[21] Mohammed Odeh, the middleman, was the first to arrive at the site of the deal. His friends, John Hamwi, Asser Almassra and Salim Mohammad, were with him. Odeh parked his vehicle. They waited for the others to arrive. The Sconci vehicle arrived next, parking next to Odeh's vehicle. In it, according to Agba, were Agba, Palmer and Shawn Vassel, who was the driver. Husam Degheim was the last to arrive. He parked to the right of Odeh's vehicle. His wife was a front-seat passenger.

[22] Odeh and Palmer approached the Degheim van. Palmer said, "Show me the weight", referring to the marijuana. Odeh explained that this was not how things were done. Degheim said it was alright. He offered Palmer a sample of marijuana to inspect. Palmer did not examine the sample. He walked back to the Sconci vehicle.

The Shooting

[23] Two other men got out of the Sconci vehicle. They approached the Degheim van. One of them pulled out a gun and pointed it. Odeh pleaded with the gunman not to shoot over $500 of marijuana. Degheim, apparently aware that something was amiss, turned on the ignition of his van. He tried to pull out of his parking spot. The wheels of his vehicle began to spin. The gunman shot Degheim in the chest. One of the men grabbed the marijuana. Then they fled. At 8:11 p.m., Degheim's wife called 911 to report the shooting.

[24] Husam Degheim died of a single gunshot wound to his chest fired from a .40 calibre Glock handgun.

[25] Michael Agba testified that Vassel remained in the driver's seat of Sconci's vehicle after they arrived at the site of the proposed transaction. Agba saw him pull out a black, .40 or .45 calibre Glock semi-automatic handgun and put a bullet in the chamber. Agba and Vassel went to the Degheim van. Vassel shot Degheim as he sat in the driver's seat. Vassel and Agba ran back to Sconci's vehicle. Grant drove away towards the Ridgeway Complex.

The Evidence of Identity

[26] The principal evidence identifying Shawn Vassel as the person who shot and killed Husam Degheim was the testimony of Michael Agba.

[27] About three weeks after the shooting, Agba agreed to speak to the police. He claimed that he wanted to help them in their investigation in any possible way. He did so out of self-interest. He fashioned a tale, embroidering it to portray himself as a helpful citizen without any involvement in what happened. He did so to lead the investigation in another direction.

[28] About ten days after his first police statement, Agba got arrested as he entered the Brampton courthouse for a court appearance. He had some crack cocaine in his possession. After several hours of questioning, punctuated by numerous pauses during which he was left alone to consider his position, officers confronted Agba with evidence that contradicted his previous self-serving account, including his identification by Odeh at the scene of the robbery and shooting. Agba acknowledged that he had been untruthful in his previous account. He identified Shawn Vassel as the person who killed Husam Degheim.

The Arrests

[29] Michael Agba and Shawn Vassel were arrested on a joint charge of second degree murder. They remained jointly charged until after the conclusion of the preliminary inquiry when both were ordered to stand trial. Agba agreed to testify against Vassel and to plead guilty to manslaughter. At the proceedings in which he pleaded guilty, Agba admitted that he "bent the truth" by minimizing his involvement in the robbery. He denied any knowledge that a gun would be used until he arrived at the appointed place. At trial, he conceded that his claim of ignorance was an effort on his part to obtain a lesser sentence on his guilty plea.

The Other Eyewitnesses

[30] At trial, none of the others present at the shooting – the deceased's wife, Odeh or Hamwi – identified Shawn Vassel as the shooter. Each indicated that the shooter was the driver of the Sconci vehicle. Each provided a description of some of the man's features. These features generally coincided with those of Shawn Vassel and David Grant. Odeh and Hamwi, who had confidently told police that they would be able to identify the shooter, were shown photographic line-ups that included Vassel but not Grant. Neither picked out Vassel's photo, or any other photo, as the shooter.

The Evidence of Sabrina Sconci and David Grant

[31] Sabrina Sconci, Shawn Vassel's girlfriend, gave evidence that on the night of the shooting, Vassel and Palmer left the townhouse with her car keys. They promised they were only going a few minutes away and would be right back with her vehicle. Shawn Vassel contended that he told Ms. Sconci that he needed her car to go up the street with Palmer the night of the shooting. The killing occurred shortly thereafter.

[32] David Grant was a good friend of Shawn Vassel. He was living with Vassel and Sconci when the deceased was killed. Grant testified that Vassel and Palmer left the townhouse together on the night of the shooting. About thirty minutes later, Vassel returned. On his return, he said that something messed up had happened and would be reported on the news. Grant also gave evidence that at some time before the killing, he had seen the handle and clip of a gun in Vassel's pocket. Grant believed that it was a semi-automatic firearm. Vassel had described the weapon as a .9 mm or .40 calibre Glock that his mother had given him.

The Post-incident Conduct

[33] In its attempt to establish the guilt of Shawn Vassel for the murder of Husam Degheim, the Crown relied upon evidence of post-incident conduct, that is to say, evidence of things Shawn Vassel did and said after the killing.

[34] Shawn Vassel, David Grant and Sabrina Sconci cleaned up Ms. Sconci's rented vehicle. They removed marijuana crumbs said to have been left in the interior of the car since the robbery. Ms. Sconci and Vassel were pulled over by police as they were driving in Ms. Sconci's rental the day after the shooting. When asked to identify himself, Shawn Vassel said his name was "Shawn Seeram", a name by which he had previously been known and one used on a cellphone contract. Immediately after she learned of Palmer's arrest on December 4, 2007, Sabrina Sconci drove Shawn Vassel from their townhouse in the Ridgeway Complex to Vassel's mother's home on San Romanoway in the Jane and Finch area of Toronto. He remained there until his arrest on January 9, 2008.

[35] Police arrested Sabrina Sconci on December 6, 2007. They questioned her. When she was released, she found a payphone and called Shawn Vassel on the same 833 phone whose location at the time of the shooting was introduced as alibi evidence for Vassel. Within one-half hour of the call, the 833 phone went dead. No calls made. No calls received. Vassel admitted that he removed the SIM card from the phone and "threw it in the garbage". The next day, Vassel registered a new phone under the fictitious name "Rose Marie". Sconci, who also obtained a new cellphone under the fictitious name "Christina Roberts", listed Vassel's new phone number as "Jaylons" on her cellphone.

[36] Two eyewitnesses described the shooter as wearing a hoodie with braids sticking out. For at least eight years prior to the killing and on the day of the killing, Shawn Vassel's hair was braided. Soon after he left Ridgeway to live in his mother's home, he got a very short haircut and removed his facial hair.

[37] When police arrived at his mother's 18th floor apartment on San Romanoway on January 9, 2008 to arrest Shawn Vassel for the murder of Husam Degheim, Vassel fled back into the unit. He climbed over the edge of the balcony and spidered from balcony to balcony down 11 floors. When he reached the seventh floor, he broke into an apartment, then fled the building barefoot to an adjacent mall. After a brief pursuit and some resistance, he was arrested.

[38] Shortly after Husam Degheim was shot to death Shawn Vassel told David Grant that he (Vassel) wanted to get rid of his Glock. Vassel exchanged the Glock for a .22 calibre handgun Grant saw on Vassel prior to Vassel's arrest on January 9, 2008. It appeared to be the same silver .22 calibre handgun that police found at the bottom of the San Romanoway balconies Vassel had scaled down when police arrived at his mother's apartment to arrest him. The gun was loaded with ten rounds of ammunition. Police found additional ammunition and shell casings in the apartment.

[39] At trial, the Crown also relied upon evidence of conversations between Vassel and Sconci and Vassel and Grant after the shooting. These conversations tended to show Vassel's involvement in the shooting and his attempt to distance himself from what had occurred.

[40] Sabrina Sconci testified that two days after the killing, Vassel told her that "something bigger had happened". Tristan Palmer had turned himself in. Vassel instructed Sconci that if anyone asked her about her car, she was to say that it had been stolen. When Vassel was in custody, his friend, Matthew Miller, reminded Sconci to stick to the story about her vehicle having been stolen.

[41] Shawn Vassel and David Grant smoked weed the same night Husam Degheim was shot to death. Later, Vassel told Grant that he, Palmer and Lefty (Agba) had taken the weed from somebody. When a warrant was issued for Palmer's arrest two days after the shooting, Vassel told Grant that he was leaving Ridgeway and hoped Palmer did not say anything or involve him in the incident.

The Alibi

[42] Shawn Vassel testified at trial. He said he did not participate in the robbery or shooting of Husam Degheim. He did not own or have a .40 calibre Glock handgun at the time of the shooting. He was not at the place where the robbery and shooting occurred.

[43] Shawn Vassel recalled that while he and Grant were watching television in Sconci's townhouse, Palmer came to the back door and asked to borrow Sconci's car. Palmer promised to pay $100 in cash for the use of the car. When Vassel asked Sconci, she refused to provide her vehicle because Vassel did not have a driver's licence. Sconci relented when she learned that Palmer, not Vassel, would be the driver.

[44] Shawn Vassel gave the keys to Sconci's vehicle to Palmer. He told Grant that he (Vassel) was going to the trap house. Palmer was on the phone arranging a marijuana deal. He complained that someone from whom he had bought marijuana in the past was trying to "punk" him on the price for the drugs. Vassel thought that Palmer would probably rip off this supplier, someone whose name Grant recognized.

[45] According to Shawn Vassel, after Michael Agba arrived at the trap house, Palmer, Grant and Agba left in Sconci's car. Vassel stayed in the trap house. He talked on the phone with different people including his grandmother. He listened to music. About one-half hour after the others had left, Matthew Miller arrived. The men smoked some weed and talked. About 20 minutes later, Grant returned without the $100 promised for the loan of Sconci's car. Vassel called Agba about the money. Agba brought the money to the trap house and explained "the chop got fucked up". Vassel understood Agba meant that they had robbed the seller of the marijuana.

[46] Shawn Vassel claimed that while he was at the trap house on the evening of the robbery and shooting, he had his only cellphone with him. This was the 833 phone registered under his birth name, Shawn Seeram. To support his assertion that his phone (and thus he) was at the trap house in the Ridgeway Complex and not at the scene of the robbery and shooting, trial counsel called Kristi Jackson, an employee of Rogers Wireless. She testified from company records about the location of the 833 phone at the time of the robbery and shooting. When Vassel called Miller and his grandmother, the phone was in the Ridgeway Complex, not in the area where the robbery and the shooting occurred.

[47] To rebut the alibi advanced by Shawn Vassel, the Crown cross-examined Ms. Jackson about the cellphone practices of drug dealers, including their use of multiple phones, the distinction between "drug" phones and "family and friends" phones, and whether the usage patterns on the 833 phone revealed that it was a "drug" or "family and friends" phone.

[48] The Crown also called Ms. Sconci in reply to testify about the many phones Shawn Vassel had and the names in which they were registered.

The Alternative (Third-Party) Suspect

[49] At trial, defence counsel advanced the theory that either Agba or Grant could have committed the shooting while Vassel was elsewhere. According to the defence theory, both Agba and Grant went with Palmer in Sconci's car. Both reported back after the robbery. Grant's evidence that he never left the townhouse complex was contradicted not only by Vassel, but also by Sconci. According to Vassel, Grant and Agba were members of a gang that had a reputation for violence and gunplay. Grant had a history of robbing people and at the time of trial was in custody for robbing a drug purchaser while armed with a .40 calibre Glock.

The Grounds of Appeal

[50] Shawn Vassel ("the appellant") challenges his conviction on five grounds. Three arguments assert errors in the reception or rejection of evidence tendered at trial. Two grounds involve complaints about the charge to the jury.

[51] As I would paraphrase, the grounds of appeal advanced in connection with the reception or rejection of evidence are that the trial judge erred:

i. in admitting what is said to be expert opinion evidence about cellphone usage by drug traffickers;

ii. in failing to admit evidence of the appellant's prior out-of-court statements; and

iii. in refusing to permit the appellant to re-open the defence case to respond to a breach of the rule in Browne v. Dunn.

[52] The appellant also says that the trial judge erred:

i. in instructing the jury to consider the appellant's evidence with caution or particular care; and

ii. in failing to instruct the jury correctly about use of the exculpatory evidence provided by eyewitnesses to the robbery and shooting.

Ground #1: The Cellphone Evidence of Kristi Jackson

[53] This ground of appeal has to do with evidence adduced by the Crown in cross-examination of Kristi Jackson, an employee of Rogers Wireless. She was called as a defence witness to testify about cellphone locations when certain calls were made or received by the 833 phone said to have been in the appellant's possession at the time of the robbery and shooting.

[54] The purpose of the evidence adduced by the Crown was to rebut an alibi advanced by the appellant, of which his usage of the 833 cellphone was a critical component. The appellant claimed:

i. that he was using only one cellphone on the evening of the killing, the 833 phone, although he had had several phones in the past and several phones were recovered from his residences when arrested;

ii. that he had the 833 phone with him in the trap house at the material time, when he was smoking weed and listening to music; and

iii. that he talked on the phone with friends and relatives, including his grandmother, at the material time.

[55] Some further background is essential to an understanding of the argument advanced and a determination of its merits.

The Alibi Telephone

[56] At its core, the appellant's alibi, as he testified at trial, was that he was in the trap house, Unit 81 at 3480 Colonial Drive, when the robbery and shooting occurred. Among his activities there was his use of the 833 phone, his only cellphone. According to the uncontested triangulation evidence of Ms. Jackson, the 833 phone was in the vicinity of the Ridgeway Complex, not the scene of the shooting, when the shooting occurred at about 8:10 p.m. on December 2, 2007. If the appellant and his phone were together at that time, he could not have fired the fatal shot.

The Contradictory Evidence

[57] At trial, the Crown adduced evidence that others in the Ridgeway Complex, for example, Sconci and Grant, used cellphones registered to others, including the appellant. And when the appellant was arrested, searches conducted in Unit 79 and in his mother's apartment on San Romanoway yielded a total of 13 cellphones.

[58] The appellant denied the trial Crown's suggestion to him in cross-examination that he had more than one cellphone on the evening of the robbery and shooting. The Crown did not put to him the various cellphones on which Sconci later testified she was able to contact him.

The Evidence of Kristi Jackson Elicited by Crown Counsel

[59] Kristi Jackson testified as a defence witness. She was qualified as an expert in interpreting records kept by her employer, Rogers Wireless, and in explaining how cellphone towers interact when calls are made from cellphones.

[60] Crown counsel sought to cross-examine Ms. Jackson on whether drug dealers registered cellphones in their own name, on the call patterns revealed on drug dealer's "drug" phones, and on whether those patterns were evident on the appellant's 833 phone.

[61] The trial judge made no formal ruling with respect to the proposed lines of cross-examination other than to say that it was not necessary for the Crown to qualify the witness to testify on those subjects, but that it would be advisable if the Crown established "some more foundation".

[62] In cross-examination, Ms. Jackson explained that (known) drug dealers rarely register their "drug" phones, of which they may have many, in their own name. Among the many phones drug dealers typically have, Ms. Jackson testified, may be a "family and friends" phone used for "clean conversations". A review of company records for phones identified by investigators as "drug" phones reveals a large number of minutes of phone use, consisting of brief calls of 20 seconds or less in duration, with few repeat contacts.

[63] When she reviewed the records associated with the 833 phone, Ms. Jackson found a large number of minutes indicative of frequent use, but none of the other indicia she associated with a (typical) "drug" phone. To her, the 833 phone was a "family and friends" phone. The phone was not used after December 6, 2007 (the date of Sabrina Sconci's arrest) until December 14, 2007, when Rogers disconnected it for non-payment. Ms. Jackson testified that she was familiar with the "pattern" of frequent phone use suddenly coming to a complete stop after a "significant" event, but she could not speculate about the reasons for it.

The Arguments on Appeal

[64] The appellant reiterates the objection he advanced at trial in relation to Kristi Jackson's evidence. He says here, as he did there, that the evidence Crown counsel adduced from her in cross-examination was inadmissible expert opinion evidence.

[65] According to the appellant, this evidence fails to satisfy the Mohan criteria at the first step or stage of the expert evidence analysis.

[66] The evidence was not relevant because it was a sweeping conclusion about how all drug traffickers operate based on a simple generalization from anecdotal evidence. That other drug traffickers had and used multiple phones does not make it more likely that the appellant did so or that he did so on December 2, 2007.

[67] The appellant also argued that in addition to its lack of relevance, the evidence elicited from Ms. Jackson in cross-examination was not necessary. The appellant admitted that in the past he had possessed and used several cellphones in connection with his drug trafficking activities. Police located 13 cellphones at two places where he was living before, at the time and within the month immediately following the shooting. This evidence, all of which had been admitted prior to the testimony of Ms. Jackson, supported an inference of multiple phone possession on December 2, 2007 and put the lie to the appellant's denials. There was no need for this evidence from Ms. Jackson.

[68] What is more, the appellant continues, Kristi Jackson was never qualified as an expert on "modes and methods of drug trafficking". She thus was disentitled to offer these opinions. The Crown conceded her qualifications on the subjects upon which the defence sought to introduce her evidence, which were different. But not then and not later, prior to eliciting the controversial evidence, did the trial Crown seek to qualify her as an expert on modes and methods of drug trafficking. No expert, no opinion.

[69] Even if this evidence of Ms. Jackson were to satisfy the threshold requirements for the admissibility of expert opinion evidence, the appellant argues, it fails at the second or gatekeeping stage. Its costs outweigh its benefits to the correct disposal of this case. While not lengthy in its introduction, it adds no value to the evidence already adduced. Further, it risks overvaluation by the jury because it comes from a witness already qualified as an expert. In the end, having been admitted, this inherent prejudice was compounded by the emphasis placed upon it by the Crown in his closing address and its repetition by the trial judge in his charge to the jury.

[70] The respondent rejects any suggestion that this evidence of Kristi Jackson was improperly admitted. This testimony was probative, offered little prejudice and fell well within the scope of Ms. Jackson's established expertise.

[71] To begin, the respondent says, it is of essential importance to a correct determination of the admissibility issue raised that this evidence be put in its proper perspective.

[72] The appellant testified. He said he was a drug dealer. He explained that, at times, he had had several phones. "Drug" phones. And a "family and friends" phone. He insisted that on the date of the robbery and shooting he had but one – the 833 phone – which was a "family and friends" phone.

[73] In cross-examination, Kristi Jackson testified that:

i. drug dealers generally have multiple phones; and

ii. from the usage pattern revealed by records from Rogers, the 833 phone does not appear to be a typical "drug" phone.

Thus it is evident, the respondent continues, that the impugned evidence of Kristi Jackson goes no further than, and indeed not as far as, testimony out of the appellant's own mouth. No harm. No foul.

[74] The real controversy, the respondent says, was not the nature of the 833 phone, but rather the truthfulness of the appellant's claim that he had only the 833 phone on December 2, 2007. And on that issue, Kristi Jackson's evidence said nothing. Other evidence – the appellant's own admissions and evidence of post-arrest cellphone seizures – contradicted the appellant's denial.

[75] The respondent begins the expert evidence analysis with a reminder about the deference owed to the trial judge's decisions about relevance, Ms. Jackson's qualifications, necessity, and the balancing of probative value and prejudicial effect. Nothing has been said, the respondent urges, that displaces deference and warrants intervention.

[76] Taking first the issue of qualifications, the respondent acknowledges imperfections in the qualification of Kristi Jackson as an expert on the subject about which the Crown wished to cross-examine her. But in the end, it was mission accomplished. She had served as a consultant to police forces for 20 years in connection with drug investigations. She had analyzed phone records to identify patterns of use, and thus could compare those patterns with records for the 833 phone. And she had lectured law enforcement agencies, prosecutors and the judiciary on the "intersect" between phone records and drug investigations. Her qualifications were rooted in two decades of on-the-job experience and training.

[77] Turning to the basis for the opinion Ms. Jackson expressed, the respondent contends that it was not based on common sense and instinct, as the appellant argues, but rather on her lengthy experience in analyzing patterns of phone usage as revealed by the billings of a cellphone provider. Ms. Jackson also furnished the jury with several factors which, in combination, were indicative of a "drug" phone:

• an inordinately high number of minutes;

• a litany (predominance) of very short calls;

• an absence of personal calls; and

• little repetition of calls from the same number.

These criteria would assist the jury in finding that the 833 phone was a "family and friends" phone, not a "drug" phone.

[78] The respondent says that the evidence of Kristi Jackson also satisfied the necessity requirement at the first stage or step of the admissibility inquiry. The appellant's insistence that the evidence be essential before it satisfies this Mohan criterion sets the bar too high. To satisfy this requirement, the opinion need only provide information which is likely to be outside the experience and knowledge of the jury. And an analysis of cellphone usage patterns settles comfortably within this sphere.

[79] Nor does the evidence of Kristi Jackson offend the anecdotal evidence prohibition established by R. v. Sekhon, 2014 SCC 15. Ms. Jackson did not apply anecdotal evidence from prior cases to reach her conclusion. Rather, she assessed the usage of the 833 phone against known patterns of cellphone use to reach her conclusion. The appellant had already testified and conceded that on previous occasions he had several phones, some of which he used as "drug" phones, to traffic his wares. In addition, the opinion she expressed did not offend the ultimate issue rule, or what remains of it.

[80] In any event, the respondent concludes, even if the evidence should not have been received, its admission caused the appellant no prejudice. After all, it aligned with much of the appellant's own evidence. He was a drug dealer. At other times he had several phones. "Drug" phones. "Family and friends" phones. This was a "family and friends" phone. He denied having other phones. Ms. Jackson's evidence did not and could not contradict that denial, but it was otherwise aligned with the appellant's own testimony. Hence the submission of no prejudice from its reception. This evidence occupied no place of prominence in either the Crown's closing address or in the judge's charge, where it was subject to a limiting instruction.

The Governing Principles

[81] Basic principles of the law of evidence inform the decision on this ground of appeal.

[82] Relevance. An item of evidence is relevant if it renders the fact it seeks to establish by its introduction slightly more or less probable than that same fact would be without that evidence. Relevance is a matter of everyday experience and common sense. It is assessed in the context of the entire case and the positions of counsel: R. v. Luciano, 2011 ONCA 89, at paras. 204-206.

[83] Materiality. An item of evidence is material if it is offered to prove or disprove a fact in issue: Luciano, at para. 207. Whether an accused said to have committed an offence as a principal was present at the scene of the offence is a fact in issue.

[84] Admissibility. Relevant and material evidence is admissible if it satisfies all the existing tests and extrinsic policies of the law of evidence, whether based on common law principles, statutory provisions or constitutional precepts: Luciano, at para. 209; R. v. Zeolkowski, at p. 1386.

[85] The admissibility rule said to be applicable here is the opinion rule. Like its siblings, hearsay and character, the opinion rule is exclusionary by nature. It insists that witnesses give evidence of facts, not make statements of opinions or inferences drawn from those facts. It follows, at least as a general rule, that evidence of a witness's opinion is not admissible: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 14. The most convincing rationale for the rule is that these ready-formed inferences offered by the witness are unhelpful to the trier of fact and might be misleading: R. v. Graat, at p. 836. See also White Burgess, at para. 14.

[86] As with other admissibility rules, the opinion rule is not unyielding. Not all opinion evidence is excluded. We recognize that, so far as matters that require special knowledge or skill are concerned, triers of fact, whether judges or jurors, are not necessarily equipped to draw true inferences from facts stated by witnesses. Assistance is necessary. And so it is that we permit witnesses to state their opinions about these subjects, provided the witnesses are shown to be experts in them: White Burgess, at para. 15; R. v. Abbey, at p. 42.

[87] Where the opinion rule is put forward as the ground upon which evidence proposed for admission should be excluded, the judge embarks upon a two-step inquiry into admissibility: White Burgess, at para. 22; see also, R. v. Abbey, 2009 ONCA 624, at para. 76.

[88] At the first step of the admissibility inquiry, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors:

i. relevance;

ii. necessity;

iii. the absence of an exclusionary rule; and

iv. a properly qualified expert.

See White Burgess, at para. 23; R. v. Mohan, at p. 20; R. v. Bingley, 2017 SCC 12, at paras. 14-15.

[89] At this first step, the relevance factor refers to logical relevance: White Burgess, at para. 23; Abbey '09, at para. 84. The necessity requirement endeavours to ensure that the potential of expert opinion evidence to distort the fact-finding process is not lightly tolerated. White Burgess, at para. 21; R. v. D.D., 2000 SCC 43, at para. 46 and 57. As a result, the opinion evidence is unnecessary if on the facts established by other evidence the trier of fact can reach their own conclusion about the issue to which the proposed opinion evidence is directed without that opinion: Sekhon, at para. 45. What is required is that the opinion proposed for admission provide information that is likely to be outside the experience and knowledge of a jury: Mohan, at p. 23. Mere relevance or helpfulness is not enough: R. v. D.D., at para. 46.

[90] Under Mohan, a duly qualified expert is a witness who by study or experience has acquired special or peculiar knowledge of a subject about which a party proposes the witness will testify: Mohan, at p. 25. As we have seen, the extent of knowledge of the proposed expert must exceed the knowledge and experience of the trier of fact about the same subject: Bingley, at para. 22.

[91] It is the responsibility of the party who seeks to elicit expert opinion evidence from a proposed (or actual) witness to qualify the witness as an expert in the subject-matter about which the opinion is to be elicited: R. v. Marquard, at p. 243. It is the obligation of opposing counsel to object where appropriate and the task of the trial judge to ensure that the expert stays within the scope of his or her expertise: Marquard, at p. 244; Abbey '09, at para. 62; Sekhon, at paras. 46-47.

[92] At the second or gatekeeping step, the trial judge must balance the risks and benefits of admitting the evidence, thereby to determine whether the proposed evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same trial process that may flow from the admission of the expert evidence: White Burgess, at para. 24; Abbey '09, at para. 76. Relevance, necessity, and reliability, as well as the expert's independence and impartiality, continue to play a role in weighing the overall competing considerations in admitting the evidence: White Burgess, at para. 54.

[93] Sometimes in giving evidence at trial, an expert may give opinions that extend beyond the subjects on which the expert has been qualified to give evidence. To the extent that an expert does so, the unqualified opinions are to be disregarded by the trier of fact. Where the trier of fact is a jury, the trial judge should instruct them accordingly: Marquard, at p. 244; Sekhon, at para. 48.

[94] A final point concerns anecdotal evidence, which sometimes enters the record of trial proceedings during the testimony of an expert. Anecdotal evidence is testimony that does not speak to the facts of the case but reasons from the witness's prior experience to the probability of a particular result or occurrence in the case at hand. Anecdotal evidence is not legally relevant. Nor is it necessary. It lacks probative value. It is inherently prejudicial and tends to shift the onus of proof to an accused: Sekhon, at paras. 41, 49 and 50.

The Principles Applied

[95] As I will explain, I would give effect to this ground of appeal. The evidence elicited by Crown counsel in cross-examination of Kristi Jackson should not have been received. I will approach the issue in a series of steps beginning with a brief canvass of the substance of the evidence itself.

[96] When challenged by defence counsel, the Crown said that he wanted to cross-examine Ms. Jackson about:

i. whether drug dealers registered "drug" phones in their own name;

ii. the call patterns revealed on Rogers billing records for "drug" phones; and

iii. whether the billing records for the 833 phone revealed a pattern of usage consistent with a "drug" phone or a "family and friends" phone.

[97] Kristi Jackson testified that drug dealers have several cellphones they use as "drug" phones. They rarely register these phones in their own name. They may also have a "family and friends" phone on which they carry on "clean conversations". Known "drug" phones have three principal features:

i. a large number of minutes in each billing period;

ii. a majority of calls of brief duration lasting less than 20 seconds; and

iii. few repeat callers.

Ms. Jackson added that apart from a large number of minutes, the 833 phone lacked the other indicia of a "drug" phone. It appeared to be a "family and friends" phone.

[98] The location of the 833 phone when the robbery and shooting occurred was a critical part of the appellant's alibi. At the time of the robbery and shooting, the triangulation records were consistent with the phone being at the Ridgeway Complex and not in the area where the shooting had occurred. This tended to support the appellant's testimony that he and the phone were at the trap house when the robbery and shooting occurred and thus he could not have been the shooter as alleged by Agba.

[99] The appellant's challenge to the admissibility of Kristi Jackson's evidence was on the ground that it was evidence of expert opinion adduced from a witness who was not properly qualified to give it. I agree that the contested evidence should have been excluded on this basis.

[100] If the testimony the Crown adduced from Kristi Jackson in cross-examination consisted in whole or in part of expert opinion on a subject matter beyond the qualifications defence counsel had already established, it was incumbent on the Crown to qualify her as an expert on that subject matter. Crown counsel made no effort to do so before eliciting the opinions he sought, although he did some backfilling after the opinion was given. To the extent that Ms. Jackson's evidence simply recounted what the Rogers billings revealed, it was not evidence of expert opinion. But to the extent that she offered the opinion about the character of the phone – "drug" vs. "family and friends" – her testimony reflected an opinion that she had not been properly qualified to give.

[101] I will defer consideration of the impact of the receipt of this evidence on the validity of the conviction until I have examined the other alleged errors.

Ground #2: The Appellant's Prior Statements

[102] The second ground of appeal challenges the trial judge's refusal to permit defence counsel to elicit evidence of prior out-of-court statements of the appellant as part of the defence case. Trial counsel sought to adduce these statements on two discrete bases:

i. to rebut an allegation of recent fabrication in connection with the number of phones in the appellant's possession or control at the time of the shooting; and

ii. to remedy a breach of the rule in Browne v. Dunn when Crown counsel failed to put the multiple cellphone theory to the appellant in cross-examination.

[103] The common relief sought favours consideration of these complaints as a single ground of appeal preceded by a brief reference to how the claims arise.

The Essential Background

[104] The appellant denied robbing and shooting the deceased. He said he was someplace else at the time: at the trap house in the Ridgeway Complex. He told the jury what he was doing at the trap house. Among other things, he was talking on the telephone – the 833 phone – the only phone he had on December 2, 2007. And he relied on the cellphone triangulation evidence provided by Kristi Jackson to confirm that the 833 phone was in fact in the Ridgeway Complex at the time of the robbery and shooting.

[105] At trial, the Crown sought to undermine the appellant's alibi in a variety of ways. For present purposes, those methods included cross-examination of the appellant and Kristi Jackson, a defence witness, and the introduction of the evidence of Sabrina Sconci in reply.

[106] The Crown cross-examined the appellant on his possession of or access to multiple cellphones to carry out his drug trafficking activities. The appellant acknowledged having had several cellphones for these purposes in the past, but he did not resile from his claim that on December 2, 2007 he had only the 833 phone, a "family and friends" phone, although he conceded that persons other than family and friends called him on it. The Crown did not cross-examine the appellant about other phones described by Sabrina Sconci in reply as phones on which she could contact the appellant.

[107] The Crown cross-examined Kristi Jackson about drug dealers' use of multiple cellphones registered in different names, the use of both "drug" phones and "family and friends" phones, and her conclusion that the 833 phone was a "family and friends" phone, not a "drug" phone.

[108] The Crown called Sabrina Sconci in reply to establish that the appellant had access to more than the 833 phone at the time of the robbery and shooting. During a police interview, Ms. Sconci had said that the appellant had access to several phones. But in her evidence at trial, despite a ruling that permitted the Crown to cross-examine her on her prior statements, Ms. Sconci maintained that at the time of the robbery and shooting the appellant only had the 833 phone. She explained her statement references to multiple phones as relating to a period of time before December 2, 2007.

[109] During cross-examination of Ms. Sconci in reply at trial, defence counsel sought to adduce evidence about the appellant's possession of or access to other phones. Her explanation included a reference to things the appellant had said to her. The Crown objected. The trial judge sustained the objection and refused to permit Ms. Sconci to give evidence about what the appellant had told her about the other phones.

[110] Trial counsel applied to re-open the defence case so that he could recall the appellant to testify about the other phone numbers in Ms. Sconci's log at which she had previously contacted him and whether those numbers were operable on the date of the robbery and shooting. The trial judge dismissed the application and refused to permit the defence to re-open its case after seven weeks of trial.

The Arguments on Appeal

[111] At the outset, the appellant acknowledges that, as a general rule, the prior consistent statements of a witness, including an accused, are not admissible at trial for sound policy reasons, but the rule is subject to various exceptions. Among those exceptions, the appellant says, is one that permits reception of prior consistent statements of a witness when the witness' testimony is alleged to be a recent fabrication or invention. And that, the appellant urges, is this case.

[112] The appellant points out that an allegation of recent fabrication need not be express, rather can be implied from the manner in which the witness is cross-examined. Here, the appellant continues, it was apparent from the tenor of the cross-examination that the appellant's claim that he had but one cellphone – the 833 phone – at the time of the robbery and shooting was a recent fabrication. As such, this permitted the defence to elicit evidence of the appellant's prior statements explaining how it was that his prior access to other cellphones had ended by December 2, 2007. This evidence would have rebutted the suggestion that he had access to several cellphones at the material time, which, if accepted by the jury, blunted the support that the triangulation evidence provided for his alibi.

[113] According to the appellant, he should have been permitted to introduce this evidence by re-opening his case or through the testimony of Ms. Sconci. These remedies were available not only because the Crown alleged that his single cellphone claim was a recent fabrication, but also because the Crown breached the rule in Browne v. Dunn by failing to put the specifics of other cellphone use to him in cross-examination.

[114] The respondent says that the fundamental flaw in the appellant's argument, is that the appellant's possession of or access to multiple phones on the day of the shooting was not a new theory explored first during the cross-examination of the defence witness, Kristi Jackson. During the case for the Crown, two police officers testified about the seizure of 13 cellphones and a SIM card from the two premises the appellant occupied contemporaneously with the killing and his arrest. In his cross-examination of the appellant, which occurred before Ms. Jackson testified, the Crown suggested access to several phones, pointing to photographs of the phones seized on arrest. The appellant maintained that at the time of the killing he had only one phone – the 833 phone.

[115] The respondent contends that the failure of the trial Crown to put each seized phone and its corresponding records to the appellant in cross-examination does not amount to a breach of the rule in Browne v. Dunn. The appellant was challenged on his denial of access to other phones. His unequivocal denial did not oblige the Crown to engage in protracted cross-examination on details. Substance triumphs over form. The trial judge's conclusion that the rule was not breached is entitled to deference.

[116] In addition, the respondent continues, it was open to the appellant to explain the origins and operability of the phones seized on arrest in re-examination at trial. He chose not to do so, rather sought to adduce the evidence in cross-examination of Sabrina Sconci when she was called in reply by the Crown or by asking the trial judge to exercise his discretion to permit re-opening of the defence case so that he could do so. Each application was rightly refused.

[117] The respondent also rejects the appellant's argument that the prior statements should have been admitted through Ms. Sconci to rebut an allegation of recent fabrication. Once again, the respondent says, the factual predicate on which this exception must be founded is absent. Although an allegation of recent fabrication need not be expressly made, a canvass of the cross-examination furnishes no evidentiary support for the claim that the appellant's account was impeached on the basis that it was a recent fabrication. The implication here was straightforward: the appellant, as the person who killed the deceased, was lying to avoid conviction. This does not amount to an allegation of recent fabrication, thus does not engage the exception for prior consistent statements in rebuttal.

The Governing Principles

[118] The principles that inform disposition of this ground of appeal are familiar and not the subject of controversy between the parties. Needless to say, they do differ on the result that should follow from their application.

[119] To begin, the rule in Browne v. Dunn (1894), 6 R. 67.

[120] The rule is one of fairness, thus not a fixed or invariable rule, much less a rule of admissibility. The extent of its application rests within the sound discretion of the trial judge, a discretion that is subject to significant deference on appeal: R. v. Quansah, 2015 ONCA 237, at paras. 76-77 and 80.

[121] Compliance with the rule in Browne v. Dunn requires a cross-examiner to confront the witness with matters of substance, not inconsequential detail, on which the cross-examining party seeks to impeach the witness and call contradictory evidence: Quansah, at para. 81. When it is apparent from the tenor of counsel's cross-examination of a witness that the cross-examiner does not accept the witness's version of events, the confrontation is general and known to the witness, and the witness' view on the contradictory matter is apparent, specific confrontation of the witness is not necessary: Quansah, at para. 82.

[122] As a rule of fairness, no fixed relation exists between a breach of the rule in Browne v. Dunn and the remedy available for that breach. No single or exclusive remedy follows from the breach. It is for the trial judge to say what remedy is best suited to maintain fairness in the trial process: Recall of the witness, for instance. A jury instruction about the impact of the failure to cross-examine on the jury's assessment of credibility and reliability. Or something else entirely. A remedy decision also attracts deference on appeal: Quansah, at paras. 117-118.

[123] Second, the doctrine of recent fabrication.

[124] An allegation of recent fabrication need not be explicit; rather, it is sufficient if it is evident from the circumstances of the case: R. v. O'Connor (1995), 25 O.R. (3d) 19, at p. 28; R. v. Kailayapillai, 2013 ONCA 248, at paras. 40-41. On the other hand, an allegation of recent fabrication does not arise from an allegation of a fabrication simpliciter, or where the allegation is that an accused, as the person who committed an offence, is lying to avoid conviction for that offence. A bald allegation of fabrication does not amount to an allegation of recent fabrication because essential to the latter is an assertion that at some identifiable point in time the witness began to make the claim being challenged. For example, the allegation may be that a particular cause or event was the genesis for the fabrication: Kailayapillai, at paras. 43-45. Proof of a consistent statement made prior to that point in time rebuts the allegation of recent fabrication.

[125] As a general rule, we do not permit the introduction of prior consistent statements of a witness at the instance of the party who calls the witness. These statements are self-serving and lack probative value: R. v. Stirling, 2008 SCC 10, at para. 5; R. v. Evans, at p. 643; R. v. Béland, at pp. 409-410. But where a witness is challenged for having recently fabricated his or her testimony, the party calling the witness may introduce a consistent statement made by the witness prior to the time when the fabrication is alleged to have occurred. Unless an independent hearsay exception applies, the prior consistent statement is not admissible to establish the truth of its contents: R. v. Simpson, at pp. 22-25.

The Principles Applied

[126] As I will briefly explain, I would reject this ground of appeal.

[127] First, the rule in Browne v. Dunn.

[128] Putting each exquisite detail upon which the cross-examiner proposes to contradict the witness by other evidence is not required to ensure compliance with the rule in Browne v. Dunn. Confrontation on matters of substance is what is required. And that occurred here. It was apparent from the tenor of the Crown's cross-examination of the appellant that the Crown did not accept the single-phone version proffered by the appellant. In this case, this was sufficient compliance with the requirements of the rule. No breach. No remedy.

[129] In addition, as in most cases where allegations of breach of the rule are made, the cross-examiner could have descended into greater detail. But it does not follow from his failure to do so that a breach of the rule occurred. I also have in mind the concession of trial counsel, who is also counsel on appeal (not Ms. Vandebeek), that the Crown was entitled to call contradictory evidence in reply. Whither the breach?

[130] Second, the doctrine of recent fabrication. In my view, a careful canvass of the cross-examination of the appellant does not support a finding that his evidence denying access to multiple cellphones at the material time was challenged as a recent fabrication. The allegation or implication was that, as the principal, the person who shot the deceased to death, the appellant was simply lying to avoid conviction. In other words, his motive to fabricate was his involvement in the killing. No point in time when he would have decided to lie to avoid conviction was suggested to him. Any alleged prior consistent statement would therefore have nothing to rebut.

[131] Apart from allegations of recent fabrication and a breach of the rule in Browne v. Dunn, the appellant advances no other basis upon which evidence of his prior statements could have been admitted, either through Ms. Sconci or by permitting the appellant to re-open the defence case. This ground of appeal fails.

Ground #3: Jury Instructions on Defence Evidence

[132] This ground of appeal impugns a passage in the trial judge's charge to the jury in which he instructed jurors about the manner in which they should assess a portion of the appellant's testimony in making their decision. Critical to an informed assessment of the merits of this complaint is a brief reference to some aspects of the evidentiary backdrop and the positions of the parties at trial.

The Essential Background

[133] The principal defence advanced by the appellant was an alibi: he and his 833 cellphone were alone together at the trap house in the Ridgeway Complex when the robbery and murder occurred. But this testimony also tended to implicate Agba, Palmer and Grant whom he indicated were the trio who borrowed Sconci's vehicle to get them to the place where they planned to rip off a drug dealer.

[134] Agba also testified. He admitted he participated in the robbery along with Palmer and the appellant. He identified the appellant as the shooter. Palmer was not called as a witness. Grant testified and denied being present at the robbery. The eyewitnesses' descriptions of the shooter were consistent with the appearance of both Grant and the appellant, but not Agba.

The Charge to the Jury

[135] In his final instructions to the jury, the trial judge left the defence position as advanced by counsel in his closing address: alibi. No complaint is made about this characterization of the defence position or what the trial judge said about it.

[136] As part of his instructions on the various types or kinds of evidence adduced at trial, the trial judge told the jurors that they were to apply the same test and consider the same factors in assessing the appellant's testimony as they would with respect to any other witness. The trial judge continued:

Subject to any specific contrary instructions that I may give you, you may consider the testimony of Mr. Vassel as to what, in fact, took place, and whether or not he was present, to help you decide this case.

Mr. Vassel has given evidence that may tend to show that either Mr. David Grant or Mr. Agba was the shooter as he was not at the scene of the crime on the night in question. You should consider that testimony of Mr. Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr. Vassel told you about Mr. Grant's involvement in deciding this case.

[137] The trial judge then briefly outlined the appellant's evidence, in particular, that he did not go in Sconci's car with Grant, Palmer and Agba and that he did not own or possess a Glock handgun, before he instructed the jury:

If you believe Mr. Vassel's evidence that he did not commit the offence charged and that he was not at the scene of the crime, you must find him not guilty.

Even if you do not believe Mr. Vassel's evidence, if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charged or a lesser included offence, you must find him not guilty of that offence.

Even if Mr. Vassel's evidence does not leave you with a reasonable doubt of his guilt about an essential element of the offence charged or any lesser included offence, you may only convict him if on the rest of the evidence that you do accept, you are satisfied beyond a reasonable doubt of his guilt.

The Arguments on Appeal

[138] The appellant contends that the trial judge erred in his instructions to the jury about the manner in which the jury was to assess the testimony of the appellant.

[139] To begin, the appellant reminds, it is impermissible to assume that an accused will lie to secure an acquittal. Such an assumption flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for an accused. As a general rule, triers of fact should avoid consideration of an accused's interest in the outcome of a case as a factor influencing their determination of the accused's credibility and the reliability of his or her evidence. Any instruction that directly or indirectly invites the trier of fact to consider such interest is prejudicial and invites jury use of this impermissible assumption as a basis upon which to reject an accused's testimony.

[140] In addition, the appellant continues, a trial judge must not give a Vetrovec caution to the jury in relation to evidence adduced by or favourable to the defence. Such cautions are limited to Crown witnesses whose testimony is inculpatory of an accused.

[141] In this case, the appellant says, the trial judge singled out the appellant's testimony, instructing the jury that it was to be assessed "differently" than the evidence of other witnesses. This was wrong. And it was an error compounded by a lack of balance and fairness in the remainder of the charge. To urge the jury to consider the accused's testimony, or any aspect of it, with special care is tantamount to a Vetrovec caution and is legally wrong.

[142] The respondent disagrees with the appellant's characterization of the instruction as the functional equivalent of a Vetrovec caution, which the respondent agrees would amount to legal error.

[143] Reduced to its essence, the appellant's complaint, according to the respondent, fastens on two lines in a 300-page charge and characterizes them as the functional equivalent of a Vetrovec caution. But these lines cannot be ripped out of their context, for jury charges are to be considered as a whole, in light of the evidence adduced and the positions advanced at trial. Instructions must be proper, but they need not be perfect.

[144] The instruction of which the appellant complains lacks the essential components of a Vetrovec caution. The jurors were not told that it was dangerous to act on the evidence of the appellant in the absence of confirmatory evidence. They were not instructed to search for confirmatory evidence. That this was not a Vetrovec-like caution is perhaps best exemplified by the actual Vetrovec caution that was given in connection with the Crown witnesses, Agba and Grant. This distinction would not be lost on the jury.

[145] The respondent invites consideration of two further principles.

[146] The first is that a trial judge has the right to comment and to express opinions on factual issues, including the credibility of witnesses and the reliability of their evidence, provided the instruction leaves the ultimate resolution of these issues to the jury. Viewed through this lens, the instruction does not exceed the bounds of fairness.

[147] The second is rooted in an analogy to instructions given in joint trials where cutthroat defences are advanced or disposition evidence is adduced. In such cases, it is permissible for trial judges to caution jurors about placing reliance on those portions of a co-accused's evidence that exculpates him or her but inculpates another co-accused. Common sense would support a similar caution where the inculpatory evidence, necessarily exculpatory of the accused/witness, targets an alternative or known third party suspect.

[148] As a final point, the respondent submits that the instruction given was responsive to the unorthodox manner in which the appellant advanced the alternative or known third party suspect issue at trial. Contrary to the usual practice, the appellant did not bring a pre-trial application to introduce evidence in support of this claim. Indeed, at first, trial counsel protested that he was not making any such allegations. As a result, there was no inquiry into or showing of the threshold requirement of a sufficient connection between the alternative suspect and the offence. Counsel simply cross-examined various Crown witnesses about the potential involvement of various individuals from the Ridgeway Complex and adduced evidence from the appellant about others. In this context, the trial judge's two-line reference to "taking care" in connection with the appellant's evidence relating only to alternative suspects was neither legally wrong nor unfair.

The Governing Principles

[149] To inform our assessment of the merits of this challenge, we have the assistance provided by some well-established principles. Some have to do with the standards of review we are to apply in our assessment. Others relate to Vetrovec cautions, and, in particular, their application to defence evidence. Still others describe the limits of judicial comments on factual issues, such as the credibility of witnesses and the reliability of their evidence.

[150] First, the standard of review.

[151] The parties in a criminal trial are entitled to a properly instructed jury. No less. But no more. No party can stake a claim to a perfectly instructed jury: R. v. Jacquard, at para. 2. Appellate courts asked to scrutinize a jury charge for error are to take a functional approach in their assessment: to determine whether the instructions, read as a whole, fulfill their function of equipping the jury with the necessary tools to render a true verdict in the case presented to them. This assessment is also contextual, for it must take cognizance of the reality that a jury charge is but part, albeit an important part, of a criminal jury trial. There is also the evidence adduced and the positions of the parties to consider: R. v. Daley, 2007 SCC 53, at paras. 30-31; R. v. Araya, 2015 SCC 11, at para. 39; and R. v. Jaw, 2009 SCC 42, at para. 32.

[152] In our consideration of the language used in jury instructions, we must determine in all probability the general sense the words used conveyed to the jury. We are not to parse the language of a single sentence, or to adopt a construction that resolves any ambiguity in an accused's favour. What counts is the overall effect of the charge, not whether a particular formula or word choice was used: Daley, at para. 30; Araya, at paras. 39 and 52; Jaw, at paras. 32 and 37.

[153] We must also bear in mind that a jury charge may be so confusing that it constitutes an error in law: R. v. Rodgerson, 2015 SCC 38, at para. 42.

[154] Second, Vetrovec cautions.

[155] Four features are characteristic of a caution given in accordance with R. v. Vetrovec:

i. identification of the witness(es) whose evidence is subject to the caution;

ii. the reasons for the caution;

iii. the caution, noting that it would be dangerous to convict on unconfirmed evidence of this sort; and

iv. the advisability, characteristics and illustrations of confirmatory evidence.

See R. v. Khela, 2009 SCC 4, at paras. 37-38; R. v. Bevan, at pp. 612-14; and R. v. Suzack (2000), at para. 187.

[156] A Vetrovec caution is to be given only for unsavoury witnesses who testify for the Crown and whose evidence is tendered in proof of guilt: R. v. Yumnu, 2010 ONCA 637, at para. 165, aff'd on other grounds, 2012 SCC 73; R. v. Ryan, 2014 ABCA 85, at para. 24. These cautions are not to be given in relation to defence witnesses who give evidence favourable to the defence: Ryan, at para. 24; R. v. Hoilett (1991), at pp. 451-452; R. v. Tzimopoulos (1986), at p. 340; and R. v. Pilotte (2002), at para. 92.

[157] Although, as a general rule, a trial judge must not give a Vetrovec warning in connection with defence witnesses, there are some instances in which a caution may be required in connection with an accused's testimony. For example, in a joint trial involving cutthroat defences or where the accused introduces disposition evidence against a co-accused: R. v. Oliver (2005), at paras. 54-60; R. v. Pollock (2004), at para. 168; and Suzack, at para. 127.

[158] It does not follow from the prohibition against Vetrovec cautions for defence witnesses that nothing can or should be said beyond general instructions about credibility and reliability determinants in connection with the testimony of an accused.

[159] The common sense proposition that a witness's interest in the proceedings may have an impact on the witness's credibility applies equally to an accused who testifies in his or her own defence: R. v. Laboucan, 2010 SCC 12, at para. 12. In many cases, however, an accused's interest in not being convicted is simply an unhelpful factor for the trier of fact to consider in its assessment of the evidence. But not always. An absolute rule prohibiting a trier of fact from considering, and being instructed that it may consider, a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner at odds with other rules of evidence that provide an accused with special protections. And so it is that whether it is appropriate for a trier of fact to consider and thus a jury to be instructed that it is entitled to consider that an accused may have a motive to lie because of his or her interest in the trial will depend on the evidence adduced and the issues raised at trial: Laboucan, at paras. 14-15.

[160] No one gainsays the principle that a trial judge is entitled to express his or her own view of the facts or the credibility of the witnesses, including the accused, and to express that opinion in strong terms, provided that the judge does not use such language as leads the jury to think that they must find the facts as the judge indicates and provided the charge, taken as a whole, does not deprive the accused of a fair presentation of his case to the jury: R. v. Garofoli (1988), at p. 133, reversed on other grounds.

[161] In some instances, it may be permissible for a judge to instruct the jury to be especially cautious or extremely careful in considering defence evidence. This is particularly the case when this instruction is linked to or accompanied by a further instruction that is compliant with the Supreme Court's admonition in R. v. W. (D.), that the jury must not be left with the impression that it needs to believe the evidence of the accused in order to return a verdict of acquittal: R. v. Wristen (1999), at para. 45.

The Principles Applied

[162] As I will explain, I would give effect to this ground of appeal.

[163] To begin, I would reject the appellant's submission that the impugned instruction was or amounted to the functional equivalent of a Vetrovec caution.

[164] Like every instruction that has as its focus jury use of a type of evidence or the testimony of a particular witness, this instruction identified its subject-matter: the appellant's evidence putting Grant and Agba at the scene of the shooting. Jurors were told to use "particular care" in their evaluation of this evidence. The reason for this "particular care" was also mentioned – the prevalence of self-interest over truth. Thus it could be said that the first two characteristics of a Vetrovec caution were present.

[165] On the other hand, absent from the instruction were two critical features of a Vetrovec caution: the full-throated "dangerous" admonition and the obligation to search about for confirmatory evidence. This was also a case in which jurors heard a Vetrovec caution in relation to the evidence of Grant and Agba. It beggars belief that they would fail to recognize the difference and subject the appellant's evidence to Vetrovec-level scrutiny.

[166] On the other hand, this instruction nestles uncomfortably close to a Vetrovec caution in its suggestion of the need for special scrutiny of the appellant's evidence. And as we know, Vetrovec cautions do not apply to exculpatory defence evidence, including the testimony of an accused.

[167] The real problem with this instruction, however, is not with its proximity to a Vetrovec caution, but rather with its impact on the instruction on alibi and the jury's consideration of the appellant's testimony in support of alibi, his principal defence. Let me explain.

[168] The appellant's evidence about Grant and Agba leaving the Ridgeway Complex in Sconci's car to rip off a drug dealer was an integral part of the appellant's alibi. This is because his alibi was that he was alone – along with his 833 phone – in the trap house when the robbery and shooting occurred. His evidence that Grant and Agba left, along with Palmer, if accepted, left it open for the jury to find:

i. that the appellant was at the trap house with the 833 phone, and thus could not have been the shooter;

ii. that Grant, Agba and Palmer were at the scene of the robbery and shooting; and

iii. that one of Grant, Agba or Palmer shot and killed the deceased.

[169] In connection with his defence of alibi, the appellant was entitled to and received an instruction in accordance with R. v. Parrington (1985), clarifying for the jury that they need not believe the alibi evidence in order to acquit. But the jurors were also told that they were to approach that aspect of the alibi that had Grant and Agba leaving in Sconci's car with "particular care". In these circumstances, the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.

Ground #4: The Charge on the "Non-identification" Evidence

[170] The final ground of appeal also takes issue with an aspect of the trial judge's final instructions to the jury. The complaint alleges non-direction on what is said to be a legal principle. To appreciate the nature of the objection, a brief reference to the circumstances underlying it and relevant portions of the charge are helpful.

The Essential Background

[171] Among those present at the robbery and shooting were two witnesses whose testimony was singled out for specific instructions: Mohammed Odeh and John Hamwi. There was no suggestion that either Odeh or Hamwi were involved in the robbery or shooting. Odeh was the middleman who put the "purchaser", Palmer, in contact with the seller, Dagheim, and arranged the time and place of the purchase and sale.

[172] Odeh and Hamwi provided descriptions of the shooter, who each said had been the driver of the car. Neither knew the shooter. Each expressed confidence that he could identify the shooter in a line-up. Each viewed a photo line-up, which included a photograph of the appellant. Neither picked out the photograph of the appellant as the shooter or even hesitated at his photograph. Each identified Agba as a participant in the robbery, but said that Agba was not the shooter.

[173] Odeh and Hamwi described the shooter as a young, black man who wore dark clothing, a hoodie, a toque or hat and had braided hair. It was common ground that this description fit not only the appellant but also Grant.

The Charge to the Jury

[174] The trial judge devoted about ten pages of his charge to the jury to identification evidence. Among other things, he told the jury that:

i. only Agba, whose evidence was subject to several dangers and of which confirmation was desirable, identified the appellant as the shooter;

ii. even if the identification evidence left jurors with a reasonable doubt about the appellant's guilt, the circumstantial evidence could prove his guilt;

iii. Odeh and Hamwi recognized both Abga and Palmer, neither of whom they said was the shooter; and

iv. Grant gave evidence of an admission by the appellant.

[175] In Appendix A, I have excerpted the passage in the trial judge's final instructions to which trial counsel objected at trial. In that passage, the trial judge reminded the jury about frailties of eyewitness identification evidence in light of the circumstances of this case. Among the reminders were that honest witnesses, including more than one honest witness, could be mistaken in their identification of an accused as the perpetrator, and that the degree of certainty expressed by a witness about the correctness of their identification was not an indicium of its accuracy or reliability. The defence objection was two-fold:

i. that the caution provided was stronger than the evidence adduced at trial warranted; and

ii. that the instruction focused entirely on the unreliability of the evidence and omitted any reference to the evidentiary significance of the non-identification.

[176] The trial judge acknowledged that the instructions reflected error. He proposed to recall the jury, repeat the instruction on identification evidence in its entirety and add two sentences:

However, you may rely on this evidence in support of the defence position if it leaves you with a reasonable doubt. It is for you to decide whether or not you accept Mr. Odeh's and Mr. Hamwi's identification evidence or whether their evidence leaves you in a reasonable doubt.

[177] Trial counsel declined the trial judge's offer, saying that the repetition of the charge would exacerbate the prejudice and that the proposed addition did not adequately address his concerns. No re-charge was given.

The Arguments on Appeal

[178] The appellant contends that the impugned instruction reflects prejudicial error.

[179] The appellant says that the traditional eyewitness identification instruction is intended to caution jurors about the inherent dangers in eyewitness identification evidence and their need to be cautious about relying on that evidence in finding guilt proven beyond a reasonable doubt.

[180] But according to the appellant, these same concerns have no application when the eyewitness identification is exculpatory, rather than inculpatory. The appellant acknowledges that a trial judge is entitled to comment on the credibility of defence witnesses and the reliability of exculpatory eyewitness evidence. But such an instruction must be warranted on the evidence adduced and make it clear that this evidence need only leave the trier of fact with a reasonable doubt about an accused's guilt.

[181] In this case, the appellant says, both witnesses were confident in their ability to identify the shooter. Each had accurately identified Agba as one of the participants in the robbery from another photographic line-up. But they did not even pause at the appellant's photo and were not shown a photo of Grant. This exculpatory evidence should have been drawn to the jury's attention, together with a proper direction on the burden of proof, as supportive of the appellant's alibi.

[182] The respondent rejects any suggestion that the impugned instruction amounts to non-direction, much less prejudicial misdirection. The evidence of Odeh and Hamwi was neutral, not exculpatory. Neither picked out somebody else as the shooter. And their descriptions of the shooter generally matched the appellant. A caution regarding the frailties of eyewitness identification evidence was required in these circumstances. No objection was raised at the pre-charge conference to an instruction that, as it should, left the weight of the evidence to the jury for its consideration.

[183] In this case, the respondent continues, where the evidence of these witnesses supported Agba's identification of the appellant as the shooter, at least to the extent of not revealing any clear dissimilarity between the appellant and the shooter, no further instruction was necessary. What was said sounded the appropriate degree of caution and was a balanced discussion reflecting no shift in the burden of proof. The amendment suggested by trial counsel during jury deliberations would have placed undue emphasis on the evidence, according it a prominence that exceeded its legitimate influence.

The Governing Principles

[184] It is uncontroversial that when the case for the Crown depends in whole or in significant part on the correctness of eyewitness identification of an accused as the perpetrator, the jury should be instructed on the inherent frailties of eyewitness identification evidence. Although no specific word formula need be followed, among other things, the instruction should explain the reasons underlying the need for the caution, point out that faulty identifications by honest witnesses in the past have resulted in miscarriages of justice through wrongful convictions, stress the need for careful consideration of all the circumstances, and identify the specific weaknesses alleged in the evidence adduced at trial: R. v. Sophonow (1986), at p. 215; R. v. Hay, 2013 SCC 61, at para. 48 and R. v. Jack, 2013 ONCA 80, at paras. 13-16.

[185] Traditional instructions in eyewitness identification cases also make it clear that there is no positive link between the confidence a witness expresses in the correctness of his or her identification and the accuracy of that observation: R. v. Hibbert, 2002 SCC 39, at para. 52; and R. v. Richards (2003), at para. 33.

[186] In some cases, it may be necessary to instruct jurors on the impact of the failure of a witness to identify a perpetrator in a line-up despite having been an eyewitness to the events: Richards, at para. 31. In addition, where a witness has provided a generic description of a perpetrator, a description that generally fits the accused among others, but does not identify the accused as the perpetrator, it may be necessary for a trial judge to instruct the jury that the mere fact that the accused fits the generic description does not, on its own, permit the jury to conclude that the accused is the perpetrator: R. v. Araya, 2015 SCC 11, at para. 44.

[187] The need for special care concerning the evidence of eyewitness identification arises because of the danger of wrongful conviction. That danger does not exist where the eyewitness evidence tends to exculpate an accused. This situation might arise when a defence witness provides exculpatory evidence, or when a Crown witness's failure to identify the accused tends to leave the trier of fact with reasonable doubt about the accused's guilt.

[188] Since the typical instruction on the frailties of eyewitness identification evidence may leave the jury with an erroneous impression about the quality of evidence that could leave them with a reasonable doubt, the traditional instruction should be avoided. In its place, the preferable course is for the trial judge to alert the jury to the reasons for the frailties of the evidence in the case at hand. Needless to say, the trial judge must also make it plain that the jury need not accept the defence or other exculpatory evidence, but that it is sufficient for acquittal if that evidence leaves them with a reasonable doubt: Wristen, at para. 46. See also, R. v. Mariani, 2007 ONCA 329, at para. 13; and R. v. Bettencourt, 2008 ONCA 337, at paras. 13-14.

[189] It is not an error to instruct a jury to approach certain kinds of defence evidence, including eyewitness identification evidence, with care or caution, and the reasons for that caution, but two things must be avoided. The instruction must not amount to the functional equivalent of a Vetrovec caution. And the instruction must not expressly or by necessary implication undermine the defence position or shift the onus of proof: Mariani, at para. 16; Wristen, at para. 45; and R. v. Jeffrey (1989) 35 O.A.C. 321, at pp. 326-327.

The Principles Applied

[190] I would give effect to this ground of appeal.

[191] The case for the Crown at trial was that the appellant was the person who shot and killed the deceased. The only person who identified him as the shooter was Agba, a witness whose evidence was subject to a Vetrovec caution. The evidence of Odeh and Hamwi provided a generic description of the shooter. But neither identified the appellant as the shooter despite the inclusion of the appellant's photograph in a line-up each of them viewed. No forensic evidence linked the appellant to the shooting.

[192] The trial judge instructed the jury about the need for special care concerning eyewitness identification evidence. The need for special care arises in cases because of the danger of a wrongful conviction. But that danger does not exist where the eyewitness evidence tends to exculpate an accused. As Wristen teaches, this instruction should not have been given. If the jury were to be alerted at all to the specific features of the evidence in the case, it should have been made clear to them that:

i. they need not accept the defence evidence, but that it would be sufficient for acquittal that the evidence left them with a reasonable doubt about the appellant's presence;

ii. the failure of Odeh and Hamwi to identify the appellant in the line-up should be considered along with the alibi evidence in determining whether the Crown had proven its case beyond a reasonable doubt; and

iii. the mere fact that the appellant fit the generic description the witnesses provided did not constitute evidence identifying the appellant as the shooter.

Conclusion

[193] We were invited to apply the proviso in s. 686(1)(b)(iii) to any errors in the admissibility or exclusion of evidence and in the final instructions to the jury. In combination, these errors were not harmless. The evidence against the appellant was not overwhelming. Its principal source was the testimony of a Vetrovec witness. The jury deliberated over five days and twice reported a deadlock. This is not a case in which the proviso can be applied.

[194] I would allow the appeal, set aside the conviction and order a new trial.

Released: September 4, 2018

"David Watt J.A."

"I agree. K. Feldman J.A."

"I agree. David M. Paciocco J.A."

Appendix A: Excerpt from the Jury Charge

The case against Mr. Vassel also depends in part on the correctness of the observations by Mohammad Odeh, Muna Osman and John Hamwi. You also had the opportunity to observe the photo line-up identification procedure presented to Mr. Odeh and Mr. Hamwi, both of whom were unable to identify Mr. Vassel as the shooter.

The Crown's case against Mr. Vassel is based on the theory that he is the shooter. I have already outlined for you the varying descriptions from each of these witnesses of the shooter as well as the results of the photo line-up.

Both Mr. Odeh and Mr. Hamwi upon first speaking to the police indicated they felt they could positively identify the shooter should they see him or a photo of him again. There are inherent, and this is not just something that is limited to Mr. Odeh and Mr. Hamwi, but what I am about to tell you is something that is common to all of us. There are inherent difficulties with these assertions, and I feel obliged to tell you about that, and a special need for caution in relying upon the direct visual or eyewitness evidence of identification.

That caution is required because all eye witness identification evidence suffers from an inherent frailty. Human observation and recollections are notoriously unreliable in this area. No doubt many of you have had the experience of looking at or speaking to someone only to find that it was not the person whom you believed it to be. Although recognition of a previously known person is usually stronger than identification of a stranger, mistakes are sometimes made in recognition of close relatives and friends. Many cases of miscarriages of justice have been due to the identification by one or more responsible witnesses whose honesty was not challenged and who had ample opportunity for observation in which identifications were subsequently proved erroneous.

The same can be said the other way. You may have no doubt a person making the identification is certain in his or her own mind he or she has identified the right person. You may find that the evidence is convincing, but a convincing witness though perfectly honest may also be mistaken. This caution is not limited to identification by a single witness. More than one witness can be mistaken in identification. In that context you must bear in mind the distinction between trustfulness and reliability.

Now frailties in visual identification evidence go to the weight of that evidence. You must, therefore, examine closely the circumstances in which the visual identification was made. So consider how well the subject was known to the person making the identification. Over what interval of time was the observation made? From what distance? In what circumstances? In what lighting?

What we know in this particular case is that, according to the phone records, Mr. Degheim was on his phone at approximately, I think it was 8:07, and four minutes later around 8:11 there is a 9-1-1 call that he is shot. So what we know is that it is a very, very narrow, very short period of time for anyone to make any kind of identification. And if you do not know the people it is pretty difficult. So you have to bear that in mind. Bear in mind the lighting, the circumstances. Was the identification impeded by distraction, inattention, fear, tension, turmoil? It is a shooting. You could, I think, reasonably infer that there would be some tension and fear that would be coupled with the circumstances when any kind of observations or identification is made.

Did the person identified or subject to the identification evidence have any special distinguishing features? Was the identification wholly dependent and not induced by any suggestion through words, conduct or circumstances? What time elapsed between the incident and the making of the identification?

Now, in this case neither Mr. Odeh nor Mr. Hamwi knew or recognized the shooter. Furthermore, the robbery and shooting were over a period of a few minutes, and the phone records would suggest, as I just indicated, within three to four minutes in total. It also occurred at night somewhere between 8:07 p.m. to 8:11 p.m. A gun was pulled which would heighten the tension of the situation and create an atmosphere of turmoil and fear. The only identifiable features observed on the shooter was that he was a young black man dressed in dark clothing wearing a hoodie and a toque and/or a hat and having braided hair. These are some of the factors I would suggest to you that would pose some difficulties in the identification evidence of both Mr. Odeh and Mr. Hamwi.

However, it is for you to decide whether or not you accept Mr. Odeh's and Mr. Hamwi's identification evidence and if so, how much weight to give such evidence.

So, members of the jury, these then are only some of the factors that you might want to keep in mind when you go to your jury room to make your decision. These factors might help you decide how much or how little you will believe and rely upon a witness's evidence. You may consider other factors as well. Remember that you do not have to just accept or reject a witness's evidence. You can accept some parts and reject other parts. Also keep in mind that the Crown need not prove individual items of evidence beyond a reasonable doubt, that you must weigh all the evidence as a whole and not in isolation or individually.