WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
COURT OF APPEAL FOR ONTARIO
DATE: 20220818 DOCKET: C67546
Trotter, Sossin and Favreau JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Shakeil Wheatle Appellant
Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Karen Papadopoulos, for the respondent
Heard: May 31, 2022
On appeal from the conviction entered by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury, on February 1, 2018.
Trotter J.A.:
A. Introduction
[1] While hanging out with friends in a school yard in the early morning hours, Daniel Davis was ambushed by three men with handguns. He was shot multiple times and died from his injuries.
[2] The appellant was convicted of first degree murder for his part in this brazen attack. Another man, Jerome Bent, pleaded guilty to second degree murder. The third shooter, known only as “Bread”, was never found.
[3] The case against the appellant turned largely on the testimony of Mr. Bent’s ex-girlfriend, A.B. [1], who was with Mr. Bent on the evening of the murder. A.B. drove Mr. Bent to a parking lot where he chatted with the appellant through the passenger door window of her car. She then drove Mr. Bent to another location where she saw the appellant again. The appellant, Mr. Bent, and another man got out of the cars and headed towards the school yard where Mr. Davis was shot. The men returned immediately afterwards.
[4] A.B.’s evidence had to be approached with great caution. Initially, she too was charged with the first degree murder of Mr. Davis. She also faced two unrelated charges – murder and attempted murder – both in conjunction with Mr. Bent. She was alleged to have been the driver on those occasions as well. All charges against A.B. were eventually dropped after she agreed to cooperate with the police. The trial judge instructed the jury in accordance with R. v. Vetrovec, [1982] 1 S.C.R. 811. Moreover, because A.B. had never met the appellant before the night of the murder, the trial judge cautioned the jury about the frailties inherent in her eyewitness identification evidence.
[5] Even though his trial counsel did not object to either of these aspects of the trial judge’s instructions, the appellant submits that they were deficient and require a new trial. I do not accept these submissions.
B. Factual Overview
(1) The Shooting
[6] Mr. Davis’ murder was the product of Toronto gang violence. At about 1:00 a.m. on July 19, 2012, he was with friends at Flemington Public School in Toronto. Out of nowhere, three men wearing hoodies entered the school yard. One of them said, “chill, chill, chill, we don't have anything”. They moved closer to Mr. Davis, spread out, and then all three of them opened fire. Mr. Davis dropped to the ground. The appellant stood over him and continued to shoot. Mr. Davis was shot eight times. He was unarmed. The three men ran away. More than a year passed before the appellant was arrested.
(2) Mr. Bent’s Confession to a Police Agent
[7] X.Y. [2] was a drug dealer and a gang member turned police agent.
[8] On April 3, 2013, Mr. Bent and X.Y. were in the same holding cell. The jury heard an 8-minute edited video/audio segment from their conversation (that lasted over three hours). Mr. Bent identified himself as one of the shooters. He said the appellant was also one of the shooters; at trial, however, the appellant’s name was edited out of this recording. Mr. Bent described an initial meeting before the three gunmen went to the location of the shooting. He recounted many of the same details about the shooting that the appellant would convey to X.Y. in a separate conversation a few months later.
(3) The Appellant’s Confession to a Police Agent
[9] On June 7, 2013, the appellant sold drugs to X.Y. They went to X.Y.’s hotel room to hang out. Their conversation was recorded.
[10] The appellant told X.Y. about the shooting. He described how he, Mr. Bent, and “Bread” approached Mr. Davis. He tried to put Mr. Davis at ease by calling him “fam” and pretending to be there to buy drugs. Ahead of time, he instructed the other two men to spread out because he did not want to get shot. As it turned out, one of their bullets grazed him “in the nuts.” The appellant continued to fire at Mr. Davis while he was laying on the ground and attempting to “slap the shots away.” The appellant told X.Y. that he used a .38 special that night.
[11] The appellant testified that his statement to X.Y. was untrue. He was merely boasting to another drug dealer. He denied any involvement in the murder of Mr. Davis.
(4) The Evidence of A.B.
[12] A.B. was Mr. Bent’s girlfriend at the time. She had a child with him. She described him as abusive.
[13] As noted above, A.B. was initially charged with the first degree murder of Mr. Davis. On the evening of the murder, she drove Mr. Bent to a parking lot where 20 or more people had gathered, including some friends of Mr. Bent. The appellant – who everyone referred to as “Deego” or “Deegs” [3] – came over to the car and spoke to Mr. Bent while leaning through the passenger-side window. The conversation lasted about five minutes. The appellant wanted Mr. Bent to accompany him to another location. A.B. did not want Mr. Bent to go. After this conversation, she then observed the appellant and others standing around and talking for about ten minutes. The appellant got into another vehicle (in the front passenger seat), and she followed that vehicle to another location that was close to the school yard where Mr. Davis was shot.
[14] Once they arrived at this location, the other car pulled up on her passenger side. The driver’s window of the other car was down, as was her front passenger window. The appellant leaned over from the passenger seat to speak to Mr. Bent advising him the location was just ahead. Both cars drove to a parking lot. A.B. then saw the appellant, Mr. Bent, and another man (presumably “Bread”) leave on foot in the direction of the school yard. Shortly afterwards, shots rang out. The three men returned to the cars immediately afterwards. A.B. drove Mr. Bent away from the scene.
[15] A.B. said she saw the appellant again about a month later. He was driving the car in which he had been a passenger on the night of the murder.
(5) The Appellant and A.B. are Arrested
[16] The appellant and A.B. were arrested on September 26, 2013. A.B. did not cooperate with the police at that time. At trial, she offered various reasons for not cooperating, including her relationship with Mr. Bent (which included having a child), her fear of Mr. Bent, as well as fear for her own life and that of her children if she became known as a “rat” among gang members.
[17] While at the police station, she recognized the appellant as he was being taken to the wagon that would transfer them both to court. The conversations between the prisoners on the wagon that day were recorded pursuant to an authorization.
[18] While in the wagon, prisoners are unable to see each other, but they are able to communicate. The appellant engaged A.B. in conversation. After learning that she was Mr. Bent’s girlfriend, the appellant seemed to know who she was. He said, “I’m on the same charge as you, eh.” He also said: “[a]ll you need to do is see my face and you’ll know me, you know. I just don’t want to say my name.”
[19] During this same conversation, the appellant pressed A.B. for details about what she knew and what she had told the police. She told the appellant that the police had played wiretaps for her of X.Y. talking to two different people. Although she recognized the voices of Mr. Bent and the appellant, she did not share this detail with the appellant. The appellant immediately uttered X.Y.’s street name and then said: “[M]an, I knew it man, I knew it. Fuck. I knew it. I knew it. I knew it bro.”
[20] Once at the courthouse, the appellant was put in a holding cell with Mr. Bent. Their conversation was recorded. Among other things, he told Mr. Bent that his girlfriend was on the same wagon as him and that she mentioned hearing intercepts. The appellant mentioned X.Y. and said that he had thought he was “solid”. The appellant said he spoke with X.Y. about the murder of Mr. Davis because he believed that Mr. Bent had already done so, which as noted above, was true.
(6) A.B. Cooperates with the Police
[21] Although she initially refused to cooperate, A.B. changed her mind. In October 2013, she spoke to the police and told them that “Deego” had recruited Mr. Bent to participate in the murder of Mr. Davis. She then identified the appellant after being shown a single photograph and being asked, “Do you recognize that person?” She replied, “Yeah, that’s him.” I will have more to say about this identification procedure below.
C. The Vetrovec Caution
(1) Introduction
[22] A.B. came with considerable baggage as a witness. She was an accomplice whose charges were withdrawn in three serious cases, including the murder of Mr. Davis. She expressed animosity towards Mr. Bent, who she alleged was abusive to her. She gave contradictory statements and evidence. The process that led to her identification of the appellant was seriously flawed.
[23] The trial judge provided the jury with a Vetrovec warning (as well as a caution about her evidence as an eyewitness, discussed below). All instructions were thoroughly vetted with trial counsel during a pre-charge conference. Actually, the same trial judge vetted similar instructions with the same defence counsel twice – he had presided over a previous trial of this matter that resulted in a mistrial. [4]
[24] The principles that guide an evaluation of a Vetrovec caution are well-established. The framework for this type of instruction was set out by the Supreme Court of Canada in R. v. Khela, [2009] 1 S.C.R. 104, in which Fish J. identified the following “four main foundational elements”, at para. 37:
(1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused. [Emphasis in original.]
[25] Trial judges are afforded significant deference in choosing how best to convey these elements: R. v. Zebedee (2006), 81 O.R. (3d) 583 (C.A.), at para. 83; R. v. Salah, 319 C.C.C. (3d) 373, at para. 107; R. v. Ranglin, 370 C.C.C. (3d) 477, at para. 32. As with all jury instructions, “functionality” is the watchword. Did the warning ensure trial fairness by properly equipping the jury to deal with this type of witness? On appeal, a Vetrovec instruction must be evaluated in the context of the charge as a whole, and against the backdrop of counsel’s addresses: Zebedee, at para. 84.
[26] As discussed below, the appellant makes specific complaints about the trial judge’s Vetrovec caution. But the overarching theme is that the instruction should have been stronger, more should have been said, and different things given more emphasis. Of course, more can always be said, in a different way, with greater emphasis on different factors. The question on appeal, however, is not whether it could have been done differently, or even whether it could have been better; the issue is whether the instruction did its job by conveying the requisite degree of caution, within a proper framework, that assisted the jury in understanding how to approach the witness’ evidence. In this case, it did.
[27] Some of the appellant’s more general complaints about the Vetrovec caution involve the parsing of words and can be readily rejected. For instance, the appellant finds fault in some of the trial judge’s language in the early part of his instructions, when he said:
I will be cautioning you to be very careful with her evidence. Indeed, I will be instructing you that insofar as she identifies Mr. Wheatle as being present at the material time it would be dangerous to rely on her evidence alone. [Emphasis added.]
When he returned to her evidence a few pages later, the trial judge said:
I mentioned earlier that there are reasons to be very careful and cautious before relying on her evidence in that respect. I will explain what those reasons are after I review the substance of what she told you. [Emphasis added.]
[28] According to the appellant, these statements merely foreshadowed an instruction that was about to be given, and they were incomplete. They do not count in evaluating the overall adequacy of the Vetrovec instructions. I disagree.
[29] It is obvious that these were not the full Vetrovec instructions given to the jury. But they are good examples of how the trial judge was able to weave this critical theme – the need for a cautious approach to A.B.’s evidence – into his entire charge. He warned the jury to be careful and/or cautious seven times in his instructions. They all count in the evaluation of whether the jury was properly instructed.
[30] In a similar vein, the appellant takes issue with the trial judge’s opening words of his more formal Vetrovec caution:
Experience and common sense should tell you that in light of the circumstances in which [A.B.] found herself when she was arrested, she might have an interest in providing a statement implicating both Mr. Wheatle and Mr. Bent, and that she might have an interest in continuing to implicate them now. [Emphasis added.]
[31] The appellant submits that reference to “experience and common sense” downplayed the seriousness of the instruction, as did the use of the conditional term “might.” I do not accept these submissions.
[32] This type of introduction to a Vetrovec warning, with references to experience and common sense, has been in use in Ontario jury charges for many years: see David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) (Final 31 – Crown Witnesses of Unsavoury Character – (Vetrovec Warning)).
[33] Experience and common sense are important components of the modern approach to this type of instruction. In his explanation of the importance of Vetrovec cautions in jury trials, Fish J. said in Khela, at para. 4: “It is meant to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses” (emphasis added). See also R. v. Brooks, [2000] 1 S.C.R. 237, at p. 287, and Marc Rosenberg, “Developments in the Law of Evidence: The 1992-1993 Term” (1994), 5 S.C.L.R. (2d) 421, at p. 463. Moreover, in the appraisal of human motivation, experience cannot be divorced from common sense: see R. v. Magno, 321 C.C.C. (3d) 554, at para. 29 and R. v. Winmill (1999), 42 O.R. (3d) 582, at para. 115. Indeed, in his ground-breaking judgment in Vetrovec, Dickson J. (as he then was) endeavoured to restore a more common sense approach to this area of the law: see p. 828.
[34] The trial judge did not undermine the value of this instruction by appealing to experience and common sense.
(2) Explaining the Need for Caution
[35] The appellant submits that the trial judge erred by failing to fully explain why it would be dangerous to accept A.B.’s evidence without confirmation. He focuses again on the passage quoted directly above in para. 30. He submits that the instruction was underinclusive. The trial judge should have listed further reasons why A.B.’s evidence required confirmation. The appellant was deprived of the full protection of such a caution. I disagree.
[36] The passage in para. 30 must be evaluated in the context of the trial judge’s discussion under the heading – “Assessing [A.B.’s] Credibility”. The section commences with another reminder to be “careful and cautious”. The trial judge recounted that A.B. had been the driver in three very serious crimes committed by Mr. Bent (two murders and an attempted murder).
[37] The trial judge pointed out that A.B. conceded that one of the reasons she gave a statement was to have the charges against her dropped. He also told the jury that she believed it was the right thing to do and that she was guided by a sense of moral responsibility to say something about what happened to Mr. Davis, so that his mother could have closure. He reminded the jury that she had hoped that the appellant and Mr. Bent would have “stepped up” to clear her name. When that did not occur, she went to the police and gave her statement. In the course of this evidentiary review, the trial judge recounted defence counsel’s numerous attacks on the veracity of this aspect of A.B.’s account.
[38] It is in this broader context that the trial judge’s words – “in light of the circumstances in which [A.B.] found herself when she was arrested” – must be understood. It was clear to everyone at trial, and made equally clear to the jury, that there were various reasons to be wary of A.B.’s account. I do not accept the appellant’s submission that the trial judge effectively undermined the caution by only emphasizing that A.B.’s main motivation was maintaining the same story for fear of being charged with further offences. While this was part of the equation, it was made clear to the jury that the concerns with her testimony were far-reaching. I also note, in terms of whether or not she provided a consistent account, A.B. was extensively cross-examined on her early statements and testimony. This too was thoroughly reviewed in the trial judge’s final instructions.
[39] The trial judge could have itemized the reasons why A.B.’s evidence required caution differently. But he was not asked to do so. The failure to itemize every reason as to why a witness’ evidence may be suspect is not necessarily fatal: R. v. Pollock (2004), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 158. Moreover, as Watt J.A. said in R. v. Bradey, 127 O.R. (3d) 721, at para. 136: “Where the appellant claims that a Vetrovec caution is deficient because a trial judge failed to provide an exhaustive catalogue of the reasons for the caution, we should consider whether the characteristics omitted were latent or self-evident.” See also R. v. Noureddine, 2022 ONCA 91, at para. 28. In this case, they were self-evident, if not obvious. These reasons were addressed at great length and with great vigour by trial counsel, both in his lengthy cross-examination of A.B., and in his closing address. The jury knew why they were being told to approach her evidence with caution and why it would be dangerous to accept her evidence in the absence of confirmation.
(3) Confirmatory Evidence
(a) The Approach to Confirmatory Evidence was Correct
[40] The appellant submits that the trial judge erred in his approach as to how confirmatory evidence might be used. He further submits that the trial judge gave flawed examples of potentially confirmatory evidence. I do not accept either submission.
[41] The trial judge explained confirmation in the following way:
What do I mean by confirmation? To be confirmatory, the testimony of another witness or other evidence must be independent of [A.B.] and it must help restore your faith in the relevant aspects of her testimony. In other words, it must tend to show that [A.B.] was, in fact, giving a reliable and truthful account. The independent confirmatory evidence does not need to say exactly the same thing as what [A.B.] said and it need not, in itself, implicate Mr. Wheatle in the murder of Daniel Davis. But it must confirm material parts of her testimony in a way that tends to show that she is telling the truth about the shooting of Daniel Davis. [Emphasis added.]
[42] The appellant takes issue with this statement, complaining that it was too broad. Instead, the instruction should have focused the jury on looking for confirmation that A.B.’s identification of “Deego” as the appellant was accurate. In effect, the appellant submits that the trial judge should have given a blended Vetrovec-eyewitness identification evidence warning, something that was not requested at trial. I will address the eyewitness identification caution below. On its own terms, this aspect of the Vetrovec instructions was entirely appropriate.
[43] In R. v. Kehler, [2004] 1 S.C.R. 328, at para. 12, the Supreme Court held that confirmatory evidence need not directly implicate the accused or confirm the Crown witness’ evidence in every respect; instead, it must be capable of restoring the jury’s faith in the “relevant aspects” of the witness’ account. In Khela, at para. 40, Fish J. said: “In Kehler, the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused. We maintain that position here” (emphasis added). See also R. v. Riley, 137 O.R. (3d) 1, at para. 241.
[44] Applying this approach, the trial judge was not required to limit the focus of confirmation on whether A.B.’s identification of the appellant as “Deego” was accurate. A.B.’s evidence went far beyond this issue. She provided a broader narrative account, which interacted with other evidence, including Mr. Bent’s conversation with X.Y., the appellant’s conversation with X.Y., the appellant’s jailhouse conversation with Mr. Bent, and the appellant’s recorded conversation with A.B. in the wagon. The trial judge’s approach was appropriate in the circumstances.
(b) The Examples of Confirmatory Evidence were not Flawed
[45] The appellant further submits that the trial judge gave flawed examples of what might be considered independent confirmatory evidence: the appellant’s statement to X.Y., as well as Mr. Bent’s statement to X.Y.
[46] Whether a particular piece of evidence is confirmatory, including whether it is independent, is a question of fact for the jury to decide, as long as there is a reasonable basis that the evidence is independent of the Vetrovec witness: Magno, at paras. 41-43. The trial judge made this clear to the jury, telling them, “It is entirely for you to say.”
[47] The appellant submits that his recorded conversation with X.Y. was not capable of being independent confirmation of A.B.’s evidence because the police had played parts of this intercepted conversation (and the one between Mr. Bent and X.Y.) for her on the day that she and the appellant were arrested. Defence counsel did not dispute that there was a reasonable basis for the jury to find that his statement had the necessary independence in order to fulfill its confirmatory role; instead, he urged the jury to find that it did not confirm A.B.’s testimony. This was a matter for the jury to determine. In doing so, they were entitled to consider how much of the intercept she was exposed to. She was cross-examined on this issue extensively at trial.
[48] The appellant also submits that, in referencing the appellant’s conversation with X.Y. as potential confirmatory evidence, the trial judge erred by leaving out the words – “if you find it to be true”. That is, it is the appellant’s contention that the trial judge may have left the jury with the impression that the fact the appellant said the things he did to X.Y. was capable of corroborating A.B.’s evidence, irrespective of the truth of his statement.
[49] It is inconceivable that the jury would have believed that they could use the appellant’s statement as confirmatory evidence even if they did not find it to be true. This likely explains why there was no objection from defence counsel on this issue. The trial judge reminded the jury that it was up to them to decide whether the appellant was telling the truth when he was speaking to X.Y. Moreover, the trial judge properly addressed this issue in the context of the appellant’s testimony at trial in which he vehemently disavowed the truthfulness of his account to X.Y.
[50] Mr. Bent’s statement to X.Y. was also capable of confirming the details of A.B.’s evidence. A.B.’s identification of Mr. Bent as one of the assailants was inextricably linked to her identification of the appellant as one of the shooters. A.B.’s evidence conveyed a narrative of the men meeting at one place, moving to another, and the three men departing in the direction of the school yard. Mr. Bent’s statement to X.Y. was capable of supporting A.B.’s account. Again, this was a matter for the jury to decide.
[51] I would dismiss this ground of appeal.
D. The Eyewitness Evidence Instruction
[52] The appellant submits that the trial judge’s instruction on eyewitness identification evidence was deficient. I do not accept this submission.
[53] As noted in the overview of the evidence above, A.B. saw the appellant twice on the night Mr. Davis was killed. She had an opportunity to see the appellant for about five minutes at the original meeting point as he spoke to Mr. Bent through the open passenger-side window. A.B.’s face was about a metre away from the appellant’s at that point. A.B. testified that she got “a really good look” at the appellant and was focused on him because she disapproved of his attempt to convince Mr. Bent to come with him. After this conversation, A.B. saw the appellant milling about and speaking with the others for ten minutes before everybody headed for their destination.
[54] Once they ended up near the school yard, A.B. saw him again as he spoke with Mr. Bent through open car windows. Again, this was not a fleeting glimpse. A.B. saw the appellant (and the others) leave for the school yard, and then return minutes later after hearing gunshots. A.B. claimed to have subsequently seen the appellant driving the same car in which he was a passenger on the night that Mr. Davis was murdered. She recognized the appellant on the day of her arrest. Importantly, the appellant seemed to know who A.B. was and assumed that she would recognize his face.
[55] As already noted, after A.B. decided to cooperate, she was interviewed by the police. For reasons unknown, the police did not present her with a proper lineup. Instead, they showed her a single photograph and asked her “Do you recognize that person?”, to which she replied, “Yeah, that’s him”. However, this serious flaw may have been mitigated somewhat by the fact that A.B. told the police that “Deego” was the person who recruited Mr. Bent before the police showed her the photograph.
[56] The appellant submits that the trial judge should have given a blended Vetrovec-eyewitness identification caution, combining the special caution with a warning about the frailties of eyewitness identification evidence.
[57] The trial judge was not asked to give this specific instruction. Nonetheless, the trial judge essentially gave a blended instruction and a heightened warning about the reliability of A.B.’s identification of the appellant on the night that Mr. Davis was murdered. After completing his Vetrovec warning, the trial judge immediately transitioned into a discussion of eyewitness identification. Thus, the two warnings were effectively linked to each other. It would not have been lost on the jury that they must apply the same caution to A.B.’s key evidence – her identification of the appellant as one of the three shooters.
[58] The trial judge quite rightly told the jury that his Vetrovec instruction was focused on A.B.’s credibility, whereas the identification instruction was focused on reliability. This made sense in view of the fact that A.B. was adamant that she correctly identified the appellant. It was especially important that the jury be warned not to be distracted by her apparent confidence in the accuracy of her identification. The trial judge did just that: “[A.B.] expressed great confidence in her identification of Mr. Wheatle, but you must bear in mind that there is a very weak link between the confidence level of a witness and the accuracy of the witness.” This instruction was requested and it was required in the circumstances: see R. v. Grant, 2022 ONCA 337, at para. 83 and R. v. Hibbert, [2002] 2 S.C.R. 445, at para. 52.
[59] The trial judge’s eyewitness identification instruction went much further. Over the course of many pages, the trial judge thoroughly canvassed the factors that might have affected the jury’s evaluation of A.B.’s identification evidence. In the review of her evidence, he brought the jury’s attention to the following aspects of her identification of the appellant: (a) she had never met the appellant before the night in question; (b) her limited opportunities to see the appellant that night (and her inconsistent statements about her observations); (c) the lack of detail in the description of the person she identified as the appellant; and (d) the fact that she did not give a statement or identify the appellant until over a year after the murder.
[60] The trial judge underscored the problematic nature of the identification procedure used by the police – showing A.B. a single photograph and asking “Do you recognize that person?” He told the jury that this way of doing things was “much less reliable than a ‘line-up’, and it involved considerable suggestion by the police.”
[61] Overall, the warning was a strong one, and it was thorough. It built upon the trial judge’s Vetrovec caution. Indeed, at the end of his eyewitness identification instructions, he told the jury to be “very cautious” before accepting A.B.’s identification of the appellant. There was no objection.
[62] I would dismiss this ground of appeal.
E. Disposition
[63] I would dismiss the appeal.
Released: August 18, 2022 “G.T.T.” “G.T. Trotter J.A.” “I agree. Sossin J.A.” “I agree. L. Favreau J.A.”
[1] The identity of this witness is protected by a publication ban made by the trial judge. [2] The identity of this witness is protected by a publication ban made by the trial judge. [3] At trial, the appellant acknowledged that this was his street name. [4] This was the appellant’s third trial in this matter. It was presided over by the same judge who conducted the second trial. The first trial was presided over by a different trial judge. The first two trials ended in mistrials. The reasons for these mistrials are not relevant to the issues on appeal.