COURT OF APPEAL FOR ONTARIO

Date: 2023-08-11 Docket: C68389 Judges: Feldman, Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jasper Atienza Appellant

Counsel: James Lockyer and Jack Gemmell, for the appellant Karen Papadopoulos, for the respondent

Heard: April 26 and 27, 2023

On appeal from the conviction entered on October 5, 2019 by Justice Laura A. Bird of the Superior Court of Justice, sitting with a jury.

Copeland J.A. :

Overview

[1] The appellant appeals from his conviction for the first-degree murder of Noel Williams.

[2] Shortly after 1:00 a.m. on February 10, 2017, Mr. Williams was shot three times, by two gunmen, a short distance down the street from his home at 47 Hillwood Street, in Markham. He died shortly afterwards.

[3] The appellant was jointly tried with Laurie Phan for the murder of Mr. Williams. The Crown’s position was that the shooting of Mr. Williams was pre‑meditated, and that the appellant was either one of the shooters or drove the shooters to and from the scene as part of a plan to kill Mr. Williams. The appellant’s motive was said to be payback for Mr. Williams’ involvement in an assault and robbery of the appellant a few weeks earlier. The alleged plan was for Ms. Phan, who had spent the afternoon at Mr. Williams’ home, to lure Mr. Williams from his home under the pretext of returning his cell phone, which she had taken from him a week earlier.

[4] The Crown’s case against the appellant was supported by evidence of motive; cell tower data evidence which supported his travel to, and presence at, the scene (and, ultimately, his admission of presence at the scene); cell phone records documenting his communications with Ms. Phan and Diaz Stevens in the time leading up to the shooting; an admission by the appellant to having killed someone, made to a friend the day after the shooting; evidence from another friend that the appellant was in possession of a handgun the day after the shooting; and forensic evidence of a small amount of gunshot residue in the vehicle that the appellant was in at the scene on the night of the shooting, and on the sleeve of a jacket the appellant had worn earlier on the day of the shooting, according to video evidence.

[5] Although the Crown put its case forward primarily on the basis of a plan between the appellant and Ms. Phan (and others), the Crown also took the position that the evidence could support a finding that the appellant planned the murder without Ms. Phan, but with others.

[6] The appellant admitted in an agreed statement of facts that he attended at the scene of the shooting in a light grey/silver BMW SUV. However, his position was that, although the evidence placed him at the scene of the shooting, it was not sufficient to prove that he was involved in the shooting, as opposed to merely present when he was there to return Mr. Williams’ phone and pick up Ms. Phan. At trial, the appellant argued that the shooting was done by “Weaz” Ramjit Singh and Diaz Stevens, and that they arrived at the scene in a second vehicle (not in the BMW SUV he was driving). Their presence in the area was supported by cell phone tower data. The appellant further argued that, whatever happened at the scene of the shooting, the evidence was more supportive of a confrontation that got out of hand than of a planned and deliberate murder. Neither the appellant nor Ms. Phan testified.

[7] The jury found the appellant guilty of first-degree murder, but acquitted Ms. Phan.

[8] The appellant raises three grounds of appeal to argue that his conviction should be set aside and a new trial ordered. First, the appellant argues that the trial judge erred in instructing the jury that the evidence showed that only the light grey/silver BMW SUV, driven by the appellant, was at the scene of the shooting. Second, he argues that the trial judge erred in instructing the jury that they could consider the post-offence association between himself and Ms. Phan as probative of planning and deliberation. Third, he argues that the trial judge erred in instructing the jury that they could infer guilt from his failure to tell Ricardo Domingo and Ace Deniega where he was going when he left Mr. Domingo’s apartment shortly after midnight (approximately one hour prior to the shooting). [1]

[9] For the reasons that follow, I would dismiss the appeal.

[10] First, the trial judge did not remove from the jury’s consideration whether the evidence could show (or leave a doubt) that a second vehicle was at the scene of the shooting. Read as a whole, the jury instructions made clear to the jury that it was up to them to decide the factual issue of how many vehicles were at the scene of the shooting. The manner and level of detail with which the trial judge left to the jury the issue of how many vehicles were at the scene was within the scope of the flexibility accorded to trial judges in crafting jury instructions.

[11] Second, the trial judge did not err in instructing the jury that the continued post-offence association between the appellant and Ms. Phan could be considered in the context of the evidence as a whole as relevant to planning and deliberation. Further, the fact that the jury acquitted Ms. Phan indicates that whatever theory of planning and deliberation they accepted in relation to the appellant, it did not involve planning and deliberating a murder with Ms. Phan. As a result, the evidence of post-offence association between the appellant and Ms. Phan cannot have been the basis on which the jury found that the appellant planned and deliberated the murder.

[12] Third, the trial judge only referred briefly in the jury instructions to the fact that, when the appellant left Mr. Domingo’s apartment, he told Mr. Domingo and Mr. Deniega that he was leaving, but did not say where he was going. This brief reference was part of a broader summary of evidence of events connecting the appellant to the shooting. I agree with the appellant that, in the circumstances of this case, the evidence that the appellant did not say where he was going had no probative value and, in particular, was not evidence of secrecy on his part. However, read within the broader summary, the instructions would not have suggested to the jury that they should draw an inference that the appellant was being secretive when he did not say where he was going.

Factual background

[13] The context of the trial evidence is necessary to understand the issues the appellant raises regarding the jury instructions. The summary below proceeds chronologically.

[14] The appellant and Mr. Williams knew each other as a result of their involvement in the drug subculture. They shared a circle of acquaintances, a number of whom were involved in the events surrounding the shooting and gave evidence at the trial. Many of these witnesses were also involved in the drug subculture. As a result, they were witnesses who were presented to the jury, both by the Crown and the defence, as having various frailties, including, in some cases, criminal records and drug and/or alcohol use at the time of the events about which they testified. The trial judge cautioned the jury extensively regarding the relevance of criminal records in assessing the credibility of witnesses. She also cautioned the jury regarding drug use at the time of events as a factor in assessing the reliability of evidence. Further, for three Crown witnesses – Marshell Williams, Ace Deniega, and Deniel Dizor – the trial judge gave Vetrovec warnings on the basis that there was evidence from which the jury could conclude that they had either lied to police or lied in their trial evidence.

(i) Robbery of the appellant by Mr. Williams and others – January 17, 2017

[15] On January 17, 2017, approximately three weeks prior to the shooting, the appellant was robbed by Jake Chua, Mr. Williams, and an unidentified man. The appellant reported the robbery to police. He told police that Mr. Chua had assaulted him and ordered Mr. Williams to search his pockets. The Crown’s theory at trial was that the shooting of Mr. Williams was payback for the robbery of the appellant.

(ii) Ms. Phan takes Mr. Williams’ phone – February 3, 2017

[16] Ms. Phan knew Mr. Williams and had spent time with him consuming drugs. On February 3, 2017, she attended at Mr. Williams’ home. Mr. Williams lived there with his two sisters, Marshell and Kentrell Williams (the former testified at trial); his brother, Tyrell Williams; and two children. Alyssa Van Sickle, who also testified at trial, was staying at the Williams’ home in the time period around the shooting. On February 3, 2017, Ms. Phan used Mr. Williams’ phone to text Mr. Chua and to call “AZ”, who was the father of her child. In the texts to Mr. Chua, Ms. Phan told him that she intended to rob Mr. Williams of drugs and also of her dislike for Mr. Williams. When Ms. Phan left Mr. Williams’ home on February 3, she took his cell phone with her.

(iii) Ms. Phan returns to Mr. Williams’ home – February 9, 2017

[17] Ms. Phan did not return Mr. Williams’ phone during the week after February 3, 2017. She promised to return it to him on February 9, 2017. On that day, she attended at Mr. Williams’ home, but did not have his cell phone with her. This was the afternoon that led into the night of the shooting.

[18] Ms. Phan spent most of her time that afternoon and evening with Mr. Williams in his garage. Others joined in from time to time. Everyone in the garage was drinking and using drugs, including methamphetamine and marijuana. Mr. Williams and members of his family repeatedly asked Ms. Phan about his phone. Ms. Phan answered that the appellant had the phone, and that either he or another of her associates would bring it.

[19] Marshell Williams and Alyssa Van Sickle were both at the Williams’ home that afternoon. Both grew fed up with Ms. Phan and her empty promises to return Mr. Williams’ cell phone. Ms. Williams told Mr. Williams to take the loss, forget about the phone, and that she would buy him a new one. Ms. Phan assured Mr. Williams that the appellant would bring the phone. Ms. Van Sickle did not want the appellant to attend the house. She offered Ms. Phan a ride, so that the appellant could pick her up elsewhere. Ms. Phan declined her offer.

[20] Between the time of her arrival at the Williams’ house and the early morning shooting, Ms. Phan made multiple calls to the appellant, as well as to Weaz, Diaz Stevens, and AZ.

(iv) The appellant’s whereabouts during the evening of February 9, 2017 and cell phone evidence

[21] On the evening of February 9, 2017 the appellant was hanging out at Ricardo Domingo’s apartment, on Wellesley Street in Toronto. He arrived sometime between 7:00 p.m. and 9:00 p.m. Mr. Domingo was a crystal meth dealer and user with a lengthy criminal record. The appellant spent time at the apartment once or twice a week. Drug use was common.

[22] Around 9:00 p.m., Ace Deniega came to smoke meth in the apartment. Mr. Deniega testified that the appellant told him that he was waiting for his car to be returned by Mr. Domingo’s niece. Shortly before midnight, the niece arrived at the apartment. The appellant left by himself in his car. Although he said that he was leaving, he did not say where he was going. Cell tower records confirmed that the appellant was at or near the address of Mr. Domingo’s apartment from 9:00 p.m. on February 9 until shortly after midnight on February 10.

[23] Cell tower records then showed the appellant driving north on the Don Valley Parkway to at or near his apartment in Richmond Hill. The appellant was at or near his apartment at 12:27 a.m., and remained there until 12:31 a.m. Cell tower records for Weaz and Mr. Stevens showed them to travel a similar route from the Wellesley Street area to at or near the appellant’s apartment in Richmond Hill, arriving at 12:28 a.m. and remaining there until 12:36 a.0m. Cell phone records showed that Mr. Stevens called the appellant twice while on route to Richmond Hill and twice more between 12:28 and 12:36 a.m.

[24] After 12:31 a.m., the cell phones of the appellant and Mr. Stevens went in different directions. The appellant drove east to Markham, while Weaz and Mr. Stevens went north towards Gormley. However, by 12:54 a.m., all of their phones were close to Mr. Williams’ home (the Hillwood area). Cell phone records show that the appellant and Mr. Stevens called each other multiple times during this period.

[25] In the hour before the shooting, Ms. Phan and the appellant texted and called each other seven times. Based on cell phone records, the appellant spoke to Ms. Phan at 12:03 a.m. before leaving Mr. Domingo’s apartment, at 12:54 a.m. as he approached Mr. Williams’ house, and at 1:02 a.m. as he arrived at the scene.

[26] The appellant and Mr. Stevens shared 25 phone calls and three texts in the 24 hours prior to the shooting, including seven calls in the hour prior.

[27] Four days after the shooting (prior to his arrest), the appellant terminated the cell phone number he had used to make the calls and texts referred to above. He had used the number for three years.

(v) The shooting at 1:00 am, February 10, 2017

[28] The appellant arrived at Mr. Williams’ home around 1:00 a.m. in a BMW X3 SUV. Photos of the BMW tendered at trial show that it was light grey/silver. As noted above, cell phone records showed that the appellant had a brief call with Ms. Phan at this time. Ms. Phan told Mr. Williams that the appellant was outside with his cell phone.

[29] Ms. Phan and Mr. Williams exited the garage and walked east along Hillwood Street. Mr. Williams’ house was approximately three houses east of the intersection of Hillwood Street and Westchester Crescent (on Hillwood). Mr. Williams and Ms. Phan walked towards the intersection. The appellant had not parked in front of Mr. Williams’ house, but rather, parked down the street and across the intersection of Hillwood and Westchester to the east. When Mr. Williams and Ms. Phan crossed the intersection, at least two shooters fired at Mr. Williams as he approached the appellant’s BMW SUV. He suffered three gunshot wounds, two of which were fatal. According to Marshell Williams, immediately after the shots rang out, Ms. Phan got into the BMW on the driver’s side at the rear, and the car sped away.

(vi) No reliable witness evidence of the moment of the shooting

[30] Ms. Van Sickle was in the garage with Mr. Williams, Ms. Phan, and others just prior to the shooting. Ms. Phan received a phone call and then told Mr. Williams his phone had arrived. Ms. Phan and Mr. Williams walked out of the garage to go get the phone. Ms. Van Sickle went back into the house. She was just inside the front door of the house when she heard at least four gunshots within seconds of when Ms. Phan and Mr. Williams had left the garage. Ms. Van Sickle looked out the front window of the house and saw a single vehicle, which she described as “like grey” with black-coloured wheels. It was stopped on the other side of the intersection, to the east and on the north side of Hillwood, exactly where she would find Mr. Williams’ body minutes later. The SUV fled west, speeding right past the front door of the house, where Ms. Van Sickle was standing with Ms. Williams. Ms. Van Sickle testified that when she heard the gunshots, Marshell Williams ran to the front door and onto the porch. Ms. Van Sickle pulled Ms. Williams back inside, as she was worried it was a drive-by shooting.

[31] A neighbour, Jonas Lee, was in his bedroom at the time of the shooting. Mr. Lee lived on the cross-street, Westchester, approximately four houses down from the intersection with Hillwood. He testified that he heard three consecutive “firecracker sounds” soon after 1:00 a.m., followed by the sound of a car crash. He looked out his window and saw a “white” SUV accelerating westbound along Hillwood Street.

[32] Marshell Williams testified that she was outside when the shots were fired. She testified that she saw Mr. Williams and Ms. Phan walking towards a vehicle stopped on the opposite side of Hillwood, past the intersection with Westchester. She described the vehicle as a black four-door BMW X5 with tinted windows. She said that she heard three gunshots and saw flashes of light from inside the BMW. She said she saw Ms. Phan throw up her hands in a “what the fuck” gesture and get into the rear door on the driver’s side. Ms. Williams testified that she saw no‑one else outside the BMW, nor anyone else get into it. The BMW then sped off along Hillwood, past their house.

[33] Although Ms. Williams testified to seeing the moment of the shooting, by closing submissions, both the Crown and the defence took the position that her evidence of seeing the shooting was unreliable. Ms. Van Sickle had testified that Ms. Williams did not make it outside until after the shots were fired. Ms. Williams’ evidence of flashes coming from inside the BMW was inconsistent with the minimal gunshot residue found in the BMW. Ms. Williams had made a statement to a friend inconsistent with her trial evidence, saying she came outside after the shooting. An officer at the scene recorded her description of the vehicle as “a light-coloured SUV, possibly silver”. Further, there was evidence that the day after the shooting, Ms. Williams asked another witness (Camille Cave-Mota) to contact police and say that the appellant drove a black BMW 232i and provide a partial license plate including the numbers 376. Ms. Williams obtained this information from a photo posted on Instagram. In closing submissions, Crown counsel (not Ms. Papadopoulos) accepted that Ms. Williams did not witness the shooting, but relied on her evidence of observations after the shooting. By contrast, counsel for the appellant (and counsel for Ms. Phan) took the position that Ms. Williams’ evidence was wholly unreliable and that she lied to the police and in her trial evidence.

(vii) The appellant and Ms. Phan’s whereabouts after the shooting

[34] The appellant and Ms. Phan returned to Mr. Domingo’s apartment between 1:00 and 2:00 a.m., where they stayed for the rest of the night. Mr. Domingo and Mr. Deniega were still there. The appellant and Ms. Phan sat for a while in the living room, whispering to each other. Mr. Deniega had been using drugs all night. He said that the appellant whispered to him in Tagalog, “May tinira ako”. This translates literally to “I hit someone” or “I struck someone”. Mr. Deniega testified that he understood it to mean, “I have killed someone”. Mr. Deniega testified that, later that morning, the appellant called him and told him to turn on CP24 to see a report about the shooting of Mr. Williams. The appellant told him in Tagalog, “That’s the one we hit” or “That’s the one we killed.” Phone records confirmed that the appellant called Mr. Deniega twice on the afternoon of February 10, 2017.

[35] In the morning, the appellant and Ms. Phan drove to pick up a friend of the appellant, Deniel Dizor, and went to the appellant’s apartment. Mr. Dizor testified that, while at the apartment, the appellant told him that Mr. Williams was dead, and showed him a news story on his phone. When Mr. Dizor asked the appellant who killed Mr. Williams, the appellant shrugged. The appellant went on to tell Mr. Dizor that Mr. Williams had been shot three times, and then opened his jacket to display a handgun in his waistband. Mr. Dizor testified that he did not ask any more questions because the appellant’s gun made him nervous. He explained that he did not initially tell the police about this conversation because he did not want to get involved and feared retribution from the appellant or Ms. Phan.

(viii) Forensic evidence

[36] Mr. Williams’ body was found on the north side of Hillwood Street, east of the intersection of Hillwood and Westchester (on the far side of the intersection from Mr. Williams’ house). Officers who attended the scene of the shooting found several items near Mr. Williams’ body, including a large kitchen knife, a do-rag or face covering with Mr. Williams’ DNA on it, a bottle of alcohol from the garage, and a drug pipe. [2] A total of five spent shell casings were found: four from a 40-calibre handgun and one from a 9 mm firearm. Based on these findings, at least two firearms were used in the shooting.

[37] Also found near Mr. Williams’ body was a broken splash/vent deflector from a BMW. Through investigation, the police located the BMW from which the splash/vent deflector had been left at the scene. It had been reported stolen on February 1, 2017. It was recovered by police in Toronto on February 16, 2017. It had a damaged splash/vent deflector consistent with the piece found at the scene near Mr. Williams’ body. The appellant’s partial palm print was located on the inside of the sunroof.

[38] Forensic evidence suggested that the shooters were not in the BMW when shots were fired. Only one particle of gun-shot residue was found in the BMW, and the location of the shell casings was inconsistent with the shooters being inside the car. The appellant’s leather jacket, which he had been seen wearing hours before the shooting, was also seized. The seizure was approximately two months after the shooting, when the appellant was arrested. Three particles of gun-shot residue were found on the left sleeve of the jacket.

(ix) The appellant admitted he was at the scene of the shooting

[39] In an agreed statement of fact, the appellant admitted that he arrived at the scene of the shooting in the BMW X3 SUV that was reported stolen on February 1, 2017 and recovered by police on February 16, 2017. Photos of the BMW tendered at trial show it to be light grey/silver. Neither the appellant nor Ms. Phan testified at trial.

Analysis

(1) Did the trial judge err by instructing the jury that the evidence showed that only the light grey/silver BMW SUV, driven by the appellant, was at the scene of the shooting?

[40] The appellant argues that the trial judge erred by instructing the jury that the evidence showed that only the light grey/silver BMW SUV, driven by the appellant, was at the scene of the shooting. The appellant argues that this constituted error because the evidence was capable of supporting an inference that there was a second vehicle at the scene (the “two-car theory”). The relevance to the defence of whether there was a second vehicle is that, if there was only one vehicle at the scene, in the context of the rest of the evidence, the shooters must have arrived at the scene and left in the light grey/silver SUV driven by the appellant, strongly supporting that the appellant was at least a party to the offence. According to the appellant, if Weaz and Mr. Stevens arrived and left in a second vehicle, separate from the appellant, this supported the defence theory that the appellant was merely present at the scene of the shooting, and neither a principal nor a party to the offence.

[41] I would reject this ground of appeal. Although the trial judge’s instructions addressing the two-car theory were brief, she left the issue with the jury. The trial judge was entitled to exercise her discretion as to the level of detail and manner in which this issue was left to the jury. In light of the weakness of the evidence supporting the presence of two vehicles at the scene, I see no error in the jury instructions on this issue.

[42] I will return to the evidentiary basis on which the appellant relies for the argument that there was an available inference that there were two vehicles at the scene of the shooting. I accept that there was an evidentiary basis for that inference, but, in my view, it was thin.

(i) The relevant portions of the final instructions

[43] By way of context, two routes to liability for the appellant were left to the jury. One was as a principal (a shooter). The other was as an aider (a driver). The issues regarding the two-car theory relate to the instructions on liability as an aider (a driver).

[44] The instruction on this issue was the subject of submissions during the pre-charge conference. In the draft and final instructions, the trial judge correctly instructed the jury that they could only find the appellant guilty as an aider if they found that there was “a plan to have Mr. Williams come outside to the area of the BMW to be harmed” and that the appellant knew about the plan. She then provided a summary list of “[s]ome of the evidence [the jury] may wish to consider on the issue of whether Mr. Atienza was an aider if he was not one of the shooters.”

[45] The draft instructions under discussion during the pre-charge conference contained the following as one of the items on the list of evidence the jury may wish to consider in relation to the appellant’s liability as a party:

There was no evidence that there was more than one vehicle involved in the shooting, therefore, that you may find the shooters arrived and left in the BMW.

[46] Counsel for the appellant (not Mr. Lockyer or Mr. Gemmell) argued that there was evidence that there were two vehicles at the scene. In support of this submission, counsel referred to the different descriptions of the colour of the vehicle by Ms. Williams, Ms. Van Sickle, and Mr. Lee, and the cell tower evidence that showed the appellant’s phone and Mr. Stevens’ phone in different locations prior to and at 12:40 a.m., and therefore in separate vehicles at least until that time.

[47] In response to counsel’s submissions, the trial judge agreed to revise the instruction on this issue. The final instruction read:

There is no evidence from any of the witnesses that there was more than one vehicle involved in the shooting. Therefore, you may find that the shooters arrived and left in the BMW. You should consider the cellular phone evidence that Diaz Stevens’ phone and Mr. Atienza’s phone were in different locations at 12:40 a.m. [Emphasis added.]

[48] The trial judge also included in her review of the evidence Ms. Williams’ evidence that she saw a black BMW SUV at the scene. As I have noted above, the trial judge cautioned the jury extensively about reliability concerns in relation to Ms. Williams’ evidence, given significant inconsistencies in her prior statements and inconsistencies with other trial evidence. The appellant does not suggest any error in the trial judge’s caution to the jury about the evidence of Ms. Williams. I return to this issue below in considering the weakness of the evidence in support of the two-car theory.

[49] In several places in the final instructions, the trial judge made reference to the cell tower and cell phone evidence which showed that at various times prior to 12:40 a.m., the appellant’s phone and Mr. Stevens’ phone were in different locations, as well as the evidence that during the same time period, there were phone and text communications between those two phones (suggesting that the appellant and Mr. Stevens were in different locations at the time of the phone and text communications).

[50] In addition, in the portion of the jury instructions summarizing the defence position, the trial judge included the defence position that:

There is no reliable evidence as to how the shooting happened, what led to the shooting, who the shooter was or how many shooters there were, where the shots were fired from, how many cars were present or how many people were present.

There is evidence to suggest that Mr. Atienza was the driver but there is also evidence that the driver could not have been the shooter. [Emphasis added.]

[51] In addition to these specific references to the evidence and the position of the defence, the trial judge included standard instructions, emphasizing that it was the jury’s role to decide the facts in the trial. These instructions included that:

• the jurors were the judges of the facts in the trial;
• although she would review what she thought were important parts of the evidence, she may overlook items of evidence that they may think are important or mention evidence that they may think is insignificant;
• if the jurors’ memory of the evidence differed from her review of the evidence, it was their memory that counted;
• it was the jurors’ duty to consider and make their decision based on all of the evidence, and not just the parts referred to by the trial judge; and,
• if she commented or expressed opinion on issues of fact, the jurors did not have to reach the same conclusion, and that it was they, not she, who were to decide what happened in this case.

(ii) The trial judge did not remove from the jury’s consideration the number of vehicles at the scene

[52] I reject the appellant’s submissions that the trial judge instructed the jury that the silver/grey BMW SUV, driven by the appellant, was the only vehicle at the scene. She left open to the jury the inference that there may have been a second vehicle. Her review of the evidence in relation to the possibility that a second vehicle was present was sufficient in the circumstances.

[53] Several factors about the instructions lead me to this conclusion. First, the statement that “[t]here is no evidence from any of the witnesses that there was more than one vehicle involved in the shooting” was an accurate statement of the evidence. The three witnesses who testified about seeing a vehicle at the scene (Ms. Williams, Ms. Van Sickle, and Mr. Lee) each testified that they saw one vehicle at the scene and then fleeing west along Hillwood Street. As I return to below, the fact that all of the witnesses who testified to making observations of a vehicle at the scene of the shooting said they only saw one vehicle was a significant weakness in the two-car theory.

[54] Second, the trial judge did not direct the jury to find that there was one car at the scene. Nor did she use a formulation such as “I expect you will have no trouble finding…”, which would have endorsed finding one car at the scene. Rather, she used the permissive “may” in relation to the possible finding that the shooters arrived and left in the BMW SUV.

[55] Third, as requested by the defence, the trial judge expressly told the jury that they should consider the cell tower and cell phone evidence that Diaz Stevens’ and the appellant’s phones were in different locations at 12:40 a.m. That was approximately 20-25 minutes prior to the shooting. In the context in which this instruction was given, immediately following the reference to it being open to the jury to find one car at the scene, the jury would have understood the reference to the cell tower and cell phone evidence, and the different locations of the appellant’s and Mr. Stevens’ phones shortly before the shooting, as telling them that they had to consider the evidence showing the phones in different locations in deciding whether to draw the inference that there was one car at the scene.

[56] Fourth, the trial judge clearly included in the instructions the defence position that there was no reliable evidence as to how many cars were present at the scene. The jury would have understood that it was for them to decide what the evidence showed as to how many cars were present at the scene.

[57] Further, although trial counsel for the appellant objected to the earlier draft of this portion of the instruction, quoted above, once the trial judge added the references to there being “no witness” who testified that there was more than one vehicle at the scene and the cell tower and cell phone evidence showing the appellant’s and Mr. Stevens’ vehicles at different locations at 12:40 a.m., defence counsel indicated that he was content with that portion of the instructions. Although a failure to object is not determinative of whether a jury instruction is sufficient, the absence of an objection by trial counsel provides support to the conclusion that in the context of the evidence and issues at trial, the instruction was sufficient: R. v. Badgerow, 2019 ONCA 374; 146 O.R. (3d) 35, at para. 19; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 89.

[58] The appellant would have preferred that the trial judge provide more detail or more emphasis to the theory that there may have been more than one vehicle at the scene. But this preference does not give rise to a reversible error.

[59] Trial judges have flexibility in crafting the language and structure of jury instructions. An appellate court must take a functional approach to reviewing a jury charge, by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. What matters is whether the jury is given a functional understanding of its task and the issues it is required to decide: R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 32-41, 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; Badgerow, at paras. 17-21.

[60] The weakness of the evidence supporting an inference that there were two vehicles at the scene further supports that the trial judge’s exercise of her discretion to review this issue in a relatively brief manner was sufficient.

[61] As noted above, the three witnesses who heard [3] the shooting and then looked outside all said that they saw only one vehicle. All three described the vehicle as fleeing westbound, along Hillwood Street, past the Williams’ home.

[62] The differences in recollection between these three witnesses about the colour of the car that they saw are less significant than the appellant suggests on appeal. Only Ms. Williams described the vehicle as black – a black BMW SUV, which fled west. However, both the Crown and defence agreed by the end of the trial that her evidence was unreliable in significant ways. She testified that she had seen the shooting and flashes of light coming from inside the BMW. However, Ms. Van Sickle testified that Ms. Williams only went outside after the shots were fired. Ms. Williams also told the 911 operator that she had heard shots, and then went outside and saw Mr. Williams on the ground. Another witness, Ms. Cave-Mota, testified that Ms. Williams had told her that she was inside the house, heard gunshots, and ran outside. Most significantly, Ms. Williams’ evidence that at the time she saw the shooting, she saw flashes coming from the BMW was flatly contradicted by the expert ballistics and gunshot residue evidence, which strongly supported that the shots could not have been fired from inside the BMW. In closing submissions, no party suggested to the jury that Ms. Williams’ evidence on seeing the shooting was reliable. Both parties took the position that Ms. Williams only looked outside after hearing shots.

[63] Ms. Williams’ evidence about the vehicle she saw being black was particularly unreliable. Her contemporaneous recollection, based on what she told an officer at the scene, was that she thought the vehicle was light-coloured, possibly silver. In her 911 call, she said that she did not know what the car that left the scene looked like. There was evidence that suggested that Ms. Williams was seeking information over the internet about the appellant. Ms. Cave-Mota testified that Ms. Williams contacted her over Facebook and asked her for information about the appellant, Ms. Phan, and Mr. Chua. Ms. Cave-Mota also testified that the day after the shooting, Ms. Williams instructed her to call the police and tell them that the appellant drove a black BMW 232i and provide a partial license plate including the numbers 376 (a model which the parties agreed is a sedan, not an SUV). Thus, although Ms. Williams maintained at trial that the vehicle she saw at the scene was a black SUV, there were significant reliability concerns about her evidence.

[64] This leaves the evidence of Ms. Van Sickle and Mr. Lee about the vehicle they saw. Ms. Van Sickle testified that she saw a grey SUV, which fled west. Mr. Lee testified that he saw a white SUV, which fled west. Given that the witnesses were testifying about seeing a vehicle at night (just after 1:00 a.m.), under streetlights, and for a brief time, it is difficult to conclude that the descriptions given by Ms. Van Sickle and Mr. Lee are significantly different, in the context of the photos of the BMW SUV that it was agreed the appellant was driving, which was light grey/silver.

[65] The appellant argues on appeal that the expert evidence regarding ballistics and the gunshot residue findings also provide support for there having been a second vehicle at the scene. I do not agree. The very limited evidence of gun shot residue in the silver/grey BMW, driven by the appellant, supports that the shots were not fired from inside the vehicle, but it does not support that there was a second vehicle at the scene. Similarly, the locations of the shell casings support that the shots were not fired from inside the BMW, but do not support the presence of a second vehicle. These bodies of evidence are neutral on the issue of whether or not there was a second vehicle.

[66] Finally, the cell tower evidence did show that the phones of the appellant and Diaz Stevens were in different locations until at least 12:40 a.m. There was no dispute that this evidence supported the inference that, at least until that time, the appellant and Mr. Stevens were in different locations and different vehicles. In addition, the cell phone evidence showed that there were phone calls and texts between the phones of the appellant and Mr. Stevens between approximately 12:10 and 12:51 a.m. The evidence of phone calls and texts between the appellant and Mr. Stevens until 12:51 a.m. could also support an inference that they were in separate locations until that time. However, those calls and texts ceased after 12:51 a.m., permitting the inference sought by the Crown that Mr. Stevens, Weaz, and the appellant were together after 12:51 a.m. The Crown’s theory was that the appellant travelled to the Hillwood area in the BMW SUV separate from Weaz and Diaz Stevens, who were in another vehicle, but that one or both of Weaz and Mr. Stevens got into the BMW driven by the appellant after 12:51 a.m. and travelled to the shooting scene together with the appellant. The cell phone evidence placed the phones of Mr. Stevens and Weaz near Mr. Williams’ home at the time of the shooting.

[67] Taken together with the observations of witnesses at the scene of the shooting of only seeing one vehicle, which all three witnesses agreed fled to the west along Hillwood Street, the cell tower and cell phone evidence was capable of supporting the inference that the appellant and Mr. Stevens were no longer in different locations after 12:51 a.m. As noted above, the trial judge specifically instructed the jury that they should consider the cell tower and cell phone evidence, which showed that the appellant’s and Mr. Stevens’ phones were at different locations approximately 20-25 minutes prior to the shooting, as it related to how many vehicles were at the scene of the shooting.

[68] Thus, although the cell tower evidence and the discrepancy between the evidence of Ms. Van Sickle and Mr. Lee as to whether the BMW was grey or white, and Ms. Williams’ evidence that it was black (although with significant reliability concerns regarding Ms. Williams’ evidence) provided a sufficient evidentiary basis for the trial judge to leave the two-car theory to the jury, it was not a theory which had strong support in the trial evidence. The trial judge sufficiently reviewed the evidence in relation to whether there was more than one vehicle at the scene. She appropriately left it to the jury to assess the evidence as to how many vehicles were at the scene.

(2) Did the trial judge err in her instructions to the jury on the post-offence association of the appellant and Ms. Phan?

[69] The appellant argues the trial judge erred in instructing the jury that they could consider the post-offence association between the appellant and Ms. Phan as probative of planning and deliberation. The appellant does not object to the admissibility of the evidence, since it was at least admissible as narrative. However, the appellant contends that in the circumstances of this case, drawing an inference of planning and deliberation from the continued association between the appellant and Ms. Phan after the shooting was not logical, rational, or reasonable. According to the appellant, the continued association did not suggest it was part of a pre-existing plan, nor did it represent a marked change in their behaviour. They had been in regular contact before the homicide, as evidenced by the many calls and texts between their phones from January 17 to February 8, 2017. The appellant further argues that in light of the evidence of Ms. Phan’s state – having consumed drugs and alcohol and being in a frail state both physically and mentally – in the afternoon and evening prior to and after the shooting, her drug dependency, and her apparent homelessness, it was problematic for the trial judge to instruct the jury to assess whether her conduct after the shooting conformed to how one would expect a person to act after witnessing a shooting. The appellant argues that the continued contact between the appellant and Ms. Phan after the shooting was at best “equivocal”, and that given Ms. Phan’s fragile state and circumstances, it was not reasonable based on human experience to draw an inference of planning and deliberation from the continued contact.

[70] For the sake of clarity, I underline that the appellant’s contention is that the trial judge erred in instructing the jury that the post-offence association between Ms. Phan and himself was probative of planning and deliberation. The appellant does not object to the content of the instruction, if it was proper to leave the issue with the jury (i.e., the appellant accepts that the instructions contained appropriate cautions about the risks of inferences related to the after-the-fact conduct and the need for the jury to consider alternate inferences).

[71] In my view, the trial judge did not err. As I will explain, on the issue of whether either the appellant or Ms. Phan participated in the killing – in the case of Ms. Phan, as an aider, and in the case of the appellant, as either an aider or a principal (shooter) – the trial judge instructed the jury that the post-offence association was only relevant to considering Ms. Phan’s liability. She instructed the jury regarding other post-offence conduct by the appellant on the issue of participation in the killing as either an aider or a principal (i.e., fleeing the scene and discontinuing his cell phone service within days of the shooting).

[72] Thus, at the stage of the instructions addressing the issue of whether the appellant had participated in the shooting as an aider or a principal, the jury would have understood that the post-offence association was only relevant to Ms. Phan’s liability. Given the structure of the jury charge, the jury would only have reached the issue of planning and deliberation as it related to the appellant if it first had concluded that he participated in the killing of Mr. Williams as either an aider or a principal.

[73] Later in the final instructions, the trial judge did instruct the jury that the post-offence association of the appellant and Ms. Phan was evidence they could consider as relevant to planning and deliberation – for both the appellant and Ms. Phan. I see no error in this instruction. The post-offence association was listed as one of a number of pieces of evidence that the jury could consider on the issue of planning and deliberation. The evidence of the association between the appellant and Ms. Phan before, during, and after the shooting, both in person and by cell phone call and text, and that they continued to be on good terms after the shooting, was some evidence from which, in the context of the evidence as a whole, the jury could infer that they had done what they planned to do and neither was caught off-guard by an unexpected shooting. The instruction on this issue was balanced and fair. It made clear that the jury must consider inferences arising from the post-offence association other than planning and deliberation, and summarized in detail evidence that contradicted the inference of planning and deliberation.

[74] Finally, although appellate courts must be cautious in drawing inferences about a jury’s reasoning process in coming to a verdict, in the circumstances of this appeal, it is clear from the jury’s acquittal of Ms. Phan that they were not satisfied beyond a reasonable doubt that she participated in the killing of Mr. Williams as an aider (the only basis of liability left to the jury in relation to Ms. Phan). The only basis on which liability for Ms. Phan as an aider was left to the jury was the theory that she was part of a plan with the appellant (and others) to lure Mr. Williams outside to be shot. Thus, the jury’s acquittal of Ms. Phan is a clear indication that it was not satisfied that Ms. Phan and the appellant planned the killing of Mr. Williams together. Given this conclusion, the theory that the post-offence association between the appellant and Ms. Phan was relevant to showing planning and deliberation between them cannot have formed part of the jury’s route to liability for the appellant.

(i) The evidence at issue

[75] After the shooting, the appellant and Ms. Phan drove in the silver/grey BMW SUV to Mr. Domingo’s apartment on Wellesley Street in Toronto, arriving between 1:00 and 2:00 a.m. According to Mr. Domingo, the appellant and Ms. Phan sat near each other in the living room for the rest of the night, whispering to each other on the couch. Mr. Domingo could not hear what they said to each other. Mr. Deniega was also present. He described Ms. Phan as hysterical, panicky, and unhappy. He lent her his phone. He said she spent most of the time in the washroom. When Ms. Phan left with the appellant in the morning, Mr. Domingo gave her $20 because she said she had no money for food.

[76] Later that morning, the appellant and Ms. Phan picked up Mr. Dizor and his friend and drove them to the appellant’s apartment on Major Mackenzie Drive in Richmond Hill. Mr. Dizor described Ms. Phan as appearing worried. At the apartment, Ms. Phan borrowed the appellant’s phone to call her mother and brother. She stayed behind when Mr. Dizor and his friend left with the appellant to go to Walmart.

[77] The issue of the probative value of the post-offence association between the appellant and Ms. Phan was the subject of submissions during the motion for a directed verdict. Ms. Phan sought a directed verdict of acquittal, and the appellant sought a directed verdict that he was not guilty of first-degree murder (leaving second-degree murder to the jury).

[78] Crown counsel at trial argued that the post-offence association was relevant to Ms. Phan’s liability as an aider because the fact that she got into the BMW SUV and left the scene with the appellant immediately after the shooting and stayed with the appellant could be the basis for an inference that she was not surprised by the shooting (i.e., that she was part of a plan). In other words, it was open to the jury to reason that someone who was not aware there was going to be a shooting would not get into the car with the appellant and continue to associate with him after the shooting, and thus, that Ms. Phan’s leaving the scene with the appellant and staying with him until sometime the next day was evidence she was part of a plan to kill Mr. Williams. Crown counsel also argued that, in the context of the evidence of motive (the robbery of the appellant several weeks earlier), and the communication between the appellant and Ms. Phan leading up to the shooting, their continued association on good terms after the shooting was relevant to planning and deliberation.

[79] Trial counsel for the appellant adopted the submission of counsel for Ms. Phan, and took the position that given the state of Ms. Phan as described by various witnesses – frail, bleeding from her arms, incoherent at times, on drugs – it was not reasonable to draw an inference of being part of a plan or joint enterprise with the appellant from the fact that she continued to associate with him after the shooting.

[80] In the course of her reasons dismissing the motion for a directed verdict, the trial judge held that Ms. Phan’s flight from the scene with the appellant and continued association with him into the next day, along with other evidence, supported an inference that she was part of a plan to kill Mr. Williams. It is clear from the trial judge’s reasons dismissing the directed verdict motion that she concluded that continued association between the appellant and Ms. Phan after the shooting was relevant both to Ms. Phan’s liability as an aider and to the issue of planning and deliberation as it related to both accused.

[81] Later, in the pre-charge conference, Crown counsel requested the trial judge to instruct the jury on after-the-fact conduct only in relation to Ms. Phan regarding her leaving the scene with the appellant, attending with him at Mr. Domingo’s apartment on Wellesley Street, and travelling to the appellant’s apartment and staying with the appellant into the next day. With respect to the appellant, Crown counsel only requested an instruction on after-the-fact conduct regarding the appellant’s flight from the scene of the shooting and his discontinuing his cell phone service within a few days of the shooting. Trial counsel for the appellant did not object to the trial judge giving these instructions. With respect to the appellant’s flight from the scene and discontinuing his cell phone service, trial counsel requested that the trial judge include in the after-the-fact conduct instructions that the jury must consider alternative innocent explanations for the behaviour other than a guilty mind, including witnessing a homicide and not wanting any ties to it, which the trial judge agreed to.

(ii) There was no error in the instructions on post-offence association as related to participation in the shooting as an aider or a shooter

[82] The trial judge addressed the issue of the post-offence association between the appellant and Ms. Phan in two portions of the jury instructions. The first place was the instructions in relation to participation in the killing as an aider or a principal. The second place was in the instructions on planning and deliberation as an element of first-degree murder. Although the portion of the instructions that the appellant objects to related to planning and deliberation, the portion on participation is relevant as context as it shows the difference in how this issue was left to the jury for the appellant and Ms. Phan, and because it highlights the importance of the jury’s full acquittal of Ms. Phan, an issue I will return to.

[83] As it related to the issue of participation in the killing of Mr. Williams, the trial judge instructed the jury that the evidence of post-offence association between the appellant and Ms. Phan was only relevant to Ms. Phan’s liability. Recall that the only route to liability for Ms. Phan that was left to the jury was as an aider, and only on the basis that she was part of a plan with the appellant and others to kill Mr. Williams, with her role being to lure Mr. Williams out of his home. For the appellant, liability was left to the jury both on the basis of being an aider (as part of a plan to kill Mr. Williams and acting as the driver, but not a shooter) and as a principal (as a shooter).

[84] In the portion of the instructions on liability of Ms. Phan as an aider, the trial judge instructed the jury that they could consider Ms. Phan’s conduct of getting in the BMW SUV immediately after the shooting and leaving the scene, and remaining with the appellant after the shooting, first at Mr. Domingo’s Wellesley Street apartment and then at the appellant’s apartment, as relevant to the issue of whether she aided in the shooting. I will not summarize these instructions in detail as they clearly applied only to Ms. Phan. However, I highlight that the trial judge instructed the jury to exercise caution in drawing inferences from the post-offence conduct of Ms. Phan; that they must consider whether the conduct was done for innocent reasons other than guilt of an offence; that they must consider other explanations for the conduct besides participation in an offence; and that they must not use evidence about what Ms. Phan did after the shooting in deciding whether she knowingly aided in the shooting unless they rejected “any other explanation” for her conduct. In addition, the trial judge highlighted for the jury reasons that Ms. Phan may have left the scene in the BMW even if she had no involvement in the shooting, including her state of mind, poor health and drug use, and the evidence of Ms. Williams and Ms. Van Sickle that Ms. Phan appeared “perma-fried” and had cuts to her wrists.

[85] By contrast, in the same section of the instructions, as it related to the appellant’s liability as either an aider or a principal, the trial judge instructed the jury on different items of post-offence conduct by the appellant that they could consider as relevant to the appellant’s liability. In particular, the trial judge instructed the jury on two items of post-offence conduct as relevant to his potential liability as either an aider or a shooter: (i) his flight from the scene in the BMW SUV; and (ii) his cancellation of his cell phone account, which he had used for three years, a few days after the shooting.

[86] The appellant takes no issue on appeal that these two items of evidence were properly left to the jury to consider as post-offence conduct which the jury could consider in assessing whether to draw an inference that the appellant knowingly participated in the killing of Mr. Williams, or with the sufficiency of the instructions on these two items of evidence. I reference this aspect of the instructions because the fact that the trial judge left different areas of post-offence conduct to the jury for Ms. Phan and the appellant on the issue of participation as a principal or an aider supports that the jury would not have used the separate bodies of evidence for each accused interchangeably. On the issue of participation in the shooting, the jury was told it could consider post-offence association only in relation to Ms. Phan. It was told it could consider different post-offence conduct in relation to the appellant.

[87] The structure of the jury instructions was such that the jury would not reach the issue of planning and deliberation for each accused unless it first found beyond a reasonable doubt that they participated in the killing of Mr. Williams (in the case of Ms. Phan, as an aider, and in the case of the appellant, either as an aider or a principal). In other words, this portion of the jury instructions was structured to tell the jury first to consider whether each accused participated in the killing of Mr. Williams either as an aider or a principal (the latter only in the case of the appellant). If such participation was proven beyond a reasonable doubt, they were instructed to consider the elements of first-degree murder: (i) causation of death; (ii) that the death was caused unlawfully; (iii) the intent required for murder; and (iv) planning and deliberation. Of importance regarding the relevance of the acquittal of Ms. Phan, which I will return to, at the end of the instructions on participating in the killing as an aider or a principal, the trial judge instructed the jury as follows:

If, after considering all of the evidence, you are not satisfied beyond a reasonable doubt that Ms. Phan participated in the shooting as an aider, you must find her not guilty. Your deliberations with respect to her would be over. If you are not satisfied beyond a reasonable doubt that Mr. Atienza participated in the shooting either as a principal or as an aider you must find him not guilty. Your deliberations with respect to him would be over.

(iii) There was no error in the instructions on post-offence association as related to planning and deliberation

[88] In her instructions to the jury on planning and deliberation, the trial judge told the jury that one of the items of evidence they could consider as relevant to planning and deliberation was the continued contact between Ms. Phan and the appellant after the shooting.

[89] After instructing the jury on the law with respect to planning and deliberation, the trial judge summarized areas of evidence that the jury may wish to consider on the issue of planning and deliberation. One item of evidence she included was the post-offence association of the appellant and Ms. Phan. The trial judge explained the relevance of this evidence as follows:

… evidence about continued contact between Ms. Phan and Mr. Atienza may be relevant. If they appeared to be on good terms after the shooting that may be consistent with them having been joint participants in a planned and deliberate murder. [4] This evidence could support an inference that they remained friendly because they had done what they had planned to do at the scene and neither of them was caught off guard by an unexpected shooting.

[90] In the circumstances of this case, I see no error in the trial judge instructing the jury that the continued association of the appellant and Ms. Phan after the shooting could be considered, along with other evidence, in deciding whether the Crown had proved beyond a reasonable doubt that, if either or both of the appellant and Ms. Phan knowingly participated in the killing of Mr. Williams, such participation was planned and deliberate.

[91] The Supreme Court considered the principles applicable to admissibility of evidence of post-offence conduct in Calnen. The treatment of evidence of post-offence conduct is “highly context and fact specific”. The threshold to establish relevance is not high. Evidence, including evidence of post-offence conduct, will be relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence.” Post-offence conduct is circumstantial evidence. As such, it allows a trier of fact to draw inferences (or choose not to do so) from the conduct relying on logic, common sense, and experience. The inferences must be reasonable based on human experience. Whether an inference is reasonable in any particular case will depend on the nature of the conduct, what is sought to be inferred from the conduct, the positions of the parties, and the whole of the evidence. The existence of explanations other than guilt for post-offence conduct does not generally render such evidence as having no probative value. [5] In most cases, it is for the jury to assess the evidence of post-offence conduct in the context of all of the evidence, and consider what inference, if any, to draw from it in the context of any explanations: Calnen, at paras. 106, 108-112 (per Martin J. for the majority on this issue).

[92] Immediate flight by two accused persons from the scene of a crime together, and continued association on good terms after an offence may be probative of planning and deliberation. In R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), Doherty J.A., writing for this court, held that flight together from the scene of a shooting, laughing together after the fact, and disposing of evidence could support the inference that the two accused had “done exactly what they planned to do, that is, enter the club, commit a robbery and shoot [the victim]”: at paras. 14‑15. This court has recognized other circumstances in which the conduct of an accused after an offence may be relevant to planning and deliberation: see R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 128-130; R. v. Café, 2019 ONCA 775, 381 C.C.C. (3d) 98, at paras. 55-56, 59. As noted above, the assessment of relevance for any particular inference from post-offence conduct is always a fact-specific exercise.

[93] In this case, in the context of the association between the appellant and Ms. Phan by phone and text before the shooting, their joint presence at the scene of the shooting, and their joint flight from the scene, their continued association on good terms after the shooting was, as the trial judge instructed the jury, some evidence which: “could support an inference that they remained friendly because they had done what they planned to do at the scene and neither of them was caught off guard by an unexpected shooting.”

[94] It is important to bear in mind the other evidence which the jury was entitled to consider in relation to planning and deliberation. This included evidence of motive or animus against Mr. Williams on the part of both the appellant and Ms. Phan; the phone and text communications between the appellant and Ms. Phan in the afternoon and evening leading up to the shooting; that firearms were brought to the scene; that the shooting happened very shortly after the arrival of the appellant on the scene; and whether the forensic evidence was consistent with Mr. Williams being shot by two shooters acting in tandem. In this context, the association between the appellant and Ms. Phan before (by phone calls and texts), during (both present at the scene of the shooting), and after the shooting was a piece of circumstantial evidence that could be weighed along with the rest of the evidence as relevant to planning and deliberation. The evidence of two people arguably acting in concert, as shown by their communication and association before, during, and after the shooting, on good terms throughout, is some evidence which, taken together with all of the evidence, could provide support for an inference of planning between the appellant and Ms. Phan.

[95] The existence of explanations other than guilt for the post-offence association between the appellant and Ms. Phan did not render that evidence as having no probative value. It was for the jury to assess the evidence of the post-offence association in the context of all of the evidence, and consider what inference, if any, to draw from it in the context of any explanations: Calnen, at para. 112.

[96] Although I accept that the evidence of the post-offence association between the appellant and Ms. Phan had sufficient probative value that there is no reviewable error in the trial judge instructing the jury on its relevance to planning and deliberation, I would not characterize it as especially strong evidence of planning and deliberation. But the trial judge did not overemphasize this evidence and explained its relevance to the jury in a fair and balanced manner.

[97] First, the evidence of post-offence association between the appellant and Ms. Phan was one of a number of points of the evidence that the trial judge summarized for the jury that they could consider as relevant to their assessment of planning and deliberation. She instructed them that the post-offence association evidence must be considered in the context of all of the evidence. Other items of evidence that the trial judge suggested the jury may wish to consider as relevant to planning and deliberation included:

• any motive that the jury may find Ms. Phan and/or the appellant had;
• the fact that loaded firearms were brought to the scene;
• the communication between Ms. Phan and the appellant leading up to the shooting;
• whether Mr. Williams was shot quickly upon his arrival at the BMW or whether there was a delay and/or an altercation;
• whether the forensic evidence was consistent with Mr. Williams being shot by two shooters who were acting in tandem.

Thus, the trial judge did not place undue emphasis on the post-offence association evidence.

[98] Second, as with her earlier instructions on post-offence conduct as relevant to the issue of participation as an aider or a principal, the trial judge included strong cautions to the jury about drawing inferences from post-offence conduct. She instructed them that they must consider other potential non-culpable explanations for the appellant and Ms. Phan staying together after the shooting. She instructed them that they must also consider evidence that contradicts the theory that the murder was planned and deliberate. Importantly, she reviewed in some detail evidence that may contradict the theory that the murder was planned and deliberate, including:

• the fact that it was Mr. Williams who invited Ms. Phan to his home that day;
• the delay in Ms. Phan contacting the appellant (several hours after she arrived at Mr. Williams’ home);
• Ms. Phan’s efforts to leave Mr. Williams’ home (before the shooting) by calling a taxi and calling Calvin Chow;
• the delay in the appellant arriving at the Williams’ home after he was in communication with Ms. Phan;
• Ms. Phan’s state of mind in light of her drug and alcohol consumption and overall poor health;
• the fact that Ms. Phan left her phone in the Williams’ home when she left with Mr. Williams; and,
• the evidence of the butcher knife, a bottle, and a balaclava on the road at the scene, which may suggest an unexpected altercation took place, resulting in a spontaneous shooting.

[99] In sum, I see no error in the trial judge’s instruction on the post-offence association between the appellant and Ms. Phan as relevant to planning and deliberation. The instructions were balanced and fair.

[100] Further, in the circumstances of this case, the jury’s acquittal of Ms. Phan demonstrates that they cannot have relied on the evidence of post-offence association between the appellant and Ms. Phan in reaching the conclusion that the Crown had proven beyond a reasonable doubt that the appellant planned and deliberated the murder of Mr. Williams

(iv) The acquittal of Ms. Phan demonstrates that the jury rejected the theory that the appellant planned the killing of Mr. Williams with Ms. Phan and, as a result, the evidence of post-offence association could not have played a role in their finding of liability for first-degree murder for the appellant

[101] The acquittal of Ms. Phan is relevant to assessing whether the instruction on the post-offence association could have caused any prejudice to the appellant. Even if one were to accept that the trial judge erred in instructing the jury that they could consider the post-offence association between the appellant and Ms. Phan on the issue of planning and deliberation – a proposition which I reject – in the circumstances of this trial, the jury’s acquittal of Ms. Phan demonstrates that they rejected the proposition that the appellant planned the killing of Mr. Williams with Ms. Phan. As a result, the theory of relevance of the post-offence association between the appellant and Ms. Phan as showing planning cannot have formed part of the jury’s route to liability for the appellant.

[102] An appellate court must be cautious in reading a particular route of reasoning into a jury’s verdict. However, in this case, given the way Ms. Phan’s potential liability was left to the jury, certain factual conclusions are clear from the jury’s acquittal of Ms. Phan.

[103] Ms. Phan was entirely acquitted. This must mean that the jury was at least left with a reasonable doubt that she participated in the killing of Mr. Williams as an aider – the only basis on which her liability was left to the jury. The only theory on which Ms. Phan’s liability as an aider was left to the jury was that she was part of a plan with the appellant to lure Mr. Williams out of his home to be shot. As a result, a necessary component of the jury’s conclusion that Ms. Phan’s liability as an aider was not proven beyond a reasonable doubt is that the jury had a reasonable doubt that Ms. Phan planned with the appellant to carry out the killing of Mr. Williams.

[104] I pause to underline that the appellant was charged with first-degree murder, not conspiracy to commit murder. Although one basis on which it was open to the jury to find that the appellant planned and deliberated the murder of Mr. Williams was that he did so with Ms. Phan, it was also open to the jury to find that the appellant planned and deliberated the murder with others, or indeed, by himself.

[105] In light of the jury’s rejection of a plan between Ms. Phan and the appellant to kill Mr. Williams, whatever theory of planning and deliberation the jury was persuaded of beyond a reasonable doubt regarding the appellant, it could not have been based on him planning the killing with Ms. Phan. As a result, post-offence association between the appellant and Ms. Phan cannot have been relied on by the jury in concluding that the Crown had proven that the appellant planned and deliberated the killing of Mr. Williams.

[106] In response to questions during oral submissions, Mr. Lockyer accepted that the court could consider the acquittal of Ms. Phan in assessing whether an error in the instruction on post-offence association and planning and deliberation caused prejudice to the appellant. However, he argued that the court should not find that the fact of Ms. Phan’s acquittal shows there was no prejudice. He argued that the jury would have considered the appellant’s liability before Ms. Phan’s (because she could not be a party based on planning the shooting with the appellant unless the appellant was liable at least as a party), and that as part of considering the appellant’s liability the jury would inevitably have considered the post-offence association between the appellant and Ms. Phan.

[107] I disagree. As I have noted above, the structure of the jury instructions told the jury to consider the issue of whether either the appellant or Ms. Phan knowingly participated in the shooting (as a principal or an aider – only the latter in the case of Ms. Phan) before considering the other elements of first-degree murder. Given this structure of how the jury were told to approach the issues, I do not accept that the jury would have considered the issue of planning and deliberation for the appellant before they considered whether Ms. Phan participated in the shooting as an aider. As I have noted above, once the jury concluded that it was not satisfied beyond a reasonable doubt that Ms. Phan participated as an aider, they cannot have relied on a theory of planning and deliberation between the appellant and Ms. Phan as the basis of their finding that the appellant was guilty of first-degree murder. Thus, the post-offence association between the appellant and Ms. Phan cannot have played a role in that finding.

[108] In sum, the trial judge did not err in instructing the jury that they could consider the post-offence association between the appellant and Ms. Phan as relevant to the issue of planning and deliberation. In any event, the jury’s acquittal of Ms. Phan makes clear that the post-offence association between Ms. Phan and the appellant could not have been a factor in their verdict, because it is clear they were not persuaded beyond a reasonable doubt that the appellant planned and deliberated the murder with Ms. Phan.

(3) Did the trial judge err in her instructions to the jury regarding evidence that the appellant did not tell Mr. Domingo and Mr. Deniega where he was going when he left the apartment just after midnight?

[109] The appellant argues that the trial judge erred in instructing the jury that they could infer guilt from the appellant’s failure to tell Mr. Domingo and Mr. Deniega where he was going when he left Mr. Domingo’s apartment shortly after midnight. The appellant argues that his failure to tell two drug associates where he was going had no probative value. The appellant argues that there was nothing to suggest that this was a departure from the appellant’s normal behaviour and that logic and experience would not support the conclusion that the appellant would normally tell his drug associates where he was going when he left.

[110] Trial counsel for the appellant objected on this issue during the pre-charge conference. His initial objection was that the draft instructions could leave the jury with the impression that the appellant may have “snuck” out or not said that he was leaving. The evidence of both Mr. Domingo and Mr. Deniega was that the appellant said he was leaving, but did not say where he was going. The trial judge agreed to change the wording so it was clear that the appellant said he was leaving the apartment, but left in the statement that he did not tell Mr. Domingo or Mr. Deniega where he was going. Trial counsel then argued that given the nature of the appellant’s relationship with Mr. Domingo and Mr. Deniega as drug associates, there was no basis to draw an inference that the appellant was being secretive when he did not tell them where he was going. The trial judge declined to remove the reference to the appellant not saying where he was going. Based on the discussion over the objection, her reasons for this were that it was an accurate statement of the evidence (which is not disputed on appeal), and that it was open to the jury to infer that the appellant was being secretive in not saying where he was going, which was relevant to his intent.

[111] With his usual candour, in oral submissions, Mr. Lockyer conceded that standing alone, this ground of appeal would not warrant a new trial.

[112] I would reject this ground of appeal.

[113] Although I agree with the appellant that in the circumstances of this case there was no probative value in the fact that the appellant did not tell Mr. Domingo and Mr. Deniega where he was going, in my view, read in the surrounding context, the instructions would not have been understood by the jury as saying that they could infer guilt from the appellant’s failure to tell Mr. Domingo and Mr. Deniega where he was going when he left the apartment.

[114] As noted above, evidence will have probative value in relation to an issue where, as a matter of logic and human experience, it has some tendency to make the proposition for which it is advanced more likely: Calnen, at para. 108.

[115] In some circumstances and some relationships, not telling someone where one is going could be probative evidence that a person is behaving secretively, but not in the circumstances in this case. This was the basis for trial counsel’s objection. In making the objection, he contrasted the relationship between a child and parent, or between spouses, where, depending on the evidence, an inference of secrecy may be open from failure of one party to say where they were going. But that was not the evidence in this case.

[116] The evidence at this trial was that the appellant (and others, including Mr. Deniega) regularly attended at Mr. Domingo’s apartment primarily for the purpose of consuming drugs. There was nothing about the relationship between the appellant, Mr. Domingo and Mr. Deniega – drug associates – that would support an inference that the appellant would normally tell Mr. Domingo and Mr. Deniega where he was going, or that it was somehow unusual or secretive for the appellant not to tell them where he was going. In the circumstances, the fact that the appellant told them that he was leaving, but did not tell him where he was going, had no probative value. There was no basis in the evidence to conclude that theirs was the type of relationship where one would expect that the appellant would tell Mr. Domingo and Mr. Deniega where he was going.

[117] However, in my view, the brief reference in the jury instructions to the appellant not telling Mr. Domingo and Mr. Deniega where he was going when he left would not have been understood by the jury as probative of his guilt. Although the trial judge opined in the pre-charge conference that the fact that the appellant did not say where he was going could be a basis for the jury to infer that the appellant was being secretive, her instructions to the jury did not explicitly leave this line of reasoning to the jury. Rather, it was one line in what was essentially a narrative of the appellant’s actions before and after the shooting.

[118] The reference to the appellant telling Mr. Domingo and Mr. Deniega that he was leaving the apartment, but not saying where he was going, occurred in the context of the trial judge reviewing for the jury some of the evidence relevant to the issue of whether the appellant was liable as a principal for murder or an included offence. After explaining what was legally required for liability as a principal, the trial judge stated: “I will now review some of the evidence that you may find helpful on this issue.” What followed were eleven bullet points, taking up three pages of transcript. It was, essentially, a summary narrative of the evidence the jury could consider as connecting the appellant to the shooting.

[119] This review of the evidence included the appellant’s motive based on the January 17, 2017 robbery; the appellant’s admission that he was present at the scene in the BMW; the cell phone record evidence; Ms. Phan’s conduct and statement in luring Mr. Williams out of the garage to get his phone in the event they found a common design [6]; the appellant parking the BMW some distance from the Williams’ home when he arrived at the scene; the appellant’s alleged confession and possession of a gun the next day, as testified to by Mr. Deniega and Mr. Dizor; and the forensic evidence, including the gunshot residue on the sleeve of the appellant’s jacket. The reference to the appellant not telling Mr. Domingo and Mr. Deniega where he was going was one line in this larger review of the evidence. It contained no specific instruction that the appellant not saying where he was going could be used to infer he was being secretive.

[120] In sum, I see no error in the trial judge’s brief reference to the appellant not telling Mr. Domingo and Mr. Deniega where he was going when he left the apartment in the context of a broad summary of the events connecting the appellant to the shooting.

Disposition

[121] I would dismiss the appeal.

Released: August 11, 2023 “K.F.” “J. Copeland J.A.” “I agree. K. Feldman J.A.” “I agree. L. Favreau J.A.”

[1] At the outset of the hearing, the appellant abandoned his ground of appeal regarding the instruction to the jury on the co-conspirators exception to the hearsay rule.

[2] It was an agreed fact that the knife was carried out of the garage by Kyle Kavic, another person who was present in the garage that evening. Mr. Kavic was not called to testify at the trial.

[3] As noted above, Marshell Williams testified that she saw the shooting, but given significant contradictions in her evidence, as well as a concern about internet research to tailor her evidence, by the time of closing submissions, both the Crown and the defence took the position before the jury that her evidence of seeing the shooting was unreliable.

[4] As noted above, given the order in which the trial judge instructed the jury to consider the issues, the jury would only reach the issue of planning and deliberation for each accused after having found that the Crown had proven beyond a reasonable doubt their knowing participation in the shooting either as an aider or a principal, that the shooting unlawfully caused the death of Mr. Williams, and that the accused had the intent required for murder.

[5] In some cases, evidence of post-offence conduct will be probative of the participation of an accused in a crime, but not of their level of culpability or intent. However, in other cases, as a matter of logic, common sense, and human experience, evidence of post-offence conduct will be capable of supporting an inference that an accused had a particular state of mind or level of intent. This is a fact-specific determination. Typically, in cases where evidence of post-offence fact conduct will not be probative of level of intent it is because the evidence is equally consistent with two (or more) levels of intent: R. v. White, [1998] 2 S.C.R. 72, at paras. 24-33; Calnen, at paras. 119-39; R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 14; R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 33-50.

[6] The trial judge had earlier instructed the jury on the common design exception to the hearsay rule.