COURT OF APPEAL FOR ONTARIO DATE: 20240502 DOCKET: C68368
Miller, Paciocco and George JJ.A.
BETWEEN
His Majesty the King Respondent
and
Andre Appleton Appellant
Counsel: James Lockyer and Jack Gemmell, for the appellant Michael Bernstein, for the respondent
Heard: February 6-7, 2024
On appeal from the convictions entered on May 9, 2019 by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury.
Paciocco J.A.:
Overview
[1] Early in the morning on February 9, 2016, Kiowa McComb and Sarcee McComb, who were brothers [^1], were stabbed during a closing-time altercation outside of Gucci’s Bar and Grill (“Gucci’s”) on Jane St. in the City of Toronto where they had been drinking. Tragically, Kiowa succumbed to the horrific stab wounds he received, and Sarcee sustained life-threatening injuries.
[2] Andre Appleton, who had also been at Gucci’s immediately before the confrontation, was charged and tried before a jury of second-degree murder in Kiowa’s death, and of attempting to murder Sarcee. The Crown’s factual theory was that Mr. Appleton and another shorter Black man, referred to by the trial judge as the “shiny hoodie guy” (“SHG”), jointly attacked the McComb brothers leading to their injuries. The Crown’s primary legal theory was that Mr. Appleton was the stabber, and thereby guilty as the principal offender. It argued, in the alternative, that even if Mr. Appleton was not the stabber he was nonetheless a party and liable to conviction of the offences, either as a joint principal or by aiding and abetting the stabber.
[3] Mr. Appleton did not contest his involvement in the altercation but sought to defend the charges by arguing that the Crown had not proved that he did the stabbings or was legally complicit in them. He wanted to argue that the Crown case left a reasonable doubt whether another Gucci’s patron, Ibrahim Muhia, may have done the stabbings. In her charge to the jury, the trial judge directed the jury that evidence of Mr. Muhia’s involvement was irrelevant, preventing jurors from considering this theory. Mr. Appleton was convicted of second-degree murder in Kiowa’s death, and of aggravated assault in Sarcee’s stabbing.
[4] For the reasons that follow, it is my view that the trial judge erred in providing this direction relating to Mr. Muhia’s involvement. I would also accept a related ground of appeal addressing the manner in which the trial judge directed jurors about SHG’s involvement. I would therefore allow the appeal, quash the convictions, and order a retrial.
Material Facts
(1) The Time and Place
[5] Gucci’s is on the east side of Jane St., north of but very proximate to Lawrence Ave West. To the north of Gucci’s – what would be to the right if one was standing in front of Gucci’s facing the street, is another bar called the Lion’s Den. To the south, towards Lawrence Ave West, is a variety store. There is a payphone on the wall of Gucci’s just outside of an alcove that leads to Gucci’s front door (the “Alcove”). The payphone is between Gucci’s and the variety store. On the other side of the variety store is an alleyway, which I will refer to below.
[6] All of these businesses abut a sidewalk that runs along the east side of Jane St. In front of these businesses, Jane St. is a four lane, two-way street divided by a median. To get onto the sidewalk from inside Gucci’s, one need merely to step down from the Alcove.
[7] As I will relate, after Kiowa was stabbed, he was dragged southbound on the east side sidewalk towards Lawrence Ave West. The blood trail begins at the foot of Gucci’s Alcove. It is a fair, if not inevitable, inference that Kiowa was stabbed immediately in front of Gucci’s where two of the three witnesses who testified to the fight put the encounter.
[8] Some but not all of the material events surrounding the stabbing of the brothers were captured by security cameras, including: (1) the Gucci night vision security camera on the ceiling of the Alcove, which shows only the inside of Gucci’s Alcove and a very small portion of the sidewalk (the “Alcove Camera”); and (2) the “Salvation Army Police Camera”, which pans on an automatic timer and secures images of different angles of the Jane St. and Lawrence Ave West intersection south of Gucci’s.
[9] I will rely on images from these security cameras to describe a timeline of events, as the parties did at trial and before us. The times I assign will necessarily be approximate since at the time of the relevant events, the time stamps on those security cameras had not been synchronized with the real time. Detective Stephen Henkel testified that the times shown on the Alcove Camera time stamps were approximately 47 minutes fast. Mr. Appleton suggests for the first time on appeal, based on the sequence of material events as established by other evidence, that the disparity may be closer to 46 or even 45 minutes.
[10] Testimony was not offered as to the relationship between the timestamps on the Salvation Army Police Camera and real time, but Detective Henkel agreed that the time stamps on images captured simultaneously by that camera and an in-car police camera differ by slightly more than two minutes, with the Salvation Army Police Camera timestamps showing the time to be later than the in-car police camera. I am not suggesting that one or the other of those two police cameras was synchronized to the real time. The point is that there is reason to believe that the Salvation Army Police Camera timestamps may not be accurate.
[11] The time discrepancy between the Alcove Camera (even using the approximate “real” time adjustment of 47 minutes identified by Detective Henkel) and the Salvation Army Police Camera can be readily demonstrated. The parties agree based on events captured by the Alcove Camera that the stabbings occurred around what would be 2:00:15 a.m. real time using the 47-minute adjustment, but images captured by the Salvation Army Police Camera show Kiowa and Sarcee on the west side of Jane St., obviously prior to the fatal altercation commencing, as late as 2:01:38 a.m. based on the time on the Salvation Army Police Camera.
[12] I therefore caution that the interval between the times captured by the same camera will be reasonably accurate in the following timeline, but the real times I designate based on the corrected times derived from the Alcove Camera will be approximate. To further compromise the precision of the timeline, I have no choice but to slot events captured by the Salvation Army Police Camera into that chronology based on the known sequence of events, rather than the times shown on the Salvation Army Police Camera. With those caveats in mind the approximate timeline for events can be adequately described for the purposes of this appeal.
(2) The Events, the Timeline, and the Material Evidence
[13] Mr. Appleton, a Black man, approximately 6’ 1” tall, and described as having a thin build, was a regular patron at Gucci’s. He was wearing a distinctive “frilly” scarf on the night in question. He arrived at Gucci’s the evening of February 8, 2016, before leaving and returning shortly before 11:00 p.m. He then stayed inside or close to Gucci’s until immediately after the stabbing occurred, at approximately 2:00:15 a.m. on February 9, 2016.
[14] In the hour before the stabbings, another Black man who was never identified arrived at Gucci’s, but he did not enter. He remained alone, standing inside of the Alcove. Because his clothing, including the hoodie he was wearing, appeared to be shiny in the images captured by the night vision Alcove Camera, the trial judge referred to this man as the “shiny hoodie guy”. As indicated above, I will refer to him as SHG. [^2]
[15] The Crown theory is that animosity between Mr. Appleton and Sarcee, in particular, was triggered as the bar was closing after the bartender, Marina Ferreira, noticed that her cellphone was missing. She was naturally upset. There was evidence that Mr. Appleton had suggested to Ms. Ferreira that the McComb brothers took her cellphone.
[16] Whether Mr. Appleton’s alleged accusation was the trigger or not, the Alcove Camera captured images of Sarcee, who had exited Gucci’s at approximately 1:51 a.m., attacking Mr. Appleton inside the Alcove shortly after Mr. Appleton exited the bar, at approximately 1:53 a.m. Kiowa, who had come outside at the same time that Mr. Appleton did, attempted to restrain Sarcee. Mr. Muhia, who had also exited the bar, also grabbed Sarcee. Ms. Ferreira exited Gucci’s and she too reached for Sarcee. As he was pulled away from Mr. Appleton, Sarcee can be seen swinging his fist. Mr. Muhia testified that during the scuffle inside the Alcove he was “getting thrown around like a ragdoll”.
[17] At approximately 1:53:24 a.m. on the Alcove Camera clock, Sarcee, Mr. Appleton, and Mr. Muhia moved out of the Alcove and out of the range of the Alcove Camera. Only seconds later, Kiowa also left the Alcove and the range of the Alcove Camera.
[18] Even though the scuffle occurred within the small Alcove where he was standing, other than turning and watching the fight SHG did not react or get involved, and he remained in the Alcove as the others moved onto the sidewalk.
[19] The McComb brothers are not captured again by the Alcove Camera, but as I describe below, it is known that after leaving Gucci’s they made their way across Jane St.
[20] At approximately 1:54:13 a.m., Mr. Muhia was captured by the Alcove Camera re-entering the Alcove and picking up his hat, which was knocked off during the scuffle. Approximately ten seconds later, while Mr. Muhia was still inside the Alcove, Mr. Appleton can be seen re-entering the Alcove. At approximately 1:54:30 a.m., Mr. Muhia can be seen gesturing towards the sidewalk from the Alcove. It is the defence theory that he was agitated after the scuffle. SHG was still in the Alcove.
[21] Mr. Appleton then left the Alcove. Mr. Muhia can be seen over the next few moments stepping in and out of the Alcove. At one point while in the Alcove he can be seen making a cross-armed gesture. He was asked about this when he testified and said that, “[m]y arm was showing a headlock motion.”
[22] Mr. Muhia appears to have remained in the general area after leaving the Alcove because images from the Alcove Camera show him re-entering the Alcove at approximately 1:56.08 a.m. Mr. Muhia was then captured going into Gucci’s at approximately 1:56:34 a.m., where he is shown on an inside security camera going towards the area of the bar where the bathroom is located where he remained for approximately two minutes.
[23] Around this time, Kiowa and Sarcee are captured by the Salvation Army Police Camera walking towards Lawrence Ave West. When they arrive at a bus shelter at the north-east corner of Jane St. and Lawrence Ave West approximately one minute later, they appeared to be jostling. The Alcove Camera captured Mr. Appleton around this time, at 1:58:55 a.m. or so, moving back into the Alcove. Within seconds, Mr. Mohamed Nur, another Gucci’s patron, exited Gucci’s and also stood in the Alcove.
[24] At or around this time the Salvation Army Police Camera captured Kiowa and Sarcee walking across Jane St., from east to west, in other words, leaving the side of the street that Gucci’s is on, and going to the other side. They can be seen gesturing at someone. The camera then pans to Mr. Appleton, who is on the east side of Jane St. gesturing in the direction of the two brothers.
[25] At approximately 1:59:35 a.m. SHG left Gucci’s Alcove for the first time.
[26] Around this time, a tow truck that was being driven south on Jane St. by Vince Iozzo, in which Tonino Aiello was a front-seat passenger, stopped north of Lawrence Ave West, where the McComb brothers were on the southbound lane of the roadway, arguing, as they were making their way to the west side of Jane St.
[27] Shortly after, the Salvation Army Police Camera captured the McComb brothers as the tow truck passed through the Jane St. and Lawrence Ave West intersection. By this point, they had arrived on the west side of Jane St. It is clear that Sarcee was upset as he was captured on camera punching a store window on the northwest corner of Jane St. and Lawrence Ave West. The tow truck can be seen driving by the brothers, heading south. The confrontation in which the brothers were stabbed, which is not filmed, happens imminently.
[28] At approximately 2:00:10 a.m. Mr. Muhia can be seen exiting Gucci’s and the Alcove area. He is moving swiftly. He re-enters the Alcove at approximately 2:00:21 a.m. The Crown position at trial, not contested by the parties before us, is that the stabbings occurred during this period. This position is based on Mr. Nur’s reaction, captured at approximately 2:00:15 a.m. by the Alcove Camera as he stood in the Alcove looking out at where the fight would have been taking place. [^3]
[29] Only three witnesses testified to seeing the actual confrontation, other than Sarcee who had little memory of the events. Those three witnesses were Howard Blake, Mr. Iozzo and Mr. Aiello. Mr. Muhia gave evidence of the surrounding events, including inconsistent accounts of what he recalled about it. I will review their evidence in turn.
[30] Mr. Blake testified he was a friend and acquaintance of Mr. Appleton’s, who he “bumped” into in Gucci’s. He said that he later saw Mr. Appleton outside of the bar after he left with his cousin, Marlon Anderson, and a friend, Lisa Truong, who had also been in the bar. Mr. Blake explained that he left with Mr. Anderson and Ms. Truong to have a cigarette in Mr. Anderson’s jeep, which was parked across the street from Gucci’s. Mr. Blake said he could hear Mr. Appleton and the McComb brothers swearing at each other. Mr. Anderson was backing up his jeep at the time. Mr. Blake testified to seeing the McComb brothers running across the road toward Mr. Appleton. He then said he could see “all three of them… swinging” at each other. He expressed his belief that the bigger brother swung first and missed. He described Mr. Appleton punching this man, who dropped. Mr. Blake testified that the other brother also swung before Mr. Appleton punched him, causing him to drop as well. He said that he did not see any weapons. When he plotted on a photograph the locations of the three men during the altercation, he placed them in front of the payphone, with the taller brother immediately to the south in front of the variety store.
[31] Mr. Blake testified that he jumped out of the vehicle, as “everyone” (other than the combatants) was coming out of the bar. The brothers were on the ground. From the median on Jane St., he asked Mr. Appleton what was going on, and Mr. Appleton replied, “[t]hey try to rush me,” or “[w]ell these guys tried me, man”, and Mr. Appleton said he “told these guys to go home.”
[32] Mr. Blake testified that there was “a little guy out there”, “probably African or Ethiopian or something like that” who he thinks was with a girl. He identified this man using a video of Mr. Muhia from the bar. He said, “I didn’t see him fighting and stuff.” He placed Mr. Muhia in front of the bar, when the McComb brothers were in front of the bar. He agreed with defence counsel that his focus was on the interaction between the brothers and Mr. Appleton, as he was not paying particular attention to those who came out of the bar, including what they were doing when the men were on the ground. The whole event was fast, less than two minutes. He did not mention seeing SHG in connection with the altercation.
[33] Mr. Blake said he jumped in Mr. Anderson’s jeep and then they drove off.
[34] Mr. Iozzo also testified about the altercation. As the trial judge told the jury, Mr. Iozzo’s testimony was “not always easy to understand or follow”. She directed jurors that it was up to them to determine what he said.
[35] Mr. Iozzo testified that when he first noticed the brothers the tow truck that he and Mr. Aiello were in was stopped and his window was partially open. He explained that he was able to open his window even in the snow or rain because the windows are equipped with two inch “rain guards”. When defence counsel challenged Mr. Iozzo’s assertion that his window was open by showing security film of the glare on the window of the truck as it went by, Mr. Iozzo was adamant that the shiny part of the window defence counsel was relying upon was, in fact, the rain guards, which are chrome.
[36] Mr. Iozzo testified that as he watched them, the McComb brothers were pushing each other, and that one of them tripped on the median as they were crossing the road. He described one brother as trying to calm the other brother down.
[37] He said he could hear the McComb brothers and a “tall” Black man with the scarf he described – presumably Mr. Appleton – yelling at each other. He also said that the man with the scarf was “skinny”, wearing a dark colour “longer style jacket”, about 5’6” or 5’7,” and wearing pants that were short at the ankles. As indicated, Mr. Appleton is approximately 6’1”. He does not appear to have been wearing a longer style jacket but, as police photos seem to confirm, he was wearing a waist length jacket. And his pants do not appear to be short at the ankles.
[38] Mr. Iozzo said that the tall Black man was in front of the variety store. He estimated that at the time there were a handful of people between the two bars and another 10-15 people farther up the road.
[39] He testified that another “shorter” Black man wearing a “shiny”, “brushed aluminum jacket” was also on the east side of Jane St. and he too was “cussing” at the brothers. In his police statement he said that “four or five people” with “accents” were yelling at the brothers.
[40] Mr. Iozzo testified that the man in the “brushed aluminum jacket” had a big “shoulder width” stamp on the back of his coat. He could not offer any further description of the man, other than that he was Black, not as skinny as the tall Black man, and shorter. The Crown theory is that this man was SHG. Subsequent video footage of the man the parties agree is SHG does not depict a stamp on the back of his coat. Mr. Iozzo said that this shorter man was moving back and forth between the variety store and the group in front of another bar north on Jane St.
[41] Mr. Iozzo testified that he could hear the tall Black man yelling, “I got something for you” or “something along those lines”. He was less clear in earlier statements he gave about whether it was the tall Black man, or perhaps another, who said this. In his police statement he said that there were “two, three Black guys and they were yelling” this, but in his testimony, he insisted it was the tall Black man.
[42] Mr. Iozzo testified that he drove the tow truck through the intersection and into a Money Mart parking lot past the south-west corner of Jane St. and Lawrence Ave. West, where he stopped and parked. He explained that he did so “because it looked like [the men] were gonna fight each other.” This was the vantage point that Mr. Iozzo and Mr. Aiello had of the fight, approximately 280 feet from the Gucci’s Alcove, looking kitty-corner across the intersection.
[43] Mr. Iozzo testified that the McComb brothers “walked back with a purpose” towards Mr. Appleton, arguing, and “then the guy with the shiny jacket ended up walking up towards them and then they started to have a fight,” a “big fight”. Mr. Iozzo described a frenetic event in which he did not observe any weapons, only punching and kicking between the four men, including the tall Black man and a shorter black man wearing a brushed aluminum jacket. He said that during the fight the McComb brothers were knocked down, with the second brother – presumably Kiowa – getting knocked down and not getting up. Mr. Iozzo accepted the suggestion from defence counsel that the tall Black man knocked the first brother down with a “single punch” and could not say who knocked the second brother down. In cross-examination, after he was referred to the distance between the location of the altercation and his vantage point, he agreed that “during the scuffle, [he] couldn’t see what was going on.”
[44] When asked if the tall Black man was hesitant, he said, “No. He just acted like he had to defend himself.” He could not tell who hit who first, but “they were hitting each other kicking each other, punching each other.” He described the two Black men fighting different brothers, but he also said that all of the men “were exchanging hits amongst all four of them”. He testified that both Black men were punching and kicking their opponents while they were down.
[45] Mr. Iozzo was shown photographs by the police and asked to identify the suspects, including the shorter Black man wearing the shiny brushed aluminum jacket he had described. During his cross-examination at trial, defence counsel produced a photograph of Mr. Muhia, that was initialled adjacent to a notation: “shorter Black guy – fighting, punching and kicking.” Mr. Iozzo was unsure if those were his initials. He initially testified that he didn’t remember selecting the photo but said that the picture looks familiar, and “[t]he jacket looks familiar”. When asked whether “[i]t looks like the jacket of the shorter Black guy”, he said, “I only seen the back of the jacket of the shorter male. The front, I didn’t really get a good view.” He subsequently agreed that he had told Detective Giroux that this picture was of the shorter Black male. During the preliminary inquiry he selected another image of Mr. Muhia as the shorter Black male with the hoodie. This image depicted Mr. Muhia wearing a white ball cap and was captured by the Alcove Camera.
[46] In his evidence in chief Mr. Iozzo referred to only four men being involved in the physical part of the altercation. During his preliminary inquiry testimony he had acknowledged telling the police that four, “maybe six” people were involved in the fight. When confronted with this testimony during cross-examination, he agreed he was trying to be truthful at the time, but said he was referring to the “verbal altercation” when he said six people could have been involved.
[47] He said when both men went down, the people inside and outside the bar scattered “northbound, eastbound, they ran over the body, they walked down the alley, and they all took off.” He acknowledged that his view could have been blocked as this occurred. He then said that these people “unloaded out of the bar” once Kiowa was dragged.
[48] He testified that the dragging of Kiowa’s body was done by the taller Black man with the scarf. At another point in his evidence he said, “they” dragged Kiowa’s body. He then corrected himself, saying, “Sorry, he dragged him”, referring, no doubt to the tall Black man. However, he acknowledged that in his police statement given two days after the incident he told the police that it was the “shorter guy” who dragged Kiowa then later indicated that he could not remember which person it was.
[49] Mr. Iozzo testified that the men “stayed in the same area” during the fight which, as I have described, he placed in front of the variety store. As indicated, the crime scene photos clearly show that the blood trail, obviously caused by the dragging of Kiowa’s body, started in front of Gucci’s Alcove, north of the payphone, and therefore north of the variety store.
[50] Mr. Aiello was the final witness to testify to the physical confrontation. As indicated, he was a passenger in Mr. Iozzo’s tow truck when they first encountered the McComb brothers. He testified that when he saw the McComb brothers crossing Jane St. they were staggering and appeared to be drunk. He said he recalled one of them falling and hitting his head on the curb.
[51] Mr. Aiello described a Black male, 6 feet to 6 feet 2 inches tall with a thin build – agreed by the parties to have been Mr. Appleton – standing in front of Gucci’s, right in front of the door as he exchanged words with the McComb brothers. Mr. Aiello said “no” when asked if anyone else joined in this verbal confrontation.
[52] Mr. Aiello testified that Mr. Iozzo parked the tow truck on the southwest corner of Jane St. and Lawrence Ave West because they anticipated a fight. He acknowledged during cross-examination that his vantage point was from “a distant range” and “choppy” because of the flow of traffic, making it “kind of difficult” to see the fight that was happening across the intersection, on the other side of the road.
[53] Mr. Aiello described seeing the McComb brothers going across to Gucci’s, jaywalking, saying they were in “fight mode”. He said Mr. Appleton did not move. After the men reached Mr. Appleton, he described seeing the Black male throw a “straight punch”. He said that it was a “technical knockout” as the “bigger Native male” – presumably Kiowa – “went down”.
[54] He said the second Native male – presumably Sarcee – was there but he did not remember what Sarcee was doing because he was focused on “the guy going down”. He said he did not recall seeing Sarcee being hit. During cross-examination he said, “the only person I was visually like locked into was the bigger white guy” – presumably Kiowa.
[55] Mr. Aiello was asked during his evidence in chief whether he saw anyone else involved in the fight other than Mr. Appleton and the McComb brothers and he said he did not see anything after the “total knockout”, but continued, “moments later, other people came out of the bar. I think another Black male came out of the bar. He was a little shorter”, wearing what appeared to be a “puffy” jacket, which Mr. Aiello described as the “brown or black silvery type coat or something like that”. He recalled seeing this man kicking and using his hands against the person that was down. In cross-examination he agreed that the motion this man was making was a “hammering” movement. He said he did not see any weapons being used by anyone. He said, “[T]he short guy, the guy that did this. I don’t know if it’s this [taller] guy’s buddy or not but the guy came out [of Gucci’s].”
[56] In his evidence in chief Mr. Aiello said that only this man joined in the fight. He testified that there were four men involved in the physical fight, “two Native guys and the two Black males”, and that the others who came out of the bar “all scattered like bugs everywhere.” In cross-examination he agreed that it is possible that there could have actually been four or five people involved and he accepted that he testified to this effect during the preliminary inquiry.
[57] Mr. Aiello said the tall Black male that was standing in front of the bar dragged the body to the corner and took off “in the back of a building”. He said the short Black male ran and was gone when this was happening.
[58] Mr. Muhia provided little testimony about the confrontation itself, testifying that alcohol related blackouts impeded his memory. He testified that he attended Gucci’s alone, after already having consumed a significant amount of cognac, and bumped into an acquaintance he knew by the name of “Leila”. He was wearing a “brownish” leather jacket, with “maybe some black spots”, and a yellow hat. He testified that he remembered being involved in the initial Alcove scuffle and said, “I was getting thrown around like a ragdoll”. When asked why he got involved he said, “[W]hen I see people arguing, it feels like I’m in the argument so I guess it was just a reflex”. He said he was trying to break up the fight.
[59] During his evidence in chief Mr. Muhia testified that the next thing he remembered was being across the street and looking back and seeing one of the McComb brothers stumbling north past the Gucci’s door and a body on the ground. He said he ran over – he does not know why – to where one of the McComb brothers was kneeling over the other brother and a blood trail. He appears to have confused the two brothers in his account. He testified that he panicked and ran back across the street. When reminded of security video footage showing him going back into Gucci’s, he testified he went back for a drinking bottle he had brought which contained alcohol. He said that at one point he heard what sounded like a coconut hitting the ground, but was unclear about when this occurred, testifying, “I was drunk so I don’t know how the flow of events went.” He also said he saw a body being dragged in front of Gucci’s bar. He explained that he did not call 9-1-1 because he “couldn’t make sense of what was going on.” He said, “I just felt like euphoric. And I just remember not wanting to be – like just wanting to get out of the situation.”
[60] The Alcove Camera shows that after Mr. Muhia re-entered the Alcove at approximately 2:00:21 a.m., Leila was in the Alcove. She can be seen hitting him. It was at approximately 2:00:41 a.m. when Mr. Muhia re-entered Gucci’s. He can be observed with Leila on an RBC security camera in front of the RBC to the north of Gucci’s at approximately 2:03:44 a.m., according to the time stamp on that camera. He is captured by the Lion’s Den security camera walking up to Sarcee at 2:05:34 a.m., according to the time stamp on that camera. He then returned to the area of the RBC where he can be seen reaching toward his shoe. Before us, appellant counsel referenced trial counsel’s suggestion that he could have been wiping blood from his shoe.
[61] During his trial testimony and as part of its case in chief the Crown asked Mr. Muhia whether he stabbed the deceased in the “10 seconds” he was off camera (between approximately 2:00:10 a.m. and 2:00:21 a.m.). He said “no”. He was asked whether he ever stabbed anyone. He again said “no” and he said he was not carrying a knife that night.
[62] It was during cross-examination that Mr. Muhia described the physical motion he made in the Alcove as “a headlock motion”. He denied being angry after the Alcove confrontation, disagreeing with defence counsel’s suggestion that his body language captured by the Alcove Camera suggests otherwise. He testified that he no longer has most of the clothing that he wore during the events described [^4] or the cellphone he was carrying, saying that he discovered when he woke up the next morning that the screen had been smashed. He said he remembers the cellphone falling when he was coming out of the bar.
[63] When defence counsel confronted him with testimony that he gave at the preliminary inquiry, he agreed that during the confrontation – “not the one in the vestibule” – there were five to seven people involved. During the cross-examination at trial, he also said, “I didn’t even see the whole entire thing of that. I just saw the mass of people moving.” He agreed that this may be why he did not see clearly the dragging that was taking place.
[64] Defence counsel then confronted him with the inconsistency between his denial in his testimony in chief that he had stabbed anyone, and his testimony at the preliminary inquiry in which he was questioned about whether he may have stabbed someone during the “10 second” period in which he was off camera. He was also confronted with an answer he gave in re-examination at the preliminary inquiry where he was asked the following question, and provided the following answer:
Question: Okay. Now it was suggested to you – I just want to get it right here – that because you don’t remember what happened during those 10 seconds you’re off camera at 2:47:10 [2:00:10 a.m.] that it’s possible you could have stabbed somebody and don’t remember?
Answer: Could because I don’t remember.
[65] At trial, Mr. Muhia testified in response:
[W]hat he asked me was just in the nature of me not remembering – me drinking and having blackouts in that moment because I don’t recall, right, that it’s possible you could’ve stabbed, just – that’s just a fact it’s possible. However, I don’t think that I stabbed him because, for one, I didn’t have blood on my clothes; two, why would I go back and talk, to even touch the brother and have an argument with someone across the street about running back? Like I wasn’t – I was raised in the church, you know. My – my mother taught me to be compassionate to people.
[66] He then accepted defence counsel’s suggestion that he “left it open as a possibility in logic because there were gaps [he] couldn’t remember”.
[67] The parties agree that after Kiowa’s body was dragged, Mr. Appleton went down the alleyway before approaching a taxicab that happened to be there, operated by Anane Abebrese. Mr. Abebrese said that the man now acknowledged to be Mr. Appleton walked up to the driver’s side door. He testified that a shorter more muscular Black man wearing a Black jacket also approached his taxicab. The Crown theory is that this shorter man was SHG, an inference that was conceded by Mr. Appleton’s counsel before us. The two men got into the taxicab, leaving the scene together.
[68] Given the Crown theory that Mr. Appleton and SHG engaged in an unlawful common purpose in assaulting the McComb brothers that would make Mr. Appleton guilty of the offences charged even if he was not the stabber, the Crown case would be enhanced by a finding that Mr. Appleton and SHG were fleeing the confrontation together when they entered the taxicab. However, Mr. Iozzo testified that the taller man walked toward the alleyway first and that the shorter man then followed. This testimony, coupled with the lack of previous interaction between Mr. Appleton and SHG and SHG’s apparent disinterest in Mr. Appleton’s first scuffle with Sarcee, makes it realistic for Mr. Appleton to argue that the men had not fled together, but rather the shorter man simply chose to follow. However, to the contrary, Mr. Abebrese testified that when Mr. Appleton approached the driver’s window, he asked Mr. Abebrese if he would give “them” a ride to “Jane and Weston”. During cross-examination, Mr. Abebrese rebuked the suggestion made by Mr. Appleton’s counsel that Mr. Appleton may have said, “could you give me a ride.”
[69] When Mr. Abebrese exited the alleyway, it was his intention to turn left since the intersection of Jane St. and Weston Rd. was to the south. But one of his passengers said he had left his food at the front of the bar in Gucci’s and asked Mr. Abebrese to turn right instead so that he could retrieve it. Mr. Abebrese did so. By this point a tow truck – now known to have been Mr. Iozzo’s tow truck – was parked in front of the variety store and there was a crowd. One of his passengers, he believes the shorter of the two men, instructed Mr. Abebrese to make a U-turn, which he did. After doing so, Mr. Abebrese noticed that the tow truck was following the taxicab.
[70] Mr. Iozzo and Mr. Aiello both confirmed that the tow truck was indeed following the taxicab. They testified that after Kiowa’s body was dragged they drove to where Kiowa’s body had been left. While pulled over there, they saw the taxicab leave the alley and go past them. Mr. Iozzo testified that after seeing inside of the taxicab, he concluded that the passengers were the Black men who had been involved in the fight and decided to follow them. He dialed 9-1-1. The 9-1-1 call discloses that others on scene, in fact, told Mr. Iozzo to follow the taxicab. Mr. Aiello described the taxicab passengers as looking “pretty agitated”, “paranoid”, and “looking around” as they were being followed.
[71] Mr. Abebrese testified that when he confronted his passengers about being followed he was told everything was alright. When they reached Weston Rd., the men did not get out but directed him to “turn right” onto Weston Rd. He did so, and, becoming increasingly nervous, threatened to drive to a nearby police station. The shorter man directed him to turn, and he did so, briefly continuing on the circuitous route. He stopped the taxicab when directed by the shorter man, who got out near the intersection of Stewart Smith Dr. and Tedder St.
[72] From his vantage point in the tow truck, Mr. Aiello said he witnessed this man’s exit and that the man who left the taxicab was the “same guy” who was involved in the fight.
[73] Mr. Appleton, who Mr. Abebrese said remained calm, stayed in the taxicab, and told him to go back to Jane and Weston, but en route Mr. Appleton directed him to pull into a gas station so that he could buy something there. Mr. Abebrese dropped Mr. Appleton off, and Mr. Appleton was detained by the police almost immediately and ultimately arrested.
[74] Expert testimony was called about the injuries sustained by the McComb brothers. This evidence confirmed that in addition to other injuries, Kiowa received seven sharp force wounds, including two wounds to the neck that severed both his jugular vein and his carotid artery and two to his torso, one to his arm and another under his nose. The neck wounds were fatal. Sarcee received a life-threatening stab wound to his chest, and a laceration on his face.
[75] Controversy arose over the pathologist’s testimony relating to the stab wound under Kiowa’s nose. In addition to describing that stab wound, the pathologist, Dr. von Both, described a “very superficial abrasion and… contusion” to the inside of Kiowa’s lip, in “the same anatomical location” as the stab wound (the “Internal Mouth Injury”). He testified that this Internal Mouth Injury could have been caused by a blow to the mouth, the same mechanism as the sharp force injury below the nose, or by resuscitation. It is evident from events that followed that defence counsel favoured the possibility that this injury was caused by a blow to the mouth, since this would support Mr. Blake’s testimony that Mr. Appleton punched (rather than stabbed) the men. However, in re-examination Dr. von Both testified that there was a “high likelihood” that this Internal Mouth Injury was caused by the same strike as the stab wound below the nose, given its location. Defence counsel asked for a mid-trial direction to the jury to disregard this opinion because it was “purely speculative”. The trial judge ruled against the request and suggested that he “flag it” “[i]n terms of the charge”.
[76] In its closing address the Crown offered three distinct theories of Mr. Appleton’s guilt in the murder of Kiowa and attempted murder of Sarcee based on the foregoing evidence: (1) he stabbed both men; (2) even if an unknown suspect did the stabbings, he is a joint principal in assaults committed with the intention of killing or causing bodily harm he knew was likely to cause death; or (3) even if an unknown suspect did the stabbings he aided in those stabbings, knowing that the stabber had the requisite intention to commit the offences.
[77] In support of its first theory the Crown argued that the initial blows by Mr. Appleton that felled the men were not punches, as perceived, but were stabs to the face. It relied upon evidence of the knife wound to Kiowa’s face, and the laceration below Sarcee’s nose, which it called a stab wound, to support this theory, along with what it said was the absence of evidence of other injuries to the men consistent with having been punched. The Crown also sought to bolster its theories of guilt by establishing that Mr. Muhia could not be the stabber, a point I will return to below.
[78] Although the Crown argued that convictions could follow based on stabbings committed by an unknown stabber, it emphasized its theory that SHG was the only other man in the fight against the McComb brothers, a theory that, if true, would strengthen its joint principal theory, and to a lesser extent its aiding and abetting theories, because evidence that Mr. Appleton fled with SHG enhanced its theory that the men were acting together.
[79] The defence position was that the Crown had not proven beyond a reasonable doubt that Mr. Appleton did anything more than punch each brother once, in part because there was a reasonable doubt as to whether others, including Mr. Muhia, did the stabbings. The defence also attempted to distance Mr. Appleton from SHG, despite their shared taxicab ride.
[80] All of the grounds of appeal that Mr. Appleton raises relate to the trial judge’s jury charge. It is convenient to describe the trial judge’s jury charge and the relevant colloquies and excerpts from the pre-charge conferences as I discuss each of the grounds of appeal.
The Issues
[81] Mr. Appleton raised five issues on appeal:
A. Did the trial judge err in instructing the jury that evidence about Mr. Muhia’s potential involvement in the fight was irrelevant to their deliberations? B. Did the trial judge err in instructing the jury that SHG was the second man in the fight? C. Did the trial judge misdirect the jury on party liability? D. Did the trial judge misdirect the jury on post-offence conduct? E. Did the trial judge undermine the burden of proof in her charge?
[82] For the reasons that follow, I would give effect to grounds of appeal A and B, which are related. I would therefore allow the appeal, set aside the convictions, and order a new trial. I will briefly address the remaining grounds of appeal, which I would not accept.
Analysis
A. Did the trial judge err in instructing the jury that Evidence about Mr. Muhia’s potential involvement in the fight was irrelevant to their deliberations?
Overview
[83] I am satisfied that the trial judge erred in instructing the jury that evidence relating to Mr. Muhia’s involvement in the stabbing is irrelevant. In the impugned direction she said:
It is relevant for you to consider whether the perpetrator might have been someone other than Mr. Appleton and whether this causes you to have a reasonable doubt. However, it is not appropriate for you to go off on a side issue as to whether in fact Mr. Muhia is guilty of the offence. That is not an issue for you to determine in this case. Therefore, issues such as gestures made by Mr. Muhia in the Gucci vestibule, whether he was or was not wiping blood off his shoes in front of the Royal Bank and the like, are irrelevant to your task.
[84] Relatedly, in summarizing the defence position in her charge the trial judge refused to include submissions that Mr. Appleton asked her to include about Mr. Iozzo’s initial identification of Mr. Muhia as having been involved in the fatal confrontation, and Mr. Muhia’s gestures from the Alcove. Then, in her jury charge the trial judge made no other reference to the prospect that Mr. Muhia could have been the stabber or the effect this possibility could have had on the outcome. When the charge is read as a whole, jurors could only have understood the impugned portions to mean that they were not to consider whether Mr. Muhia was the stabber or a participant in the fight.
[85] Since there was no articulated ruling specifically addressing the trial judge’s decision to direct the jury in this fashion, it is not entirely clear why she did so. During the trial three reasons were offered by the Crown for eliminating Mr. Muhia from consideration as a possible suspect: (1) Mr. Appleton’s trial counsel did not bring a third party suspect application; (2) Mr. Appleton’s trial counsel told the trial judge he was not bringing such an application; and (3) there was no air of reality to Mr. Muhia’s involvement, therefore the third party suspect rule cannot be met. At various points the trial judge expressed agreement with each of these submissions but made her decision to provide the jury charge reproduced in paragraph 83 above only after calling for and receiving argument on the air of reality issue. It is therefore likely that she gave the direction she did after concluding that the third party suspect defence lacked the requisite air of reality. Because of the lingering uncertainty I will assess whether any of these considerations support the trial judge’s decision. I am persuaded that they do not.
[86] As I will explain, no third party suspect application was required in the circumstances of this case. The function of a third party suspect application is to ascertain whether relevant evidence of the possible involvement of the alternative suspect raises a material issue in the case. No application was needed because Mr. Muhia’s potential role as the stabber had already been made a material issue in the case by the Crown when it presented evidence and argument to eliminate Mr. Muhia as the stabber to strengthen its claim that Mr. Appleton did the stabbing. In effect, the Crown position at trial and before us is that it could argue that Mr. Muhia was not the stabber, but Mr. Appleton could not suggest otherwise. This position is untenable.
[87] Since there was no need for a third party suspect application, the fact that Mr. Appleton said he was not bringing one cannot support the trial judge’s decision. In any event, the trial judge ultimately received air of reality arguments, effectively conducting an application, rendering his initial claim that he was not bringing an application immaterial.
[88] Finally, available evidence clearly satisfied the air of reality test. If the trial judge concluded otherwise, she was in error, either in the standard she applied or in its application. In my view, the submission that Mr. Muhia may have been involved in the altercation and committed the stabbing should have been left with the jury.
[89] I will unfold the trial judge’s consideration of the third party suspect defence leading to her ruling, and then explain more completely why it was wrong for the trial judge to give the direction she did.
Third Party Suspect Consideration
[90] The third party suspect issue was initially raised by the trial judge before the evidence was completed. After several Crown witnesses had testified, including Mr. Muhia, she asked defence counsel whether there was going to be an “alternate suspect application” (which I prefer to refer to as a “third party suspect application”). Defence counsel responded that, in his view, there wasn’t proof beyond a reasonable doubt that Mr. Appleton was the stabber. When pressed as to whether he was going to be suggesting that “it was a particular person” he replied, “[t]he evidence doesn’t quite get there. The evidence is there’s a reasonable doubt about who did it... [w]e can’t say Mr. Muhia did it, we can’t say [SHG] did it. It’s not gonna rise to that. But its gonna rise to, based on the eyewitness accounts, there’s a reasonable doubt”. When asked if he was going to be “pointing the finger at any particular person” he repeated, “No, the evidence doesn’t rise to that.”
[91] When the draft jury charges were subsequently being reviewed before counsels’ jury addresses were given, counsel for Mr. Appleton expressed the view that Mr. Muhia could have been involved in the fatal encounter, saying, “I don’t think it’s easy to eliminate Mr. Muhia from some role in the fighting”. He then said, “[Mr. Muhia’s] not inconsistent with being the shorter male.” The trial judge said, “[e]xcept he’s across the street with [Leila]”. Counsel disagreed with this comment, saying that this was not “crystal clear”. [^5] Shortly after, he agreed with the trial judge’s suggestion that the defence was also advancing the theory that SHG (the person the Crown claimed to be the shorter man) could have done the stabbing.
[92] Before the closing addresses were given, the Crown made clear its own intention to argue that Mr. Muhia was not involved in the stabbing. In explaining its position, the Crown said that if the jury accepts its claim that Mr. Nur’s reaction signalled the start of the stabbing, Mr. Muhia could not have been the stabber because when he is coming out of Gucci’s Mr. Nur is “essentially already in the process of having that reaction”. The trial judge made no comment in response on the relevance of the Crown addressing Mr. Muhia’s potential involvement.
[93] The Crown provided its closing address first, as Mr. Appleton did not call defence evidence. As foreshadowed, the Crown argued that Mr. Muhia could not have committed the stabbing given his movements on the security footage. It also argued that Mr. Muhia’s testimony denying that he was the stabber is “believable” and that this testimony finds support in Mr. Blake’s testimony that the man he saw fitting Mr. Muhia’s description was not involved in the fight. Based, in part, on these submissions the Crown asked the jury to find beyond a reasonable doubt that Mr. Appleton did the stabbings.
[94] In his subsequent jury address, Mr. Appleton’s counsel asked the jury to consider the possibility that Mr. Iozzo and Mr. Aiello were confusing SHG with Mr. Muhia when describing the parties to the fight. He pointed to the poor vantage point these witnesses had when they were watching the fatal confrontation, Mr. Muhia’s movements and opportunity as disclosed in images captured by the Alcove Camera, his gesturing from the Alcove with a motion to his neck, and the possibility he can be seen in the RBC video to be removing blood from his shoes.
[95] Mr. Appleton’s counsel also suggested based on Mr. Iozzo’s description of the “taller” assailant as 5’6” or 5’7”, that SHG could have been the taller of the two assailants that Mr. Iozzo believed he saw, thereby leaving the possibility that Mr. Muhia was the shorter of those two assailants.
[96] He submitted that the possibility of Mr. Muhia’s involvement in the fight is supported by Mr. Iozzo’s identification during his police interview of a photo of Mr. Muhia as the shorter man in the confrontation, and by Mr. Muhia’s acceptance of the possibility that he could have stabbed someone during the blackout period he no longer remembers. Counsel for Mr. Appleton said, “I’m not trying to jump on Mr. Muhia more than the evidence suggests.” He cast his submissions in terms of “reasonable doubt”.
[97] In listing its objections to Mr. Appleton’s closing comments during the post-closing address discussion, the Crown said, “There was the alternate suspect, Mr. Muhia”. The trial judge responded, “Ah, yes, the alternate suspect, that there was no notice of, and just bounced out there”, and she referred to it as a new defence “raised for the first time.” The Crown added, “Disregarding your Honour’s ruling”. The trial judge responded, “Yeah, there is a list.” The Crown asked for a strong correction. When the Crown said there was “[n]o air of reality to [the defence. Defence counsel] said, he wasn’t gonna do it”, the trial judge agreed, and added, “Didn’t put it to the witness when he was here testifying.” [^6]
[98] The next day the trial judge raised the issue again, looking for guidance on how far she should go in her correction. The Crown said, “I think the core of what they need to know is simply just that they can’t use that portion of my friend’s submissions for what he asked them to use it for.” The trial judge then commented, “even if they had brought the motion I would have said no.” Notwithstanding this comment, the trial judge evidently decided that she should conduct an air of reality evaluation before making a decision, asking for “air of reality” submissions.
[99] In its submissions the Crown maintained that there was no air of reality to the third party suspect defence and submitted that the defence had conceded as much during an earlier colloquy into the issue. Mr. Appleton’s counsel responded, “[W]e didn’t say ‘There was no air of reality to there being a third party suspect’… I don’t view this really as a third party suspect. I view this as how we analyse the eyewitness evidence”. In his ensuing comments he said, “we didn’t say that Mr. Muhia had did it… [B]ut if we look at the evidence as a whole there’s a lot that puts Mr. Muhia in the fracas, in some respect.” When the trial judge confronted him with the fact that she had asked him about alternate suspects, he replied, “An alternate suspect, I understand, has to be dispositive… We’re not saying this person did it. We’re saying the Crown hasn’t proved Mr. Appleton did it on this eyewitness evidence.” [^7]
[100] Despite receiving submissions on whether the third party suspect defence relating to Mr. Muhia had an air of reality the trial judge did not express or provide a ruling on that issue. All that can be said with certainty is that she had decided overnight that Mr. Appleton could not rely on this defence. The following day, she moved to the question of the kind of corrective instruction that was required in response to defence counsel’s third party suspect submissions, and where the correction should be put in her charge. Given this, the precise basis for the trial judge’s decision to give the charge that she did is not entirely clear. That decision may have been based on the failure by the defence to bring a formal third party suspect application, or defence counsel’s acknowledgement that it would not be bringing an application, or on a conclusion that the third party suspect defence lacked an air of reality.
The Material Legal Principles
[101] The place to begin understanding the third party suspect rule is to recognize that it is not an affirmative defence, but instead, a denial that the Crown has proved one of the elements of a charged offence – identity – beyond a reasonable doubt. When a jury acquits on a third party suspect defence it is therefore doing no more than recognizing that the Crown has failed to prove the identity of the person who committed the offence: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at paras. 59-60.
[102] In this important respect, a third party suspect defence is not like a “reverse onus defence”, such as the mental disorder, automatism, or extreme automatism defences, where the accused must put entirely new elements into issue and prove them on the balance of probabilities: see e.g., R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 54. Nor is a third party suspect defence like an “ordinary affirmative defence”, such as self-defence, duress, or necessity, where the accused injects new issues of mixed-law and fact into a trial relating to whether their otherwise criminal conduct was justified or should be excused: Fontaine, at para. 55, citing R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 57. The issue the third party suspect defence addresses – identity – is already a matter for consideration and a matter for the Crown to prove.
[103] As always, the determination of whether the Crown has met its burden is determined on evidence. Since it can undercut the Crown’s ability to prove that the accused has committed the actus reus, “evidence of the potential involvement of a third party in the commission of an offence is admissible”: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. To be clear, relevant evidence about the potential involvement of a third party in the commission of the offence is “admissible” in both senses of the term: (1) relevant evidence of the potential involvement of a third party in the commission of an offence can be presented to the trier of fact during the trial if it has not already been led; and (2) it is “admissible” for the accused to use evidence that has already been admitted for another purpose in order to support a third party suspect defence, if that evidence is relevant to the third party suspect defence.
[104] Significantly, the ultimate question of whether the Crown has proved its case beyond a reasonable doubt is a question for the jury in a jury trial, not the judge administering the third party suspect rule. The third party suspect rule is therefore no more than a threshold “admissibility” inquiry designed to determine whether the third party suspect defence warrants consideration by the jury: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121, citing Grandinetti, at paras. 47-48. Where the admissibility test is met, the fortunes of the third party suspect defence must be determined by the trier of fact on the evidence as a whole: R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at para. 58, citing Ranglin, at para 60. There is a well-recognized risk that, if misapplied, the third party suspect rule can cause an improper shifting of the burden of proof to the accused: R. v. Gauthier, 2021 ONCA 216, 403 C.C.C. (3d) 69, at para. 41. This error is to be guarded against.
[105] The following proposition, which I described in Rudder, at para. 61, captures the third party suspect rule:
Third party suspect evidence will be admissible where: (1) the accused presents or points to evidence on the record of a connection between a third party and the offence charged, that, if assumed to be true and interpreted in favour of the accused, could raise a reasonable doubt about the guilt of the accused; and (2) the trial judge has not determined that the probative value of that evidence is substantially outweighed by the risk of prejudice it presents.
[106] In Grant, at para. 21, Karakatsanis J., for the court, described these two components of the rule as the “air of reality test” and the “Seaboyer admissibility test”, and she directed that they “remain two distinct inquiries.” This is sensible, for the two inquires perform different functions.
[107] The first of these inquiries, the “air of reality test”, is used by the trial judge in order to perform their “gate-keeping” role: Grant, at para. 21. It demands that before a third party suspect defence will be on the table for consideration, there must be relevant evidence capable of providing “some basis upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”: Spackman, at para. 121, citing Grandinetti, at paras. 47-48 and Fontaine, at para. 70; R. v. J.M.W., 2020 ABCA 294, 391 C.C.C.(3d) 1, at para. 28.
[108] I described the mechanics of this “air of reality” inquiry in Rudder, at para. 59. Instead of rephrasing the same points I will reproduce what I said in its entirety:
Like other air of reality inquiries, the threshold admissibility determination is to be made by assuming that the evidence most favourable to the accused is true: Grant, at para. 20. To be sure, the evidence must have sufficient probative value to justify its reception: [R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589], at para. 196. However, this probative value assessment is limited so that the trial judge does not perform the function of the trier of fact when assessing admissibility. Therefore, where there is direct evidence supporting a third party suspect’s possible perpetration, that will be enough; the sufficient connection test is met and it will be up to the trier of fact to determine whether that direct evidence raises a reasonable doubt: [R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122], at para. 22. Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences being relied upon are reasonable inferences that arise from the evidence, and not simply from speculation or conjecture: R. v. Fenton, 2019 ONCA 492, at para. 18; R. v. Sorella, 2022 QCCA 383, at paras. 86-87, leave to appeal refused, [2022] S.C.C.A. No. 155. If the evidence could support a reasonable inference that someone other than the accused may have committed the crime, the evidence has the probative value required to satisfy the sufficient connection test: Grandinetti, at para. 46, Abella J. quoting from R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d, [1977] 2 S.C.R. 824.
[109] The second inquiry, the “Seaboyer admissibility test”, operates where the “air of reality test” has been met: R. v. Seaboyer, [1991] 2 S.C.R. 577. It provides trial judges with a limited discretion to exclude third party suspect evidence even where the defence has an air of reality. Unlike the “air of reality test”, which examines whether there is a basis for putting the third party suspect evidence “on the table” for consideration, the “Seaboyer admissibility test” offers a tightly limited discretion to take that defence off of the table if it is not worth considering. To exercise it, the trial judge must be satisfied that the probative value of the evidence is substantially outweighed by the risk of prejudice it presents: R. v. Hudson, 2021 ONCA 722, 158 O.R. (3d) 589, at para. 193; Grant, at para. 19. Where the third party suspect is linked to the charged offence by reason of having committed other offences, particularly highly similar offences, it may be given undue weight, distracting the trier of fact: Grant, at para. 39. Where the third party suspect evidence does not link the third party to other criminal activity or discreditable conduct, as in this case, other forms of “reasoning” prejudice may arise. “Reasoning prejudice” includes the “distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time”: R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 108, leave to appeal refused, [2015] S.C.C.A. No. 487.
[110] In Grant, at para. 21, Karakatsanis J. recognized that in some cases, a third party suspect application will not be required to resolve whether these threshold standards have been met. Although she was speaking in the context of an unknown third party suspect allegedly linked to the charged offence because of their commission of a highly similar crime on another occasion, it is evident that her comments also apply in cases such as this, where the alternate suspect is one of the known players in the factual scenario surrounding the offence. Specifically, she said, “where the defence evidence relates to the facts underlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious” but “where the evidence refers to a factual matrix beyond the offence charged, its relevance to a fact in issue or an available defence may be less clear. In such circumstances, the gate-keeping role of the trial judge may require her to determine whether the evidence is logically relevant and connected to a defence that has an air of reality.” Put otherwise, the trial judge need not perform their gate keeping role of examining the logical relevance and connectedness of third party suspect evidence when those components are obvious.
[111] It follows, in my view, that if the potential involvement of the third party suspect is already on the table given the nature of the Crown case, there is no need for a third party suspect application. In this case, for example, the Crown theory was that there were only two individuals involved in the physical confrontation with the McComb brothers, Mr. Appleton and SHG, and that one or the other of these men was the stabber. In effect, the Crown addressed, as part of its case, whether SHG was an alternate suspect in the stabbing. Appropriately, the trial judge did not require a third party suspect application to permit Mr. Appleton to lead evidence and argue that SHG and not Mr. Appleton may have been the stabber.
[112] By way of further example, if the Crown relies in a possession case on an accused person’s exclusive control over the item allegedly possessed, the accused does not require a third party suspect application to present evidence showing that other specific persons linked to the events may have had control over the item at the relevant time: Rudder, at para. 65; Gauthier, at para. 36. The Crown has already made this an issue given the exclusive control theory it has presented.
There Was no Need for a Third Party Suspect Application
[113] In my view, there was no need for a third party suspect application in the circumstances of this case. Before the defence even began its case, Mr. Muhia’s potential involvement as the stabber was made a live issue by the Crown. It presented evidence, as part of its case that Mr. Muhia was not the stabber, by asking him directly during his evidence in chief if he was the stabber.
[114] The Crown argued before us that it engaged in this inquiry only for a limited purpose, namely, to assist the jury in evaluating Mr. Iozzo’s reliability, not to prove substantively that Mr. Muhia was not the stabber. On this basis, it submitted that the Crown had not made Mr. Muhia’s potential involvement as the stabber a material issue in the case. This submission is wrong on two counts.
[115] First, it is manifest that in its jury address the Crown sought to strengthen its substantive case on the basis that the exclusion of Mr. Muhia as the stabber would assist in drawing a circumstantial inference that Mr. Appleton was the stabber.
[116] Second, even if the Crown had advanced a theory that Mr. Muhia could not have been the stabber only for a limited tactical purpose relating to Mr. Iozzo’s reliability, it nonetheless sought to rule Mr. Muhia out as the stabber so that Mr. Iozzo’s evidence would better suit its case. It is untenable to suggest that Mr. Appleton needed a third party suspect application to be able to respond to this attempt with evidence showing that, in fact, Mr. Muhia may have been the stabber. It would be unfair, in my view, to permit the Crown to call evidence to prove and argue that Mr. Muhia is not the stabber, which the defence cannot respond to without launching a successful third party suspect application.
[117] Finally, it bears notice that Mr. Appleton was not simply offering Mr. Muhia as an alternate suspect for himself as the stabber. He also raised the issue of whether Mr. Muhia may have been the stabber, instead of SHG. If jurors could not reject this latter possibility, it would weaken the Crown’s attempt to rely on the “joint” flight by Mr. Appleton and SHG as evidence that “the two assailants” were obviously working in concert during the fight. It is not at all clear that the third party suspect rule even applies where the accused wants to dispute the identity of an alleged co-party. I question whether it does but I need not resolve this issue because, as I have said, the Crown itself put Mr. Muhia’s role as the stabber into issue.
[118] The trial judge erred in proceeding on the basis that the third party suspect defence relating to Mr. Muhia could not be advanced without a successful application.
The Representation that no Application Would Be Brought Is Immaterial
[119] The fact that Mr. Appleton told the trial judge that he was not going to be bringing a third party suspect application does not justify the trial judge’s charge relating to Mr. Muhia. Since no application was required in the circumstances of this case, this representation cannot justify removing the defence from the jury.
[120] Moreover, any such representation became immaterial once the trial judge effectively conducted a third party suspect application by receiving submissions on the air of reality test.
There Was an Air of Reality to Mr. Muhia’s Involvement
[121] Although some deference is to be given to the inferences trial judges draw, a standard of correctness applies to air of reality determinations relating to proposed defences: R v. Suthakaran, 2024 ONCA 50, 433 C.C.C. (3d) 175, at para. 15, citing Cinous, at para. 55; R. v. Hayes, 2020 ONCA 284, 391 C.C.C. (3d) 453, at para. 50. If the trial judge did deny Mr. Appleton access to the third party suspect defence because of a finding that it lacked an air of reality, her decision was not correct. On the evidence before her, the path to an air of reality was so clear that any decision to the contrary would either have been unreasonable, or necessarily grounded in a misconception of the rule.
[122] There was both direct and circumstantial evidence supporting reasonable inferences of Mr. Muhia’s potential involvement in the stabbing, including a sufficient connection between him and the offence:
- Mr. Muhia was physically proximate to the location of the fatal confrontation at the time the Crown alleged it was unfolding. He was not only at Gucci’s in the geographical area of the stabbing, he was captured by the Alcove Camera leaving Gucci’s Alcove at approximately 2:00:10 a.m. and remaining outside of but near to the Alcove until 2:00:21 a.m.
- There was evidence that Kiowa was stabbed on the sidewalk immediately in front of Gucci’s Alcove, an area Mr. Muhia had clear access to during the period he was off camera.
- Although Mr. Muhia attested to his belief that he had not done the stabbings, he admitted that it was possible for him to have done so. He could not say otherwise and could not account for his departure from Gucci’s during the 10 to 11 second period that became the focus of the Crown’s case.
- Mr. Iozzo’s identifications of at least one of the participants in the fight, which jurors were free to accept, included features consistent with Mr. Muhia’s involvement in the fatal confrontation, including his race, and height. Mr. Aiello’s description of one of the participants in the fight also included features consistent with Mr. Muhia, including the colour of the coat that the shorter man was wearing (“brown or black silvery type coat”).
- Both Mr. Iozzo and Mr. Aiello described the shorter man delivering blows to Kiowa while he was down (described by Mr. Aiello as hammer-like blows). Mr. Aiello testified that the shorter man struck both men when they were down. This evidence supports the possibility that the shorter man, possibly Mr. Muhia, could have been the stabber while the men were on the ground.
- There was evidence of a potential motive for Mr. Muhia joining into the confrontation. Only moments before the stabbings he was involved physically with Sarcee. Although he testified that he was breaking up the fight, the jury was free to reject that testimony and find otherwise, a prospect enhanced by his admission that when he sees an argument he feels as if he is involved, and his “reflex” is to get involved.
- Mr. Muhia testified that shortly after the confrontation with Sarcee he made a headlock gesture. This was happening at or around the time of the confrontational yelling between the McComb brothers and one or more individuals who were at or around Gucci’s. It was open to the jury to infer that this gesture was directed by Mr. Muhia at Sarcee or the McComb brothers.
- Mr. Muhia said as he was leaving the area he was “euphoric” and he described “just wanting to get out of the situation”. Both of these statements arguably provided a basis for after-the-fact conduct inferences pointing to his potential involvement.
[123] I have not included the out-of-court identifications of Mr. Muhia by Mr. Iozzo as “air of reality” evidence because it was not admissible for this purpose. Mr. Iozzo ultimately admitted making those prior identifications and that he had attempted to be truthful at the time, but he did not adopt at the trial his evidence that Mr. Muhia was the stabber, nor did he identify Mr. Muhia in this testimony as involved in the altercation. In these circumstances, out-of-court identifications are not admissible for the truth of their contents unless a principled exception to the hearsay rule is satisfied: R. v. Tat (1997), 35 O.R. (3d) 641, at pp. 664 (C.A.). No hearsay application was brought.
[124] I have also omitted reference to evidence of Mr. Muhia bending down to his shoes at one point. The invited inference that he was wiping blood from his shoes is speculative.
[125] During submissions before us, the Crown attempted to counter the submission that there was an air of reality to Mr. Muhia’s involvement by relying upon evidence that was inconsistent with his involvement, including (1) Mr. Blake’s testimony that a man matching Mr. Muhia’s general description was not involved in the confrontation; (2) evidence that SHG was involved in the confrontation, including testimony from Mr. Iozzo and Mr. Aiello that the man who fled in the taxicab, agreed before us to be SHG, was the second man in the fight; (3) Mr. Muhia’s testimony that he was trying to break up the fight when he became involved physically in the earlier confrontation; (4) Mr. Muhia’s testimony that he approached Sarcee when Kiowa was down to help; and (5) Mr. Muhia’s explanations that he was not the stabber. With respect, these submissions reflect a misunderstanding of the air of reality test. Jurors would be free to reject all of this evidence. An air of reality test is to be conducted based on the evidence taken at its highest for the accused and on the assumption that the evidence favourable to the defence is true: Cinous, at paras. 53-54. In this sense, an air of reality inquiry operates much like the prima facie case inquiry the Crown undertakes when it seeks to put (at a preliminary inquiry) or keep (in response to a motion for directed verdict of acquittal) the issue of the guilt of the accused on the table. In making air of reality determinations judges are not to make their assessment based on acceptance of testimony favouring the Crown case on contested issues.
[126] Finally, this is not a case where there was uncontested or uncontestable evidence that would make it impossible for Mr. Muhia to have stabbed Kiowa, and/or Sarcee. Although there was a realistic basis in the evidence for finding that Mr. Appleton did stab the men, this evidence was not so unequivocal that it could undermine any realistic possibility that Mr. Muhia could have done so.
[127] The Crown did argue before us that it would have been impossible for Mr. Muhia to have done the stabbings in the 10 to 11 seconds he was off camera, thereby depriving the defence of any air of reality on the uncontested evidence, however I do not accept this submission. There was evidence that the fatal confrontation, and quite possibly the stabbing of Sarcee, which together consisted of no more than 8 to 10 stabbing thrusts that could have been delivered quickly to the men while they were on the ground, occurred precisely where Mr. Muhia would necessarily have been after exiting Gucci’s, quite possibly at the same time he was outside of camera range. There is no basis in evidence or in reason for finding that those stab wounds could not have been inflicted with that opportunity.
[128] In these circumstances, there was an “air of reality” that Mr. Muhia could potentially have been the stabber. It must be remembered that the question is not whether this evidence proves that he was. It is whether a reasonable juror could have a reasonable doubt about Mr. Appleton’s guilt: Cinous, at para. 49. In my view, the trial judge was incorrect if she concluded otherwise.
This is not an Appropriate Case for Exercising Discretion to Exclude
[129] There is no indication that the trial judge was purporting to exercise the residual exclusionary discretion when she removed Mr. Muhia’s potential involvement from the jury’s consideration. If she did deny Mr. Appleton access to the third party suspect defence relating to Mr. Muhia on this basis, that decision was unreasonable. The potential probative value of this evidence was high. As I have explained in paragraph 122 above, the theory that Mr. Muhia could have been the stabber was supported by circumstantial evidence as well as an acknowledgment from Mr. Muhia that he could have done the stabbings. This issue was of tremendous potential significance and, if it left the jury with a reasonable doubt, this defence would have undermined the Crown’s main theory of liability and would have materially undercut the Crown’s effort to rely on its joint flight theory between SHG and Mr. Appleton to buttress its co-party liability theories. In contrast, the potential for prejudice in permitting the third party suspect defence to proceed was almost non-existent. The pursuit of this defence added no meaningful time to the trial. All of the evidence of Mr. Muhia’s movements captured by security cameras was presented in narrating the events, and the Crown itself presented much of the evidence relevant to Mr. Muhia’s potential involvement. Nor would this issue distract jurors, who were already tasked to determine whether the Crown had proved that, among those involved, Mr. Appleton was the stabber.
[130] In my view, if the trial judge did deny Mr. Appleton access to the third party suspect defence relating to Mr. Muhia based on the relative probative value and prejudice of the defence, she erred in doing so.
Ground of Appeal A – Conclusion
[131] The trial judge misdirected jurors when she instructed them in a fashion that could only have been understood by them as an instruction that evidence relating to Mr. Muhia’s potential guilt was irrelevant to their deliberations. Since this is a serious error that necessarily requires that the appeal be allowed and the findings of guilt be set aside, there is no need to provide extensive reasons on the remaining issues. I will communicate my conclusions on those additional issues in brief compass.
B. Did the trial judge err in instructing the jury that SHG was the second man in the fight?
[132] Mr. Appleton’s appeal counsel argued that the trial judge erred in her charge by effectively directing jurors that SHG was the shorter man involved in the fatal encounter, thereby taking that issue away from the jurors. I would accept this submission. It was Mr. Appleton’s position that the shorter man may have been Mr. Muhia or other unknown actors who could have interceded. Although the trial judge never instructed the jury to find that the shorter man was SHG, when the charge is read as a whole and functionally, that is the message the jury would have received.
[133] The trial judge spoke frequently as if SHG was the shorter man. Although on a number of these occasions she was relaying the Crown theory, or summarizing the evidence of witnesses, this was not always so. In describing the elements of the theories of liability she spoke of whether Mr. Appleton was a “joint participant with the unknown shiny hoodie guy in the course of which one of them stabbed Kiowa McComb in the neck”. She never directed the jury to consider whether the shorter man could be anyone other than SHG.
[134] The Crown proceeded before us on the basis that this ground of appeal is linked to and stands or falls with the prior ground of appeal. I agree. Viewed functionally, including in light of the direction that the jury was not to consider Mr. Muhia’s potential involvement as the stabber, the trial judge proceeded as if SHG was the second man. The trial judge should have left the identity of the shorter man to the jury. I would allow this ground of appeal.
C. Did the trial judge misdirect the jury on party liability?
[135] Mr. Appleton’s appeal counsel submitted that the trial judge’s charge relating to joint party liability was inadequate. They submitted that her charge that “the blow of one is, in law, the blow of them all” would have left the jury with the erroneous belief that mere co-participation was enough for joint party liability. There is no such risk. The trial judge included this reference in her direction on causation between joint principals, a context in which it is correct. She directed the jury fully and accurately elsewhere in the charge on the mens rea requirement.
[136] Mr. Appleton’s appeal counsel also submit that the trial judge should have directed the jury to consider whether Mr. Appleton’s initial punches were in self-defence, or lawful. They argue that if Mr. Appleton was acting in self-defence and did not do the stabbing, this would be relevant to whether he acted in a common enterprise with the stabber, or with the purpose of aiding the stabber. In my view there was no air of reality to the suggestion of self-defence, despite Mr. Iozzo’s suggestion to the contrary. The undisputed evidence was that Mr. Appleton was yelling at the McComb brothers when they were across the street after his earlier altercation with Sarcee, inviting them to come over. Even on the theory that Mr. Appleton did no more than throw the knock down punches, this would have been a consensual fight, and there is no evidence that the McComb brothers escalated things beyond that before he threw the punches that he did.
[137] I would also reject Mr. Appleton’s argument that the trial judge erred by failing to provide an intervening act charge on the causation element relating to the alternative theories of liability. In order for the stabber’s actions to have been “intervening” they would have to have been independent acts by the stabber alone. But to convict Mr. Appleton on those alternative theories of liability, jurors would necessarily have to be satisfied beyond a reasonable doubt that he was not acting independently of the stabber. He could only be convicted as a co-principal if jurors were satisfied that he was working in concert toward a common criminal object with the stabber, and he could only be convicted as an aider or abettor if jurors were satisfied that he had intentionally aided or abetted the stabber. In my view, the failure to give an intervening act charge, even if otherwise indicated, could not have affected the outcome of this case.
D. Did the trial judge misdirect the jury on post-offence conduct?
[138] The heart of this ground of appeal was the contrast between the trial judge’s “correct” instruction that jurors could use the after-the-fact conduct to determine if Mr. Appleton was involved in the commission of the offence but not to determine his level of intent, and her subsequent instruction that in determining Mr. Appleton’s state of mind they should consider his words and conduct before, and after the unlawful act that caused Kiowa’s death. Although more could have been said, these directions do not necessarily conflict. The former direction related to enumerated instances of alleged post-offence conduct, namely, the dragging of Kiowa and the evidence of flight including the “joint” flight with SHG, and the circuitous route during that flight. In contrast, other conduct Mr. Appleton allegedly engaged in after he had assaulted the men was relevant and appropriate for consideration in deciding whether he intended to kill, such as his act of leaving the body on the street bleeding profusely and his failure to summon assistance. The jury could hearken to both charges without engaging in erroneous thinking.
[139] I have considered that jurors did ask a question to the trial judge about intent and events before during, and after the life-threating injuries Sarcee received, but the trial judge’s answer was correct. She referred the jury to the direction above, that the after-the-fact conduct could not be used to determine the level of intent. Once again, more precision could have been provided in the charge, but perfection is not expected in jury charges. I would not give effect to this ground of appeal.
E. Did the trial judge undermine the burden of proof in her charge?
[140] During the trial, the trial judge corrected or commented adversely on things Mr. Appleton’s trial counsel said. Mr. Appleton’s appeal counsel argued before us that a number of these corrections or comments were not called for and, taken together, “undermined” both the defence position and the burden of proof.
[141] I would not give effect to this ground of appeal. Some of the comments made by trial counsel that the trial judge corrected needed correction. Trial counsel was wrong to suggest to the jury that the Crown could not rely on evidence that Mr. Appleton dragged Kiowa’s body without proof beyond a reasonable doubt that this was his act. I agree with the trial judge that his invitation to the jury to infer that SHG asked Mr. Appleton if he could get a ride before getting into the taxicab was speculative. And his suggestion that Dr. von Both was not qualified to give an opinion about whether the contusion inside Kiowa’s mouth was most likely caused by the contiguous stab wound was an improper challenge to the trial judge’s finding that Dr. von Both was qualified as an expert to give the opinion that he did. The trial judge was also entitled to express her view on whether the window of the tow truck can be seen to be up or down in the photographs.
[142] In submissions before us, Mr. Appleton’s appeal counsel took greatest exception to the trial judge’s response to trial counsel’s closing submissions about the risk that Mr. Appleton could be wrongfully convicted. Specifically, Mr. Appleton’s trial counsel told jurors that a decision to convict Mr. Appleton would represent “the whole of [his] life”, and that if they were to acquit Mr. Appleton, when they look back they would “have the peace of mind that will come to [them] by knowing [they] rendered justice by finding Andre Appleton not guilty”. Appeal counsel submit that the corrections made by the trial judge were not called for and undermined the burden of proof, and that these latter submissions, in particular, were appropriate, in compliance with the guidelines expressed in R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at paras. 65-70.
[143] In my view, the trial judge was entitled to make the corrections that she did. Trial counsel’s submissions stretched, if not went beyond the principles endorsed in Horan. The trial judge, who had the benefit of watching these submissions as they were delivered, was entitled to conclude that they went farther than they should have in appealing to the jurors’ emotions and to the longer-term implications of their decision for them and for Mr. Appleton. Although the trial judge’s comments to defence counsel in the absence of the jury may have betrayed strong disapproval of the manner in which he conducted his closing, the corrections she issued to the jury were tempered and in no way unfair. Indeed, when issuing her corrective instruction relating to these submissions, she did not suggest to the jurors that this was a corrective charge. Everything she said to them about rendering a verdict based on the evidence without being distracted by the consequences for Mr. Appleton, or by “wrongful convictions in other cases”, or by concern for how they may feel in the future, was correct.
Conclusion
[144] I would allow the appeal on grounds A and B, set aside the convictions, and order a new trial.
Released: May 2, 2024 “B.W.M.” “David M. Paciocco J.A. “I agree. B.W. Miller J.A.” “I agree. J. George J.A.”
Footnotes
[^1]: For convenience and precision, I will refer to the brothers by their first names. I mean no disrespect by doing so. [^2]: The parties agree that this same man ultimately entered a taxicab. The taxicab driver did not describe the man’s coat as “shiny” but as “black”. This man’s outerwear does not appear shiny in poor quality and distant images captured by another security camera after this man left the taxicab. [^3]: Mr. Nur did not testify. The parties took no issue at trial with the use of this evidence to establish that the fight was underway. As indicated, the Crown argued that Mr. Nur’s “look of disbelief” indicates the stabbing is occurring. Mr. Appleton’s trial counsel suggested it could have been a reaction to the “total knockout” or “straight punch”. [^4]: He testified that he still had the pants he had been wearing, but they had been washed. [^5]: Mr. Appleton’s counsel was correct about this. The evidence did not show that Mr. Muhia was across the street at the time of the stabbing and, indeed, the Crown position was that the stabbing was underway before Mr. Muhia and Leila left Gucci’s. [^6]: Mr. Appleton’s counsel had, in fact, put the suggestion to Mr. Muhia that he could have been the stabber. [^7]: As I will explain below, this is a misconception of the third party suspect rule. This rule can apply even without a claim by the accused that they have dispositive proof that a third party was the perpetrator, and, when available, it can succeed even without dispositive proof that a third party was the perpetrator. A third party suspect defence will succeed if the Crown cannot prove beyond a reasonable doubt, in the face of the third party suspect evidence, that the accused was the perpetrator.