COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Araya, 2013 ONCA 734

DATE: 20131205

DOCKET: C54733

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nahoor Araya

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Michael Bernstein, for the respondent

Heard: July 19, 2013

On appeal from the conviction entered by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury, on November 4, 2011, and the sentence imposed on December 8, 2011.

Gillese J.A.:

OVERVIEW

[1] On the evening of October 3, 2008, 17-year-old Boris Cikovic was shot and killed just outside some tennis courts in Buttonwood Park in Toronto, where he and a large group of his friends and acquaintances had been socializing and drinking. Some members of the group had also smoked marijuana. Lighting in the park was not good.

[2] Although precisely what led to the shooting is unclear, witnesses testified that at around 10:30 p.m. that evening they saw three or four young black men walk by the outside of the tennis court. Words may have been exchanged between the two groups, but in any event, the young black men turned around, walked back and entered the tennis court. They robbed some of the individuals in the tennis courts but when they tried to take the victim’s knapsack, he resisted. He “tasered” one of the robbers. The robbers fled and the victim pursued them. One of the robbers turned and shot the victim.

[3] The witnesses to the shooting could only give generic descriptions of the black men involved in the robbery at the tennis court. A number of the witnesses described three or four young, thinly built, clean-shaven, unimposing black men with short haircuts, who were wearing dark clothing, baseball hats and bandanas.

[4] No witness identified Mr. Araya, the appellant, as being present in the park on the evening in question, either at trial or in any pre-trial identification procedure.

[5] The Crown and the defence agreed that the appellant was not the shooter. The shooter had been described as short, between 5’4” and 5’8”. At the time of the shooting, the appellant was approximately 6’1”.

[6] The appellant was charged with second degree murder. The Crown’s case relied heavily on the evidence of one of the appellant’s teachers. According to the teacher, four days after the shooting, the appellant approached him, asking for his advice on what to do. He told his teacher that he had been in the park at the time of the shooting but was not involved and did not have a gun.

[7] At trial, the appellant testified that he had not been in Buttonwood Park on the night of the shooting, did not know who was involved and had nothing to do with it.

[8] At the time of the shooting, the appellant was 18 years old. By the time of trial, he was 21 years old and his appearance had changed. The trial judge permitted the Crown to introduce two photographs of the appellant taken at the time of his arrest, five days after the shooting. The first was a frontal shot, showing the appellant from head to toe. The second was a close-up of the appellant’s face.

[9] In his charge, the trial judge told the jury that they could consider how the appellant looked in the photos as a piece of circumstantial evidence that the appellant was in Buttonwood Park on the evening of the shooting.

[10] The appellant was convicted, after trial by a jury, of manslaughter. He was found guilty on the basis of party liability under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, and sentenced to 8 years in prison, less credit for the equivalent of 15 months pre-trial custody.

[11] He appeals against both his conviction and sentence.

[12] For the reasons that follow, I would allow the appeal against conviction. In the circumstances, it is not necessary to consider the sentence appeal. However, as I will explain, the sentence is predicated on an error in principle. Accordingly, had it been necessary to consider the sentence appeal, I would have allowed it as well.

THE CONVICTION APPEAL

1. THE CRITICAL GROUND OF APPEAL

[13] The appellant raised seven grounds of appeal on the conviction appeal. Because I would allow the conviction appeal on the ground relating to the photos of the appellant that were admitted at trial, these reasons address only that ground.

2. THE PARTIES’ POSITIONS ON THIS GROUND

[14] The appellant raises two issues in respect of the photos. First, he contends that the trial judge erred in admitting them. Second, if the photos were properly admitted, the appellant says that the trial judge erred in his jury instruction on them.

[15] On the first issue, the appellant says that at trial, the defence did not dispute that the appellant fit the generic eyewitness descriptions of the robbers. In the circumstances, he submits, the photos had no or minimal probative value. He says that it would have been improper for the police to have shown the witnesses a single photo of the appellant and asked whether he was one of the suspects in the tennis court that night. By showing the jury only photos of the appellant and directing them to compare the photos with the eyewitnesses’ generic descriptions of the robbers, the appellant contends that the jury was invited to do the very thing that the police could not have asked the witnesses to do.

[16] Alternatively, if the photos were admissible, the appellant submits that the instruction was flawed because it told the jury that what was, in effect, an in-court, single photo lineup was one piece of circumstantial evidence that could be considered in determining whether the appellant was in the park that evening and/or one of the men who participated in the robbery. This, the appellant contends, was fundamentally wrong and ran the risk of a serious miscarriage of justice.

[17] The appellant submits that this error was compounded by the trial judge’s failure to adequately instruct the jury on the dangers of eyewitness evidence and the particular dangers associated with the comparison analysis they had been invited to undertake. He notes that the eyewitness evidence in this case was plagued by virtually all of the judicially recognized dangers associated with eyewitness identification: poor lighting conditions; many of the witnesses were high or intoxicated or both; the suspects were strangers to the witnesses; identification was cross-racial, with virtually all of the witnesses being white and all the suspects black; the absence of distinguishing features on the part of the robbers; and, most of the witnesses were distracted and/or engaged in other activities while the events were ongoing.

[18] The Crown submits that the photos were relevant and properly admitted. The jury necessarily had to engage in some type of comparison between the appellant and the generic eyewitness descriptions of the robbers in order to decide what weight to give to the eyewitness descriptions. It made sense that the comparison would focus on the appellant’s appearance at the time of the shooting, not his appearance at trial three years later when he looked significantly different.

[19] The Crown says that defence counsel at trial admitted that the photos were relevant and argued against their admission on the basis that the jury might improperly use them. Moreover, the Crown says, the trial judge identified and applied the relevant legal principles when assessing the probative value of the photos against their prejudicial effects. There is no suggestion that he misapprehended the evidence when he exercised his discretion and admitted the photos. Accordingly, the Crown submits, there is no basis for this court to interfere with that exercise of discretion.

[20] As for the instruction, the Crown submits that the trial judge gave an appropriate limiting instruction, to which defence counsel at trial made no objection.

[21] Before considering the two issues raised in respect of the photos, it is necessary to consider the trial judge’s ruling, in which he held the photos to be admissible, and that part of the charge in which the trial judge instructed the jury on how they might use the photos.

3. THE RULING

[22] When the Crown applied to introduce the photos, it argued that they were relevant because they enabled the jury to see the appellant’s physical stature and appearance at the time of shooting. The Crown’s position was that there was no prejudicial effect to their admission.

[23] The defence opposed admission of the photos, saying that “even though they may be relevant”, they were highly prejudicial. The defence described the prejudice as the jury using the photos to do a “backwards identification” because they had only a very general description of the robbers.

[24] The trial judge clarified the defence submission on prejudice, saying:

So [the concern] is the jury [is] going to use the fact of those vague descriptions looking at what [the appellant] looks like now and use that for the purpose of assessing whether he could fit anybody’s description on the day when they see him here each day in court? [^1]

[25] Defence counsel agreed with this. The trial judge responded by saying that the jury would be told that the appellant had not been identified by any witness and that the vague descriptions were a piece of circumstantial evidence.[^2]

[26] The trial judge delivered his ruling the following day. In it, the trial judge noted that identity was a live issue at trial and none of the eyewitnesses could identify the three or four black males they said were present as part of the robberies leading to the shooting. He described the generic nature of the eyewitnesses’ evidence, saying that the descriptions given varied “greatly” from witness to witness. In the following extract from the trial judge’s ruling, he explains why he found the photos to be admissible.

For the past two weeks, the jury have had an opportunity to view how the accused looks three years later as the witnesses to this alleged robbery and shooting gave their descriptions. At this time, before the jury, his head is shaven, he is clean-shaven and he has glasses. He is heavier set than he was three years ago.

It is [the] defence position that such photos are highly prejudicial. Since none of the eyewitnesses can identify the accused, the jury, armed with the photos, could improperly use the photos to conclude that the accused may have been there because he may have fit a general description of some eyewitnesses who could only provide vague descriptions. It is submitted by the defence that this is the risk of prejudice to the accused.

In this trial in my final instructions, this jury will clearly be instructed that no one who was present at the night of the shooting can in any way identify [the appellant] as being present. Further, the jury would be instructed that they cannot conclude, because they have a photograph of the accused taken five days after, that he is the person described by the witnesses in such vague descriptions.

I find, however, the jury is entitled to consider as a piece of circumstantial evidence whether the accused had any of the vague physical attributes described by any of the witnesses. I find that it is relevant to that limited purpose. I am satisfied there is probative value to the jury knowing in an identification case what the accused looked like at the time of the event. The risk of prejudice is limited by a limiting instruction.

Therefore, I am satisfied that the probative value of these photographs outweigh[s] the prejudicial effect, and, as such, the photos are admissible.[^3] [Emphasis added.]

[27] No mid-trial instruction was given.

[28] As will become evident, the emphasized sentences in the ruling are important when contrasted with the instruction that was given.

4. THE INSTRUCTION

[29] The trial judge organised his charge under headings. The instruction on the photos was given in that part of the charge in which the jury was asked to decide whether the appellant was in the park on the evening in question. The relevant parts of the instruction, beginning with the heading, is as follows:

Was Mr. Araya in Buttonwood Park on the evening of October 3, 2008?

… What you have to do is look at all the evidence on the issue of whether he was in the park, and based on that, you have to reach your decision.

Now, members of the jury, along with all the evidence I have already reviewed on this issue about whether or not he was in the park that night, you should also consider how the people that were in the tennis court that night described the black males that came in. I want to remind you that none of the young people in the park can identify [the appellant] as being there. Many of the people in the tennis court told you because of how dark it was, how the black males were dressed and how quickly events took place, they could not tell you what any of the males’ faces looked like.

[The trial judge discussed the vague descriptions.]

Now, you have photographs of what [the appellant] looked like five days after the shooting. … You can consider whether he fits or does not fit the vague descriptions provided by the various witnesses. You cannot, of course, however, conclude based only on the vague descriptions of what [the appellant] looked like in the photographs that he must be the person. That would be completely improper since the descriptions are so vague and people can’t identify anyone. If there are features described which are dissimilar to the accused, they may be used to demonstrate that the accused was not present.

[The trial judge noted that no witness described seeing facial hair, whereas the photos showed the appellant with some facial hair on his chin. He said that it was for the jury to decide whether the witnesses would have noticed the facial hair, “considering the opportunity to observe, the condition of the witnesses and the lighting conditions.”]

You can, however, consider how the accused looked and the vague descriptions of the males as but one piece of circumstantial evidence, whether the accused’s physical appearance fit or did not fit the vague descriptions. You would consider this along with the totality of the evidence to determine whether the Crown has satisfied you beyond a reasonable doubt that [the appellant] was one of the black males who attended the tennis court.[^4] [Emphasis added.]

5. ANALYSIS

(1) Did the trial judge err in admitting the photos?

[30] To the extent that the appellant submits that the photos had no probative value, I cannot agree.

[31] As the trial judge stated in his ruling, the appellant’s appearance had changed materially between the time of the shooting and trial. At the time of the shooting, the appellant was 18 years of age. He had a small bit of facial hair on his chin, an afro hairstyle and did not wear glasses. By the time of trial – some three years later – he had gained a substantial amount of weight, his features had matured, he was shorthaired, clean-shaven, and wore glasses. Identity was a critical issue at trial. The trial judge found the photos to be relevant and probative on the basis that the jury needed to know what the appellant looked like at the time of the shooting. In the circumstances, I see no error in his finding that the photos had probative value.

[32] I would accept the appellant’s submission, however, that in the circumstances of this case, the photos had minimal probative value. The defence did not contest the fact that the appellant’s appearance at the time of the shooting fit the generic eyewitness descriptions. (The issue of the small amount of facial hair was raised after the photos were ruled admissible.) Furthermore, the jury was given evidence on the appellant’s appearance at the time of the shooting from both the appellant’s teacher, who was extensively examined on this matter, and the appellant’s then-girlfriend. That evidence also confirmed that at the time of the shooting, the appellant fit the generic eyewitness descriptions.

[33] I do, however, accept the appellant’s submission that the photos had significant prejudicial effect. As the defence argued at trial, admission of the photos could lead the jury to engage in impermissible reasoning. That reasoning would be along the following lines. The photos of the appellant at the time of the shooting reveal a young, thin, relatively clean-shaven black male. Thus, at the time of the shooting, the appellant fit the eyewitness generic descriptions of the robbers in the tennis courts. Therefore, the appellant was in the park and/or one of the robbers.

[34] The fallacy in this reasoning is readily apparent. A great many young black men in Toronto on the date of the shooting fit the generic description of the robbers. That does not mean they were in the park or one of the robbers. The photos’ relevance went only to the question of whether the appellant had some or all of the physical attributes described by the eye witnesses.

[35] The dangers flowing from this type of impermissible reasoning are underscored by the fact that the evidence in question are photographs and that the only photographs admitted into evidence were those of the appellant.

[36] Photographs can be powerful. The dangers associated with the use of single photos for identification purposes have been well documented: see R. v. Smierciak, 1946 CanLII 331 (ON CA), [1947] 2 D.L.R. 156 (Ont. C.A.); R. v. Sutton 1969 CanLII 497 (ON CA), [1970] 2 O.R. 358 (C.A.); R. v. Goldhar (1941), 1941 CanLII 311 (ON CA), 76 C.C.C. 270 (Ont. C.A). Canadian courts have recognized that the use of single photos for identification purposes compromises the independence of a witness’s judgment through “suggestion, assistance or bias created directly or indirectly”: Smierciak, at p. 157. The risk is that “the person who has seen the photograph will have stamped upon his memory the face he has seen in the photograph, rather than the face he saw on the occasion of the crime”: Goldhar, at p. 271.

[37] I recognize that the situation in this case is very different from that in Smerciak and Goldhar. Nonetheless, concerns of a similar nature may arise because admission of the photos resulted in the jury having before them photos of only a single individual, the appellant, in a case where identification was a central issue and where they knew that the photos had been taken by the police when they arrested the appellant for the murder. At a minimum, these concerns highlight the need for clear instruction about both the permissible and impermissible uses of the photos.

[38] The trial judge recognized that the jury might engage in the impermissible reasoning. However, he was satisfied that the prejudicial effect could be dealt with through an appropriate instruction. In his ruling, it will be recalled, the trial judge stated that he would instruct the jury that they could not conclude because of the photos that the appellant was one of the people described by the witnesses. Significantly, the trial judge stated that the jury would be instructed that the photos were relevant for the limited purpose of considering “whether [the appellant] had any of the vague physical attributes described by any of the witnesses”.

[39] It may be that I would have balanced the photos’ probative value and prejudicial effect differently than did the trial judge. As noted, in the circumstances of this case, the photos had limited probative value because the defence did not dispute that the appellant fit the eyewitness generic descriptions and evidence of his appearance at the time of the shooting was given by a number of other sources. And, the prejudicial effect of admission of the photos was significant.

[40] But the fact that I might balance the photos’ probative value and prejudicial effect differently does not amount to a basis for appellate intervention with the trial judge’s exercise of discretion. An appellate court is not to re-assess the admissibility of evidence when a trial court has identified the proper guiding principles, considered the probative and prejudicial effect of the evidence, and exercised its discretion to make a determination as to admissibility: see, e.g., R. v. G.R. (1993), 1993 CanLII 14699 (ON CA), 80 C.C.C. (3d) 130 (Ont. C.A.), at p. 140.

[41] Therefore, I would not give effect to the submission that the trial judge erred in admitting the photos.

(2) Did the trial judge err in his instruction on the photos?

[42] In light of the photos’ significant prejudicial effect, the jury needed clear instruction of two sorts in respect of the photos. First, they needed to be clearly told what permissible use could be made of the photos. Second, they needed to be clearly told of the dangers of the impermissible reasoning and warned that they could not engage in that kind of reasoning. Where evidence can have significant prejudicial effect, the need for clear instruction on its impermissible use is heightened, in my view, especially where as in the present case, the evidence is of minimal probative value.

[43] In his ruling, the trial judge expressly recognized the need for both components in the instruction. In respect of the first, he stated that he would instruct the jury that they could use the photos for the sole purpose of determining whether the appellant “had any of the vague physical attributes described by any of the witnesses”. In respect of the second, he spelled out the defence concern that the jury would engage in impermissible reasoning: that based on the photos the jury would conclude that the accused was in the park on the night in question because he fit the generic eyewitness descriptions. The trial judge stated that he would instruct the jury that they could not reason in such a fashion.

[44] In my view, it was with these goals in mind that the trial judge gave his instruction, reproduced below.

Now, you have photographs of what [the appellant] looked like five days after the shooting. … You can consider whether he fits or does not fit the vague descriptions provided by the various witnesses. You cannot, of course, however, conclude based only on the vague descriptions of what [the appellant] looked like in the photographs that he must be the person. That would be completely improper since the descriptions are so vague and people can’t identify anyone.

[45] In the second sentence, the jury is instructed on how they could use the photos. While it would have been preferable had the trial judge stressed that they could use the photos only to determine whether the appellant fell within the class of people who had any of the vague physical attributes described by the eyewitnesses, in my view, the second sentence adequately instructs the jury on the permissible use of the photos.

[46] The third sentence, in my view, is the trial judge’s attempt to caution the jury on the impermissible use of the photos. I find this sentence confusing. In it, the jury is told that they could not conclude, based only on the vague descriptions of what the appellant looked like in the photographs, that he must be the person. There are no “vague descriptions of what the appellant looked like in the photographs”. The vague descriptions were given by the eyewitnesses. Moreover, it is not clear that in telling the jury not to conclude the appellant was “the person” that they could not conclude that the appellant was in the park or one of the robbers.

[47] In short, the instruction does not clearly explain to the jury the chain of impermissible reasoning. The jury needed to be told that if they found that the appellant’s appearance in the photos fit the generic eyewitness descriptions, they could not conclude from that comparison that the appellant was one of the robbers in the tennis courts. All they could conclude was that the appellant fit within the class of people that shared those vague general physical characteristics.

[48] The lack of clarity in this part of the instruction is compounded by the concluding paragraph, which suggests that the photos were a piece of circumstantial evidence that the jury could use when deciding whether the appellant was in Buttonwood Park on the night of the shooting. The concluding paragraph, it will be recalled, reads as follows:

You can, however, consider how the accused looked [in the photos] and the vague descriptions of the males as but one piece of circumstantial evidence, whether the accused’s physical appearance fit or did not fit the vague descriptions. You would consider this along with the totality of the evidence to determine whether the Crown has satisfied you beyond a reasonable doubt that Mr. Araya was one of the black males who attended the tennis court.[^5]

[49] Were the instructions adequate? In answering this question, it is important to keep in mind two things. First, this was not a strong Crown case – it depended almost wholly on the teacher’s evidence and whether the jury believed it. Second, admission of the photos carried with them a risk of substantial prejudicial effect. Against that backdrop, the lack of clarity in the instruction leads me to conclude that there was a risk that the jury could have arrived at a decision on whether the appellant was in the park and/or one of the robbers by engaging in improper reasoning. At a minimum, the instruction did not serve to displace the danger that the jury could give the photos weight that they did not deserve.

[50] This case was not like R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, where the trier of fact was presented with a video of a suspect committing the offence and had to decide whether the person in court was the person on the video. The instruction in this case effectively invited the jury to treat an in-court, single photo lineup as one piece of circumstantial evidence that could be considered in determining whether the appellant was in the park that evening and/or one of the men who participated in the robbery. This was fundamentally wrong and ran the risk of a serious miscarriage of justice.

[51] Accordingly, I would allow the appeal on this ground.

THE SENTENCE APPEAL

[52] In light of my conclusion on the conviction appeal, strictly speaking I need not address the sentence appeal. Nonetheless, there is utility in addressing the appellant’s submission that the sentencing judge erred in principle in treating use of a firearm as an aggravating factor when sentencing the appellant for manslaughter.

[53] In my view, the appellant is correct in this submission.

[54] The mandatory minimum sentence for manslaughter, where a firearm is used in the commission of the offence, is four years’ imprisonment: s. 236(a) of the Criminal Code. Section 236 reads as follows:

Manslaughter – Every person who commits manslaughter is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

[55] In my view, on a plain reading of s. 236, the mandatory minimum punishment of four years’ imprisonment for manslaughter is predicated on a firearm having been used in the commission of the offence. Given that the mandatory minimum sentence necessarily takes into consideration that the death resulted from an offence committed with the use of a firearm, it is an error in principle to also treat use of a firearm simpliciter as an aggravating factor. This error appears particularly significant in this case where the appellant was not the shooter, his participation in the manslaughter was limited and unknown, and he was not in possession of a firearm.

DISPOSITION

[56] Accordingly, I would allow the conviction appeal and remit the matter for a new trial.

“E.E. Gillese J.A.”

“I agree. John Laskin J.A.”

Strathy J.A. (Dissenting):

A. overview

[57] On a dark Friday night in early October 2008, a group of about 15 teenagers was gathered on and around the bleachers of a tennis court at Buttonwood Park in Etobicoke. They were “chilling out”, talking and laughing. Some were drinking beer and smoking marijuana. One boy was teasing another with a “Taser”, to the amusement of his friends.

[58] Around 10:30 p.m., a smaller group of three or four, or by one account possibly four or five, young black men walked by the tennis court. Words were exchanged between members of the two groups. The smaller group stopped, turned around and walked back, and some or all of them entered the tennis court. Some were wearing hoodies or baseball caps, obscuring their faces, or bandanas covering their noses and mouths.

[59] A gun was produced by one of the members of the smaller group. Some witnesses thought they saw two men with guns. One thought they all might have had guns. Threats were made. Some of the intruders robbed members of the larger group, at gun point. The boy with the Taser was one of those robbed – his bag was taken. He tasered his assailant. The assailant fired a warning shot. The boy followed his assailant. Another shot was fired directly at the boy, hitting him in the stomach. He fell to the ground. The intruders ran from the scene. Seventeen-year-old Boris Cikovic lay bleeding on the ground. He died later in hospital.

[60] No one present in the park on October 3, 2008, could identify any of the intruders, except by vague descriptions. They all appeared to be young, black and slim. The shooter was described as short, between 5’4” and 5’8” tall; the rest were taller. Another was described as having crooked teeth. One witness, a neighbour who had seen the youths pass by his home on their way to the park, said that none appeared to have facial hair.

[61] A few days later, a young man at a local high school approached his English teacher and pleaded to speak to him urgently. The teacher testified at trial that the youth told him that he had been “involved” in the incident at the park. He was there, he said, but he was not the one with the gun. He wanted to know what he should do. The teacher told him to “man up” and tell the authorities. After the conversation, the teacher spoke to the principal and ultimately to the police.

[62] That young man, the appellant, admitted at trial that he had a conversation with his teacher. He denied, however, that he had confessed to any involvement in a crime. Instead, he said, he had made up a story about other people committing a crime, so that the teacher would feel sorry for him and would let him stay at his home overnight; otherwise, he would have had to sleep in a shelter. He admitted that his story did not make much sense. He insisted, however, that he was not in Buttonwood Park on the night of the shooting and that he had spent the evening at a friend’s home.

[63] After the teacher spoke to the police, a warrant was issued for the appellant’s arrest. He surrendered, was arrested, and was charged with second degree murder.

[64] No other member of the intruder group was ever apprehended. It was acknowledged at trial that the appellant, who was 6’1” tall, was not the shooter.

[65] After a four-week trial by judge and jury, the appellant was convicted of manslaughter and sentenced to eight years’ imprisonment, less credit for pre-trial custody.

[66] He appeals his conviction and sentence. For the reasons that follow, I would dismiss the conviction appeal, on all grounds.

[67] In overview, I conclude that the trial judge made no reversible error in the conduct of the trial and his instructions to the jury were satisfactory. The jury was properly instructed to examine all the evidence and it was for them to determine what evidence to believe or disbelieve and what weight to attach to the evidence they believed. There was ample evidence on which the jury could conclude that: the appellant was a member of the small group who invaded the tennis court; he was party to an agreement to rob the others; he participated in the robbery; the deceased was shot in the execution of the robbery; and the appellant knew or should have known that the shooter would use the gun during the robbery.

B. the conviction appeal

[68] My colleague’s reasons address only the first ground of appeal from conviction. As I would dismiss the appeal, it is necessary for me to address all grounds. The appellant asserts that the trial judge made the following errors:

(a) permitting the introduction in evidence of two photographs of the appellant when he was arrested, or in failing to properly instruct the jury concerning those photos;

(b) failing to caution the jury concerning how to use disbelief of the appellant’s alibi;

(c) failing to give a Vetrovec caution with respect to the evidence of one eyewitness, George Athens;

(d) failing to properly instruct the jury regarding party liability under s. 21(2) of the Criminal Code, R.S.C. 1985, c. C.46 (“Code”);

(e) failing to adequately instruct the jury that they could not rely on the teacher’s interpretation of his conversation with the appellant;

(f) failing to instruct the jury that it was improper for the Crown to ask the appellant to comment on why his teacher would lie and implicate him in the shooting, given their positive relationship; and

(g) permitting the Crown to lead evidence of the appellant’s demeanour at the time he learned of the warrant for his arrest, and following his arrest, as after the fact conduct capable of supporting an inference of guilt.

[69] I will review each of these grounds in turn. First, I will explain the factual background.

C. Factual Background

[70] This section of my reasons provides context for the review of the grounds of appeal. I will add additional facts, where necessary, in discussing each ground.

[71] The appellant ran an alibi defence. He testified he was not at the park on the night of the shooting and had spent the evening with three friends – first at the home of his friend, Javier Hernandez, then at the home of another friend, John Kenny, where he spent the late evening and night with his girlfriend, Keelie Cook, and with Kenny. I review their evidence below.

[72] The key evidence linking the appellant to the shooting came from his teacher, Cordel Browne. Browne testified that the appellant told him that he was at the park when the shooting occurred, that he was “involved”, but that he was not the shooter. The appellant denied saying that he was “involved”, although he admitted that he had told Browne a story about a shooting. He said that he had made it up. I will describe the two versions of the conversation in due course.

[73] There are five main events to be considered:

1. the robbery and shooting at the park;

2. the appellant’s activities on October 3 and his alibi;

3. the appellant’s conversations with Browne at the school on October 7;

4. the appellant’s conduct on October 8, before he surrendered to the police; and

5. the appellant’s conversation with Browne at the detention centre after his arrest.

(1) The robbery and shooting at the park

[74] There was evidence at trial from nine of the young people who had been present in Buttonwood Park when the intruders arrived. Six gave KGB statements to the police soon after the shooting that were played at trial.[^6] Not surprisingly, their evidence was not uniform.

[75] Some of the witnesses had been drinking or smoking marijuana. All agreed that it was dark inside the tennis court, although there was some light coming from a shed nearby. They were positioned in different locations – most were sitting on the bleachers, but a few were located beside the bleachers and closer to the entrance to the tennis court. Some may have seen things that others did not observe or may have had different perceptions of the events. After the shooting, rumours and gossip circulated and they undoubtedly talked to other witnesses or to friends who had not been present. The events happened quickly and were obviously frightening and ultimately traumatic.

[76] The witnesses generally testified that after words were exchanged between the two groups, the smaller group of black youths stopped, turned around, and proceeded into the tennis court, where three or four began to threaten those present, making threats like, “Where’s the weed at?”, “Empty your pockets”, “Do you want to get popped?” and “I’ll pop you right now”.

[77] The witnesses said that some or all of the intruders had taken steps to conceal their identities. Some hid their faces with hoodies or baseball caps pulled down. Others masked their faces with bandanas. Some witnesses said they saw one man with a gun, others said they saw two guns. One said they all gestured as if they all had guns.

[78] Four of those inside the park were robbed at gunpoint. One was the deceased, Boris Cikovic, the boy with the “Taser”. One of the intruders demanded his bag. When Cikovic refused, he was hit in the face with a gun and his bag was taken from him. At some point during this confrontation, Cikovic Tasered one of the men. One of the assailants fired a warning shot in response. Cikovic then chased the assailants as they left the tennis court and one or two more shots were fired. He was hit in the stomach.

[79] Most of the eyewitnesses said that the intruder group consisted of three or four young black men. One witness said there might have been four or five. No witness was asked to identify the appellant as being present in the park that evening and no witness could provide any useful description of the intruders other than their skin colour, approximate heights and descriptions of dark clothing. They were described as having unimposing builds, short hair and being clean shaven. Most of the witnesses described the shooter as short.

[80] A witness who lived near the park testified that he had seen four black males walk by his home between 9:30 and 10:00 p.m. that night. He said that they appeared to be between 16 and 18 years old, and wore dark clothing and hoodies. He did not see bandanas, nor did he see them carrying bags or backpacks. He said that one of the men was very small, between 5 feet and 5’1”, two were 5’5” or 5’6” and the other was 6’0” or 6’1”.

[81] The following day, the deceased’s bag was discovered by one of his friends on a bush near the park, in the direction the young males had fled.

(2) The appellant’s activities on October 3 and his alibi

[82] The appellant’s opportunity to participate in the crime was bracketed by two times. There was no dispute that at 9:35 p.m. on October 3 he made a call from his friend Hernandez’s house to his girlfriend Cook’s cell phone. His evidence was that he left Hernandez’s house 20 to 25 minutes after the call and walked the short distance to his friend Kenny’s house, where he spent the rest of the evening and night.

[83] The other bracket is 10:35 p.m., when the police began to receive 911 reports of the shooting. Thus, based on the eyewitness testimony, the intruders would have arrived at the park a few minutes before 10:35.

[84] Buttonwood Park was about eight kilometers from Kenny’s house. There was no independent evidence of what means of transportation the appellant used after he left Hernandez’s house. There was evidence that he did not have a car or bicycle, and that he usually walked or took public transit, usually buses.

[85] The appellant testified that he had been hanging out with Cook and Kenny earlier in the day, but when they went to work, he went to Hernandez’s house, arriving there around 3:00 or 4:00 p.m. He stayed there for dinner. While he was there, he called Cook on Hernandez’s home phone after she finished work and arranged to meet up with her at Kenny’s house. He walked to Kenny’s house about 20 or 25 minutes later. That took about two minutes. He was not sure what time he got there, but he stayed there for the entire night, until he left for work before 8:00 a.m. the next morning.

[86] Hernandez testified that the appellant came to his house between about 5:00 and 6:00 p.m. and they played video games, used his computer and watched TV in the basement. His mother made dinner for them. They were going to go out with friends, but those plans fell through. Telephone records for the phone in Hernandez’s house showed that two calls had been placed to Cook’s cell phone at 9:16 p.m. and at 9:35 p.m. Although he could not be precise, and said that he was not really paying attention to the time, Hernandez said that the appellant left his house between 10 and 30 minutes after making the second call. He did not know where he was going or how he was going to get there. He would have had no problem giving the appellant a place to stay for the night, if he had asked.

[87] Kenny and Cook testified that they spent the evening together at Kenny’s house. Although they agreed that the appellant came to Kenny’s house at some point during the evening, and that he stayed overnight, their evidence was not consistent.

[88] Cook said the three of them hung out at Kenny’s house during the day, smoking marijuana until she and Kenny went to work around 4:00 to 4:10 p.m. She and the appellant agreed to meet after her shift, which ended at 9:30 p.m. Kenny picked her up after work and they went back to his house. She got a call from the appellant, either en route to Kenny’s house or when she got there, saying he would be over within half an hour. He seemed to arrive less than half an hour after the phone call. They stayed at the house all evening and went to bed around midnight.

[89] Kenny testified he picked Cook up after they both finished work and went back to his house, arriving there between 9:40 and 9:45 p.m. The two of them watched videos and smoked marijuana. He said that at some point Cook told him the appellant would be coming over. He said the appellant arrived at his house some time before midnight, but he could not say when. Kenny thought the appellant went to bed at around 1:00 a.m.

[90] Cook was, therefore, the only witness to confirm the appellant’s alibi that he had been at Kenny’s house at the time of the shooting. Cook’s evidence was not free of difficulties. Her time estimates were, by her own admission, unreliable. She admitted she had smoked marijuana during the day and the evening and this affected her ability to estimate times.

[91] More problematic for the appellant was the fact that Cook’s cell phone records showed that she had made a call to Kenny at 10:18 p.m., by which time, according to her, she, Kenny and the appellant were all at Kenny’s house. When confronted with why she would telephone Kenny at his own house, both Kenny and Cook suggested that Kenny might have gone outside the house to have a cigarette or, they said, it might have been a “pocket dial”. The cigarette explanation made little sense, because Cook and Kenny had been in his room for much of the day and evening smoking marijuana, though Kenny said they had a method of masking the smell of marijuana, but they had to smoke cigarettes outside. The “pocket dial” explanation was also problematic, because the call lasted 67 seconds and would have soon gone to voicemail, had it not been answered. The Crown argued that this cast doubt on their evidence that they were together that evening.

[92] As well, Cook had testified at the preliminary hearing that when the appellant came to Kenny’s house that evening he told her that he had been at a party in a park where there were lots of people. At trial, Ms. Cook said that the appellant never told her he was at a park.

(3) The appellant’s conversation with Browne at the school

Browne’s Version

[93] Browne was one of four African-Canadian teachers at the appellant’s high school. He was the head of the English department. Browne had a positive relationship with the appellant and encouraged him to pursue his studies. The appellant liked and trusted Browne and enjoyed his English class. Browne had previously offered to lend the appellant money, if he needed it.

[94] Browne testified in chief about two interactions with the appellant. The first was on Tuesday, October 7, 2008, four days after the shooting. The other was about two weeks later, on Thursday, October 23, after the appellant’s arrest, when Browne visited him at the detention centre where he was being held.

[95] On the first occasion, October 7, Browne was showing a film to his mid-morning English class when the appellant knocked on his door and asked to speak privately with him. The appellant was agitated and did not want to talk where they might be overheard, so Browne led him to an alcove outside. Browne described their dialogue:

Well, the door closes, and during the school day the doors lock automatically. The only door that’s open is the main door, that’s for security reasons, and at that point we were now alone, so he turned to me and he said, um, “Mr. Browne, did you hear what happened this weekend?” And I said to him, “Are you referring to the thing that happened in Buttonwood Park?” And he said “Yes.” And I said, “I read about it this morning in the paper, so yeah, I knew that there had been a murder.” And he said, “I need to talk to you about something and I just want you to set aside your role right now as a teacher and just speak to me sort of as a friend.” And I said to him, “Nahoor, I can’t do that. Like I’m your teacher and, you know, we have a rapport and we’re friendly with each other, but I am your teacher.”

So then he went on to say, “I just want to let you know I was there but I didn’t do it.” And I said – I – I was confused. I didn’t understand what he was saying sort of thing. I said, “Nahoor, I don’t understand.” He said, “Well, you know, someone got shot but I – I didn’t do it. I didn’t have the gun.” And he kept stressing that, that he didn’t have the gun, but he was there and he was involved. He was one of the people saying, “No, no, no,” and he was telling me this because he wanted to know what he should do, like it’s, I want your advice, what should he do. And I said to him, “You don’t have a choice. You have to turn yourself in.”

[96] Browne said the appellant told him he did not want to turn himself in and had related a story about another occasion when his brother had gone to the police and “snitched” and had been assaulted as a result.

[97] Browne said the appellant did not give details of his involvement: “He just said that he was part of a group of guys who were gonna … ‘roll up’ on this person”. Browne interpret “roll up” as meaning to rob.

[98] The appellant had asked him several times what he should do and Browne told him that he had to “man up”, and turn himself in to the authorities. At the end of the conversation, Browne told the appellant he would have to do something about the information he had been given. The appellant walked away without saying anything.

[99] Later that afternoon, after discussing the matter with the principal, Browne spoke to a police officer assigned to the school and gave a recorded statement to the police the following day.

[100] In cross-examination, defence counsel put to Browne that in chief, he had said the appellant told him that “he was there, involved, but didn’t have the gun.” Browne agreed. When counsel asked him to confirm this, he said the gist of the conversation was:

I was there, I was involved, I didn’t have the gun. We rolled up on the guy, things went down, shots were fired. What should I do? That was the gist of the conversation.

[101] Browne said that if he was being asked to summarize a five to eight minute conversation, that would be the summary. Counsel then asked,

“Okay, the summary would be I was there, involved, didn’t have the gun?”

[102] Browne replied:

No, the summary would be I was there, I was involved. We rolled up on some guys. I didn’t have the gun, things went down, someone got hit, but I wasn’t the one carrying the gun. Mr. Browne, what should I do?

[103] Defence counsel then put to Browne that in his police statement he had said that the appellant had told him that he was at the park but “was not involved”, as opposed to “was involved”, and that “they”, as opposed to “he” had rolled up the people anyway. His statement had said, in part, that the appellant had told him:

… I was there but I wasn’t involved” and I said “what do you mean Nahoor?” And he’s like, “I was there but I wasn’t involved, I didn’t have the gun” and he went on to explain basically that um he had said no he didn’t want to be involved in it but they rolled up on the guys anyway. Things went down, a shot was fired and this kid got hit … [Emphasis added.]

[104] Defence counsel cross-examined Browne on the differences between his evidence at trial and his statement to the police. These questions, which were of course entirely proper, put Browne in the position of trying to explain his apparently contradictory statements.

[105] After being questioned about the differences, Browne repeated the statement and began to explain what he meant. The trial judge intervened and cautioned him:

The Court: No, you can’t interpret what it means.

The Witness: Okay.

The Court: I just want you to tell us what you heard Mr. Araya say.

The Witness: That’s what he said.

The Appellant’s Version

[106] The appellant’s evidence at trial was that Browne had misunderstood him. He said he told Browne a made-up story to convince Browne to let him stay overnight at his house, because he had been living in a youth shelter, and could not bear staying another night. He claimed that Browne had previously offered to let him stay overnight. Browne denied this.

[107] The appellant’s evidence of the conversation bears setting out in full:

A. Um, I started the conversation off by just asking him for his advice and he still seemed kinda like he was trying to shrug me off, like he didn’t have time and I sort of panicked and I just said, “Look, um, I need your advice,” and I told him that there were a couple guys hanging out at a plaza. I told him, uh, that some of the guys that were hanging out at the plaza wanted to roll up on another group of kids and I told him that other guys were like, no, we’re not doing this, um, it’s not – it’s not our thing, it’s really stupid and ultimately I basically told him I wasn’t involved, um, I wasn’t at the park,[^7] and I was one of the guys that was like no, no, we shouldn’t do this.

Q. And do you remember how you started out the conversation?

A. Yes. Um, I basically asked him for – for advice is what – how the conversation started.

Q. All right. And do you remember during that conversation, was Buttonwood Park ever mentioned?

A. I think he – he may have mentioned it, yes.

Q. Did you ever tell him that you were at a park?

A. No.

Q. And can you remember anything else, Mr. Araya, about – about what you said to Mr. Browne in that conversation?

A. Yeah, um, I told him I wasn’t involved, I didn’t do anything. In my mind it was like the more – the more desperate my situation got, the more help he was willing to provide, and I just kinda panicked.

Q. And when you first approached the – the door of Mr. Browne’s classroom that day, had – had it been your plan to – to tell him the story?

A. No, no, no, it hadn’t.

Q. Was there any truth to the story?

A. No, I was, uh – I was never at a – with a group of guys at that park or a plaza or – I was uh, just not involved whatsoever, just not there, not with a group of guys, no truth whatsoever.

Q. Did you use the term “roll up” during the conversation?

A. Yes.

Q. Okay. And – when you used the term “roll up,” what did you mean by that?

A. I basically meant to approach someone with a – like with a bad intent sort of, nothing – nothing specific. I didn’t know too many – like I didn’t know specifics about – what happened that night, so my use of the word was just a general kind of approaching someone with a bad intent.

[108] The appellant was cross-examined at some length concerning the story he told Browne. He repeatedly admitted that it did not make sense and was “irrational”. He testified that he thought the worse he made his situation seem to Browne, the more likely he was to help him.

[109] The appellant’s explanation that he was “panicked” into making up his story had to be considered in the context of Hernandez’s testimony that the appellant could have stayed overnight at his house and in light of the fact that the appellant ultimately claimed to have spent the night at Kenny’s house, just a few days before.

(4) The appellant’s surrender on October 8

[110] In addition to the evidence concerning the events of October 3, 2008, there was evidence from the appellant, Cook and Kenny about the events of October 8, when the appellant became aware that there was a warrant for his arrest.

[111] The appellant testified in examination-in-chief that he had discovered there had been a shooting on the afternoon of Saturday, October 4, when he finished work. The following Wednesday, October 8, he was at Cook’s house when someone telephoned to say there was a news report on the television about a warrant having been issued for his arrest. He said that on hearing this news, he wanted to speak to an adult about what he should do, so he and Cook went to Kenny’s house to speak to Kenny’s mother.

[112] On cross-examination, the appellant was asked whether at this point he had told Cook about his conversation with Browne. He said that he had not. He said that he was not thinking straight, that it seemed surreal, and he did not connect the arrest warrant to the shooting incident that had occurred the previous Friday night. He did not tell Cook that Browne might have misinterpreted their discussion the previous day.

[113] In her examination-in-chief of Cook, defence counsel asked whether, after they heard that there was a warrant for his arrest and before he went to the police station, she had had any conversation with the appellant concerning what they had been doing on the night of October 3, 2008. She replied that they had not.

[114] In Kenny’s examination-in-chief, defence counsel asked about what happened on October 8 when he heard on the news that there was a warrant for the appellant’s arrest. He said that he telephoned Cook, who said that the appellant was with her. He said to her, “You should probably come on over to my house so we can figure this out”. The appellant and Cook went to Kenny’s house. With his mother present, they discussed the situation:

… we talked amongst ourselves, my mom was there as well, and, uh, we were just wondering where he was on the Friday night. Uh, we figured out that he was at my house that night, so we figured our best course of action was to go down to the 22 Division and speak to the police there.

After talking it over, Kenny testified that his mother drove the appellant to surrender to the police. The appellant, Kenny, Cook, Kenny’s mother and Kenny’s brother rode together to the police station.

[115] On cross-examination, Kenny said that he, Cook and the appellant discussed the night of Friday, October 3, and agreed with the suggestion that they tried “to figure out a timeline” for that evening. He said that he thought he asked the appellant where he was before he came to his house that night, but he could not remember what the appellant told him.

(5) The conversation at the detention centre

Browne’s Version

[116] Browne’s second interaction with the appellant was about two and a half weeks later, on October 23, when he visited him in the Metro West Detention Centre. He went after Cook had made several requests that he do so.

[117] They spoke over a telephone at the jail, separated by a glass partition. The conversation was brief. The appellant said to Browne, “We never had the conversation.” Browne’s evidence was as follows:

He just – I said, like, basically “What do you want?” He just said – he only said one thing and that was, “We never had the conversation.” And I said – I sort of shook my head. I said, “Nahoor, I know what you’re trying to say without you saying it, but we did have that conversation.” And he just repeated it, “We never had the conversation, Mr. Browne.” And I said, “Nahoor, we had the conversation, it occurred and, you know, I – I wish it hadn’t. I wish that you had never come to me because I don’t want to be involved in this, but we had the conversation. And the other thing is, you know, for you to suggest that we didn’t have this conversation, you’re putting me in a really, really bad position because I’m not going to jeopardize my career for an 18 year old student. Two and a half credits to go. You can do it.” And I said to him, “You can just do what you need to do. You can get out. You can go on with your life, but I’m not going to sacrifice my career for – by lying to say that I didn’t have the conversation with you” because that’s what – that’s what was implied by the statement that we did not have the conversation. That’s my interpretation of what he was saying. [Emphasis added.]

[118] At this point, the trial judge interrupted, saying:

The Court: You can’t tell us what he was thinking. You can just tell us what he said to you.

The Witness: Okay. What he said to me was, “We did not have that conversation.”

[The Crown]: Q. Did he say anything else during the – this conversation?

A. No, he just repeated that sentence two or three times.

[119] When cross-examined about his visit to the appellant at the detention centre, it was put to Browne that he could not remember the exact words used by the appellant. Browne said that he could, because it was a very short conversation, and he remembered it very clearly. The appellant had repeated the same sentence twice: “We never had the conversation.”

The Appellant’s Version

[120] The appellant testified that when Browne came to visit him at the detention centre he appeared “cold” towards him and told him that it was serious. He said the appellant should cooperate with the police and tell them about his involvement in the incident. He said that he told Browne,

We never had that conversation about my involvement in anything. I – like I never told you I was involved in anything, so I don’t really know what you’re talking about. I don’t remember a conversation even remotely close to the one that you’re, uh, telling me about.

[121] In cross-examination, it was put to the appellant that he had been sitting in jail for two and a half weeks, facing a charge of second degree murder, wondering why he had been arrested over a made-up story to his teacher. He was asked why he did not explain to his teacher that it had all been a terrible misunderstanding. It was also brought to his attention that when he was arrested he was informed by the police that Browne had told them the substance of their discussion. In other words, he knew that he was there because of what Browne had told the police.

[122] He was also cross-examined about the fact that he never told Cook about the made-up story that he had told to Browne. His answer was that his lawyer had told him not to talk to anyone about the events. However, this did not explain why he did not tell Cook and Kenny about his conversation with Browne, once he became aware of the warrant for his arrest, and before he spoke to counsel.

D. grounds of appeal

(1) The Photographs

(a) Background and reasons for admission

[123] I begin my review with the photographs, the ground on which my colleague would allow the appeal.

[124] At the conclusion of its case, the Crown sought to introduce two photographs of the appellant taken shortly after his arrest. The Crown pointed out that it was an identity case and that the appellant looked quite different at the time of trial than at the time of the incident.

[125] To put that submission in context, the trial took place three years after the shooting. In October 2008, the appellant was 18 years old, had bushy hair, some facial hair, a slight build and did not wear glasses. He was 6’1” tall. By the time of trial, he was 21 years old, wore glasses, had short hair, was clean shaven and heavier.

[126] Prior to the introduction of the photographs, Browne had identified the appellant in court. Browne said that the appellant’s appearance had changed “significantly” since the fall of 2008. In 2008, the appellant had an “afro”, his hair was “really big”, “standing up”. He did not wear glasses and was a “little bit thinner”.

[127] The Crown submitted that it was relevant for the jury to know what the appellant looked like at the time of the shooting. The pictures were relevant and necessary to correct the distorted picture the jury would have of the appellant, seeing him sitting before them in the courtroom three years later. The photographs had no prejudicial effect.

[128] The defence took the position that although the photographs might be probative, they were prejudicial, because the jury might use the photographs to slot the appellant into the vague descriptions given by the witnesses. In the words of defence counsel, the concern was that the jury would “look at this skinny black young male and say, you know what, he could have been here because his description actually matches the identification evidence that we have.”

[129] In his ruling, the trial judge noted that identity was a live issue and the eyewitnesses, all of whom had testified by that point, could not identify any of the three or four black males who were involved. He noted that their faces were covered, the only identifying feature noted was the crooked teeth of one of the participants, and no one had been asked to identify the accused as having been present. At best, the witnesses were able to give very vague descriptions of the height, age, hair length and facial hair of the participants. These descriptions varied greatly from witness to witness. The trial judge observed that the Crown’s case on identity relied heavily on the alleged confession by the appellant to his teacher that he was present and participated in the robbery, but was not the shooter.

[130] The trial judge continued:

For the past two weeks, the jury have had an opportunity to view how the accused looks three years later as the witnesses to this alleged robbery and shooting gave their descriptions. At this time, before the jury, his head is shaven, he is clean-shaven and he has glasses. He is heavier set than he was three years ago.

[131] After reviewing the positions of the parties, he concluded that the photographs should be admitted, but the jury would be instructed about their use:

In this trial in my final instructions, this jury will clearly be instructed that no one who was present at the night of the shooting can in any way identify Mr. Araya as being present. Further, the jury would be instructed that they cannot conclude, because they have a photograph of the accused taken five days after, that he is the person described by the witnesses in such vague descriptions.

I find, however, the jury is entitled to consider as a piece of circumstantial evidence whether the accused had any of the vague physical attributes described by any of the witnesses. I find that it is relevant to that limited purpose. I am satisfied there is probative value to the jury knowing in an identification case what the accused looked like at the time of the event. The risk of prejudice is limited by a limiting instruction.

Therefore, I am satisfied that the probative value of these photographs outweigh[s] the prejudicial effect, and, as such, the photos are admissible.

[132] At the conclusion of the Crown’s case, the two photos of the appellant, taken after his arrest, were introduced in evidence by way of an admission of fact, pursuant to s. 655 of the Code andwere made an exhibit.

[133] The first photo is a head-to-toe picture of the appellant, standing in the corner of a room, close to a brick wall. He is wearing casual clothing and his arms are hanging at his sides. The second photo is a close-up of his head and face. It is not possible to judge his height from the photos. He appears to have a slight build. His hair is full and bushy. He has a small amount of facial hair.

[134] The appellant was shown the two photos in the course of his cross-examination and he agreed that they accurately depicted the way he looked on October 8, 2008, when he was arrested. He agreed that his appearance on October 3 had not been markedly different. He also agreed that he was significantly stockier at the time of trial than he was three years earlier. He volunteered that he also had a lot less hair at the time of trial.

[135] Defence counsel showed one of the photos to Cook, who said it was an accurate depiction of the appellant in October 2008, and emphasized his facial hair.

[136] The witness who had seen the smaller group of males walking towards the park had testified that none of them appeared to have facial hair. In closing submissions, defence counsel referred to this evidence and pointed out that in the photographs, as confirmed by Cook’s evidence, the appellant had some facial hair. She relied on this evidence as excluding the appellant from the group of intruders in the park and told the jury: “Just as he testified to before you, he was not there. He was not at Buttonwood Park.”

[137] The Crown’s only reference to the photographs in its closing was that the appellant’s facial hair, depicted in the photographs, might not have been noticed by the witnesses “in a very dark, enclosed space with an event that happens very quickly.”

(b) The trial judge’s instructions

[138] In his charge, the trial judge told the jury that the first in a series of questions they had to decide to determine liability was whether the Crown had satisfied them beyond a reasonable doubt that the appellant was in Buttonwood Park on October 3, 2008. This was obviously the threshold question, and he told them that if they were not satisfied beyond a reasonable doubt that the appellant was in the park, their verdict would be not guilty, and their deliberations would be over.

[139] The trial judge then reviewed at length the evidence pertaining to that question, including the evidence of the appellant, his friends Cook, Kenny and Hernandez, and his teacher, Browne.

[140] The trial judge began with the telephone records, noting that the records could place the appellant at Hernandez’s house at 9:35 p.m. when a call was placed to Cook. Since the 911 calls about the shooting started coming around 10:35, the jury might conclude that the events in the park and the shooting took place a few minutes before that. If the jury accepted that evidence, they would have to consider whether the appellant had the opportunity to get to the park from Hernandez’s house.

[141] The trial judge also referred to the phone call at 10:18 p.m. from Cook to Kenny. As I have noted, this cast some doubt on their evidence that they were together the entire night. The trial judge referred to their explanation that Kenny may have been outside the house smoking at the time or that it may have been a “pocket dial”.

[142] The trial judge reviewed the appellant’s evidence concerning his activities on October 3, his conversation with Browne at the school on October 7, the events leading up to turning himself in to the police on October 8 and his conversation with Browne at the detention centre on October 23.

[143] The trial judge also reviewed Browne’s evidence of his discussions with the appellant at the school, including his testimony at trial, and his statement to the police. He reviewed Browne’s evidence about the conversation at the detention centre, as well.

[144] After a detailed review of this evidence, the trial judge turned to the description of the black males by the witnesses in the park. He reminded the jury that none of the witnesses could identify the appellant as being there and that their descriptions of the individuals were vague. He said:

Now, members of the jury, along with all the evidence I have already reviewed on this issue about whether or not he was in the park that night, you should also consider how the people that were in the tennis court that night described the black males that came in. I want to remind you that none of the young people in the park can identify Mr. Araya as being there. Many of the people in the tennis court told you because of how dark it was, how the black males were dressed and how quickly events took place, they could not tell you what any of the males’ faces looked like.

Some of them were, however, able to provide vague descriptions of clothing, height and skin colour. Some were able to provide descriptions of hair style, and my recollection is that none of the people described the males as having facial hair. I also believe none of the witnesses say that they saw any of the males, when I say males, the black males that came in, as having a bag or knapsack when they arrived.[^8] As you heard, these descriptions were very vague.

[145] The trial judge then referred to the two photographs taken of the appellant after his arrest. He instructed the jury in the following terms:

Now, you have photographs of what Mr. Araya looked like five days after the shooting. I believe his evidence and Ms. [Cook’s] was that is what he looked like about that time of October 3. You can consider whether he fits or does not fit the vague descriptions provided by the various witnesses. You cannot, of course, however, conclude based only on the vague descriptions of what Mr. Araya looked like in the photographs, that he must be the person. That would be completely improper since the descriptions are so vague and people can’t identify anyone. If there are features described which are dissimilar to the accused, they may be used to demonstrate that the accused was not present.

You will recall that none of the witnesses described seeing facial hair. Now, you will have a picture of Mr. Araya taken five days later which witnesses say reflect[s] how he looked on October 3. It would appear he has some facial hair on his chin. Obviously he does not have a bushy beard. It is what it is in the picture. It will be for you to decide whether it is something that the witnesses would have noticed considering the opportunity to observe, the condition of the witnesses and the lighting conditions.

If you believe and accept the witnesses that the males were all clean shaven, then Mr. Araya could not have been one of the males. Later in my review of the witnesses, I will go over each witness’ evidence and their brief description.

You can, however, consider how the accused looked and the vague descriptions of the males as but one piece of circumstantial evidence, whether the accused’s physical appearance fit or did not fit the vague descriptions. You would consider this along with the totality of the evidence to determine whether the Crown has satisfied you beyond a reasonable doubt that Mr. Araya was one of the black males who attended the tennis court.

[146] The trial judge repeated that if, on the totality of the evidence, the jury was not satisfied beyond a reasonable doubt that the appellant was in the park that night, they should find him not guilty.

[147] He then turned to the elements of common unlawful purpose liability and he reviewed, as he promised he would, the evidence of all the young people who were present in the park on October 3 and their descriptions of the appearance and actions of the intruders. I will discuss this portion of the instruction when I consider the fourth ground of appeal.

(c) Parties’ positions on appeal

[148] The appellant submits that the photographs had minimal probative value, because eyewitness identification was not in issue, and the effect of the introduction of the photographs was overwhelmingly prejudicial to the appellant. There was no issue that his appearance was different by the time of trial and that he fit the generic description of some of the intruders given by the witnesses. The introduction of the photographs amounted to an invitation to the jury to compare the photographs of what the appellant looked like at the time to the vague and generic descriptions given by the eyewitnesses and to convict him because he appeared to match those descriptions. Therefore, the photographs ought not to have been admitted.

[149] In the alternative, the appellant says that the trial judge’s instruction to the jury was inadequate and did not alleviate the risk that the jury would use the photographs improperly. Once the photographs were admitted, the jury should have been given a much more extensive caution about the dangers associated with eyewitness identification.

[150] The appellant also submits that the trial judge failed to give the jury a specific instruction on the frailties of eye witness testimony, with particular reference to the circumstances of this case, including the poor lighting, the fact that the witnesses had been drinking and/or smoking marijuana, the fact that the witnesses did not know the suspects and were invited to make a cross-racial identification.

[151] The respondent submits that the trial judge properly exercised his discretion to admit the photographs and emphasizes defence counsel’s failure to object to the limiting instruction, having received it in advance.

(d) Analysis

[152] Absent an error in principle or a misapprehension of the evidence, considerable deference is owed to a trial judge’s probative value/prejudicial effect assessment: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para 73; R. v. Chenier (2006), 2006 CanLII 3560 (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.), at p. 363; R. v. R. (G.)(1993), 1993 CanLII 14699 (ON CA), 80 C.C.C. (3d) 130 (Ont. C.A.), leave to appeal to S.C.C. refused, 83 C.C.C. (3d) vi; R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449. In no small measure, this is due to the trial judge’s unique ability to assess, in the context of all the evidence and the course of the trial, the significance of the evidence, its probative value, and its potential impact on the jury, in terms of its prejudicial effect.

[153] In a case in which there was some identification evidence, albeit vague and general, evidence of the appellant’s physical characteristics at the time of the offence was unquestionably relevant. His counsel conceded as much. Prior to the introduction of the photographs, Browne’s evidence about the appellant’s appearance in 2008 was received, without objection, because it was relevant. It was relevant because it was capable of including or excluding the appellant as a member of the intruder group. If it included him, its probative value was obviously low, because it simply meant that he fell within a broad category of young, slim, black males. But, it had some probative value and fell to be considered by the jury along with all the other evidence.

[154] The appellant had made no admission at trial, prior to the introduction of the photographs, that he met any of the general descriptions given by the eyewitnesses. Nor did he offer to. He was not, of course, required to do so, but in the absence of an admission it remained a live issue.

[155] As to prejudicial effect, the appellant says that there was a real risk that the jury would arrive at a decision on identification by comparing the general descriptions given by the witnesses to the appellant’s appearance at the time, as shown in the photographs. He says that there was a risk that if the jury was left with uncertainty as a result of Browne’s evidence, they would use the photographs as a “tie-breaker” or “make-weight”. The appellant assumes that because of the photographs, the jury will engage in impermissible reasoning that “he must be guilty because he matches the description of the robbers”.

[156] My colleague acknowledges that the trial judge did not err in admitting the photographs in evidence. Her concern is that he did not adequately caution the jury about the impermissible use of the photographs, and cast the permissible use of the photographs too broadly. She argues that the risk of improper reasoning was present because the Crown’s case was weak and the admission of the photographs carried significant prejudicial effect. She concludes with the observation that the use of the photographs was effectively an “in-court single photo line up” as a piece of circumstantial evidence used against the appellant (at para. 50).

[157] In my respectful view, the potential prejudicial effect of the photographs, and the extent to which the trial judge’s instructions mitigated that effect, must be considered having regard to all the evidence before the jury, the arguments of counsel, and the trial judge’s charge, taken as a whole: R. v. Hay, 2013 SCC 61, at para. 47, referring to R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. On my review of the record, the significance of the photographs at trial has been unduly magnified on appeal.

[158] The only reference to the photographs during the trial was when they were shown to the appellant and Cook. In their closings, defence counsel referred to them as excluding the appellant as a participant in the robbery, and the Crown only noted the possibility that the appellant’s facial hair might not have been noticed due to poor lighting. In his charge, the trial judge also pointed to the potentially exculpatory value of the photographs’ depiction of the appellant’s facial hair.

[159] The trial judge explained to the jury the use they were permitted to make of the photographs and explained the other side of the coin. In light of the vague descriptions given by the witnesses, the trial judge instructed them that they could not conclude “he must be the person”. This could only have been understood by the jury to mean one of the intruders in the park. While the instruction might have been phrased more elegantly, in the context in which it was given and in association with the instruction as to the permissible use, in my view, the jury would have understood the warning and the instruction to have regard to the totality of the evidence.

[160] My colleague’s concern about improper reasoning from the photographs is predicated, in part, on her assessment of the Crown’s case as weak. Respectfully, on my view of Browne’s evidence, the appellant admitted that he had been in the park. It was never suggested that Browne held any animus towards the appellant or had any reason to distort what had occurred. The appellant admitted that his explanation of the conversation did not make sense. It was for the jury to determine whether it made any sense that he would make up an elaborate story about a shooting in a plaza so that Browne would feel sorry for him and let him stay overnight at his house. Particularly when, according to him, Browne had previously made the offer. Particularly when he had friends like Hernandez and Kenny who would have let him stay overnight. The jury could reasonably have concluded that Browne’s evidence was credible and that the appellant’s was not.

[161] The jury could also reasonably have concluded that the appellant’s alibi was, as the Crown contended, full of inconsistencies and improbabilities. It was supported only by Cook, who had earlier admitted that he had told her he had been in a park with friends before he came to Kenny’s house. The appellant’s explanation of his actions on October 8, before surrendering to the police, made little sense. The jury may well have questioned his claim he did not appreciate that the warrant for his arrest might relate to the shooting in Buttonwood Park or to his conversation with Browne the previous day. His post-offence conduct at the detention centre could reasonably be considered consciousness of guilt.

[162] The appellant may have been a reluctant participant in the robbery, and he may have been reluctant to come forward, out of a sense of loyalty to his friends or because he did not want to suffer the same fate as his brother. However, there was ample evidence on which the jury could have found him guilty.

[163] The photographs provided reliable evidence of the appellant’s physical characteristics at the time of the alleged offences, which was markedly different from his appearance at trial. They were relevant to the issue of whether the appellant fell within or without the descriptions of the assailants given by the eyewitnesses. They could be used, in accordance with the trial judge’s instruction, to determine whether the appellant fit or did not fit the vague descriptions. They could then be used, along with all the other evidence, to determine whether the Crown had proven beyond a reasonable doubt that the appellant was a member of the group of black males who went to the tennis court.

[164] The appellant refers to R. v. James, 2011 ONCA 839, 283 C.C.C. (3d) 212, in support of his submission that the photographs should not have been put before the jury. In that case, there was evidence that a black man was seen fleeing the scene of a robbery and shooting. The accused was black. This court found that the trial judge had in effect instructed the jury that they could use the flight of a black man to lift what would otherwise have been an insufficient case of identification over the hurdle of reasonable doubt. Doherty J.A. held, at para. 53: “The evidence of the flight of the black man could not possibly carry that heavy load on the identification issue. The instruction constitutes misdirection.”

[165] This court agreed, however, that “the flight of a black man had some minimal indirect value to the Crown’s case on the issue of identification.” The jury could infer from flight that the man “was involved in the robbery” and the fact that the man was black offered “some minimal support” for the Crown’s case, since the appellant was black (at para. 52).

[166] The appellant also relies on R. v. Ellis, 2008 ONCA 77, [2008] O.J. No. 361. In that case, a trial by judge alone, an eyewitness had described a robber as a tall black man wearing a dark jacket, dark hat and dark pants. The appellant was arrested on the street nearby. He was tall and black and was wearing a dark jacket. His hat was different from the description given by the witness and he was wearing blue jeans. He had an imitation handgun on his person, but it did not match the description of the gun given by the witness and she did not recognize it. The witness gave an in-court identification of the appellant, which the Crown conceded had no evidentiary value. There was no other identification evidence and the appellant did not testify.

[167] This court found, at para. 8, the conviction unreasonable because “[t]he description of the assailant provided no detail that could distinguish the assailant from thousands of other people. Some of the few details that were given did not match the appellant’s appearance.” This court quashed the conviction and entered an acquittal.

[168] This case is, patently, different from Ellis. Here, the description of the assailants, and the appellant’s “match” of some aspects of that description, is but a small part of the identification evidence. Its probative value is low, but it is nevertheless, as the trial judge said, but one piece of circumstantial evidence for the jury to consider on the issue of identification.

[169] In his charge, the trial judge referred to the photographs only after reviewing all the other evidence. The only physical characteristic shown in the photographs to which he made express reference was the appellant’s facial hair, which was inconsistent with some of the descriptions of the robbers. The trial judge accurately described the probative value of the photographs to the Crown’s case. He also cautioned the jury against making improper use of the evidence.

[170] The trial judge was well positioned to assess the significance of the photographs in light of all the evidence on the issue, the progress of the trial, and the positions taken by the parties. He was also well placed to determine how to address any potential prejudicial effect. In my view, his caution was adequate to the task.

[171] It is of some significance that the defence did not object to the trial judge’s instructions to the jury on this issue. Defence counsel was obviously alive to the issue, having argued for the exclusion of the evidence. If its prejudicial effect remained a concern at the conclusion of the trial, defence counsel had ample opportunity to request a stronger instruction. She may not have requested one because the photographs had little significance in comparison with Browne’s evidence, the appellant’s illogical explanation of his conversation with Browne, his after-the-fact conduct and the confused and inconsistent evidence of his friends.

[172] The appellant also relies on the authorities emphasizing the dangers associated with eyewitness identification, in-dock identification and photographic identification. Those dangers are well-known and include:

• the inherent frailties and unreliability of eyewitness identification: R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.);

• the “deceptively credible” and “dramatic” impact of in-dock identification: R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116 (Ont. C.A.), at para. 18; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; and

• the strongly suggestive nature of a photo lineup or of showing a witness a single photograph: R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.), at p. 177.

[173] As my colleague notes, the facts of Smerciak and R. v. Goldhar (1941), 1941 CanLII 311 (ON CA), 76 C.C.C. 270 (Ont. C.A.),were markedly different from this case. In Smerciak the police had shown a bank teller a single photograph of the accused, whom she identified as the perpetrator. This court said that this method of identification was improper and that “in the absence of any other evidence to identify the appellant with the commission of the offence charged against him, it would be unfair and unsafe to convict him” (at p. 180). In that case, the single photograph, shown to the eyewitness, was the only identification of the accused prior to his arrest. In this case, of course, the photographs had nothing to do with the arrest. It was the appellant’s confession to Browne that led to his arrest.

[174] The facts of Goldhar are not clear from the brief reasons, but the court’s concern, at p. 271, was the suggestive impact of showing a photograph to an eyewitness, because

there is always the risk that thereafter the person who has seen the photograph will have stamped upon his memory the face he has seen in the photograph, rather than the face he saw on the occasion of the crime. The usefulness of such person as a witness may thereafter be seriously impaired…

[175] In R. v. Sutton, 1969 CanLII 497 (ON CA), [1970] 2 O.R. 358 (C.A.), at pp. 360 and 369, while there was a conflict in the evidence of the investigating officers and the eyewitness, the witness claimed that after being unable to identify the accused in two groups of photographs, the police showed her a single photograph of the accused and she was asked to look at it carefully.[^9] Again, the suggestive nature of a single photograph was, in the circumstances, bound to taint the identification.

[176] The appellant says that in introducing the photographs, the Crown was inviting the jury to do what, given these authorities, no witness to the shooting would have been permitted to do: compare the photograph with the persons they saw and answer the question, “Does this person match the description of the intruders?” My colleague compares this case to R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197,and describes the photographs as an invitation to the jury to engage in an in-court single photo lineup.

[177] I respectfully disagree. This is not a case in which any witness could describe the facial features of any of the assailants, other than one youth who was said to have crooked teeth. It was never suggested that the appellant had crooked teeth or matched that description. All the other intruders were described in vague terms, not in terms of their facial features, but in terms of their build, height, skin colour and lack of facial hair. If the witnesses described the assailants as “skinny”, the jury was entitled to know whether the appellant fit that description. And if the appellant was not “skinny” at the time of trial, the jury was entitled to know how he looked at the time of the shooting. A photograph, agreed to be accurate, was undoubtedly the best evidence of how he looked at that time.

[178] The appellant’s core argument seems to be that having seen the photographs, the jury would abandon reason and conclude that he was involved because he was the black youth with a skinny build shown in the photo.

[179] In my view, this gives no credit to the jury’s common sense and no weight to the trial judge’s instruction that it was precisely what they should not do: see, e.g., R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 692.

[180] I would add that I do not agree with the appellant’s submission that the trial judge was required to give more detailed instructions on the dangers of eyewitness identification in the circumstances. He noted the poor lighting, the condition of the witnesses and the speed at which the events unfolded. In my view, given the limited nature of the identification evidence, no more detailed instruction was required.

[181] In summary, the photographic evidence was relevant, the trial judge had regard to the appropriate principles and I would defer to his balancing of the probative value of the evidence in relation to its prejudicial effect. Having determined to admit the evidence, the trial judge gave an appropriate instruction to the jury concerning the limited use they could make of the photographs. The instruction was fair and emphasized the defence argument that the appellant’s physical characteristics shown in the photographs served to exclude him from the group of young men. The defence took no objection to that instruction.

(2) Disbelief of Alibi Instruction

[182] The trial judge carried out a detailed review of the alibi evidence. He told the jury that the Crown was required to prove that the appellant was in Buttonwood Park on the night of October 3, 2008, and that he was a party to the offence. He told the jury that if they believed the appellant’s evidence that he was at Kenny’s house, with Kenny and Cook, when the offence was alleged to have occurred, or were left in reasonable doubt by his evidence, they must find him not guilty. If they did not believe his evidence, or were not left in reasonable doubt by it, they were required to determine whether the rest of the evidence they did accept left them in reasonable doubt.

[183] In its closing, the Crown did not dispute that the appellant was at Hernandez’s home until just after 9:30 p.m. on October 3, 2008. The issue for the jury, Crown counsel submitted, was where he went after that. Kenny could not say what time the appellant came to his house, except that it was before midnight. The Crown told the jury that Kenny could not and would not testify that the appellant was at his house at the time of the shooting, because the appellant was not at his house at the time.

[184] The Crown noted that the 911 calls put the shooting at around 10:30 p.m. and that this left the jury with Cook’s evidence, which the Crown described as so “full of vague answers and inconsistencies that you simply cannot believe it.” The Crown pointed out that when she was interviewed by the police a week after the shooting, Cook said she could not remember times. It also pointed out that her cell phone call to Kenny at 10:18 p.m. for one minute and seven seconds did not make sense if they were together at that time.

[185] The Crown also noted that Cook had testified at the preliminary inquiry that the appellant had told her he had been at a party in a park on the night of October 3, 2008, before he arrived at Kenny’s house.

[186] At the conclusion of his extensive review of Cook’s evidence and the inconsistencies in it, the Crown stated:

Simply put, Ms. Cook’s evidence cannot be believed. You should reject it. It should not leave you with a reasonable doubt. She herself admits that she has no ability to judge times accurately. In addition, her evidence was fraught with inconsistencies and points that just don’t make sense.

Ladies and gentlemen, when you look at the evidence of these three witnesses, [Cook, Kenny and Hernandez,] it does not assist you in establishing that Mr. Araya could not have been at Buttonwood Park that night.

[187] The appellant concedes that the alibi evidence was imprecise and incomplete. He submits, however, that the Crown invited the jury to draw an adverse inference of guilt based upon a concocted alibi and that the trial judge should have instructed the jury on the distinction between an alibi that is disbelieved, and therefore rejected, and one that is found to be concocted or fabricated, and can be used to infer guilt: see R. v. Badiru, 2012 ONCA 124, 289 O.A.C. 74, at para. 23; R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at paras. 17-27, 34-38, 42-46.

[188] He submits that, before the Crown invited the jury to infer guilt from a concocted alibi, it should have asked the trial judge to rule on whether an inference of fabrication was available on the evidence. If it had done so, it would have been clear that the evidence could not be accurately described as concocted or fabricated: see R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at paras. 152-56.

[189] The Crown’s observations concerning Cook’s evidence, including her evidence about the events of October 8, were made in the context of a vigorous attack on her credibility. Cook’s evidence was central to the appellant’s alibi, because she alone confirmed the appellant’s evidence that he was at Kenny’s house at the time of the shooting. The Crown pointed to a number of parts of her evidence that it said “either do not make any sense or are flat out untruthful.”

[190] One of these was Cook’s evidence that there had been no discussion at Kenny’s house on October 8, the night the appellant was arrested, about what they had been doing on the night of October 3, because she did not know the appellant’s arrest warrant related to that night. The Crown argues that her evidence was false, because Kenny testified that they knew that October 3 was an important night and they discussed what they had been doing that night and worked out a timeline. The Crown said, “Ms. Cook would not give that [admission] to you. She’s deliberately deceiving you on this point.”

[191] While the appellant acknowledges that the Crown did not directly assert that the alibi was concocted, he submits that the Crown planted the “seed” of fabrication in cross-examining the appellant regarding the discussion on October 8, 2008.

[192] The appellant testified that although he went Kenny’s house on October 8, the purpose of the visit was to get advice from Kenny’s mother about what he should do, after learning that a warrant had been issued for his arrest. The Crown suggested to him that he spoke to Kenny and Cook about their movements on October 3: “it’s crystal clear in your mind that you have to sort out what you did that night and that the three of you talked about it right there and then.” He replied that he wanted to speak to Kenny’s mother, because she was a secretary at a high school and knew how to deal with tense situations

[193] The Crown asked:

So it’s your evidence, sir, that at that point, at Mr. Kenny’s house, you haven’t connected the dots that this is to do with Friday night, October 3rd. You’re wanted for murder because of an incident on that night. You don’t know at this point?

[194] The appellant replied:

No, I – I knew I was wanted for murder and I knew it was – it was regarding that incident, but it just – it just didn’t click. I don’t know how to put it besides, like – I don’t want to say I wasn’t thinking straight when I – when I found it, but it just – it seemed so surreal for me.

[195] He continued that in spite of being aware that he was wanted for murder, and that it related to the incident at the park, he did not tell Cook that it was all due to a misunderstanding of his conversation with Browne. A jury might well have concluded that his failure to tell his girlfriend that it was all a misunderstanding cast some doubt on the credibility of this explanation.

[196] In submissions to the jury, the Crown argued that the evidence of Cook and Kenny about the cell phone call at 10:18 p.m. should not be believed: “Their language in explaining this problem with this phone call was almost identical. The call does not make sense, and it challenges their version of the fact they were together that whole night. Their explanations are too coincidental.”

[197] In O'Connor, at para. 34, O’Connor A.C.J.O. described the duty of a trial judge where alibi evidence is introduced: a Parrington instruction is required:[^10]

In all cases in which alibi evidence is introduced, whether by the Crown or the defence, the first step for the trier of fact is to determine whether the trier believes or has a reasonable doubt about the truthfulness of the alibi. In this regard, the court should follow the approach set out in R. v. Parrington, supra. The judge should direct the jurors (or in a trial before a judge alone, self-direct) along the following lines: 1) if they believe the alibi, they must acquit; 2) if they do not believe the alibi, but are left with a reasonable doubt by it, they must acquit; and 3) even if they are not left with a reasonable doubt by the alibi, then on the basis of all the evidence, they must determine whether they are convinced beyond a reasonable doubt of the accused's guilt.

[198] This is precisely what the trial judge did. In his charge, he stated:

Mr. Araya is charged with the second degree murder of Boris Cikovic. He is alleged to have committed this offence at Buttonwood Park on the night of October 3, 2008.

The Crown must prove beyond a reasonable doubt that Mr. Araya was at Buttonwood Park on October 3, 2008, was a party to the second degree murder of Mr. Cikovic as I will describe.

You have heard evidence that Mr. Araya was someplace else when the offence was alleged to have been committed. He told you he was at his friend’s house, John Kenny, in the company of John Kenny and his girlfriend Keelie Cook.

If you believe the evidence of Mr. Araya that Mr. Araya was elsewhere when the offence was committed, then you must find him not guilty.

If you do not believe that evidence that Mr. Araya was elsewhere when the offence was committed, but the evidence leaves a reasonable doubt in your mind that Mr. Araya committed the offence, you must find him not guilty.

If you do not believe the evidence that Mr. Araya was elsewhere when the offence was committed, and that evidence does not leave a reasonable doubt in your mind that Mr. Araya committed it, you must consider whether the rest of the evidence you accept satisfied you beyond a reasonable doubt that Mr. Araya committed the offence charged.

[199] In O’Connor, at para. 17,this court explained the difference between an alibi that is disbelieved and a concocted alibi:

It is well settled that there is a distinction between an alibi that is disbelieved and, therefore, rejected and an alibi that is found to be concocted or deliberately fabricated. The former has no evidentiary value; the latter can constitute evidence from which an inference of guilt may be drawn: R. v. Hibbert, 2002 SCC 39, 163 C.C.C. (3d) 129 at pp. 148-52; R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.) (leave to appeal dismissed, [1998] S.C.C.A. No. 450 (QL)); and R. v. Blazeiko (2000), 2000 CanLII 14726 (ON CA), 48 O.R. (3d) 652, 145 C.C.C. (3d) 557 (C.A.). In R. v. Hibbert, Arbour J. made it clear at p. 151 C.C.C. that “[e]ven if an alibi is advanced by the accused himself and is rejected, the finding that the alibi is untrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty.” However, where the Crown adduces evidence from which it can be inferred that an accused fabricated an alibi, that evidence is capable of supporting an inference of guilt. [Citation omitted.]

[200] Where the court finds that there is sufficient independent evidence of fabrication to support a finding of fabrication, the trial judge must instruct the jury concerning the use to be made of the evidence. As O’Connor A.C.J.O, stated in O’Connor, at para. 37:

If the judge concludes that there is sufficient independent evidence of fabrication of either an accused's out-of-court statement or an accused's testimony, then the judge should instruct the jurors that it is open to them to find that the accused fabricated the exculpatory version of events because he or she was conscious of having done what is alleged and that they may use that finding, together with other evidence, in determining if the Crown has proven the case beyond a reasonable doubt.

[201] In my view, the cross-examination of Cook and of the appellant was directed to their credibility. It was not aimed at establishing that the appellant’s alibi had been fabricated. There was no suggestion by the Crown to any witness or to the jury that the appellant’s alibi had been fabricated. Defence counsel did not request an instruction on the issue of fabricated alibi. There was no objection to the Crown’s closing in that regard, nor was there an objection to the trial judge’s charge.

[202] Therefore, in my view, the trial judge did not err by failing to give an instruction on fabricated alibi and I reject this ground of appeal.

(3) Failure to Give a Vetrovec Caution Concerning Athens’s Evidence

[203] George Athens was one of the young people present in Buttonwood Park on October 3 when the intruders arrived. He was a friend of the deceased. The appellant claims that Athens’s evidence had particular significance because he was the only witness who said that all of the intruders participated in the robberies. He claims that without Athens’s evidence, there was no basis to convict the appellant as a participant in a common unlawful purpose under s. 21(2) of the Code. For these reasons a Vetrovecwarning was required.[^11]

[204] While the Vetrovec issue was not strenuously pursued on the appeal, the s. 21(2) issue remained live. It is therefore necessary to review Athens’s evidence. For the reasons set out below, I find that a Vetrovec warning was not required and that there was evidence on which the jury could find the appellant was a party to the offence under s. 21(2).

(a) Athens’s evidence

[205] Athens testified that before going to the park he had met up with friends and had consumed about six beers. When they got to Buttonwood Park, he drank between one and three more beers.

[206] He testified that he saw four black males in dark clothing walk past the tennis court, stop, turn around, and walk back towards the tennis court. He thought they were about his age (18 years old). As they approached, he went outside the tennis court to confront them. Three of the men entered the tennis court and the other approached him, put a gun to his head and demanded his cell phone. When he did not comply, the man struck him in the left temple with the gun. He still refused to surrender his phone.

[207] He saw one of the other intruders inside the tennis court struggling with Cikovic over a bag. He went over to assist him. Out of his peripheral vision he was able to see the other two black men intimidating his friends on the bleachers. They were grabbing at people’s waists and saying things like “give me the weed”. From their gesturing, he believed all the men were armed. According to Athens, at least one of the men, and possibly two, were wearing bandanas pulled up over their noses.

[208] Athens said he heard a “warning shot” fired by the man who was struggling with Cikovic. The other three men ran from the tennis court. Cikovic then Tasered the man in the neck with whom he was struggling. The man fell backward and Cikovic threw the Taser at him. The man had Cikovic’s bag and started running from the tennis court after the other young black men. Cikovic ran after the man who had his bag and Athens followed. At this point, the man turned and fired at Cikovic at close range.

[209] Athens was on bail and out past his curfew that evening. He was also with a girl with whom he was not supposed to associate. He had a criminal record. He fled the scene after the shooting, and did not speak to the police until he received assurances that he would not be charged with breach of his bail.

[210] Athens said that he ran away after the shooting because he was in breach of his bail. He did not go to the police immediately, but after speaking to the deceased’s family, he negotiated an arrangement with the police that if he gave a statement he would not be charged.

(b) The trial judge’s ruling

[211] During the pre-charge conference, counsel for the appellant requested a Vetrovecwarning in relation to Athens. The trial judge did not agree, but stated that when he reviewed Athens’s evidence he would explain why the jury must be cautious before relying on it. I will discuss his instructions shortly. First, I will explain his reasons.

[212] In reasons for his ruling, released after the trial, the trial judge reviewed the appellant’s arguments that: (a) Athens was of unsavoury character due to his youth record and his adult convictions; (b) he fled the scene on October 3, 2008, because he was on bail, out past curfew and in the company of a girlfriend with whom he was not supposed to have contact; (c) he did not speak to the police until he had received assurances that he would not be charged with breaching his bail; and (d) he was an important Crown witness.

[213] In determining whether to provide a Vetrovecwarning, the trial judge stated that he was guided by R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, which requires an examination of the significance of the witness’s evidence as well as the background and antecedents of the witness. The trial judge specifically referred to the following observation of Fish J.,at para. 3:

It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are "unsavoury", "untrustworthy", "unreliable", or "tainted". For present purposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth – even when they have expressly undertaken by oath or affirmation to do so. [Emphasis in original.]

[214] The trial judge noted that Athens’s criminal record spanned only three years, two of which were when he was a youth. He had convictions as a youth for two robberies in 2007 and 2008, failure to comply with bail and possession of stolen property. He received three months’ deferred custody for the robberies, and four days in jail, community service and probation for the other offences. In 2009, when he was an adult, he was convicted of assault and breach of bail, and received a conditional discharge. He had an additional conviction for possession of a single counterfeit bill, for which he did community service.

[215] By the time of trial, he was twenty-one years old, going to community college, and working on a diploma in heavy duty mechanics. The trial judge concluded that Athens’s criminal record was a factor for the jury to consider in assessing his credibility, but was not, on its own, something that required a Vetrovecwarning.

[216] In response to the appellant’s submission that Athens only agreed to speak to the police after he had been assured that he would not be charged with breach of his bail, the trial judge noted that Athens had testified that as a friend of the deceased he would have spoken to the police even if he was going to be charged with breach of his bail. The trial judge held that this was not the same as a witness facing criminal charges trying to negotiate a substantial benefit, but it was nevertheless a factor to consider.

[217] The trial judge then considered the significance of Athens’s evidence in the Crown’s case. He found that Athens was simply one of a number of witnesses at the park that night. He was not the only witness to put a gun in the hands of more than one person or to have more than one person involved in the robberies. He noted that the Crown did not rely solely on Athens’s evidence and that the evidence of those at the park, which was “all over the map”, could not identify the appellant as the perpetrator. It could simply be used to establish that a robbery took place using guns.

[218] The trial judge found, therefore, that having regard to all the evidence, and the factors identified in Khela, it was not necessary to give “an exhaustive Vetrovec warning” to the effect that it would be dangerous to rely on Athens’s evidence unless it was confirmed by other evidence. He did note, however, that he had included specific instructions with respect to Athens’s evidence in his charge.

(c) The trial judge’s instructions

[219] In his charge, the trial judge made several observations with respect to Athens’s evidence.

[220] The trial judge had given a mid-trial instruction immediately after Athens testified concerning the use the jury could make of Athens’s previous convictions. In his charge, under the heading of “Previous Convictions of Witnesses”,[^12] he told them that they could only use the convictions to decide how much or how little they relied on the witness’s testimony. He reviewed Athens’s convictions and explained:

Looking at the records, some convictions, for example, ones involving dishonesty may be more important than others in deciding how much or little you will believe of and rely upon the testimony of a witness in deciding this case. Use your common sense and experience in considering the impact of these criminal convictions on whether you believe some, all or none of their evidence.

A previous criminal conviction, or many, does not necessarily mean that you cannot or should not believe or rely upon the testimony of a witness to help you decide the case. The prior convictions are just one of the many factors for you to consider in assessing their credibility. Use your common sense and life experience.

[221] Later in his instructions, in the course of a thorough review of the evidence of all the young people who were in the park, the trial judge summarized Athens’s evidence. He reminded the jury of his instructions regarding the use of his Athens’s criminal record. He said:

Now, members of the jury, you must examine his evidence very carefully, not simply because he has a criminal record. Consider at the time he was in breach of his bail by being out after his curfew and being in the company of [a woman] [whom] he was not supposed to be with. Consider also that he fled the scene knowing that his friend was shot. Also consider that he did not speak to the police until he was assured he would not be charged with breaching his curfew. Did he have a motive to be untruthful and help the police since he arranged not to be charged? Consider as well his evidence that he said he would have spoken to the police even if he did not get an agreement not to be charged. For all of these reasons, you should carefully scrutinize his evidence. Look at how it fits or does not fit with the other evidence.

[222] The trial judge reviewed Athens’s evidence. At the conclusion of his review, he observed again that Athens had negotiated an agreement that he would not be charged with breach of bail if he gave a statement. He told the jury that “[t]he fact that a witness seeks to obtain a benefit from the police for giving a statement is a factor you can and should consider in assessing Mr. Athens’ credibility.”

(d) Analysis

[223] The appellant submitted in his factum that although the trial judge told the jury that they should “carefully scrutinize” Athens’s evidence, he should have given them a full-blown Vetrovecwarning.

[224] The appellant submitted that in deciding not to give a Vetrovecwarning the trial judge failed to take into account not only Athens’s unsavoury character, but also the significance of his evidence. The appellant argues the jury could only find that he shared a common intention to commit a robbery, and was thus a party to murder or manslaughter, if they were satisfied beyond a reasonable doubt that he was present in the park that evening and that all the black men at the park participated in the robbery. He submits that Athens was the only witness to say that all the men were participants. As a consequence, his evidence was critical to the Crown’s case. This gave his evidence a significance that required the warning.

[225] The appellant properly conceded that this is not a case in which a full Vetrovecwarning was so essential to a fair trial that the judge had no discretion not to give one: see R. v. Glasgow (1996), 1996 CanLII 4009 (ON CA), 110 C.C.C. (3d) 57 (Ont. C.A.), at pp. 60-61. In such circumstances, the nature of the cautionary instruction is a matter for the trial judge: Khela, at paras. 4-6, 13.

[226] In my view, the trial judge’s instruction concerning Athens’s evidence was thorough, effective and fair.

[227] I will consider the appellant’s submissions about the significance of Athens’s evidence in the next section, dealing with party liability.

(4) Party Liability

[228] The appellant submits that the trial judge should have instructed the jury that they could only convict him if they were satisfied that all the intruders in the park participated in the robbery. This submission is tied to the appellant’s argument about Athens’s evidence, because, as I have noted, he says Athens was the only witness to testify that all the intruders were active participants in the robbery. If the jury was not satisfied beyond a reasonable doubt that each of the intruders was a participant in the common unlawful purpose, the appellant says, they could not properly convict him.

[229] The Crown’s position at trial was that the appellant was a party to the offence pursuant to s. 21(2) of the Code, because: he was one of the group of men who formed a common intention to rob one or more of the young people in the tennis court and to assist one another to that end; the shooting occurred in the course of carrying out the original unlawful purpose; and he was aware that at least one of his companions was carrying a gun and that he intended to use it in the course of the robbery.

[230] In my view, the appellant’s submission on this point is inconsistent with the evidence. It over-states the significance of Athens’s evidence, focuses on only some of the evidence of what took place at the park, and ignores Browne’s evidence of what the appellant said to him in their conversations at the school: that he was part of a group that was going to “roll up” on someone; and that he was “involved”, but did not have the gun. It also ignores Browne’s evidence of the appellant’s post-offence conduct, namely, that the appellant told him, “We never had that conversation.” Finally, it ignores the appellant’s explanation of his activities on the evening in question; his explanation of the discussion with Browne; and the evidence of his friends in support of his alibi.

[231] In determining whether the appellant was a party to the offence, the jury was required to consider all of this evidence, not just what the eyewitnesses testified they saw at the tennis court.

[232] As I have noted, the evidence of the eyewitnesses was by no means uniform. The trial judge aptly described their evidence as “all over the map”. They agreed that it was very dark inside the tennis court, although there may have been some illumination from a nearby shed. The perceptions and memories of some witnesses may have been affected by consumption of alcohol or drugs and their evidence may have been tainted by rumours, gossip and discussions about the shooting. Their evidence varied about how many people were in the intruder group, the number of guns produced and the extent of their involvement in the robbery.

[233] However, if believed, there was testimony from the witnesses in the tennis court establishing that:

• the group of young black men walked past the tennis court, then, as a group, changed direction and walked towards and into the tennis court, where a much larger group of youths had congregated;

• some or all of the members of the intruder group had their faces obscured by hoodies, hats or bandanas;

• threatening words were spoken by members of the intruder group, such as “who has the weed?”; “where’s the weed at?”; “empty your pockets”; and “do you want to get popped?”;

• one or more guns were produced, brandished and used to threaten one or more people and to strike at least one person;

• several people were robbed or threatened with robbery;

• the intruders argued with, intimidated and fought with the people in the park;

• at some point a warning shot was fired;

• the fatal shot was fired;

• the intruders fled from the scene as a group; and

• the deceased’s bag was taken from him and was later found on the route the group took when they left the tennis court.

[234] There was evidence that these actions took place in the presence of all the intruders and there was no evidence that, after the gun was produced or after the robberies began, any member of the intruder group protested, withdrew from or abandoned the activity, or sought to disassociate himself from what was taking place.

[235] The trial judge reviewed this evidence. It was up to the jury to decide what evidence to believe and what weight to give it.

[236] From this evidence alone, the jury could have found that there was a common agreement amongst the intruders to rob those in the tennis court and to assist one and other in that purpose. From the bold and purposeful way in which the small group confronted a much larger group and proceeded to rob them, and from the production and brandishing of one or more guns at an early stage, and the firing of the warning shot, the jury could have found that every participant in the common agreement knew that the shooter had a gun, that it was loaded and that the shooter would put the people in the tennis court at risk of grievous harm or injury in the course of carrying out the robbery.

[237] But the jury had more than this.

[238] It had Browne’s evidence, which it was entitled to believe, that the appellant had told him that:

• he was part of a group of guys who were going to “roll up” (i.e. rob) a guy;

• he was not the one with the gun, but he was “involved”;

• he was at the park where some “things went down,” and “someone got hurt”.

In assessing the reliability and credibility of Browne’s evidence, the jury also had the appellant’s explanation of the conversation, which he himself admitted did not make sense.

[239] In addition, the jury had Browne’s evidence about the appellant’s conduct at the detention centre, where he allegedly said, “We did not have that conversation.” The trial judge told the jury on the use they could make of the appellant’s post-offence conduct. No objection is taken to the adequacy of that aspect of the charge on appeal and none was made at trial. The trial judge gave a thorough review of the evidence of both Browne and the appellant concerning the interaction at the detention centre and explained the inquiry the jury was required to make before making use of that evidence.

[240] The trial judge explained to the jury that it was up to them to determine whether the appellant said the words at issue at the detention centre. He explained that if they believed Browne’s evidence, the inference was open to them to conclude that the appellant was trying to get Browne to lie and say that he never had the conversation. He suggested that they approach the issue in two steps. First, they must decide whether the appellant actually said what he was alleged to have said. And second, if he made the comments and said them to get Browne to lie, whether this was related to an agreement to rob people at Buttonwood Park. They only reached the second question if they accepted he said the words. Otherwise, they could not consider them in reaching the verdict.

[241] He cautioned them that they should not immediately conclude that his words related to him being at the park and being involved in the agreement to rob. In particular, they must consider other explanations for his conduct or statements and they could only use if the evidence if they rejected any other explanation. He emphasized that they were not to consider post-offence conduct evidence on its own, and were required to consider it together with and in light of all the other evidence, including any other explanations for what was said and done that emerge from the evidence.

[242] I do not accept the submission that the trial judge was obliged to tell the jury that it could only convict the appellant if they believed Athens’s evidence or found that all the intruders participated in the robbery. The appellant’s statements to Browne could be understood as an admission that he was part of an agreement to “roll up” on the people in the park and that, although he did not have the gun, he participated in the robbery. His statements to Browne at the detention centre were capable of being construed as an attempt to persuade Browne to recant his statement to the police and as evidence of the appellant’s consciousness of guilt.

[243] The trial judge carefully and thoroughly reviewed all the evidence on these issues. It was up to the jury to determine what evidence to accept and what evidence to reject and they were required to consider all the evidence, not just the eyewitness evidence. On all the evidence, it was open to the jury to find liability under s. 21(2) of the Code.

(5) Browne’s Evidence

[244] The appellant attacks Browne’s evidence, accusing him of providing the jury with his own interpretative “spin” on his evidence, rather than simply stating what the appellant told him. This attack is central to the appeal, because Browne was the only witness to place the appellant at Buttonwood Park on the night of the shooting.

[245] The appellant asserts that instead of conveying to the jury the words spoken by the appellant, Browne persistently testified about what he thought the appellant meant. In so doing, he says, Browne turned otherwise exculpatory evidence – “I was not involved”/“I was involved” and “they rolled up”/“we rolled up” – into potential evidence of guilt. He says that the trial judge should have told the jury that Browne’s interpretation was irrelevant because the plain meaning of the words conveyed quite the opposite. The appellant submits that once Browne’s interpretation is excluded from the jury’s consideration, the statements are exculpatory.

[246] Because of its central importance to the Crown’s case, the trial judge thoroughly reviewed the evidence of both the appellant and Browne concerning their two conversations. I have reviewed the differences between their versions.

[247] The trial judge also explained the use the jury was entitled to make of prior inconsistent statements of witnesses other than the accused. He used the example of Browne’s statement to the police. He reminded the jury of what Browne had said in his police statement, and told them that because Browne had adopted his prior statement, they were entitled to consider it as part of his evidence. They were also entitled to consider his explanation of any differences:

Cordel Browne told you in examination-in-chief that Mr. Araya told him he was there and involved in the robbery but not the shooting. In cross-examination he was asked about the video statement he gave to the police the day after that conversation. He admitted telling the police that Mr. Araya said he was not involved. He also admitted that what he told the police was the truth. He also provided an explanation for the difference between what he said here and what he said in his earlier statement. Since it would appear Mr. Browne adopted his prior statement, you may consider that as part of his evidence. You must also consider his explanation for the differences.

[248] The trial judge reviewed the appellant’s explanation of what had taken place when he went to see Browne on October 7, and he reviewed Browne’s evidence both at trial and in his statement to the police.

[249] Later in his instructions, when addressing the question of whether the appellant was part of an agreement to rob any of the people in the tennis court, the trial judge noted that the jury would consider Browne’s evidence and cautioned them:

You will consider what you find he [Browne] said Mr. Araya told him. You will consider whatever facts you find on that. Remember, it is what Mr. Browne was told that is relevant, not what Mr. Browne thinks Mr. Araya meant by what he said.

[250] Finally, in summarizing the position of the defence, the trial judge noted the defence position that Browne’s evidence should be approached with great caution. It was only his interpretation of what the appellant had said that led him to believe that he was involved in a robbery.

[251] The appellant submits that Browne’s evidence, taken at its highest, was only capable of putting the appellant in the park on the evening of the killing. It is not evidence that he agreed to participate in a robbery. He therefore submits that it was important for the trial judge to explain to the jury that there were significant inconsistencies between Browne’s evidence at trial and his statement to the police. Specifically, in his evidence at trial he said that the appellant said, “I was involved, I didn’t have the gun. We rolled up on the guy, things went down, shots were fired” (emphasis added). In his police statement, he said the appellant had said, “I was there but I wasn’t involved, I didn’t have the gun”, and he “went on to explain basically that um he said ‘no’ he didn’t want to be involved in it but they rolled up on the guys anyway” (emphasis added).

[252] The appellant also says that the trial judge should have instructed the jury that Browne’s “spin” on the evidence was inadmissible and had the effect of turning the otherwise exculpatory evidence in his police statement into a confession of guilt.

[253] I would reject the appellant’s submission. The two statements were conflicting, largely due to the ambiguity of the word “involved”. The defence put this conflict to Browne and asked him to explain it. He proceeded to do so. In the course of doing so, defence counsel summarized his evidence, inviting him to give his own summary, which he did.

[254] The same is true of Browne’s evidence of the conversation at the jail. He described what the appellant said to him and what he said to the appellant. His understanding of what the appellant was saying to him by “we never had that conversation” was what prompted him to say to the appellant, “I know what you’re trying to say without you saying it” and “I’m not going to sacrifice my career … by lying to say that I didn’t have the conversation with you.” He was not putting a spin on his evidence. He was simply explaining why he said what he did.

[255] It was not for the trial judge to remove the witness’s explanation from the jury’s consideration. On the contrary, it was for the jury to consider the explanation of the alleged inconsistency and to determine what to make of the evidence. The trial judge gave the jury a full explanation of their duties in regard to the evidence, and reminded them that it was Browne’s evidence of the appellant’s words, and not his interpretation of those words that mattered.

(6) Why Would Browne Lie?

[256] In the Crown’s cross-examination of the appellant about his conversation with Browne at school on the Tuesday after the shooting, the following exchange took place:

Q. So can you think – this is a teacher that you – you admire – you – you like him, you think he likes you, he’s treated you well, and yet he’s recounted this story to us last week that’s quite different than the story you’ve told us.

A. Mm-hmm.

Q. Can you think in your mind of any reason why he would come up with this story?

[257] The trial judge immediately intervened to foreclose this line of questioning:

The Court: Okay. Yes, [Crown counsel], we’ll leave that for argument.

[258] Crown counsel replied “Okay”, but proceeded to refer to a section of the appellant’s statement to the police where the appellant had asked rhetorically why Browne would have told police he was involved in the incident when he had distinctly told him he was not involved.

[259] At this point, the trial judge excused the jury and reminded the Crown that it is improper to ask a witness, particularly the accused, to comment on why another witness would lie: R. v. Ellard, 2003 BCCA 68, 172 C.C.C. (3d) 28. After further discussion, Crown counsel said he did not intend to pursue the issue. The portions of the appellant’s statement the Crown was about to refer to were never brought to the jury’s attention. The defence did not request a mid-trial instruction.

[260] The Crown says there was a good reason why the defence let the issue pass without comment. To interrupt the cross-examination, and draw attention to the question would not have benefitted the appellant. Instead, the trial judge exercised his discretion appropriately. He told counsel, in the presence of the jury, that it was a matter for argument – and it was, in fact, addressed in argument.

[261] The appellant now argues that the trial judge did not do enough. He should have instructed the jury that it was improper for the Crown to ask the appellant to comment on Browne’s motive to lie and should have explained that the appellant had no obligation to explain why others testified the way they did. He says that not only did the trial judge fail to do anything when the incident occurred, he did not say anything about it in his charge and did not caution the jury against attributing undue weight to the absence of evidence that Browne had a motive to fabricate.

[262] The appellant submits that the question had the potential to shift the burden of proof by deflecting the jury from determining whether the Crown had proven beyond a reasonable doubt that the charges were true, as opposed to focusing on whether the appellant could provide an explanation for Browne’s allegations.

[263] The appellant says that the issue is of particular concern because the Crown, in closing, referred to the absence of any motive for Browne to fabricate a story:

… consider the fact that Mr. Araya, the accused, the defendant, on his own evidence, agrees that much of what Mr. Browne said is true in terms of the conversation that morning. Consider also what reason Mr. Browne would have to make up a story that implicates Mr. Araya in a murder. On Mr. Araya’s own evidence, Mr. Browne was a good teacher, the only class he still attended regularly, a teacher he respected and had a good relationship with, a teacher who would make time for him, talk to him about other things in his life, a teacher who advised him to attend every class and told him he could be whatever … he wanted to be, a teacher who supposedly gave him money and offered him a place to stay. All these good things Mr. Araya says of Mr. Browne. Does it make sense to you that this teacher would make up an account implicating Mr. Araya in a robbery, that he would alert the authorities over a made-up account? Mr. Browne told you himself … that it was a lot to process, receiving this confession from Mr. Araya. He told you that on the jailhouse visit, he told Mr. Araya, “I wish you had never told me these things”. That was his evidence. He told you the whole confession he received and what he had to do about it was very sad to him. He has no reason to make this up.

[264] This was a proper argument for the Crown to make to the jury.

[265] The impropriety of asking the accused to comment on the veracity of a Crown witness is trite law. Doing so can shift the burden of proof from the Crown to the accused, thereby undermining the presumption of innocence and the doctrine of reasonable doubt: see, e.g.,Ellard, at paras. 21-22; R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417 (C.A.), at paras. 27-28.

[266] In my view, the trial judge’s intervention in this case was appropriate and sufficient to address the issue. As Labrosse J.A. noted in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.),at p. 641:

It is a rare case where the prejudice that could otherwise flow from an improper cross-examination cannot be effectively checked by the trial judge. At the first sign by either counsel of questions which may lead to an improper cross-examination of a witness, a well-placed comment by the trial judge or a more explicit reminder in the absence of the jury of the proper role of counsel has, in my experience, invariably nipped any problem in the bud. If not, other means are available to the trial judge to assure the proper conduct of counsel.

(Cited in Ellard, at para. 30.)

[267] The trial judge did exactly what he was supposed to do. Even though the defence did not object, he acted as a gatekeeper. He told the Crown to leave it for argument and it was left to argument.

[268] The defence was content to let the matter go at the time and made no request for an instruction in the charge, notwithstanding that a copy of the charge was provided to counsel in advance. The trial judge properly instructed the jury, repeatedly, on the presumption of innocence and the burden of proof. It was made clear to the jury that the appellant had no obligation to prove his innocence or to explain why others testified as they did.

(7) Demeanour as After-the-Fact Conduct

[269] The appellant claims that the trial judge failed to properly instruct the jury concerning his conduct when he learned that there was a warrant for his arrest, his failure to tell his friends about his conversation with Browne and his failure to give his friends and family an explanation of his alibi as soon as he was aware that he had been charged.

[270] I have already reviewed the appellant’s rationale for making up his story to Browne, and his explanation for telling Browne at the jail that they had not had the conversation. Shortly after the latter testimony, defence counsel asked him:

Q. Mr. Araya, why didn’t you tell the police when you were arrested that this whole story was made up?

A. That’s a good question. I actually – actually wanted to …

[271] At this point, the trial judge intervened and excused the jury. He then pointed out that if the defence opened up the issue of why the appellant did not give an explanation to the police, it might be open to the Crown to cross-examine on his evidence. After some discussion, defence counsel said that she would give some thought to whether to pursue the matter.

[272] Defence counsel proceeded to ask him about his actions after hearing there was a warrant for his arrest. He described going to Kenny’s house and speaking to Kenny’s mother.

[273] Somewhat later, immediately before concluding her examination-in-chief of the appellant, defence counsel once again asked him why he did not tell the police or anyone else after he was arrested that the story he had told Browne was untrue. He replied that after he was arrested he spoke to duty counsel, who told him that he should not talk to the police about anything. He said that his own lawyer gave him the same advice.

[274] It was this questioning that led to the Crown’s examination of the appellant about why he had not told Cook or his friends about his made-up story or that the warrant for his arrest was due to a misunderstanding arising from that story. This related to the time of their meeting at Kenny’s house on October 8, before he had spoken to a lawyer. It was a logical and proper question. The jury might well conclude that he said nothing to Cook because his story to Browne had been true.

[275] After the appellant testified, the trial judge gave a mid-trial instruction to the jury on several issues. Specifically in relation to the appellant’s evidence as to why he did not tell the police that his story to Browne was false, the trial judge explained the right to silence and informed the jury they could not draw an adverse inference from his exercise of his right to silence and his decision not to talk to the police. He said that it was simply not relevant to their deliberations.

[276] The trial judge also referred to the appellant’s evidence that he had never told his girlfriend, his friends or family that he had fabricated the story he told to Browne. He had said that he was following the advice of his lawyer. The trial judge explained that if the jury found that he was following the advice of his lawyer, they could draw no adverse inference from his failure to tell anyone.

[277] In the trial judge’s charge, he reminded the jury of his mid-trial instruction and reminded them that they could not draw an adverse inference from the appellant’s exercise of his right to silence or following the advice of counsel. He pointed out that the evidence indicated that he had spoken to a lawyer around 8:00 p.m. on October 8.

[278] The appellant says that the trial judge’s instruction did not go far enough to inform the jury that they could not use evidence of the appellant’s demeanour when confronted with allegations of a criminal charge as evidence of consciousness of guilt.

[279] There is no dispute that evidence of an accused’s demeanour in the face of criminal allegations is frequently unreliable and its prejudicial effect may outweigh its probative value: R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at paras. 25-28. Such evidence has been described as “highly suspect and easily misinterpreted”: R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 67 O.R. (3d) 257 (C.A.), at para. 118.

[280] In my view, the Crown’s cross-examination on this issue did not go to demeanour. It went to credibility. Browne testified that he had told the appellant: “Nahoor, you realize that I have to do something with this [information]?” Yet the appellant testified that he did not draw a link between the warrant for his arrest and the made-up story he had told Browne. On the night he surrendered to the police, he did not tell his friends Cook and Kenny, or Kenny’s mother that it was all a big mistake and Browne had misinterpreted his story. This all happened before he sought legal advice and his lawyer allegedly told him not to discuss the evidence with anyone. The Crown’s questions and the appellant’s answers went directly to credibility.

[281] In my view, the trial judge did not err in admitting this evidence, and he properly instructed the jury on the appellant’s right to silence and reliance on the advice of counsel.

E. summary and conclusion

[282] In my view, the jury was properly instructed and, after examining and weighing the evidence, came to a conclusion that was available on that evidence. I would not have interfered with their decision.

[283] For these reasons, I would have dismissed the appeal from conviction.

[284] As my colleagues would allow the conviction appeal, I do not propose to address the sentence appeal, except to say that I respectfully agree with my colleague that the trial judge should not have treated the use of a firearm as an aggravating factor, because the potency of that factor was spent in the four year mandatory minimum sentence applicable to the offence.

Released: December 5, 2013 (“J.L.”)

“G.R. Strathy J.A.”

[^1]: Submissions on admissibility, October 19, 2011: see transcript of proceedings at trial, at p. 1102.

[^2]: Ibid. at p. 1103.

[^3]: Ruling on admissibility, October 20, 2011: see transcript of proceedings at trial, at pp. 1111-13.

[^4]: Charge to the jury, November 2, 2011: see transcript of proceedings at trial, at pp. 1911-13.

[^5]: Charge to the jury, November 2, 2011; see transcript of proceedings at trial, at p. 1913.

[^6]: R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.

[^7]: In cross-examination, the appellant said that his use of the word “park” was in error.

[^8]: The reference to “a bag or knapsack” was germane because the appellant had testified that he carried his belongings in a knapsack out of fear that his property would be stolen if he left it at the youth shelter. Kenny confirmed that he usually carried a knapsack.

[^9]: The officers maintained they showed her a series of photographs one at a time.

[^10]: R. v. Parrington (1985), 1985 CanLII 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.).

[^11]: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

[^12]: Brent Nisula, another of the teenagers present at Buttonwood Park who testified, also had a criminal record.