COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cain, 2015 ONCA 815

DATE: 20151125

DOCKET: C53181 and C53369

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Cain and Mark Cain

Appellants

Jack Gemmell, for the appellant Jason Cain

James Lockyer, for the appellant Mark Cain

Alexander Alvaro and Karen Papadopoulos, for the respondent

Heard: November 2 and 3, 2015

On appeal from the convictions entered on December 21, 2009 by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] Colves Meggoe (the “deceased”) was murdered on Tuesday, November 14, 2006. After a trial by jury, Jason Cain was convicted of first degree murder in respect of the killing and Mark Cain was convicted of second degree murder. Both appeal against conviction.

[2] For the reasons that follow, the appeals are dismissed.

BACKGROUND

The Shooting

[3] Shortly before 7:30 p.m. on November 14, 2006, three men invaded the living room of the deceased’s home. The lead assailant, wearing a bandana as a mask, carried a sawed-off 12-gauge shotgun. He ordered the people in the living room to get down on the floor.

[4] The deceased was in the kitchen of his small home, just around the corner from the living room. He went into the living room and called out to the assailants, saying either “Buju” or “Buju and Nookie, what are you doing?” As the deceased approached the lead assailant, that assailant shot him in the abdomen with the shotgun. One of the other assailants fired a .22 calibre bullet through the deceased’s thigh or upper leg. The third assailant was at the door to the home throughout, keeping watch.

[5] The assailants then fled.

[6] The deceased died, prior to reaching hospital, as a result of the shotgun blast to his abdomen.

[7] In convicting Jason Cain of first degree murder, the jury found that he was the lead assailant who fired the shotgun blast that killed the deceased. Mark Cain was convicted of second degree murder as an aider.

Events earlier in the Day of the Shooting

[8] During the afternoon of the day of the murder, Jason Cain visited the deceased’s home and asked to buy crack cocaine. Jason Cain is also known by the nickname “Buju”. Following a confrontation with the deceased’s brother, Glenroy Meggoe, the deceased told Buju to leave and escorted him from the house.

[9] Later that same afternoon, Mark Cain and Shaun Williams[^1] went to the deceased’s house and asked to buy beer. The deceased said he did not have any beer and did not let them into the house. Mark Cain is Jason Cain’s uncle and has the nickname “Nookie”.

The Alibi Evidence

Jason Cain (Buju)

[10] Jason Cain was arrested on November 27, 2006. In his police interview, he gave some details of what he was doing around the time of the homicide – that he was watching Tiger Claw movies – but he would not tell the police where he was or with whom he was watching the movies.

[11] On December 3, 2006, Jason Cain’s mother, Loretta Cain Williams, went to Damion Mairs’s home. She told Mairs and his mother, Althea Richard,[^2] that Jason Cain’s lawyer wanted to speak with them. Loretta Cain Williams drove Mairs and Richard to the office of Jason Cain’s lawyers, where they gave private videotaped statements to counsel.

[12] The appellants were committed for trial on October 24, 2007.

[13] Jason Cain’s counsel first advised the Crown and police of the existence of his alibi defence on December 3, 2007. However, the names of the alibi witnesses (Mairs and Richard) and the details of the alibi were not disclosed to the Crown and police until a year later – December 10, 2008 – on the eve of the original trial date of January 4, 2009. The alibi witnesses made themselves available for a police interview on February 25, 2009.

[14] The videotaped interviews that defence counsel for Jason Cain conducted of Mairs and Richard in December 2006 were not provided to the Crown until trial.

[15] During Mairs’s cross-examination at trial, the Crown drew attention to several inconsistencies between Mairs’s videotaped statement from December 2006, his police interview in February 2009, and his trial testimony.

[16] In Mairs’s videotaped statement, he said that he answered the door when Jason Cain arrived at his home on the evening of the shooting. He said he thought that Cindy, his daughter’s babysitter, was at his home that evening, and that his mother usually got home from work around 9:00 p.m. or 9:30 p.m. Mairs said that he received a call from his mother on his cell phone around 8:00 p.m., before she returned home from work, telling him that the shooting was on the news. He said that he watched the news in his bedroom with Jason Cain, and afterwards he and Jason Cain continued watching a Tiger Claw movie.

[17] In Mairs’s interview with the police, he said that he was in his bedroom shortly before 6:00 p.m. on the evening of the shooting when he received a call from Jason Cain, who was on his way over to Mairs’s house. When Mairs walked out of his bedroom five or ten minutes later, Jason Cain was sitting at the computer desk near the front door. Mairs said that his mother was home at the time, because she finished work around 4:30 p.m. that day, and that she answered the door for Jason Cain. Mairs made no mention of Cindy in the police interview. He said that his mother called him on his cell phone, from her bedroom, and told him about the shooting. He and Jason Cain went into Richard’s bedroom, watched the news, and returned to Mairs’s bedroom.

[18] Mairs’s testimony at trial was generally consistent with the statements he gave to police in February 2009. He also stated in cross-examination that Cindy was not at his home when Jason Cain arrived. He explained the inconsistencies between his testimony and the December 2006 videotaped statement by saying he “must have mixed up the days”.

[19] Similarly, the Crown’s cross-examination of Richard drew attention to inconsistencies between her videotaped statement from December 2006, her statement to the police, and her evidence at trial. In her videotaped statement, Richard stated that she first found out about the shooting around 10:00 p.m. while watching CP 24 news on television in her bedroom. In her later statement to police, Richard said that she watched the breaking news at 8:00 p.m.

[20] In all of her statements, however, Richard stated that she was home from work shortly after 4:30 p.m. on the day of the shooting. She spent most of the evening tending to her granddaughter and watching television in her bedroom. She acknowledged that she was not watching Jason Cain for the entire evening, but said that she never saw him leave the house.

Mark Cain (Nookie)

[21] Mark Cain was arrested on November 18, 2006. That evening, police interviewed Paul Clancy, a tenant in the rooming house where Mark Cain lived. Paul Clancy, an admitted alcoholic, told police that he was home at 7:30 p.m. on the evening of the homicide and saw Mark Cain with another man. Paul Clancy said that Mark Cain and the other man were in the kitchen and offered him food, which he accepted. When he had finished eating, he walked to The Beer Store and then returned home. The Beer Store closed at 8:00 p.m. that day. Paul Clancy said he arrived at the store just before it closed.

[22] On November 20, 2006, Shaun Williams provided Mark Cain’s counsel with a private videotaped statement under oath.

[23] On November 27, 2007, Williams was killed.

[24] On November 30, 2007, Mark Cain’s counsel told the Crown that his client would be relying on an alibi defence but provided no particulars.

[25] On December 3, 2007, Mark Cain’s counsel advised the Crown that Williams was the alibi witness and that he was dead.

[26] The Crown was given Williams’s videotaped statement in June 2008.

[27] At trial, Williams’s statement was played to the jury and admitted for the truth of its contents. In his statement, Williams said that he spent most of the evening in question with Mark Cain. Around 5:30 p.m., they went to the deceased’s home to buy beer and were told that he didn’t have any for sale. They left the deceased’s home and went to the home of Edmund Williams, arriving a few minutes before 6:00 p.m. They stayed there for 10 to 15 minutes, then went to a convenience store to buy some food. After leaving the convenience store, they took a bus to Mark Cain’s home, stopping at a liquor store along the way to buy beer. During his interview with counsel, Williams produced an LCBO receipt that placed the time of their purchase at 6:34 p.m. Williams said they arrived at Mark Cain’s house, which was a short walk from the LCBO, around 6:45 p.m. They had a beer in Mark Cain’s room, and Mark Cain went down to the shared kitchen to make food. Williams went downstairs after he finished his beer and noticed another tenant, Paul Clancy, in the kitchen speaking with Mark Cain. Williams and Mark Cain offered Paul Clancy some food, left the kitchen, and ate their meal in Mark Cain’s room. They spent the remainder of the evening in Mark Cain’s room, drinking and smoking cigarettes and marijuana. They were joined by an acquaintance of Mark Cain name “Joe”, who shared in the food and drink. After approximately one hour, Williams and Joe left the rooming house.

[28] Paul Clancy testified at trial and stated that he saw Williams and Mark Cain in the kitchen around 7:30 p.m. on the evening in question. His testimony was generally consistent with his statement to police.

[29] Mark Cain testified to having spent the evening with Williams in a manner similar to that described above. He was, however, unable to answer questions regarding the specific timing of events throughout the evening, noting that he “wasn’t looking at the time” and was not wearing a watch.

THE ISSUES

[30] The appellants raise the following grounds of appeal, with the exception of the sixth issue, which relates only to Mark Cain.

1. Did the trial judge wrongly give late alibi adverse inference instructions?

2. Did the trial judge err in allowing the Crown to undermine Jason Cain’s alibi by urging a speculative theory of concoction by its proponents?

3. Did the trial judge err in permitting the Crown to allege that Mark Cain’s primary alibi witness (Shaun Williams) may have been a party to the murder?

4. Did the Crown present a fabricated alibi theory in the absence of evidence of fabrication?

5. Did the trial judge err in admitting an unrelated discreditable conduct allegation against Mark Cain?

6. Did the trial judge err in failing to give a Vetrovec warning for the evidence of Mohamed Abbas?

7. Was the jury properly directed on the dangers of reliance on voice and eyewitness identification evidence?

ISSUE #1: THE LATE ALIBI ADVERSE INFERENCE INSTRUCTIONS

[31] The appellants contend that the trial judge erred by giving late alibi adverse inference instructions in the absence of Crown evidence that late disclosure of the alibis impeded their proper investigation. They contend that the police had sufficient time to investigate both alibis. As the Crown called no evidence in support of its contention that it had been prejudiced by the late disclosure, the appellants say the jury was left to speculate as to the nature of any police investigations into the alibis, the extent the investigations were impeded by the late disclosure, the effect any impediment might have had on the weight of the defence, and the effect of all these factors on whether one or both alibis raised a reasonable doubt.

[32] In respect of Mark Cain, it is submitted that this error was a “double whammy” because of a further instruction to be “cautious” in considering Williams’s videotaped testimony, which had not been subject to cross-examination.

[33] We do not agree that the trial judge erred in giving late alibi adverse inference instructions.

[34] It was obvious on the record that investigation of both alibis was hampered by the late disclosure. This was a case in which early disclosure was critical to a proper investigation of both alibis. The police had to be able to assess the accuracy of each alibi witness’s estimate of the timing of the movements of the accused. Witnesses who were present testified that the home invasion and murder occurred within a matter of minutes. The alibis of both accused involved being at a location close to the murder scene. From the perspective of the alibi witnesses, the events about which they would have been testifying would otherwise have been ordinary and easily forgettable.

[35] Jason Cain’s alibi placed him at the home of Mairs and Richard during the evening the shooting took place. Had police been able to interview Richard and Mairs closer to the time of the murder, they may have been able to resolve significant discrepancies concerning the presence of Cindy the babysitter, the time that Richard returned home from work on the day in question, and the time at which the news of the shooting appeared on television.

[36] Late disclosure of Mark Cain’s alibi deprived police of the ability to speak with Williams as disclosure that Williams was the alibi witness was not made until after he was dead. While the police were able to interview Paul Clancy, there was no hint that the defence was going to rely upon him as an alibi witness.

[37] In any event, the instructions were appropriate and can scarcely be termed “adverse.” The jury was told that there was no evidence that police investigation was frustrated by the late disclosure or that the investigation was compromised by the delay and that, depending on their view of the timeliness of disclosure, they “may, not must, accord less weight to the alibi”. This can be seen in the trial judge’s instruction given in respect of Jason Cain:

Proper disclosure of an alibi has two components, adequacy and timeliness. In this case, the more important component is timeliness.

Depending on your view of the timeliness of the disclosure of the alibi, you may, not must, accord less weight to the alibi. It will be for you to determine whether the alibi was disclosed in adequate time to permit the police to conduct a meaningful investigation. You will recall that both Ms. Richard and Mr. Mairs were interviewed by the police in February of 2009. There is no other evidence of the police efforts to investigate, or evidence of their investigation being frustrated.

[38] Accordingly, we reject this ground of appeal.

ISSUE #2: THE CONCOCTION THEORY

[39] On September 26, 2006, Jason Cain was stabbed and severely injured. Dezroy Williams, a cousin of Mairs, was charged with Jason Cain’s attempted murder, but was discharged at his preliminary hearing.

[40] In her closing address, the Crown suggested that Richard, Mairs, Jason Cain and his mother, Loretta Cain Williams, conspired to concoct an alibi for Jason Cain in exchange for Jason Cain refusing to identify Dezroy Williams as the man who stabbed him. She asked the jury to disbelieve the alibi witnesses because they had a motive to lie. She also invited the jury to reject the alibi as incredible and unworthy of belief.

[41] The appellants submit that there was no evidentiary basis for the Crown’s theory and no evidence that Dezroy Williams was Jason Cain’s assailant. Dezroy Williams was not called as a witness at trial. Jason Cain never identified Dezroy Williams as one of his assailants. Accordingly, the appellants contend, the Crown’s jury address was improper and the trial judge erred in putting the Crown’s theory to the jury.

[42] In his jury charge, the trial judge stated:

The other case involving Dezroy Williams being charged with the attempt murder of Jason Cain has limited relevancy to your deliberations. It may be used in your assessment of the witnesses Althea Richard and Damion Mairs’ credibility. It may or may not assist you in assessing whether either or both had any motive to assist Jason Cain in providing an alibi. It may or may not help you understand the state of mind of either of these witnesses. The Dezroy Williams case cannot be used for any other purpose. In the end, you can accept some, all or none of what Ms. Richard and/or Damion Mairs said.

[43] We do not accept this submission. In our view, neither the trial judge’s charge on this matter nor the Crown’s closing address to the jury was inappropriate.

[44] There was a basis in the record for the Crown’s contention that the alibi evidence was not worthy of belief. Any possibility that the jury might have erroneously taken the impermissible step of inferring guilt from a rejected alibi was overcome by the trial judge’s strong instruction to the contrary.

[45] Moreover, the Crown did not exceed the limits placed on Crown advocacy. While the Crown did suggest that the alibi witnesses had concocted their evidence, at no point did she ask the jury to use the concocted alibi against the accused. There was a reasonable, good faith basis for the Crown to pursue, as a line of cross-examination, a theory that the witnesses colluded to concoct an alibi for Jason Cain. The Crown was entitled to rely upon fabrication and collusion as an explanation for the frailties in the witnesses’ evidence.

[46] Finally, deficiencies in a closing address may be overcome by a timely and focused correction by the trial judge. Here, the judge instructed the jury that there was no independent evidence of concoction and explained to them the limited use they could make of evidence that Richard and Mairs had a motive to lie.

ISSUE #3: THE ALLEGATION THAT SHAUN WILLIAMS WAS A PARTY TO THE MURDER

[47] At trial, Mohamed Abass, a witness to the shooting, said that he saw three intruders during the home invasion. Abass said that he had lied when he told the police on November 14, 2006, that he saw only one or two, neither of whom he could identify. He testified that the third man stood on the porch of the home, holding the door open, and did not say anything. He recognized the man, but did not know his name.

[48] At the preliminary hearing, Abass also testified that he saw three intruders at the shooting. A few weeks after testifying at the preliminary hearing, Abass told authorities that he had seen the third man at the Malvern Mall.[^3] He gave them the licence plate number of the car which he saw the third man enter.

[49] On June 30, 2007, Williams was investigated by police. He was in the company of three other men, one of whom was recorded as driving a car with the same licence plate number as that which Abass had given.

[50] During cross-examination of Mark Cain, the Crown alleged that Williams was the third assailant. Mark Cain’s counsel requested that the trial judge instruct the jury that there was no evidentiary basis to the Crown’s theory.

[51] The trial judge ruled otherwise. He was satisfied that “there [was] some evidence upon which the Crown could rely” to make the assertion and that “it [was] not speculation”. In his charge, the trial judge put the Crown’s theory to the jury and outlined the opposing position of Mark Cain’s counsel.

[52] The appellants contend that the Crown’s theory, if accepted, was devastating to the defence. The Crown was effectively alleging that Williams was a third party suspect. The appellants submit that the Crown was required to demonstrate, at a minimum, a prima facie case and proof on a balance of probabilities that Williams was the third assailant: R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97. While the trial judge found the evidence amounted to more than speculation, it is unclear whether he meant that it constituted a prima facie case of Williams’s involvement.

[53] The appellants submit that the trial judge’s ruling on this issue put Mark Cain’s defence in the position of having to raise a reasonable doubt that neither he nor Williams were involved in the homicide. They say that if a probative value/prejudicial effect analysis had been applied, the equities overwhelmingly favoured Mark Cain’s position. His right to a fair trial was undermined as a result of the Crown alleging Williams was a party to the murder.

[54] We do not accept this submission. The Crown was not bound by any special test before it could call the evidence of Abass identifying Williams as the third party to the deceased’s murder. The evidence was relevant, admissible and possessed significant probative value, as it rebutted Mark Cain’s alibi. If the Crown was obliged to meet the “sufficient connection” test, it was met in this case. There was evidence that Williams was at the crime scene, aiding the appellants, when the deceased was murdered. Abass recognized Williams as he had previously met him – it was not a case of a stranger being identified.

ISSUE #4: THE FABRICATED ALIBI THEORY

[55] The appellants say that after the Crown accused the appellants of having fabricating their alibis, the trial judge gave the jury the appropriate Parrington[^4] instruction for how to approach the alibi evidence if they were to disbelieve it. He explained that the jury could not conclude that the alibis were concocted because there was no independent evidence of concoction.

[56] It is the appellants’ position, however, that this instruction only served to confuse the jury because the trial judge did not explain what constituted “independent evidence” of concoction. Relying on R. v. O’Connor (2002), 62 O.R. (3d) 263, 2002 3540 (C.A.), they say that the trial judge was required to inform the jury of the danger of blurring the Crown’s burden to prove the offence with the appellants’ failure to provide a credible alibi. They contend that if the jury accepted the Crown’s theory of fabrication, it is likely that they would have moved straight to guilty verdicts without proper consideration of whether the Crown had proven its case beyond a reasonable doubt.

[57] We see nothing in this ground of appeal. The jury was instructed that there was no independent evidence that either alibi was concocted and that, if they rejected the alibis, they could not use that as positive evidence of guilt. This would not have confused the jury.

ISSUE #5: THE UNRELATED DISCREDITABLE CONDUCT ALLEGATION

[58] More than two years after the deceased was killed, Edmund Williams told police about an earlier altercation that he had witnessed between Mark Cain and the deceased. Edmund Williams, Mark Cain, the deceased and an unidentified fourth man were in Edmund Williams’s kitchen. Mark Cain and the deceased became agitated. Mark Cain produced a gun and pointed it at the deceased’s stomach. Edmund Williams separated them and asked Mark Cain to leave.

[59] It is unclear precisely when this event occurred. When interviewed by police, Edmund Williams stated it happened ten months before the homicide but during a voir dire he said that it occurred three or four months prior to the homicide.

[60] Following the voir dire, the trial judge ruled that this discreditable conduct evidence was admissible. He found that the evidence was “extremely relevant and probative of key issues in [the] trial” – in particular the relationship between Mark Cain and the deceased – such that its probative value outweighed its prejudicial effect.

[61] This ruling was made early in the trial. As the trial proceeded, further evidence indicated that Mark Cain visited the deceased often and attended the deceased’s birthday party, which was ten days before the homicide.

[62] The appellants asked the trial judge to reconsider his ruling. They argued that the frequency of innocuous contact between Mark Cain and the deceased following the alleged incident removed any possibility that the incident contributed to the homicide.

[63] The trial judge again found the evidence was admissible.

[64] The appellants submit that the trial judge’s analysis of the probative value and prejudicial effect of admitting the evidence was unreasonable and undermined by legal error. The evidence, if true, described an isolated event in a setting of social contact and amicability between the deceased and Mark Cain. Edmund Williams’s testimony suffered from a number of deficiencies which further undermined its probative value. He gave conflicting time frames for the event and did not report it until over two years after it occurred. He claimed there were witnesses but provided no names. Further, the trial judge relied on three decisions of this court concerning domestic violence in which a previous history of violence was alleged. The appellants say this was in error, in light of this court’s more recent decision in R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404.

[65] In Johnson, Rouleau J.A. discussed the admissibility of motive evidence in the context of past misconduct allegations. At paras. 99-101, he stated:

It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive. The Supreme Court in R. v. Barbour, 1938 29 (SCC), [1938] S.C.R. 465, at p. 469, warned that “it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties.”

Thus, evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, at pp. 938-941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

[66] The appellants say that evidence of a single previous act of threatening behaviour towards the deceased, months before the homicide, in an unknown context that differed from the homicide, should not have been admitted. They further contend that the trial judge erred in his prejudicial effect analysis. The lack of information provided by Edmund Williams meant that, besides denying that the event had occurred, there was little else Mark Cain could do. The chances of the defence being able to investigate such an incident with no date, no names and no leads, in the hope that it could prove the event did not happen, were virtually non-existent.

[67] In our view, evidence that Mark Cain pressed a gun into the deceased’s stomach a few months prior to the shooting was plainly admissible. It was highly probative of the nature of the relationship between Mark Cain and the deceased; it showed some animus between the deceased and Mark Cain, which relates to motive; it was evidence of Mark Cain’s means to commit the offence; and it is some circumstantial evidence suggesting a disposition for the act in issue.

[68] Further, the trial judge reasonably concluded that any prejudice flowing from admission of the evidence was limited. That limited prejudice was further reduced by the trial judge’s clear instruction to the jury that, if believed, the evidence was just one piece of evidence about the relationship between Mark Cain and the deceased and was to be assessed in light of its frailties.

ISSUE #6: NO VETROVEC WARNING ON MOHAMED ABASS’S EVIDENCE

[69] Mohamed Abass was a central Crown witness. The appellants contend that the trial judge should have viewed a Vetrovec warning for this witness as mandatory: the trial was lengthy, the verdict was likely to turn on Abass’s testimony, and Abass was an admitted perjurer on the most material issue at trial, namely, the identification of Mark Cain and Shaun Williams as two of the perpetrators.

[70] The appellants submit that the trial judge made three legal errors in exercising his discretion and failing to give a Vetrovec caution. First, he accepted the Crown’s submission that lying under oath happens frequently in Scarborough, which was not a legitimate basis on which to deny a Vetrovec warning. Second, the trial judge apparently accepted Abass’s explanation for his lies. (Abass testified that he did not tell the truth to police in the interview right after the shooting because he was afraid for his own safety and that of his family.) It was for the jury, with the assistance of a Vetrovec caution, to decide whether Abass was truthful to the police or truthful at trial. Third, the trial judge incorrectly stated that he would have been obliged to list the evidence capable of supporting Abass’s testimony had he given the Vetrovec caution.

[71] We see nothing in this ground of appeal.

[72] We accept that it would be improper for the court to proceed on that basis that lying under oath happens frequently in Scarborough. However, we do not read the charge as indicating that the trial judge acted on that basis.

[73] The trial judge acted within his broad discretion in refusing to give the standard Vetrovec caution. Abass was not an unsavoury character. The manner in which his final account of the shooting developed, as compared to his initial police interview, was fully explored during cross-examination, closing submissions and the jury charge. The trial judge’s caution was sufficient to equip the jury with an understanding as to why they should proceed with caution before relying on Abass’s evidence. Moreover, had he given the formal warning, it would have been accompanied by a list of supporting evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 46. The prejudicial impact of repeating that evidence on the other appellant, Jason Cain, was necessarily a factor that the trial judge considered in deciding whether to issue the Vetrovec caution.

ISSUE #7: THE VOICE AND EYEWITNESS IDENTIFICATION EVIDENCE INSTRUCTION

[74] Eron Oliver was in the deceased’s kitchen at the time of the shooting. He testified that he heard Jason Cain and Mark Cain in the living room, telling everybody to get down on the ground, and that he “recognize[d] the voices, because [he] knew the voices.” He also said that after the shots were fired, he went into the living room and saw Mark Cain’s back as he left through the front door. On the night of the homicide, however, Oliver told police that he could not see the person responsible, but recognized the voices.

[75] The trial judge instructed the jury that they “must be very cautious about relying on eyewitness or earwitness testimony to find Mark or Jason Cain guilty of the offence charged.” He explained that wrongful convictions and miscarriages of justice have occurred because eyewitnesses have made mistakes in identifying persons who they saw committing a crime.

[76] The appellants submit that the trial judge’s instruction regarding this type of evidence was insufficient. They say that Oliver’s voice identification evidence was of minimal probative value but dangerously convincing. His testimony changed significantly over time and a stronger caution was required on the basis of this court’s statement in R. v. Masters, 2014 ONCA 556, at para. 47:

We agree that it might have been preferable for the trial judge to have cautioned the jury about the dangers inherent in voice comparisons and voice identification evidence. Such instructions might have included reference to the risk of relying on their own untrained ears, or those of a witness, none of whom had the benefit of equipment or training that would be available to an acoustic phonetician; the fact that witness confidence in voice identification does not make the identification reliable; the importance of considering the length and quality of the voice samples; the availability of high quality non-distorting playback systems; and, if applicable, the difficulties inherent in cross-racial voice identification: Pinch at para. 75. Nonetheless, having regard to the other evidence implicating the appellant we are not satisfied that such a caution was mandatory in this case. [Emphasis added.]

[77] The appellants further submit that the trial judge should have instructed the jury that Oliver’s eyewitness testimony did not constitute evidence of eyewitness identification. They say the trial judge’s instruction that it would be dangerous to rely on Oliver’s eyewitness identification of Mark Cain by seeing the back of his head was insufficient.

[78] Finally, the appellants submit that the trial judge erred by giving the jury insufficient instructions regarding the eyewitness evidence of Cecil Graham. Graham described the second assailant in a manner that starkly contrasted with Mark Cain’s appearance. He believed the man was six feet tall, built like a football player, and 18 years of age or younger. Mark Cain was five feet, six inches tall, 120 pounds, and 36 years of age at the time of the shooting. Graham also described a third person standing near the door.

[79] The trial judge instructed the jury that “[i]t is for you to decide, but [Cecil Graham’s] description of [the second assailant] does not appear in any way to match Mark Cain either in age or height.” He also noted that Graham described “a third person at the front door, who he described as a person he believed was wearing something red.”

[80] The appellants contend that this instruction was insufficient. They say the trial judge should have explained that, if the jury accepted Cecil Graham’s description of the second assailant as being inconsistent with Mark Cain’s appearance, there was a fatal flaw in the Crown’s theory that Mark Cain was one of the men who entered the home.

[81] Again, we see nothing in this ground of appeal.

[82] The instructions to the jury generally, and with respect to Graham and Oliver specifically, were sufficient to highlight the potential dangers of relying on their evidence. The trial judge stressed that the jury was to be “very cautious” about relying on eyewitness and voice identification. He also told the jury to consider the circumstances in which the witness made the observation, the description given by the witness after making the observations, and the circumstances of the witness’s identification of the accused as the person whom he saw.

[83] The appellants’ attacks on Oliver’s evidence were squarely before the jury as a result of cross-examination and both defence closing statements. Furthermore, in his instruction regarding Graham’s identification evidence, the trial judge highlighted the very concerns raised by the appellants on appeal.

DISPOSITION

[84] Accordingly, the appeals are dismissed.

Released: November 25, 2015 (“E.E.G.”)

“E.E. Gillese J.A.”

“David Watt J.A.”

“G. Pardu J.A.”

[^1]: There is some discrepancy in the record as to whether Williams’s first name is “Shaun” or “Shawn”. The spelling “Shaun” adopted in these reasons is that used in his videotaped statement to counsel dated November 20, 2006. For simplicity, we refer to him as “Williams” in these reasons. Other individuals with the same last name are referred to by their first and last names to avoid confusion. [^2]: There is some discrepancy in the record as to whether Althea’s last name is “Richard” or “Richards”. The spelling “Richard” is used in these reasons, based on the trial transcript of her examination-in-chief. [^3]: Abass testified that he attempted to call a detective involved in the investigation to provide him with the licence plate, but the detective was unavailable so he called the victim-witness coordinator instead. [^4]: R. v. Parrington (1985), 1985 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.).