COURT OF APPEAL FOR ONTARIO
CITATION: R. v. McCracken, 2016 ONCA 228
DATE: 20160329
DOCKET: C54127
Doherty, Laskin and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Adrian McCracken
Appellant
Philip Campbell and Saman Wickramasinghe, for the appellant
David Lepofsky, for the respondent
Heard: November 12, 2015
On appeal from the conviction entered by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with a jury, on February 18, 2011.
Tulloch J.A.:
A. OVERVIEW
[1] Following a three-week trial, the appellant, Adrian McCracken, was convicted of second degree murder and sentenced to life imprisonment with a 10-year period of parole ineligibility.
[2] The deceased, Ricardo Kelly, and his girlfriend, Abimbola “Nikki” Bello, lived in apartment 2006 on the 20th floor of a Scarborough apartment building. Kelly was a 22-year-old student who sold marijuana in the building to supplement his income. Bello was also a student.
[3] On April 24, 2008, Kelly left his apartment after receiving a call from Corey Stephens asking him to bring marijuana to apartment 1610. He got into an altercation in the stairwell and was stabbed in the hallway of the 20th floor. Bello witnessed the stabbing.
[4] Bello provided numerous statements to police between April 24, 2008 and October 17, 2008, when she identified the appellant as Kelly’s killer upon viewing the building’s elevator security videos. The appellant submits that the identification process was tainted and resulted in an unreasonable verdict.
[5] The appellant also raises the following arguments on appeal:
• The jury charge on the frailties of the identification evidence was inadequate;
• The trial judge failed to direct the jury on the exculpatory effect of Mohamed Nur’s testimony in accordance with the principles in R. v. W. (D)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; and
• The trial judge misdirected the jury on the mens rea for murder and manslaughter.
[6] A further ground of appeal, the alleged impropriety of the Crown’s jury address on Stephens’s evidence, was abandoned during oral arguments.
[7] For the reasons that follow, I would dismiss the appeal.
B. Ricardo Kelly’s Death
[8] At 12:09 a.m. on April 24, 2008, Ricardo Kelly received a phone call from Corey Stephens asking for some marijuana. Stephens lived in apartment 1610 on the 16th floor of their building. Kelly left for the 16th floor, saying he would be back. Nikki Bello followed him to the door and looked out. She saw a tall man in black peeking out of the door to the staircase. Kelly walked past the elevators and Bello closed the apartment door. Earlier that evening, Bello saw that Kelly had between $300 and $400 in his pocket.
[9] Bello heard Kelly arguing with someone and went back outside. She could not see either Kelly or the man he was arguing with. She called out to Kelly. Moments later, he came out of the staircase and was fighting with a light-skinned black man - not the tall man who “peeked” originally. The man Kelly was fighting with pulled out a knife and waved it near Kelly’s chest, saying something to the effect of “[y]ou think you’re bad”.
[10] Kelly told him to “chill” and the two men progressed down the hallway toward Bello, who was standing at the door. She tried to intervene twice but backed off when the man with the knife stabbed at her. She noticed that the tall man was standing near the elevator. He did not take an active part in the fight and told the assailant that they should leave.
[11] Bello called out for help and for someone to call 9-1-1. She then saw the man stab Kelly twice in the chest. No blood was drawn from the first stab. The second time, Bello saw blood and ran to her apartment to get a knife to give Kelly to defend himself. When she returned, the stabber had left and the taller man commented that he was not involved.
[12] Bello stopped Kelly from pursuing the two men and they returned to their apartment. Kelly said the men had taken his money. He was upset and said that he was going to get them back and that he could not believe they did this to him.
[13] Kelly collapsed within minutes. The police were called at 12:18 a.m. Paramedics arrived shortly thereafter, but Kelly died in the ambulance on the way to the hospital. One of the two stab wounds had punctured his heart and caused fatal internal bleeding.
[14] The knife used to stab Kelly was found by police on the ground behind the building the next morning. Blood on the knife matched Kelly’s DNA. Bello’s description of the knife at trial matched the one found by police.
[15] It was the Crown’s theory that Stephens’s phone call had been made to lure Kelly out of his apartment and that two of Stephens’s friends, the appellant and Mohamed Nur, waited in the stairwell to rob him. During the fight that ensued, the appellant killed Kelly by stabbing him in the heart with a knife.
[16] The appellant did not call any evidence and did not testify. The defence position at trial was that Bello’s identification could not be relied upon. The defence argued that Bello disliked Stephens’s friend, Tamen Hashimi (“Tali”), because of a dispute he had with Kelly over a marijuana transaction the night before the stabbing. When she learned, from her inquiries in the community, that Tali had said that the stabber did not intend to kill Kelly, she concluded that Tali knew the stabber. She then remembered having seen a light-skinned man in Stephens’s 16th floor apartment in the days before the stabbing. It was the defence theory that she simply identified that man, the appellant, whom she had seen in the apartment, and not the stabber.
[17] The overall defence contention was that Bello’s descriptions were inconsistent and fatally tainted as a result of her own investigation and the flawed use of the elevator videos to identify the appellant.
C. Analysis
(1) The Reasonableness of the Verdict
(a) Positions of the Parties
[18] The appellant submits that the verdict in this case depends on the reliability of Bello’s identification of the appellant as the man who stabbed Kelly. The appellant argues that the circumstantial evidence was not capable of supporting the verdict without her irredeemably flawed identification.
[19] According to the appellant, Bello’s identification evidence became tainted as of April 27, 2008, when she initiated her own investigation into her boyfriend’s death. The appellant argues that it was only Bello’s improper reliance on the inferences from her inquiries in the community that led to her identification of the appellant.
[20] Further, the appellant argues that the identification procedure ultimately used by the police in relation to the appellant was fatally flawed. The appellant was identified as the stabber after Bello was shown security video footage from each of the three elevators on the night of the stabbing. She was asked to stop the video and comment on any individuals she recognized. This process meant that she observed a repeated series of sequential images of the suspected individuals.
[21] Also contrary to the proper procedure for a photo line-up, she spoke with the officer throughout the process of reviewing the footage. She was not videotaped, though her comments were recorded. Bello had a unique linguistic pattern that made it sometimes difficult to understand what she said. She acknowledged that she had difficulty expressing herself and that English was not her first language. The process of reviewing the elevator footage was repeated with Bello at trial.
[22] The Crown argues that the court must decide whether the evidence, in its totality, overcomes unreasonable verdict scrutiny and that Bello’s identification evidence must be enriched by all of the circumstantial evidence and not viewed in isolation. Together, the identification evidence combined with circumstantial evidence provided a basis upon which a jury could convict.
(b) Applicable Principles
[23] The question for an appellate court assessing an unreasonable verdict argument is whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 186. The reviewing court is required to “review, analyse and, within the limits of appellate disadvantage, weigh the evidence”: Biniaris, at para. 36.
[24] The issue is not whether the reviewing court would have convicted the appellant, but whether the evidence, viewed through the lens of judicial experience, was reasonably capable of supporting a finding of guilt. The reviewing court must ask itself “whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury” (emphasis in original): R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 2, 26-28.
[25] Even at the best of times, identification evidence is subject to well-known and inherent frailties: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 36-40; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at paras. 19-20 and 31-33. Honest and convincing, but mistaken, eyewitness identification, has been the source of wrongful convictions because it appears deceptively reliable. Particular vigilance is therefore required in relation to this type of evidence. Although familiarity may enhance the reliability of evidence, the same cautions and concerns apply to recognition evidence: R. v. Benson, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 25.
(c) Discussion
[26] The reasonableness of the verdict must be considered in light of the identification evidence and the circumstantial evidence. I accept that the identification evidence alone cannot justify the conviction. Furthermore, I accept that Bello’s identification evidence most likely became tainted once she formed the strong belief that an acquaintance, Tali, knew the killer. As I explain below, this occurred before her fourth statement to police on May 12, 2008, but after her third statement on May 7[^1], 2008. I also accept that the identification evidence obtained by the police through the use of the video identification procedure on October 17, 2008 was tainted.
[27] The question to be determined is whether the identification evidence, pre-May 12, 2008, together with the circumstantial evidence, provides a satisfactory basis for the conviction. I have concluded that it does.
[28] In my view, there are three crucial inferences that can reasonably be drawn from the evidence: (i) The robbers came from Stephens’s apartment on the 16th floor immediately after the phone call to the victim; (ii) The appellant and Nur frequented the apartment and were in the apartment when the call to the victim was made by Stephens; and (iii) There were four people known to be in the apartment when the call was made. Of the four, two could be excluded as possible suspects, leaving only Nur and the appellant. I will discuss each of these inferences and conclude with an analysis of the identification evidence.
(i) The robbers came from Stephens’s apartment after the call to the victim
[29] There is no question that Stephens knew Kelly and bought marijuana from him. The two also spent time together socially. Stephens testified that he called Kelly at around midnight on April 23, 2008. Kelly did not respond to the first call and Stephens called again. Telephone records show that the phone used by Stephens called Kelly’s phone at 12:08 a.m. and went to voicemail. Another call was made at 12:09 a.m., which was answered by Kelly. Stephens asked Kelly to bring him a “dime” of marijuana. Kelly agreed to bring it down to Stephens’s apartment on the 16th floor of their building.
[30] The timing corresponds to Bello’s account of the events, which was that Kelly received a call, told her he would be back, and left the apartment. Bello walked Kelly to the door and saw a tall man peeking out of the stairwell.
[31] Kelly was then confronted in the stairwell and involved in an altercation in the hallway of the 20th floor. Bello said she heard arguing and went back outside about five to ten minutes after Kelly left. Bello called the police at 12:18 a.m., after Kelly had been stabbed.
[32] It is reasonable to infer that the robbers knew Kelly would be leaving his apartment to deliver marijuana, and were waiting in the stairwell for him to come down. Bello’s evidence that the taller man involved in the altercation was peeking out of the stairwell when Kelly left supports this. They then intercepted Kelly while he was on his way to the 16th floor. The elevator security videos confirm that the appellant and Nur would occasionally take the stairs up or down a few floors, as they would enter the elevator on a different floor than the one on which they last exited.
[33] The telephone records establish that Stephens did not contact Kelly after 12:09 a.m. to inquire where he was or when he would be delivering the marijuana to apartment 1610. This strengthens the inference that the call lured Kelly out of his apartment, and that the robbers knew Kelly would be descending to the 16th floor apartment with marijuana just after 12:09 a.m. It also indicates that those in the 16th floor apartment were not concerned that Kelly never arrived.
(ii) The appellant and Nur frequented the apartment and were in the apartment when the call to the victim was made by Stephens.
[34] First, the evidence indicates that the appellant and Nur were frequently in the building and, more specifically, apartment 1610. Stephens acknowledged that the appellant, Tali, and Nur would spend time in apartment 1610. Stephens is the godfather of the appellant’s child. The appellant’s child and the child’s mother lived on the 9th floor of the same apartment building as Stephens and Kelly. Neither Tali nor Nur lived in the building.
[35] Sherissa Newell was the official tenant at apartment 1610, but allowed Stephens to stay there with her. Newell was close friends with the mother of the appellant’s child, and testified that she spent the night at her friend’s 9th floor apartment on April 23, 2008.
[36] Newell also testified that she would see the appellant at the apartment building two to three times a week, both at her friend’s 9th floor unit and in her own 16th floor apartment. She said the appellant would come to spend time with Stephens, Nur, and Tali.
[37] Second, the evidence clearly supports that both the appellant and Nur were in the building on April 23, 2008. The appellant appears on the elevator security footage ten times between 8:49 p.m. and 12:02 a.m. Nur admitted he was in the building.
[38] Finally, the phone records and the elevator security footage support the reasonable inference that the appellant and Nur were in Stephens’s apartment on the night of April 23, 2008, and at the time of the call to Kelly.
[39] Stephens admitted that he had seen the appellant on April 23, 2008, but claimed that both visits took place earlier that day. He also testified that he did not have the appellant’s phone number and that they had no reason to call each other. Yet telephone records showed that the appellant called Stephens four times on April 23, 2008, and that only one of these calls was not answered. The last call, at 11:13 p.m., lasted 28 seconds.
[40] According to Stephens, Nur was also not in the apartment with Tali and himself when they called Kelly after midnight. He said he saw Nur coming out of the stairwell on the 16th floor at around 1 a.m. They then went to the store together, and spoke to the police who were in the lobby. Stephens said Nur spent the night in apartment 1610 and they left together in the morning, along with Tali, as they had to attend court.
[41] Nur acknowledged that he was at Stephens’s apartment with Stephens and Tali on April 23, 2008, but denied being involved in robbing Kelly. He was equivocal about whether the appellant was there as well.
[42] There is no doubt that Nur and the appellant were captured on the apartment building’s three elevator security videos multiple times that evening. Newell identified both Nur and Tali from photographs taken from the videos. Nur and Stephens also identified themselves, Tali, and the appellant.
[43] The elevator videos show the appellant on the 16th floor five times between 9:24 p.m. and 12:02 a.m. that evening. At 11:27 p.m., the appellant exited the elevator on the 16th floor and turned left toward apartment 1610.
[44] He was next seen entering the elevator with Nur on the 16th floor at 11:49 p.m. They spoke as they rode to the lobby. The appellant left the elevator but Nur returned to the 16th floor. Nur exited in the direction of Stephens’s apartment.
[45] The appellant was captured again, minutes later, at 12:02 a.m. He entered the elevator in the lobby, exited on the 16th floor, and headed in the direction of apartment 1610.
[46] The elevator security videos support the inference that Nur and the appellant were together in Stephens’s 16th floor apartment on the night of April 23, 2008. They are seen coming and going from that floor, together and separately. Shortly before the call was made to Kelly to bring down some marijuana, they separately took the elevator back up to the 16th floor.
[47] There was no evidence that they had any reason to be on that floor except to see Stephens in apartment 1610. Rather, the evidence was that they would often spend time in apartment 1610. It is reasonable to infer that they were doing so on that night and, specifically, just after midnight when Kelly was called to deliver marijuana.
(iii) Of the four people known to be in the apartment when the call was made, two could be excluded as possible suspects, leaving only Nur and the appellant.
[48] There were four people known to be in the apartment when the call was made: Stephens, Tali, Nur, and the appellant. This is not to say there were definitely only four there, but the evidence was that there were four known persons.
[49] Importantly, both Stephens and Tali were known to Bello. Bello spoke to the police about Tali on May 12, 2008, and identified him in a photo line-up on that day. She also testified that Tali and Kelly had a dispute over a marijuana transaction the night before Kelly’s death.
[50] On May 17, 2008, Bello also identified Stephens in a photo line-up. She wrote “no” in relation to his photo, but also wrote that she knew this person and that he was not the one who killed Kelly. She wrote that he lived in her building on the 16th floor and that she thought he knew Tali.
[51] Though I am not considering Bello’s identification evidence from May 12, 2008 onwards with respect to the identification of the appellant, there is nothing to indicate that her identification of Stephens or Tali were tainted in any way by her inquiries in the community. The appellant admits that Bello “easily” selected Tali and Stephens from the photo line-ups and knew both of them through their association with Kelly.
[52] Bello was not able to identify Nur in a photo line-up on May 17, 2008. She was never shown a photo line-up that included the appellant.
[53] On appeal, the appellant argues that Bello’s identification evidence should be considered as recognition evidence, and that her failure to immediately identify the appellant is exculpating. I do not agree.
[54] Bello told police on May 17, 2008, that she had briefly seen a light-skinned person who “kind of matches” her description of the stabber a few days before Kelly’s death. At trial, she explained that she had gone with Kelly to an apartment on the 16th floor. A short man, later identified as Stephens, held the door open. She saw the light-skinned man through the doorway of the apartment as he walked past her line of vision. This is therefore not a recognition case in the traditional sense.
[55] The circumstantial evidence, and in particular the elevator security videos, supports the reasonable inference that Stephens, Tali, Nur, and the appellant were in apartment 1610 at the time of the call: Two of these men, Tali and Stephens, were known to Bello and were not the robbers.
(iv) Identification Evidence
[56] This brings me to the identification evidence. Bello gave recorded statements to the police on April 24, April 27, May 7, May 12, May 17, and October 17, 2008.
[57] In my assessment of the reasonableness of the verdict, I will consider only the circumstantial evidence and the descriptions given by Bello before May 12, 2008. This is because Bello had formed the strong belief that Tali knew the killer by May 12. On May 17, 2008, she had associated the light-skinned man she saw in apartment 1610 with the man who stabbed Kelly. I am therefore willing to accept the appellant’s proposition that Bello’s identification could have been contaminated by her own investigation and the use of the security video identification procedure.
[58] I am not willing, however, to set aside all of the statements given by Bello as of April 27, 2008, as argued by the appellant. Though Bello stated then that she would collect information in the community about Kelly’s death, there was no evidence that the statements she made on that day or on May 7, 2008 were tainted.
[59] She was forthright in telling police about her discovery of what she believed was a connection between Kelly’s death and Tali on May 12, 2008 and providing them with information about the light-skinned man she remembered from the 16th floor apartment on May 17, 2008. There is no indication that she had gathered relevant information before her May 7, 2008 interview or that her pre-May 12, 2008 statements were tainted.
[60] Bello first spoke to police on April 24, 2008, after having just been told that Kelly had died. She testified at trial that she had not given the police all the information she had because she was upset and wanted to leave.
[61] She told police that she did not see the stabber’s face. She said that he was not wearing a hat and, though she could not specify his height, he may have been a bit taller than Kelly. She said that she would not recognize him if she saw him again and that she did not know the people who stabbed Kelly.
[62] On April 27, 2008, Bello told police that she was ready to provide a statement. She said that on the night of Kelly’s death, she was looking at Kelly and that her eyes were never fully on the stabber. It happened quickly and she only glimpsed at his face.
[63] She added several details to her previous description of the stabber. She said he was: (i) a fair-complexioned, light-skinned, black man, (ii) skinny, and (iii) wearing a white t-shirt. She did not describe his facial features. Bello did not say anything about having recognized the stabber or that he was connected to Stephens’s 16th floor apartment.
[64] On May 7, 2008, Bello spoke to police again. She reiterated that the stabber was a skinny, light-skinned, black man wearing a short sleeved white t-shirt. Bello also said that he had “nappy” hair, cut close to his head. She noted that the stabber wore light-coloured jeans “just below the ankle”, though she was unsure of the colour. She also stated that he wore white shoes, though again she was not sure. She thought he had facial hair – maybe a goatee.
[65] She also described the taller man who looked out from the stairwell. She described him as: (i) a black man, (ii) the tallest of the three men in the hallway, (iii) a little chubby but not too chubby, (iv) in his twenties to early thirties, (v) having some facial markings – maybe acne or facial hair, (vi) wearing long hair in a ponytail, and (vii) dressed in all black – black puffy vest, black pants and shirt, and a black baseball cap.
[66] The potential cogency of the untainted part of Bello’s identification evidence has to be weighed, not in the abstract, but in the context of the totality of the circumstantial evidence which was capable of narrowing the suspect pool significantly.
[67] In all, Bello’s description of the man who stabbed Kelly was that he was a skinny, light-skinned black man. He was one to three inches taller than Kelly and was wearing a white t-shirt. He had close cut, “nappy” hair, and some sort of facial hair.
[68] Most of the descriptors given by Bello during her April 27 and May 7, 2008, statements matched the identifiable features of appellant on the night of the stabbing. The elevator footage showed the appellant wearing a white t-shirt in the late hours of April 23, 2008. He is skinny and has a fair, light-skinned black complexion. The appellant is five feet ten inches and Kelly was five feet seven inches tall.
[69] At trial, the May 7, 2008, identification evidence was challenged by the defence on the basis that, in the elevator security videos, the appellant was not wearing light coloured pants. It was also noted that she had not described the stabber as wearing a hat, although the elevator footage showed the appellant wearing one throughout the evening.
[70] With respect to Nur, Bello described him as the tallest of the three men in the hallway. He was black in complexion, in his twenties or early thirties, a “little chubby” but not “too chubby”, and possibly had facial hair like sideburns. He may have had a ponytail or a do-rag and wore all black – pants, shirt, puffy vest, and baseball hat.
[71] The elevator footage showed Nur – who was six feet two inches tall, in his twenties, with brown skin and some facial hair – wearing black pants, a black shirt, a black hoodie, and a black baseball hat. He did not have a ponytail, and wore a black hoodie and not a puffy vest. The defence at trial also pointed out that his hat had light-coloured emblems on it.
[72] In my view, Bello’s initial descriptions of the stabber and his companion were reliable and largely consistent, despite that she was focused on Kelly and not the faces of the two men. That she did not recognize the appellant does not discount this evidence, as she had only briefly glanced at him through an open door on one occasion.
[73] The reasonableness of the appellant’s conviction is based on Bello’s uncontaminated identification evidence together with a constellation of circumstantial evidence and the inferences that can reasonably be drawn from that evidence. Because the circumstantial evidence pointed to the assailants coming from Stephens’s 16th floor apartment, Bello’s somewhat general description which was consistent with both Nur and the appellant, two of the four people known to be in the apartment on the 16th floor, could reasonably be given substantial weight despite its generalities and at least one inconsistency.
[74] On the basis of this evidence, it is reasonable to conclude that the appellant was the fair-complexioned man in the white t-shirt who stabbed Kelly while he was on his way to deliver marijuana to the 16th floor. To infer otherwise would be to ignore a series of improbable coincidences. The jury’s verdict is supportable on a reasonable view of the evidence.
(2) The Adequacy of the Jury Charge on the Frailties of the Identification Evidence
[75] The appellant submits that the trial judge erred by not specifically alerting the jury to the most fundamental shortcoming in the Crown’s case: that Bello failed to identify a man she had recently seen. The appellant argues it was a non-direction amounting to misdirection, to not instruct the jury in language that reflects the dangers of that evidence.
[76] I do not accept this argument. The trial judge properly and carefully instructed the jury on the dangers of identification evidence. In fact, counsel on appeal concedes that the jury charge was, in many respects, sympathetic to the defence; as well, it highlighted some of the major flaws which were evident in the identification process. I also note that experienced trial counsel took no objection to the charge on the identification evidence.
[77] At trial, counsel did not submit that the factual issue had to be put to the jury in the manner now articulated on appeal. Counsel on appeal emphasizes the issue of Bello’s observation of the appellant just days prior to the attack and her failure to identify him as the stabber until convinced by her own inquiries.
[78] A jury instruction does not have to meet the standard of perfection: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The jury instruction on identification evidence given in this case both functionally and adequately informed the jury of all the considerations relevant to their analysis when dealing with the frailties of that evidence.
[79] The trial judge first told the jury that they must be very cautious in relying upon eyewitness testimony to find the appellant guilty. She cautioned that mistakes in eyewitness identification have led to wrongful convictions and that even honest witnesses can be mistaken. The trial judge explicitly told the jury that they could not rely upon Bello’s in-dock identification of the appellant as the man who had stabbed Kelly.
[80] The trial judge then carefully reviewed all of the factors that a jury should assess in considering the reliability of a witness’s identification of an accused and before determining whether identity has been proven beyond a reasonable doubt.
[81] The trial judge also provided a detailed review of Bello’s evidence, not just in terms of what Bello said, but also when she said it. This was done to assist the jury in assessing “whether [Bello’s] recollection is being affected or, to be more blunt, tainted by information or from other sources.”
[82] The trial judge explicitly told the jury that it was the defence’s position that once Bello heard that Tali knew the identity of the stabber, she focused on the appellant. Bello knew that Tali frequented the 16th floor apartment so she identified the only light-skinned man that she associated with the apartment. The trial judge emphasized to the jury that because of the defence’s position, the timing of Bello’s statements to the police was important.
[83] The trial judge also reminded the jury that Bello had called the police on May 25, 2008, and incorrectly identified a man who had nothing to do with the crime, as the stabber.
[84] Importantly, the jury was reminded that it was not until several months later, in October 2008, when Bello viewed the video surveillance from the elevator with the police, that she first identified the appellant as the stabber. At that time, Bello said he was the man she saw in Stephens’s apartment. This aspect of the instruction alone counters the appellant’s position on appeal that the trial judge failed to alert the jury to Bello’s failure to identify a man she had recently seen.
[85] The trial judge also highlighted for the jury some of the key inconsistencies relied upon by the defence, including the details added by Bello about whether the man who stabbed Kelly was wearing a hat and the colour of his jeans.
[86] The trial judge noted that it was against this general background that she referred to the factors to be considered in assessing a witness’s testimony, specifically telling the jury to consider the timing of the various statements in assessing the evidence. She then reviewed each of the factors against the specific circumstances of Bello’s identification, including again the variations and specific timing of each of her descriptions. This review of the circumstances included whether the witness had seen the person on a prior occasion. The trial judge explicitly noted Bello’s evidence that she had seen the appellant at Stephens’s apartment and yet had not mentioned this to the police until May 17, 2008, after she became convinced of Tali’s involvement.
[87] The trial judge then reviewed the specific frailties of the identification procedures used with Bello. She placed those concerns within the context of the known frailties of identification evidence and procedures at large and the rationale behind the preferred methods.
[88] In all the circumstances, in light of the trial judge’s careful instruction on identification evidence, which emphasized caution and specifically set out the frailties of the evidence, I do not accept the appellant’s contention that the jury charge on identification evidence was insufficient.
(3) The Lack of a W. (D.) instruction on the Exculpatory Effect of Mohamed Nur’s Testimony
[89] The appellant submits that the trial judge erred by failing to instruct the jury on the exculpatory effect of the testimony of Mohamed Nur in accordance with the principles in R. v. W. (D.). He argues on appeal that the jury should have been told that if they believed Nur’s testimony or found that it raised a reasonable doubt, they must acquit. The appellant also submits that the trial judge did not adequately emphasize Nur’s evidence.
[90] A W. (D.) instruction is not mandatory, even when an accused testifies. It was proposed as a possible approach that may assist a trier of fact to not simply treat credibility as an either/or contest. It is an explanation of the legal effect of reasonable doubt.
[91] This court recognized in R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105, that a W. (D.) instruction might also be applicable to cases where the accused did not testify. However, the W. (D.) decision itself and subsequent authorities make it clear that what is important is that the jury understood the burden and standard of proof. It is not necessary to slavishly follow the W. (D.) formula: B.D., at paras. 103-104.
[92] The trial judge properly instructed the jury on the burden of proof beyond a reasonable doubt and then reiterated those principles in relation to the identification evidence. It is telling that defence counsel at trial did not request that the jury charge include greater reference to Nur’s evidence or a W. (D.) instruction in relation to it. Nur had significant credibility problems and trial counsel may have had good reason not to want Nur’s evidence emphasized.
[93] Nur’s evidence was not particularly cogent or necessarily exculpatory. He denied robbing Kelly and witnessing his stabbing. He claimed he could not remember a number of details surrounding the stabbing, such as the day of the killing, who was at apartment 1610, what he was wearing, having used the stairs, whether he had a cell phone, being with the appellant on the elevator, what they talked about in the elevator minutes before the stabbing, why he didn’t get off at the lobby, or where the appellant was going. He did not claim to be elsewhere with the appellant or otherwise provide the appellant with an alibi.
[94] When the charge to the jury is considered as a whole, the jury would have understood the burden of proof and the standard of proof such that an explicit W. (D.) instruction on Nur’s evidence was not required. In B.D., the exculpatory evidence went to an essential element of the offence. There was nothing like that in Nur’s evidence. The issue of whether the Crown’s theory became untenable unless the jury rejected Nur’s denial that he was present is a separate issue from how reasonable doubt was defined for the jury.
[95] Moreover, the adequacy of a jury charge is assessed as a whole, in light of the charge and the entire trial: Araya, at para. 39. In this case, a significant portion of defence counsel’s closing address to the jury emphasized the high standard of evidence required to meet the necessary and standard of proof. Defence counsel also spent some time urging the jury to accept Nur’s evidence and his forthright position that he did not do it. In light of the jury charge and the trial as a whole, the jury would have known to consider all of the evidence, including Nur’s testimony, in deciding whether a reasonable doubt existed.
[96] The failure to specifically instruct on W. (D.) in relation to Nur’s evidence was not an error.
(4) The Instruction on the Mens Rea for Murder and Manslaughter
[97] The appellant argues that the trial judge erroneously instructed the jury on the mens rea for murder by using the language of possibility – that the stab “could” cause death – a reduced state of moral blameworthiness equivalent to the state of mind for manslaughter. The appellant also points to the trial judge’s direction under s. 229(a)(ii) that reckless “means that he saw the likelihood that Mr. Kelly could die from the injury but went ahead anyway and took the chance.”
[98] The trial judge first instructed the jury correctly on the required state of mind for murder and then went on to define the term “reckless.” The use of the word “could” in the definition of reckless is an error without any prejudicial effect. This court has repeatedly noted that recklessness is not the essence of the provision and is largely redundant: R. v. Rodgerson, 2014 ONCA 366, 309 C.C.C. (3d) 535, at para. 23, aff’d on other grounds 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 63. No harm was occasioned by this instruction.
[99] The other impugned use of the word “could” arose later in the charge, after the trial judge reviewed Bello’s description of the stabbing. The trial judge told the jury that they “need to consider whether the facts that you accept establish this intent to kill, or an intent that he saw the likelihood that Mr. Kelly could die from these stab wounds and went ahead and stabbed anyway.”
[100] Importantly, this misstatement on the foreseeability requirement in s. 229(a)(ii) was preceded and followed by a correct instruction. The correct instruction that immediately followed the mistake invoked the proper probability language of “likelihood that death would result from the stab.”
[101] Similar misstatements have arisen in a number of cases before this court: see Rodgerson, at para. 22; R. v. MacDonald, 2008 ONCA 572, 92 O.R. (3d) 180, at para. 46.
[102] The key issue is whether the jury would, in the context of the charge as a whole, have understood that the accused must foresee a likelihood of death flowing from the bodily harm that he or she is occasioning the victim: Rodgerson, at para. 25; MacDonald, at para. 49.
[103] Although the trial judge did say “could” when she should have said “would”, the jury charge started and ended with the proper language. The misstatement was not in response to a question by the jury on this point. It is my view that this misstatement did not constitute reversible error, as the jury would have understood that s. 229(a)(ii) requires that the appellant foresaw the probability of Kelly’s death.
[104] The appellant also submits that the jury charge should have provided a more comprehensive definition of manslaughter. Defence counsel at trial did not make any such request. As indicated above, the intent for murder was adequately defined, leaving manslaughter, which does not require any foresight of the possibility of death, as the alternative. The instruction was adequate in the circumstances of this case.
D. Conclusion
[105] In all the circumstances and for the reasons stated, I would dismiss the appeal.
Released: “DD” MAR 29 2016
“M. Tulloch J.A.”
“I argee. Doherty J.A.”
“I agree. J.I. Laskin J.A.”
[^1]: There are inconsistencies in the record on appeal about whether this statement was given to police on May 7, 2008 or May 8, 2008. For clarity and consistency, it will be referred to as the May 7 statement.