COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bailey, 2016 ONCA 516

DATE: 20160629

DOCKET: C59370

Doherty, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shevon Bailey

Appellant

Jonathan Dawe, for the appellant

Melissa Adams, for the respondent

Heard: May 11, 2016

On appeal from the conviction entered on August 24, 2012 by Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

overview

[1] On Thursday, November 12, 2009, shortly before 1:00 a.m., three young men entered the home of George Kalogerakis intending to rob him. One of the robbers had a gun. During the robbery, Mr. Kalogerakis was taken to the basement by two of the robbers and shot in the head at close range with a .22 calibre gun. Mr. Kalogerakis was kneeling or lying on the floor when he was shot. He died on his way to the hospital.

[2] The Crown argued that the appellant shot Mr. Kalogerakis. The appellant testified that although he had agreed to participate in the home invasion and had gone to victim’s home the day before the murder, intending to rob Mr. Kalogerakis, he had abandoned the plot because, in his words, “he was not raised this way”. The appellant testified that he had nothing to do with the actual robbery and was not present when Mr. Kalogerakis was murdered.

[3] The verdict turned on whether the Crown could prove beyond a reasonable doubt that the appellant was the shooter. The shooter was clearly guilty of first degree murder.

[4] The appellant was convicted of first degree murder by a jury.[^1] He appeals his conviction and raises three grounds of appeal:

• Did the trial judge’s instruction on eyewitness identification evidence constitute misdirection resulting in reversible error?
• Was the trial judge’s Vetrovec instruction in respect of the witness, John Whissel, so inadequate as to constitute reversible error?
• Did Crown counsel, in her closing address, improperly invite the jury to draw adverse inferences from the appellant’s failure to call certain witnesses, and did the trial judge fail to properly rectify the prejudice caused by the Crown’s closing address?

[5] I would allow the appeal on the first ground advanced by the appellant. These reasons will focus on that ground, but I will briefly address the other two grounds of appeal.

II

the evidence

[6] The Crown’s case against the appellant rested on four evidentiary pillars:

• Text messages exchanged between the appellant and Isaac Kwakye between November 9 and November 11, during which the two agreed that the appellant would commit the home invasion and share the proceeds with Kwakye;
• Circumstantial evidence capable of connecting the appellant to the home invasion;
• The evidence of Vassiliki Kalogerakis, the victim’s mother, who was present during the home invasion; and
• The evidence of Whissel, the appellant’s cellmate, who testified that the appellant told him that he shot the victim in the head.

The Text Messages

[7] Kwakye, who was 18 at the time of the robbery, lived with his parents next door to the victim and his mother. The appellant, aged 21, frequently stayed a few blocks away at his own parents’ house. He and Kwakye were friends. In the fall of 2009, Daniel Colacito, a former friend of Mr. Kalogerakis, told Kwakye that Mr. Kalogerakis had $20,000 in cash in his home.

[8] On Monday, November 9, 2009, Kwakye texted the appellant telling him that the “white man” next door kept $20,000 in his room in a shoe box. The appellant replied, expressing some doubt about the accuracy of Kwakye’s information, however, the text exchanges continued. At 4:35 p.m., the appellant texted Kwakye indicating that he and his cousin, Gabriel McKoy, would commit the robbery. The appellant asked about the “easiest way to get in” and Kwakye advised that he should use a “burner” (a gun). The appellant explained to Kwakye that he and his cousin would keep $14,000 of the $20,000, and give the remaining $6,000 to Kwakye for providing the information.

[9] On Tuesday, November 10 at 10:29 a.m., the appellant texted Kwakye that he was “gonna get di duce”, referring to a .22 calibre gun. Later in the day, the appellant advised Kwakye that he planned to commit the robbery at 7:00 a.m. as Mr. Kalogerakis was leaving for work. The appellant knew that Mr. Kalogerakis’s mother, Ms. Kalogerakis, would also be in the home. The appellant again expressed concern about the accuracy of the information about the cash in the house, but Kwakye assured him that Mr. Kalogerakis “has loot in his shoe box it is legit”.

[10] Ms. Kalogerakis testified that two black men knocked on her door at about 7:00 a.m. on Wednesday, November 11. She spoke briefly with them and they left without attempting to enter the home. In his evidence, the appellant admitted that he was one of the two men at Ms. Kalogerakis’s door and that he had gone there to rob Mr. Kalogerakis. He became frightened when Ms. Kalogerakis came to the door and told his accomplice, McKoy, that he wanted to leave. The appellant and McKoy left, but McKoy was upset. He wanted to go through with the robbery.

[11] On November 11 at about 1:18 p.m., the appellant texted Kwakye that he had gone to the Kalogerakis home that morning to commit the robbery, but had not gone through with it. He told Kwakye “am going back tomorrow”.

[12] In text messages exchanged later on the afternoon of November 11, the appellant explained to Kwakye that when he arrived at the Kalogerakis home, he was about to kick the door in when Ms. Kalogerakis appeared at the door. The appellant told Kwakye that the door was too hard to kick down and he would rather wait until Mr. Kalogerakis was coming out of the door and then “stick up di man and make him bring me inside”.

[13] The appellant sent Kwakye a text at 8:52 p.m. on November 11 indicating that he was going to commit the robbery the next morning and once again seeking assurances that there was money in the house. Kwakye told him that in addition to the money, Mr. Kalogerakis had other valuable items worth stealing.

[14] In his evidence, the appellant confirmed that when he sent the text on Wednesday evening, he intended to go ahead with the robbery the next morning at 7:00 a.m. He further testified, however, that shortly after he sent the text, he decided to back out of the plan for a second time. Rather than texting Kwakye, he telephoned him and told him that he would not go through with the robbery. There is no record of this telephone call. The appellant testified that Kwakye was angry with the appellant for backing out of the robbery.

[15] The home invasion and murder of Mr. Kalogerakis occurred shortly after 1:00 a.m. on Thursday, November 12, about four hours after the appellant had told Kwakye he intended to commit the robbery the next morning. Mr. Kalogerakis was shot with a .22 calibre gun. Ms. Kalogerakis described the gun as having a wooden handle that was “maybe a foot long … maybe more” with a barrel of similar length. The appellant had told Kwakye that he and McKoy had a .22 calibre gun for the purposes of the robbery. The appellant testified that McKoy had a .22 calibre pistol. The Crown’s position was that the appellant had borrowed a .22 calibre long gun from his friend Anthony Davis to commit the robbery.

[16] According to the appellant, after he backed out of the robbery, McKoy was anxious to proceed with the plan. McKoy had left the appellant’s home, a few blocks from the Kalogerakis home, in the late evening of November 11. It was the defence position that McKoy and two others had gone to the Kalogerakis home to rob Mr. Kalogerakis and had shot him during the robbery.

The Circumstantial Evidence Relied on by the Crown

[17] The three robbers stole Ms. Kalogerakis’s automobile after they shot her son. The automobile was found later that morning (November 12) in an area of Toronto located about a one-half hour drive from the Kalogerakis house in Brampton. The car was found about one kilometre from the home of the appellant’s sister. The appellant was at his sister’s home on November 12.

[18] The appellant was arrested on Wednesday, November 18, at the home of his cousin, Arron Ross. He had been there a few days. The Crown led evidence that a search of the bedroom used by the appellant produced a newspaper folded to the page containing a story about the Kalogerakis murder and a backpack containing the appellant’s wallet, other pieces of identification and a Remington “gun sock”. The “gun sock” was designed for use in storing or carrying a long gun like the one described by Ms. Kalogerakis.

[19] At trial, the appellant denied any knowledge of the “gun sock”. He testified that he was not sleeping in the bedroom where the police said they found the backpack containing the gun sock. He denied that he had left his wallet and identification in the backpack found by the police. He testified that his identification and wallet were in a different backpack.

[20] The Crown also led evidence that Ms. Kalogerakis’s credit cards were stolen by the robbers and used in Toronto in the days following the robbery. I will not review that evidence as, in my view, it had little probative value.

Ms. Kalogerakis’s Evidence

[21] Ms. Kalogerakis testified about two encounters that occurred at her home. The first happened at about 7:00 a.m. on Wednesday, November 11, the day before the robbery and murder. Ms. Kalogerakis was in the living room having coffee. Her son had left for work earlier. She heard a knock on the door. Ms. Kalogerakis went to the door, but did not open it. She looked through the window of the door and saw two men standing in front of the door. One spoke to her and mentioned a name. Ms. Kalogerakis did not recognize the name and told the man that no one by that name lived at her house. The two men stood at the front door briefly before leaving. One walked directly away from the door, the other walked toward the garage, stopped and peered back at the door for “a few seconds”. He then left the area. Ms. Kalogerakis estimated that the two men were at the front door for “a few minutes, five minutes”.

[22] Ms. Kalogerakis described one of the two men as about a foot taller than the other. Both men were black. One was about 15, and the other about 20. Both men had short “afro” haircuts. Both had “skinny … not big” builds. Ms. Kalogerakis said during her examination in-chief that she could not see the face of either man.

[23] Ms. Kalogerakis testified that at about 1:00 a.m. on Thursday, November 12, she awoke to the sound of her son yelling for her to call 9-1-1. Before she could do so, a masked, hooded, tall, skinny black man armed with a long gun appeared in her bedroom. He forced her at gunpoint down the stairs to the main floor. Her son was lying on the foyer floor. There were two other black men with her son. One was masked and the other had a hood over his head, but no mask. This person had a knife in his hand.

[24] Ms. Kalogerakis described the two black men on the main floor as younger and shorter than the robber with the gun. The robber with the gun appeared to be in charge.

[25] The unmasked robber with the knife was told to tie Ms. Kalogerakis up and watch her. The older, taller robber went back upstairs, apparently searching for the money. The other masked robber remained with Ms. Kalogerakis’s son and repeatedly asked “where’s the money?” Her son insisted there was no money.

[26] About ten minutes later, the taller, older robber came back downstairs to the main floor. He and the robber who had remained with Mr. Kalogerakis dragged him down into the basement. A few seconds later, Ms. Kalogerakis heard a single gunshot.

[27] Immediately after the shot, the two robbers who were in the basement came running up the stairs. The unmasked robber took Ms. Kalogerakis’s car keys, and the three men fled in her car.

[28] Ms. Kalogerakis managed to get free, ran and locked the front door, and hurried downstairs looking for her son. She found him tied up, lying on the floor bleeding. Ms. Kalogerakis ran to her neighbours for help. Coincidentally, she went to Kwakye’s home. His father answered the door and called the police.

[29] Ms. Kalogerakis was asked by the Crown during examination-in chief how the three men who robbed her and her son on November 12 compared in appearance to the two men she saw at her front door the previous day. She indicated: “I thought they were the same guys”. When asked to explain why she believed they were the same people, she replied, “the same height and the build of the body … It was the tall guy and the shorter guy”.

[30] Ms. Kalogerakis was not asked by the Crown whether she could identify either of the two men who appeared at her door on the morning of Wednesday, November 11. She was also not asked by the Crown whether she could identify any of the three people who robbed her and her son on Thursday, November 12.

[31] Near the end of her cross-examination, Ms. Kalogerakis purported, for the first time, to identify the appellant as the man she had seen walk away from her front door and stand by the garage on November 11, the morning before the robbery. She testified, “I can picture his face and I can picture his face, it is the same face”. When asked what features of the face she recalled, Ms. Kalogerakis could only recall that it was a black face. At the preliminary inquiry, she had testified that most black men “look the same” to her. Ms. Kalogerakis is white. Ms. Kalogerakis had been specifically asked at the preliminary inquiry whether she could identify the appellant in the prisoner’s dock. She had testified that she did not recognize him.

[32] Also in her cross-examination, Ms. Kalogerakis, again for the first time, testified that she recognized the appellant as the tall black robber with the gun. She acknowledged that the tall black robber had a mask on his face, but she indicated that she could recognize the forehead which was not covered. She insisted “I have a clear picture”.

[33] When cross-examined about her failure to identify the appellant at any time prior to her cross-examination, Ms. Kalogerakis explained that she had not been given a chance to identify the appellant. Later, after conceding that she had been asked, and had been unable, to identify the appellant at the preliminary inquiry, Ms. Kalogerakis said, “But I know. Now I have more fresher memory.”

Whissel’s Testimony

[34] Whissel was serving a short sentence for domestic assault in April 2012. He shared a cell with the appellant for six days in late April. On April 25, Whissel went to the jail guards and told them that the appellant had drugs in their cell. He also asked to speak to the homicide officers in charge of the appellant’s murder case. Whissel testified that he went to the correctional authorities because he was concerned that they would search the cell, find the drugs and think they belonged to him. After he spoke with the correctional authorities, Mr. Whissel was moved into protective custody. He did not speak with the homicide officers until after he had served his sentence and been released from custody.

[35] Whissel testified that while he was the appellant’s cell mate, the appellant was attending court for pretrial motions. They discussed the court proceedings from time to time. He recalled a conversation in which he told the appellant that his girlfriend had read something on the internet about the robbers beating up the victim’s mother. Whissel testified that the appellant responded, “I didn’t beat up the mom, I shot the guy in the head”, gesturing with his fingers as if shooting himself in the back of the head behind the right ear.

[36] Whissel also testified that he recalled the appellant referring to the gun he used as a “deuce, deuce”. Whissel added this detail during his trial testimony. He explained that he had forgotten the comment until Crown counsel had used the term “deuce, deuce” when they met before trial.

[37] Whissel was 44 years old when he testified. He had a minor criminal record and a spotty employment history. He was a cocaine user, but according to him had not used the drug for over a year when he testified. Whissel insisted he did not ask for and had not been offered anything in exchange for his evidence against the appellant. He did not expect to receive any favours. According to him, he testified because he did not think that “someone who shot somebody in the head should be walking free on the street”.

[38] Whissel acknowledged that he put $100 into the appellant’s jail canteen account before he spoke to the correctional authorities. He said he did so in the hope that the appellant would protect him from some of the other inmates on the range. The appellant testified that Whissel put the money in his account so that the appellant could purchase cocaine for Whissel.

[39] The appellant testified that Whissel repeatedly asked him about his case when they were cellmates. The appellant did not talk to Whissel about the case, although on one occasion he recalled Whissel suggesting that the victim’s mother had been beaten up by the robbers. The appellant replied that Ms. Kalogerakis had not been beaten. He based this comment on his recollection of her evidence at the preliminary inquiry.

III

the grounds of appeal

The Eyewitness Evidence Instruction

[40] I will divide the instruction on Ms. Kalogerakis’s eyewitness evidence into four sections. In the first section, the trial judge told the jury to be “very cautious about relying on eyewitness testimony” because history had shown that eyewitness evidence, even when apparently very convincing, had turned out to be wrong and led to miscarriages of justice. In the second section, the trial judge identified some 17 generic factors that could affect the reliability of eyewitness evidence. For example, the judge told the jury to consider “[h]ow long did the witness watch the person he or she says is the accused?” In the third section, the trial judge reviewed the evidence of Ms. Kalogerakis relating to both the November 11 incident and the November 12 robbery. In the fourth section, the trial judge addressed Ms. Kalogerakis’s in-court identification for the first and only time in the instruction:

Now Mrs. Kalogerakis pointed out Mr. Bailey in court. I would suggest that you put little weight on that identification. That will be for you to decide, but I think that you will agree with me that it does not take much to figure out who the accused is. One can honestly make the jump from a short view in a dark and turbulent time to a person in a courtroom in the accused’s chair. Of course, one can also make the correct identification but it would be dangerous to rely only upon that identification.

[41] Counsel for the appellant attacked the eyewitness evidence instruction on several fronts. His submission that the trial judge failed to come to grips with the nature of the identification evidence and the specific dangers associated with relying on the eyewitness evidence in this case strikes a fatal blow to the instruction.

[42] In formulating his instructions, the trial judge relied heavily on the model instructions found in Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005).[^2] He was wise to do so. Those instructions are an invaluable aid to trial judges faced with the difficult task of properly instructing a jury. However, the adequacy of jury instructions is not measured against their conformity to the content of a model instruction: see R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 116. Jury instructions are intended to equip a jury with the tools needed to return a “true” verdict in the specific case before the jury. The adequacy of any jury instruction turns upon its ability to perform that function: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 1-2; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 386. As Justice Watt indicated in his commentary on the model eyewitness evidence instructions in the second edition of his text, at p. 394:

No formalistic instruction is suitable for use in all cases involving eyewitness identification. This specimen attempts to bring home to jurors some of the frailties of this evidence under several general headings each of which may be expanded to meet the circumstances of the case being tried. What is critical is that the instruction be tailor made for the case being tried pointing out the specific concerns that emerge from the evidence at trial. [Emphasis added.]

[43] The extrajudicial comment of my colleague finds full support in this court’s jurisprudence: see e.g. R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481, at paras. 78-91; R. v. Brown, 2007 ONCA 71, 216 C.C.C. (3d) 299, at paras. 17-18; R. v. Peazer (2005), 2005 CanLII 30057 (ON CA), 200 C.C.C. (3d) 1, at paras. 19-20.

[44] Unfortunately, the instructions did not take the model instructions and tailor them to the circumstances of the case. Instead, the instructions tracked exactly the model instructions and, in doing so, failed to equip the jury with the information necessary to properly assess the eyewitness identification.

[45] The most important feature of the eyewitness evidence in this case was the total absence of any eyewitness evidence identifying the appellant as one of the robbers until Ms. Kalogerakis made an in-court identification of the appellant well into her cross-examination some two and one-half years after the robbery. This singularly significant feature of the eyewitness evidence should have been the starting point and the focal point of the eyewitness evidence instruction.

[46] The jury was never told that the only evidence identifying the appellant as one of the robbers came from Ms. Kalogerakis’s in-court identification during her cross-examination. To the contrary, the instructions, considered as a whole, left a very different impression. The trial judge’s detailed instructions about factors relevant to the assessment of identification evidence, and his detailed review of the entirety of Ms. Kalogerakis’s testimony immediately after identifying those factors, implicitly suggested that apart from her in-court identification, which the trial judge dealt with separately, Ms. Kalogerakis had identified the appellant as one of the robbers at some point other than in her in-court identification. By reciting the parts of the model charge which assume some form of pretrial out-of-court identification by a witness, the trial judge invited the jury to treat Ms. Kalogerakis’s evidence describing the persons who were at her home on November 11 and 12 as evidence identifying the appellant as one of those persons. Ms. Kalogerakis’s evidence could not serve that purpose.

[47] At its highest, Ms. Kalogerakis’s testimony, apart from her in-court identification, provided a very general description of the robber who, on the Crown theory, was the appellant (a black, young, skinny male). That description, while of modest assistance to the Crown in the sense that it was not inconsistent with the appellant and did not exclude the possibility that he was one of the robbers, was not evidence identifying the appellant as one of the robbers.

[48] The trial judge should have begun the eyewitness identification instruction by making it clear that the only eyewitness identification came from Ms. Kalogerakis’s in-court identification of the appellant made in her cross-examination. Having identified the only eyewitness identification evidence, the trial judge should have told the jury that given the very suggestive circumstances in which an in-court identification is made, an in-court identification, standing alone, has little, if any, value as evidence identifying an accused as the person who committed the crime: see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 47-53; R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 30-31. The trial judge should have made it clear to the jury that Ms. Kalogerakis’s apparent honesty and the apparent certainty with which she made the in-court identification did not add any reliability to her identification evidence: R. v. Hibbert, at para. 50.

[49] The trial judge should have next identified the specific features of the evidence that further weakened the evidentiary value of Ms. Kalogerakis’s in-court identification. There were at least four features of the evidence that should have been brought to the jury’s attention:

• The in-court identification came two and one-half years after the event, and sometime after a failed attempt at an in-court identification at the preliminary inquiry. At the preliminary inquiry, Ms. Kalogerakis had testified that she did not recognize the appellant;
• The descriptions given by Ms. Kalogerakis of the persons who appeared at her door on November 11 and in her home on November 12 were vague and general. They were devoid of any facial description, apart from skin colour. The descriptions provided little, if any, support for her purported in-court identification of the appellant, years later;
• On Ms. Kalogerakis’s evidence, she had little, if any, opportunity on November 11 or 12, to make the kind of observation of the appellant that could lend any credence to her subsequent identification of him years later. This is particularly true in respect of the identification of the appellant as the robber on November 12. The robber, who Ms. Kalogerakis eventually identified in court as the appellant, was masked throughout the robbery. Ms. Kalogerakis purported to recognize the appellant by his forehead but gave no evidence about anything distinctive about his forehead; and
• Ms. Kalogerakis’s candid admission that most black men looked the same to her raised the well-recognized danger of error in cross-racial identification: R. v. Richards (2004), 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737, at para. 32 (C.A.).

[50] The appellant’s admission in his evidence that he was at the Kalogerakis home on November 11 also should have been referred to in the eyewitness evidence identification instruction. The jury should have been told that the appellant’s admission that he was at the home on November 11 did not render Ms. Kalogerakis’s in-court identification of the appellant as one of the persons at her home on November 11 more reliable. More importantly, the jury should have been told that the appellant’s admission in no way rendered Ms. Kalogerakis’s in-court identification of the appellant as one of the robbers on November 12 more reliable.

[51] The appellant’s evidence that he was at the home on November 11 made it unnecessary for the Crown to rely on Ms. Kalogerakis’s in-court identification to place the appellant at her home on that day. His evidence did not, however, overcome or mitigate in any way the many reasons why Ms. Kalogerakis’s in-court identification was unreliable. Despite the appellant’s admission, Ms. Kalogerakis’s identification evidence remained evidence of an identification made for the first time two and one-half years after the event, in the highly suggestive circumstances of the courtroom, in the face of a failed earlier attempt at an in-court identification, in circumstances where she had little opportunity to see the person she later said was the appellant, and with virtually no evidence of any contemporaneous description by her of the person she now claimed to identify as the appellant. The appellant’s admission that he was at the home on November 11 could do nothing to dispel the very real probability that Ms. Kalogerakis was identifying the person in the courtroom who she firmly believed had killed her son and not the person she actually recognized as one of the robbers.

[52] Absent a proper instruction, a jury might well conclude that Ms. Kalogerakis’s identification of the appellant as the person who was at her home on November 11 was reliable because of the appellant’s evidence that he was at the Kalogerakis home that day, and that the reliability of her identification in relation to the November 11 event made her identification in relation of the robbery on November 12 reliable as well. I agree with counsel’s submission that this line of reasoning, while superficially attractive, is fallacious. The jury should have been cautioned against it.

[53] In summary, the jury should have been instructed that the appellant’s admission that he was at the Kalogerakis house on November 11 could be relied on by the jury to place the appellant at the home on November 11. It could not, however, in any way enhance the reliability of Ms. Kalogerakis’s in-court identification of the appellant as one of the persons at her home on November 11. The appellant’s admission that he was at the home on November 11, while properly considered with the rest of the evidence in deciding whether he was one of the robbers on November 12, could buttress in no way the reliability of Ms. Kalogerakis’s in-court identification of the appellant as one of the robbers.

[54] One final feature of the identification evidence in this case deserves mention. In her closing, Crown counsel suggested to the jury that it should give little weight to Ms. Kalogerakis’s in-court identification. A reminder of the Crown’s position in the course of the eyewitness identification instruction would have effectively highlighted and reinforced the many reasons for not giving the in-court identification evidence any weight.[^3]

[55] Crown counsel, in forcefully resisting the appeal, points out that the trial judge carefully and fully vetted his proposed instructions with counsel. No objection was taken to the eyewitness evidence instruction. Counsel got the instruction they wanted.

[56] The absence of an objection, especially when counsel have had a full opportunity to vet the charge and participate in its preparation, can, depending on the nature of the alleged deficiency in the charge, be an important consideration in assessing the adequacy of the instruction, or the application of the curative proviso: see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 49, 60; R. v. Kostyk, 2014 ONCA 447, 312 C.C.C. (3d) 101, at paras. 42, 59-60. However, if the misdirection or non-direction leaves the jury inadequately equipped to properly evaluate important evidence, counsel’s position at trial cannot negate the error.

[57] The instruction on eyewitness identification evidence constitutes misdirection amounting to an error in law. The proviso cannot be applied. The error is far from minor. The Crown has a strong case. In the absence of the appellant’s evidence, the Crown’s case could fairly be described as overwhelming. However, the appellant did testify and denied any involvement in the home invasion and the murder. A reasonable jury could easily reject his evidence, especially when considered in the context of the text messages. However, there is a reasonable possibility that a jury, having regard to the entirety of the evidence, could be left with a reasonable doubt based on the appellant’s testimony. The Crown’s case cannot, therefore, be characterized as overwhelming. The legal error in the instruction is beyond the reach of the curative proviso: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at pp. 616-617; R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at paras. 27-28.

IV

the other grounds of appeal

The Vetrovec Instruction

[58] The trial judge, after briefly reviewing the circumstances in which Whissel came to share a jail cell with the appellant, instructed the jury:

Common sense tells you that in light of those circumstances there is good reason to look at Mr. Whissel’s evidence with the greatest care and caution. You are entitled to rely on Mr. Whissel’s evidence even if it is not confirmed by another witness or other evidence, but I would suggest it is dangerous for you to do so.

[59] In my view, it would have been better had the trial judge specifically explained to the jury why it was dangerous to rely on Whissel’s evidence. The trial judge should have instructed the jury that experience has shown that witnesses like Whissel, who have no prior connection to an accused or the case, and who profess to have received a confession from an accused while sharing a jail cell, are notoriously untrustworthy witnesses. The trial judge should have explained that these witnesses, sometimes referred to as “jailhouse informants” can appear deceptively credible and their evidence may seem disarmingly straightforward because their motives for falsely testifying and the true sources of the information they falsely attribute to an accused can be very difficult to expose on cross-examination: see R. v. Sauvé and Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at paras. 76-82; R. v. Khela, at paras. 37-38.

[60] As I would reverse on the eyewitness identification instruction, I need not decide whether the failure to explain to the jury why it was dangerous to rely on Whissel’s evidence constituted reversible error. I note that the Vetrovec instruction was vetted with counsel and there was no objection taken. I also observe that had the trial judge given a more detailed explanation for the reasons behind treating Whissel’s evidence with caution, he could also have given a more detailed review of the evidence in this case capable of supporting the contention that Whissel was not a typical “jailhouse informant”. He had only a minor criminal record, did not appear to be part of any criminal subculture, had no history of testifying for the Crown, and little, if anything, to gain when he gave his statement to the police, or when he testified. A more thorough review of the pros and cons relevant to the assessment of Whissel’s credibility may not have helped the defence.

[61] The appellant also takes issue with the trial judge’s instruction on the evidence capable of confirming the testimony of Whissel. Counsel submits that the jury should have been told that Ms. Kalogerakis’s in-court identification of the appellant was incapable of confirming Whissel’s testimony: see R. v. Hassan, 2008 ONCA 615, at para. 7.

[62] The trial judge said very little about potentially confirmatory evidence telling the jury: “For me, I cannot recall much evidence that confirms Mr. Whissel’s evidence.”

[63] This instruction was very favourable to the appellant. The evidence of the text messages establishing the appellant’s involvement in a plan to commit the home invasion while armed with a .22 calibre gun provided potentially cogent evidence “tending to show that the untrustworthy witness [Whissel] is telling the truth as to the guilt of the accused”: see R. v. Khela, at paras. 12-16, 37; R. v. Kostyk, at para. 77. The appellant has no cause to complain about the instructions on potentially confirmatory evidence.

Crown Counsel’s Closing Address

[64] In her submissions to the jury, Crown counsel pointed out that the defence had not called various friends and family members as witnesses who on the appellant’s version of events could have confirmed his whereabouts in the hours and days between the murder and the appellant’s arrest. In making this argument, Crown counsel said:

So you would think, if there were other witnesses out there who might be able to back him up, we would have heard of them. Again, you’re not to judge the case based on evidence you didn’t hear but if the account is true, why didn’t we hear from …

[65] Crown counsel went on to refer to the appellant’s girlfriend, sister, and mother.

[66] Counsel for the appellant submits that the above-quoted submission by the Crown improperly invited the jury to draw an inference against the appellant from the failure to call certain witnesses and improperly suggested to the jury that the accused had the burden of establishing his whereabouts.

[67] Even if Crown counsel’s submissions could bear the interpretation urged by counsel for the appellant, I think the trial judge’s instructions effectively eliminated the risk that the jury would go down that path. The trial judge repeatedly instructed the jury that the onus of proof was on the Crown and never shifted from the Crown. He told the jury that it should not speculate about evidence it had not heard: see R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at paras. 89-91. There was no objection to Crown counsel’s closing. Presumably, defence counsel was satisfied that the trial judge’s instructions negated any possible prejudice to the appellant.

[68] Although I would not characterize Crown counsel’s closing argument as improper, I would add a caution about that kind of argument. In most circumstances, no adverse inference can be drawn against an accused based on the failure to call a certain witness or lead certain evidence. Suggestions to the contrary in Crown counsel’s closing can be prejudicial and put the ultimate verdict in jeopardy on appeal. If Crown counsel is considering making an argument that the defence failure to call certain witnesses or lead certain evidence should be taken into account by the jury in some way, it would be wise for Crown counsel to vet that argument with the trial judge before making it to the jury.

V

conclusion

[69] I would allow the appeal, quash the conviction and order a new trial on the charge of first degree murder.

Released: “DD” “JUN 29 2016”

“Doherty J.A.”

“I agree Gloria Epstein J.A.”

“I agree K. van Rensburg J.A.”

[^1]: A co-accused, Isaac Kwakye, was charged with and convicted of manslaughter. He is not a party to this appeal.

[^2]: The trial judge used the first edition of Watt’s Manual of Criminal Jury Instructions published in 2005. The second edition appeared in 2012, after this trial was completed.

[^3]: The trial judge was not asked to exclude the in-court identification on the basis that its prejudicial effect outweighed its probative value. Indeed, it may be that the defence, who elicited the evidence on cross-examination, wanted that evidence before the jury in the hope that it might discredit other parts of Ms. Kalogerakis’s evidence. In light of the position taken at trial, the appeal was argued on the basis that the trial judge’s instruction on the in-court identification was inadequate. In the new trial, the admissibility of the evidence may become an issue: see R. v. Holmes (2002), 2002 CanLII 45114 (ON CA), 62 O.R. (3d) 146, at paras. 38-40. Were the defence to seek the exclusion of the evidence of the in-court identification at the new trial, and were the Crown to maintain the position it took in its closing on the first trial, it is difficult to see how the Crown would argue that the evidence had any probative value.