Her Majesty the Queen v. John et al.

[Indexed as: R. v. John]

Ontario Reports

Court of Appeal for Ontario,

Sharpe, Watt and D.M. Brown JJ.A.

August 8, 2016

133 O.R. (3d) 360 | 2016 ONCA 615

Case Summary

Criminal law — Trial — Conduct of Crown — Crown improperly suggesting in cross-examination that accused needed to call evidence to confirm his testimony — Crown improperly suggesting in her closing address to jury that accused was telling his story for first time at trial and had tailored his evidence to answer Crown's case — Crown making [page361] submissions to jury regarding more than one witness' evidence that were unsupported by evidence — Cumulatively Crown's conduct below standard expected for propriety and fairness — Trial judge's five strong correcting instructions curing damage — Accused not denied fair trial — Trial judge's decision not to grant mistrial application entitled to deference — Appeal from conviction dismissed.

The accused was convicted of second degree murder. No witness was able to identify the accused as the person who shot the deceased during a street altercation. DNA evidence on a knife found next to the deceased established that the accused had been stabbed by the deceased. The Crown's case rested on the DNA evidence, the accused's flight from the scene and evasive conduct following the shooting (which the accused explained as being prompted by his fear of being found in breach of his bail conditions), and the observations of five of the deceased's friends who witnessed the shooting. After the Crown's closing address to the jury, defence counsel applied for a mistrial on the basis that the Crown's conduct had vitiated his right to a fair trial. The motion was dismissed. The accused appealed his conviction.

Held, the appeal should be dismissed.

The Crown improperly suggested during her cross-examination of the accused that the accused needed to call a witness to confirm his testimony and that he should have been able to locate this witness as he was a distant cousin. That suggestion undermined the fundamental principle that there is no onus on the accused to prove his innocence and that the onus of proving the case beyond a reasonable doubt rests upon the Crown throughout. However, the judge gave a specific direction reinforcing the general jury instructions that the onus remains on the Crown throughout the case and that there was no burden on the accused to call a witness to confirm his evidence. The Crown also improperly suggested repeatedly in her closing address to the jury that the accused was telling his story for the first time at trial and had tailored his testimony to answer the Crown's case. The Crown was inviting the jury to disbelieve the accused because he chose to exercise his constitutional right to silence and to have the Crown lead its case against him before responding. The trial judge gave a corrective jury instruction, directing them to disregard the suggestion that the accused tailored his evidence and that it was his right to know all the evidence against him. Finally, the Crown made submissions in her closing address that were not supported by the evidence regarding the evidence of more than one witness, some of which were addressed by specific corrective instructions by the trial judge. The cumulative conduct by the Crown fell below the expected standard of propriety and fairness. The trial judge found it necessary to give corrective instructions on five different points. The Crown's improper conduct targeted fundamental procedural rights of the accused. However, the trial judge gave strong corrective instructions which were sufficient to cure the damage and preserve the accused's right to a fair trial. The trial judge's decision to deny the mistrial application was not clearly wrong nor was it based on an erroneous principle and is therefore entitled to deference. The appeal against conviction is dismissed.

R. v. Grant, [2015] 1 S.C.R. 475, [2015] S.C.J. No. 9, 2015 SCC 9, 468 N.R. 83, [2015] 4 W.W.R. 423, 2015EXP-802, 17 C.R. (7th) 229, 321 C.C.C. (3d) 27, 384 D.L.R. (4th) 63, 315 Man. R. (2d) 259, J.E. 2015-426, EYB 2015-248866, 121 W.C.B. (2d) 139, distd

Other cases referred to

R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161, [2002] O.J. No. 464, 155 O.A.C. 249, 162 C.C.C. (3d) 539, 53 W.C.B. (2d) 2 (C.A.); [page362] R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, [1954] S.C.J. No. 54, 110 C.C.C. 263, 20 C.R. 1; R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, 258 O.A.C. 50; R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, 42 D.L.R. (3d) 142, 1 N.R. 258, [1974] 2 W.W.R. 524, 14 C.C.C. (2d) 385, 25 C.R.N.S. 296; R. v. G. (A.) (2015), 124 O.R. (3d) 758, [2015] O.J. No. 1217, 2015 ONCA 159, 319 C.C.C. (3d) 441, 330 O.A.C. 286, 120 W.C.B. (2d) 570; R. v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, 2005 SCC 5, 247 D.L.R. (4th) 385, 329 N.R. 28, [2005] 4 W.W.R. 405, J.E. 2005-265, 37 Alta. L.R. (4th) 197, 363 A.R. 1, 191 C.C.C. (3d) 449, 25 C.R. (6th) 1, 63 W.C.B. (2d) 237, EYB 2005-83099; R. v. Mallory, [2007] O.J. No. 236, 2007 ONCA 46, 220 O.A.C. 239, 217 C.C.C. (3d) 266, 72 W.C.B. (2d) 792; R. v. Marshall (2005), 2005 30051 (ON CA), 77 O.R. (3d) 81, [2005] O.J. No. 3549, 201 O.A.C. 154, 200 C.C.C. (3d) 179, 66 W.C.B. (2d) 602 (C.A.); R. v. McMillan, 1977 19 (SCC), [1977] 2 S.C.R. 824, [1977] S.C.J. No. 32, 73 D.L.R. (3d) 759, 15 N.R. 20, 33 C.C.C. (2d) 360, affg (1975), 1975 43 (ON CA), 7 O.R. (2d) 750, [1975] O.J. No. 2247, 23 C.C.C. (2d) 160, 29 C.R.N.S. 191 (C.A.); R. v. Parberry, 2005 40137 (ON CA), [2005] O.J. No. 4730, 203 O.A.C. 334, 202 C.C.C. (3d) 337, 67 W.C.B. (2d) 366 (C.A.); R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 101 O.A.C. 304, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83, 35 W.C.B. (2d) 375 (C.A.); R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100, 128 O.A.C. 140, 141 C.C.C. (3d) 449, 30 C.R. (5th) 346, 71 C.R.R. (2d) 1, 45 W.C.B. (2d) 157 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 583]; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, J.E. 87-995, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108; R. v. Yigzaw, [2013] O.J. No. 4091, 2013 ONCA 547, 310 O.A.C. 139, 301 C.C.C. (3d) 266, 109 W.C.B. (2d) 13 (C.A.)

APPEAL by the accused from the convictions, [2011] O.J. No. 3067, 2011 ONSC 4161 (S.C.J.) and the sentences imposed, [2011] O.J. No. 2465, 2011 ONSC 3313 (S.C.J.) by O'Marra J.

James Lockyer, for appellant Jimmy John.

Brian Snell, for appellant Curt John.

Alex Alvaro, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: — The appellant Jimmy John was convicted of second degree murder in the death of Dominic Shearer-Hanomansingh. The deceased was shot in the head during an altercation on a Toronto street in the presence of a large crowd participating in a Jamaica Day celebration. Jimmy John testified at trial. He admitted that he was present at the scene of the murder but denied that he was the shooter. No witness was able to identify Jimmy John as the shooter but DNA evidence on a knife found next to the deceased established that he had been stabbed by the deceased. The Crown's case rested on the evidence from the knife, Jimmy John's flight from the scene and his evasive conduct following the shooting, and on the observations of five of the deceased's friends who witnessed the shooting. [page363]

[2] The co-appellant Curt John, Jimmy John's cousin, was convicted of obstruction of justice following a joint jury trial. Both appellants appeal their convictions. While the notices of appeal seek leave to appeal the sentences, the sentence appeals were not pursued in written or oral argument.

[3] Jimmy John raises several grounds of appeal. Curt John raises no additional issues and his appeal rests entirely on Jimmy John's appeal. As all the arguments relate to Jimmy John's appeal, I will refer to him as the appellant in these reasons.

Facts

[4] The deceased and two of his friends, Christopher Cambronne and Rashad Lewis, arrived at the scene of Jamaica Day celebrations on a Toronto street at about 10:00 p.m. on Saturday, July 26, 2008. The event was ending but hundreds of people crowded the sidewalks. The deceased and his companions encountered friends, Christopher Bingling, Archer Bingling and Brandan Smith, who were passing out flyers to promote a party.

[5] The deceased engaged in a scuffle with another man who had tried to grab the gold chain he was wearing around his neck. The other man pulled a gun and shot the deceased once in the head.

[6] The appellant was arrested 12 days later and charged with second degree murder.

[7] The central issue at trial was identity. DNA on a baseball cap left at the scene of the shooting matched that of the appellant, as did the DNA of blood on the knife found next to the deceased. DNA found on the handle of the knife matched that of the deceased.

[8] The deceased's five friends witnessed the shooting but none were able to identify the shooter. Brandan Smith testified that two men came and stood close to the deceased. One of them approached the deceased, grabbed his chain and asked if it was real gold. The deceased replied "are you stupid?" and put the chain in his pocket. While their accounts varied in detail, the deceased's friends testified that the deceased and the other man grabbed and pushed each other and struggled onto the roadway and then back to the sidewalk. The other man had the deceased in a headlock, and after the deceased was released, the other man pulled a handgun and shot the deceased in the head. None of them saw a knife nor did anyone see the deceased stab his assailant or anyone else. They gave varying descriptions of the shooter. The Crown argued these pointed to the appellant. The defence argued that they did not. [page364]

[9] The scene following the shooting was chaotic. Brandan Smith saw the shooter run away with another man in the direction of Bicknell Avenue. He called 911, and gave the operator a false name because he was on probation and in violation of his curfew. Rashad Lewis testified that the shooter ran down Bicknell Avenue still wearing his baseball hat. A trail of blood along Bicknell Avenue did not match that of either the appellant or the deceased.

[10] The appellant testified in his own defence and denied that he was the shooter. He admitted that he was at the scene of the shooting at the time it took place. He testified that he saw a scuffle on the street. As he walked by, a man was pushed into him. He pushed the man away and someone, possibly the same man, turned and stabbed him in the stomach. As he fell to the ground, he heard a gunshot. He fled the scene, and called his cousin Curt, who later drove him to a hospital distant from the scene of the shooting. The appellant agreed to Curt John's suggestion that he be identified to the hospital staff as Curt John. He gave a false explanation for the stab wound he had suffered. The appellant was on bail at the time of the shooting, which included a term of house arrest. He explained his flight from the scene and his deceptive conduct at the hospital as prompted by his fear of being found in breach of his bail conditions.

Issues

[11] The appellant raises five grounds of appeal:

(1) the verdict was unreasonable;

(2) the trial judge erred by refusing to allow the appellant to call evidence that an unknown suspect had a motive to murder the deceased;

(3) the trial judge erred by failing to instruct the jury that a statement made by Curt John to his probation officer was inadmissible against the appellant;

(4) the trial judge erred in his instruction on identification evidence;

(5) the trial Crown's conduct vitiated a fair trial.

Analysis

(1) Unreasonable verdict

[12] The appellant argues that the Crown's evidence suggested no more than a possibility that he was the shooter and that the evidence fails to meet the reasonable verdict threshold. [page365]

[13] The appellant argues that the descriptions of the shooter offered by the Crown's witnesses were generic and contradictory. For convenience, I include in Appendix "A" a chart from the appellant's factum that sets out the various observations and descriptions offered by the five witnesses. [Appendix not attached to copy received by the Ontario Reports.]

[14] The Crown contended that the eyewitness evidence pointed to the appellant as the shooter. Their general descriptions had many features in common that corresponded to the appearance of the appellant. They testified that the shooter was a black male with a medium or a muscular build, between the age of 19 and 25 and between 5'9" and 5'11" tall. Two witnesses testified the shooter had braided hair and several of them described a black baseball cap similar to that of the appellant.

[15] The appellant points to some significant discrepancies in the descriptions. One witness did not know whether the shooter was black or white and another thought the shooter's skin was darker. He denied wearing sunglasses, a bandana or grills on his bottom teeth, items that were observed by one or more of the witnesses.

[16] The appellant also points to evidence that he submits is exculpatory. The Crown witnesses all described the colour of his shirt as black or dark, but the appellant was wearing a blood-soaked white shirt when he arrived at the hospital. One witness testified that the shooter still had his baseball cap as he fled, while the appellant's hat was found on the ground at the scene of the shooting. DNA samples taken from the trail of blood along Bicknell Avenue, the direction that two witnesses saw the shooter run, did not match that of the appellant. The appellant submits that any one of these pieces of evidence excludes him as the shooter.

[17] There certainly were weaknesses in the Crown's case, but I am not persuaded that the verdict was unreasonable. The appellant admitted that he was present at the scene and the eyewitness descriptions of the shooter lent some support to the Crown's case. While the appellant offered an explanation for his flight from the scene and his evasive conduct at the hospital, the after-the-event evidence was potentially inculpatory evidence the jury was entitled to consider.

[18] In my view, the critical piece of evidence that takes this case above the unreasonable verdict threshold is the DNA on the knife that was found at the scene of the shooting. While the blood trail from the scene did not match the appellant's blood, the DNA evidence leads to the virtually irresistible inference that the appellant was stabbed by the deceased. On the appellant's own [page366] version of events, the stabbing took place at the same time as the shooting. This means that he must have been within close reach of the deceased, more or less at the moment the deceased was shot, in a struggle that all witnesses said involved only the deceased and the shooter.

[19] The governing test is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered" (R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, at p. 282 S.C.R.; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, at p. 185 S.C.R.; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at para. 36).

[20] In my view, when the evidence in this case is considered as a whole, it provided a basis upon which a properly instructed jury could reasonably conclude that the appellant was guilty of second degree murder.

(2) Did the trial judge err by refusing to allow the appellant to call evidence that an unknown suspect had a motive to murder the deceased?

[21] The Crown's theory was that Jimmy John's motive to shoot the deceased was an attempt to rob him of his necklace.

[22] The appellant applied for permission to lead evidence that an unknown third party suspect had a motive to murder the deceased. That application was based upon the following facts.

[23] One of the Crown witnesses, Rashad Lewis, testified that shortly before the deceased was shot, a Jaguar drove by. The front passenger, who was wearing grills on his teeth, made eye contact with the deceased. The deceased stated: "Who is that guy?" or "Who was he looking at like that?" Lewis testified that after the Jaguar had driven off, a number of men appeared on the scene and stood behind the deceased. One of them, who Lewis stated was wearing grills, stepped forward and grabbed the deceased's necklace. It is unclear from the evidence whether the passenger of the Jaguar was the same person who engaged in a scuffle with the deceased.

[24] The appellant sought to introduce evidence of the deceased's involvement in another murder committed 17 days earlier, on the theory that the murder of the deceased was a revenge killing. The application was based upon a police synopsis of the other murder. A man was shot in the head and the deceased had been identified by several witnesses as having been one of the group of several males involved in the shooting. A confidential informant had provided information corroborating the fact that the deceased was the shooter. [page367]

[25] The trial judge [[2011] O.J. No. 3067, 2011 ONSC 4161 (S.C.J.)] referred to the test for admission of third party suspect evidence: see R. v. McMillan (1975), 7 O.R. (2) 750, 1975 43 (ON CA), [1975] O.J. No. 2247 (C.A.), affd 1977 19 (SCC), [1977] 2 S.C.R. 824, [1977] S.C.J. No. 32; R. v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, 2005 SCC 5, at para. 49. He dismissed [at para. 20] the application on the ground that "[t] he evidence of a third party suspect, whether identified or not, must still be sufficiently connected by something in the circumstances of the crime to make the evidence of that person's involvement relevant and probative". The trial judge further held that the prejudicial effect of the proposed evidence would outweigh any probative value it had. He identified two sources of prejudice. First, there was [at para. 26] "a great potential for the jury to misuse such evidence to conclude that the deceased deserved what happened to him". Second, calling evidence concerning another murder could confuse the issue, open collateral matters, distract the jury and unnecessarily prolong the proceeding, and [at para. 27] "lead to conjecture, speculation and impermissible reasoning".

[26] On appeal, the appellant relies on the decision of the Supreme Court of Canada in R. v. Grant, [2015] 1 S.C.R. 475, [2015] S.C.J. No. 9, 2015 SCC 9, handed down after the trial in this case. In Grant, the appellant was charged with the abduction and murder of a young girl. The Supreme Court held that he was entitled to lead evidence of a very similar murder committed eight months later while he was in custody and could not therefore have committed. The second murder also involved the abduction and murder of a young girl. The modus operandi and various other pieces of physical evidence indicated that, in all likelihood, the same person had committed both crimes. The Supreme Court rejected the proposition that the test for admission of evidence of a known third party suspect applied where the suspect was unknown. The appellant submits that as the trial judge applied the known third party suspect evidence test, his ruling cannot stand.

[27] In my view, there was insufficient evidence to satisfy the threshold identified in Grant for the admission of evidence of motive on the part of an unknown third party suspect. While the Supreme Court held that cases involving unknown third party suspects had to be approached differently, it maintained the requirement for a logical nexus between the two offences. In Grant, the nexus was satisfied by the similarities between the two offences. The court stated, at para. 28:

This focus on the similarities between the offences is not a formulation of a new, categorical test. Rather, it reflects the principles underlying Grandinetti [page368] which play out differently in different factual contexts. Like known third party suspect evidence, "in the absence of some nexus with the alleged offence", unknown third party suspect evidence will constitute mere speculation (R. v. McMillan). Unless the circumstances and similarities to the other offence are sufficient to suggest that the same individual committed both crimes, unknown third party suspect evidence will not be logically relevant.

(Citations omitted)

[28] Assuming, for the sake of argument, that the appellant could have led evidence to establish that the deceased was the shooter in the prior murder, there was an insufficient evidentiary basis to establish a connection between that murder and the murder of the deceased. I agree with the submission of the Crown that any connection between the prior murder, the Jaguar and the group of men who arrived at the scene was entirely speculative. There was no evidence as to the identity of the men in the Jaguar, no evidence that they had any connection with the prior murder and no evidence that they were implicated in the murder of the deceased. The situation is quite unlike that in Grant, where the striking similarity between the two murders established a strong likelihood that the same person had committed both murders.

[29] Accordingly, I would not give effect to this ground of appeal.

(3) Did the trial judge err by failing to instruct the jury that a statement made by Curt John to his probation officer was inadmissible against the appellant?

[30] The Crown called Curt John's probation officer as a witness. She testified that Curt John told her that he was with his cousin Jimmy the entire evening of the homicide. At another meeting, he told her that he was with Jimmy the night the murder happened and that Jimmy had done nothing wrong. At a third meeting, he told her that he and Jimmy knew what had happened and he repeated that Jimmy was innocent. Curt's trial counsel cross-examined the probation officer but the appellant's did not.

[31] The appellant testified that Curt was not with him at the time he was stabbed. Crown counsel cross-examined the appellant, suggesting that Curt was present at the scene.

[32] In her closing address, Crown counsel referred to the probation officer's evidence that Curt had told her he was with the appellant the entire evening murder. She emphasized the fact that according to the probation officer, Curt John had used the words "the entire night". [page369]

[33] In his jury instructions, the trial judge reviewed Curt John's statements to the probation officer when dealing with the charges against Curt John. At no point did the trial judge instruct the jury that Curt John's out-of-court statements were inadmissible against the appellant. Nor did counsel seek such an instruction or object to its absence after the charge had been given.

[34] On appeal, the appellant submits that the lack of a limiting instruction caused him considerable prejudice. His evidence was that he went to the scene of the shooting alone and that no one was with him when he was stabbed and the shooting occurred. He further testified that he left the scene alone and later called his cousin Curt for assistance. The appellant submits the jury could well have concluded on the basis of Curt John's out-of-court statements that the two were at the scene of the shooting, that the appellant had lied when he told the jury he was alone, and that he was trying to cover up a significant element of his motive or the nature of his participation in the events that led up to the shooting.

[35] The respondent Crown does not dispute the proposition that Curt John's out-of-court statement was inadmissible against the appellant. See R. v. Parberry, 2005 40137 (ON CA), [2005] O.J. No. 4730, 202 C.C.C. (3d) 337 (C.A.), at paras. 28-30; R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (C.A.), at para. 117, leave to appeal to S.C.C. refused [2000] S.C.C.A. 583: "when the Crown leads evidence of a statement made by one accused, the jury must be told that the statement is admissible only against the maker of the statement and cannot be considered in determining the co-accused's culpability".

[36] The respondent Crown argues, however, that the trial judge did not err by failing to give a limiting instruction in the circumstances of this case. Trial counsel's failure to cross-examine the probation officer or to request a limiting instruction indicates that the possible adverse inferences suggested by the appellant on appeal were far from obvious at the trial.

[37] It is my view that despite trial counsel's failure to request one, it would have been preferable had the trial judge given a limiting instruction. Curt John's out-of-court statements contradicted the appellant's evidence on a significant point. The appellant's credibility was crucial to the success of his defence and the jury should have been told not to consider inadmissible evidence when assessing the appellant's version of events.

[38] On the other hand, in the portion of his instruction dealing with Curt John's out-of-court statements, the trial judge was clearly dealing with the charges against Curt John. The fact that the appellant's trial counsel did not request a limiting [page370] instruction suggests that the significance attached to this evidence on appeal was not apparent at the trial.

[39] I conclude, accordingly, that standing on its own, this error did not give rise to a substantial wrong or miscarriage of justice.

(4) Did the trial judge err in his instruction on identification evidence?

[40] As I have indicated, none of the Crown witnesses had a clear view of the shooter and none of them were able to identify the appellant as the shooter or to provide other than general and generic descriptions of the man who shot the deceased. The descriptions by the five witnesses were also not entirely consistent.

[41] In her closing address, the trial Crown reviewed the eyewitness evidence and repeatedly suggested that it "matches" the appellant. Indeed, at one point, she even stated that "it matches identically to Mr. Jimmy John".

[42] I agree with the appellant that the Crown was overstating the probative value of the eyewitness evidence. It fell well short of evidence positively identifying the appellant as the shooter.

[43] The more difficult question is whether the trial judge gave the jury appropriate guidance on the pertinent legal principles they should apply in assessing the eyewitness evidence.

[44] The trial judge did not give the standard caution on the frailties of eyewitness identification evidence, no doubt because no witness positively identified the appellant as the shooter. In the pre-charge conference, the appellant's trial counsel asked for the usual caution regarding identification by eyewitnesses. The trial judge observed that "it would be misleading to the jury to give a standard charge on eyewitness identification when there is no eyewitness identification". Defence counsel did not take issue with that proposition and made no objection on this point after the charge was delivered[.]

[45] While the trial judge stated in his charge that the Crown's case "depends to a large extent" upon the eyewitness testimony, I do not accept the appellant's submission that he endorsed the Crown's characterization of the evidence or that the jury would have understood that the trial judge agreed that the eyewitness evidence amounted to a positive identification of the appellant as the shooter.

[46] While he did not give the standard caution, he did provide the jury with considerable guidance on how to assess the [page371] evidence the Crown relied on. He began with the following general caution:

Eyewitness testimony is an expression by a witness of his or her belief or impression of what was seen. It is quite possible for an honest witness to make a mistake about what he or she observed. Honest people do make mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses.

[47] He then instructed the jury to consider the circumstances in which the witnesses made their observations: matters such as the length of time they saw the shooter, the visibility, distance, lighting and any distractions. He instructed the jury to consider matters such as how specific and consistent the descriptions were. He then provided a detailed review of the evidence of each of the eyewitnesses. In his review of the positions of the parties, the trial judge repeated that it was the Crown's position that the description of the shooter "matches" the appellant but he also reminded the jury that the defence position was that there was no eyewitness identification and the Crown's case was "dependent on the inconsistent and hugely differing accounts of five eyewitnesses".

[48] While I agree with the appellant that the Crown's characterization of the eyewitness evidence as matching "identically to Mr. Jimmy John" was excessive, I am not persuaded by the submission that the trial judge was required to list all the frailties in the eyewitness evidence or to instruct the jury that it had little, if any, probative value. As no witness identified the appellant as the shooter, the standard caution on eyewitness identification evidence was not required. Indeed, as the trial judge observed, such an instruction would have been misleading. Moreover, as there was other evidence implicating the appellant, the Crown's case did not depend solely upon the identification evidence. As such, this is a case where the trial judge must be accorded considerable latitude in determining the nature of the caution to be given: R. v. Yigzaw, [2013] O.J. No. 4091, 2013 ONCA 547, 301 C.C.C. (3d) 266, at para. 49.

[49] The problem with eyewitness identification evidence is that it appears to be compelling while judicial experience reveals it to be fraught with difficulty. It is for that reason that a special caution is required. The evidence in this case did not pose a similar or analogous problem. Various witnesses gave various descriptions and it was for the jury to decide whether they were sufficient to establish that the appellant was the shooter. It would have been apparent to the jury that while the Crown contended that the evidence pointed to the appellant, the defence argued that the evidence was too general and too inconsistent to [page372] establish the appellant's guilt. The trial judge explained those positions to the jury and I am not persuaded that he was required to provide the sort of searching critique now advocated by the appellant.

[50] Accordingly, I would not give effect to this ground of appeal.

(5) Did the trial Crown's conduct vitiate the fairness of the trial?

[51] The appellant submits that improper conduct by the trial Crown undermined his right to a fair trial. The appellant points to several instances of Crown misconduct that I will review in turn. I will also set out the corrective instructions given by the trial judge. At the conclusion of that review, I will consider whether the trial judge's corrective instructions taken as a whole were adequate to ensure the appellant's right to a fair trial and whether the trial judge erred by refusing to grant the appellant's mistrial application.

(i) Suggestion made in cross-examination that the appellant needed to call evidence to confirm his evidence

[52] Dennis Alexander, the appellant's distant cousin, was in the vehicle with Curt John that picked up the appellant after he was stabbed. In her cross-examination of the appellant, the trial Crown planted the idea with the jury that if the appellant's story were true, he could call Alexander to verify it:

Q. Dennis Alexander would be able to verify your story of what you were wearing that day and who was with him that day, correct, sir?

A. Yes he would be able to do that.

Q. He is your distant cousin?

A. Yes.

Q. So somebody would be able to find him, correct?

A. Yes.

Q. And he is the person who could come back and come forth to verify your story?

A. Yes.

[53] Neither the trial Crown nor the respondent Crown on this appeal sought to justify this as a proper line of questioning. There is no obligation on an accused person to call evidence. The [page373] implication of the Crown's line of questions undermined the fundamental principle that there is no onus on the accused to prove his innocence and that the onus of proving the case beyond a reasonable doubt rests upon the Crown throughout. The trial judge accepted defence counsel's objection that this line of questioning was improper and agreed that a corrective instruction was required. In his charge to the jury, he stated:

Let me give you a specific direction at this point to make clear where the onus lies and never shifts. At one point in the cross-examination of the accused Jimmy John, it was implied by a question asked by the Crown that he could have called evidence to corroborate his story in part. It was suggested to him that his distant cousin Dennis Alexander, who was with him in the white SUV after the shooting and at the hospital, would be able to verify his story of what he was wearing that day and who he was with. You are to disregard the question and suggestion that the accused could have called evidence to corroborate his evidence. There is no obligation on the part of an accused to call any witnesses. The decision to call or not to call evidence is generally that of counsel. You are to decide the case only on the basis of the evidence that was called and not speculate as to the content of evidence that was not called. There is no onus on the accused to prove his innocence. The onus of proof rests on the Crown throughout to prove guilt beyond a reasonable doubt. This onus or burden never shifts to the accused.

[54] I do not agree with the appellant's contention that this correction was problematic because the trial judge told the jury that "the decision to call or not to call evidence is generally that of counsel" (emphasis added). While that phrase was perhaps unnecessary, it did not undermine the strong language in the corrective instruction that the appellant had no obligation to call any evidence and, further, that the jury had to reach its decision only on the basis of the evidence called, and not speculate on the evidence that was not called.

[55] Nor do I agree that in the context of this case, the way he formulated his W.D. instruction diluted his corrective instruction. The trial judge said:

If you believe Mr. John's evidence supported by other defence evidence that he did not commit the offence charged, you must find him not guilty. Even if you do not believe Mr. John's evidence supported by other defence evidence, if it leaves you with a reasonable doubt about his guilt, you must find him not guilty. Even if Mr. John's evidence supported by other evidence does not leave you with a reasonable doubt of his guilt, you may find him guilty only if the rest of the evidence that you do accept proves his guilty of the offence beyond a reasonable doubt.

(Emphasis added)

[56] As the defence called no other viva voce evidence than the appellant's, it would perhaps have been preferable not to say "supported by other defence evidence". However, I do not agree that the language used by the trial judge, when read in [page374] the context of the entire charge which made extensive reference to the onus of proof on the Crown, suggested any obligation on the appellant to call evidence.

(ii) Crown's closing address

[57] At the conclusion of Crown counsel's closing address, the defence applied for a mistrial. The trial judge dismissed that motion and ruled that the Crown's closing was not so improper as to render the trial unfair or unsalvageable through corrective instructions. There were several objectionable features to the Crown's closing argument.

(a) Allegation that the appellant tailored his testimony

[58] In her closing argument to the jury, the Crown strongly suggested that the appellant had tailored his evidence to answer the Crown's case. She contrasted the appellant, whom she said first told his story two and one half years after the incident, with that of the five civilian Crown witnesses who had been interviewed by the police immediately after the incident. Those witnesses, she stated, "did not tailor their evidence as they had no idea what the significance of their evidence is, they had no idea what other pieces of evidence that police have or have not collected in this trial". Their situation, she stated, was unlike that of the appellant, "who has heard the evidence before he testified . . . when he did testify he certainly had the knowledge of what the evidence in this case is".

[59] She repeated throughout her closing address the suggestion that the appellant had tailored his evidence to answer the Crown's case, in particular, the DNA evidence placing him at the scene of the crime. She stated:

But, look at the evidence he was confronted with. It's not just the civilians, but he was confronted with the scientific evidence that the probability of Mr. Jimmy John or his hat being at the scene, the improbability of coincidence was in billions. So the explanation that he gives you, is that it's innocuous, very simple, that he left his home, he ended up at the location of Bicknell Avenue and Eglinton Avenue with a view to meeting his cousin.

So I would respectfully submit, ladies and gentlemen, Mr. Jimmy John, when confronted with overwhelming scientific DNA evidence, this is the story he conjured up, it's simple, but I would respectfully submit it's incredulous [sic] and not worthy of belief because it defies common sense and logic.

[60] In my view, trial Crown's submissions violated the well-established principle prohibiting allegations that an accused [page375] person has tailored his evidence after receiving Crown disclosure or after hearing the Crown's evidence at the preliminary inquiry or at trial, absent evidence of recent fabrication and there was nothing in the record to support recent fabrication: R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788 (C.A.), at p. 625 O.R. As Borins J.A. stated in R. v. Marshall (2005), 2005 30051 (ON CA), 77 O.R. (3d) 81, [2005] O.J. No. 3549 (C.A.), at para. 71: "an accused's constitutional right to this disclosure cannot be allowed to become a aetrap'".

[61] An accused person is entitled to remain silent and to hear the Crown's case before deciding whether to give evidence or how to respond. The Crown's suggestion that the appellant was giving his story for the first time at trial amounted to an attack on his right to silence. The Crown was inviting the jury to disbelieve the appellant because he chose to exercise his constitutional right to silence and to have the Crown lead its case against him before responding.

[62] Trial Crown's response to the appellant's mistrial application was that she had not intended to suggest that the appellant had tailored his evidence, that she had not used the word "tailored", and that she was only saying "that this is the explanation that [the appellant was] giving in light of the DNA evidence". This, in my view, comes dangerously close to an unintended admission that she was urging the jury to find the appellant had tailored his evidence, particularly when combined with her repeated suggestion that the Crown witnesses had not tailored their evidence.

[63] As I have indicated, the trial judge dismissed the mistrial application, but he did give the following corrective instruction in relation to the Crown's allegation of tailoring:

There is a specific direction that I must give you as a result of a suggestion made to you in the Crown's address to you on the assessment of credibility with respect to the accused Jimmy John as it related to Crown witnesses. It was suggested that you could assess the accused's credibility, in part, on the basis that before he testified he had knowledge of the evidence against him. The imputation was that he had the opportunity to tailor his evidence, and potentially impugn the conduct of counsel. There was nothing improper in the presentation of the defence. You must not use the fact that the defence and the accused was aware of the case he had to meet as a basis or factor to consider in assessing the accused's credibility. I am instructing you to ignore this aspect of the Crown's closing remark to you. All accused have a right and entitlement in law to know the case against him or her. It is a right in law to know all the evidence the Crown seeks to rely on and does rely on in the case against him or her before deciding whether to answer it. Remember, an accused does not have to present evidence or to testify. The onus of proof beyond a reasonable doubt always remains with the Crown. If an accused chooses to testify, you can assess his evidence and credibility as you would assess all other witnesses using the same factors outlined earlier. [page376] As with any witness you can assess his evidence in light of all other evidence given on the trial, both witness testimony and exhibits. However, you are not permitted to assess his evidence on the basis that he was aware of the case, the evidence against him -- to which he has a right. It would be improper to do so and I direct you in the strongest terms to disregard the Crown's suggestion and not to do so.

[64] I do not accept the appellant's argument that the instruction could not cure the damage done by the Crown's address. The trial judge instructed the jury, in very strong terms, that they were to disregard any suggestion that the appellant had tailored his evidence.

(b) Claim that Brandan Smith co-operated with the police

[65] Brandan Smith made a call to 911 after the shooting. He gave a false name and then fled the scene. There was no evidence as to when, if ever, he spoke to the police after making the 911 call. Like the appellant, Brandan Smith's presence at the scene was in breach of a court order. The Crown chose to contrast Brandan Smith's supposed conduct with that of the appellant to put the appellant's explanation of his post-event conduct in a bad light.

[66] The Crown emphasized how Brandan Smith and the other Crown witnesses gave early statements to the police, before they could collude or tailor their evidence. Despite the lack of evidence, the Crown painted Smith as one who had immediately taken steps to correct the false name he gave to the police:

Now after Brandan Smith initially, as I said, gave the wrong name [in the 911 call], look at the subsequent steps that he took. He was contacted by the police, he cooperated with the police. He did not continue to maintain a false name. His concern was not the fact that he was breaching a house arrest condition.

Brandan Smith, despite having a house arrest condition, despite being on probation, was unconcerned, cooperated with the police immediately after.

[67] She contrasted Smith's use of a false name and immediate correction with the appellant's use of a false name at the hospital:

And ladies and gentlemen, you will quickly see that the two scenarios are completely different and there is only one reason, because Jimmy John was attempting and continue [sic] to maintain a falsifying name and took the steps because he had committed the actual murder.

[68] The trial judge gave no specific corrective instruction in relation to the Crown's misstatement of the evidence in relation [page377] to Brandan Smith. However, this submission did not form a very significant part of the Crown's closing. The trial judge did give the standard general caution that the jury was to ignore anything said in both closing addresses not supported by the evidence. I am not persuaded that more was required to correct the misstatement in the Crown's closing.

(c) Crown's treatment of Christopher Cambronne's actions at the scene

[69] The Crown witnesses gave conflicting accounts as to whether Christopher Cambronne intervened in the fight between the deceased and the shooter. Cambronne testified that he had not intervened. Rashad Lewis testified that Cambronne intervened. Archer Bingling testified in chief that no one intervened but said in cross-examination that he thought that Cambronne had intervened. Christopher Bingling mentioned in chief that Cambronne was "going to try to part [the scuffle]", but in cross-examination said that Cambronne did not intervene.

[70] In her closing, the Crown misstated the evidence, and suggested that Cambronne denied intervening because he saw the shooter and did not want to identify him. She stated:

Rashad Lewis, Christopher Bingling, Archer Bingling, they described one person. They described that it was Chris Cambronne who tried to intervene because they could see from the left side and they also recognized, it's not counsel suggested that they could have been mistaken, because Chris Cambronne was wearing a white shirt. Respectfully, ladies and gentlemen, they were very adamant. Rashad Lewis, you heard when Mr. Girvan suggested to him, "is it fair that someone else could have been intervened?" [sic] He maintained, no it was not fair, it was Chris Cambronne. Archer Bingling, when it was suggested to him, "Could anyone else?" and he said, "No, I recognized Chris Cambronne." And Chris Bingling, again gave the same testimony, that he saw Christopher Cambronne attempting to intervene.

[71] After giving this distorted version of the evidence, the Crown went on to offer a speculative and highly prejudicial theory as to why Cambronne denied intervening:

Perhaps he had a very good look at the shooter, if he in fact intervened, as Archer Bingling, Chris Bingling, Rashad Lewis claimed, but he would have been in a position, if he intervened he was the only one close enough to see the shooter's face, he is the only one who doesn't give any description. And again, is it so unusual that the one person who remains silent is the person who could identify the shooter, that in face of what he observed the consequences were to his friend before his eyes on the part of the shooter, that he doesn't want to give any details, and if he doesn't want to give any detail he certainly would not be admitting to intervening in the fight, or attempting to intervene, or even getting anywhere near close to the fight. [page378]

[72] She told the jury that the fact that Cambronne had intervened was "the only conclusion you can reach because there are three people who know him, and what possible reason would they have for suggesting that it was Chris Cambronne". She proceeded to use the apparent certainty of Cambronne's intervention to discredit the appellant's evidence that no one intervened and to insist that the "logical explanation" for Cambronne's denial was that "he does not want to describe anything about the shooter including that it was a male person". That proposition was never put to Cambronne in cross-examination. The Crown was implying that Cambronne knew the shooter's identity and was afraid to reveal it. Defence counsel objected and the trial judge ruled that the following corrective instruction was required:

In the Crown's closing address she suggested that Cambronne testified he did not intervene contrary to other witnesses who said he did intervene, because he may have had a reason. You were invited to speculate that Cambronne may have had a reason for having said he did not. There is no evidence that such was the case. It was never raised with him. You are not to speculate. Consider only the evidence on the trial and nothing else.

[73] In my view, the trial judge fairly considered this aspect of the Crown's closing and gave a proper corrective instruction clearly warning the jury not to accept the Crown's invitation to speculate.

(d) The burden of proof

[74] In her closing, Crown counsel said the following in relation to the burden of proof:

Now, you have heard the phrase and the term, "reasonable doubt". . . . However, I will remind you that it means the exact same thing whether you hear it once or fifty times. And furthermore, it is a standard of proof which applies to each and every person charged with a criminal offence in Canada, and as I am certain that you all know, using the same standard, hundreds, if not thousands of people are convicted of criminal cases every year, so it is clearly not an insurmountable burden.

[75] I find it difficult to read this comment as other than an attempt by the Crown to diminish or minimize the concept of reasonable doubt and the onus of proof on the Crown. Defence counsel objected and the trial judge instructed the jury that if the trial judge told the jury that what might have happened in previous cases was not relevant and that if Crown counsel's "comments suggested a lower standard of proof than I have described to you, you are to ignore her remarks". [page379]

(e) The lighting incident

[76] One of the Crown witnesses, Archer Bingling, described the shooter's baseball cap to the police as silver in colour. At the trial he described it as dark in colour with some shiny areas. He was unable to say if it had a logo. Bingling's description of the hat did not fit the Crown's theory that the appellant, wearing a black and gold Chicago White Sox hat, was the shooter. During her address, the Crown asked the court staff to lower the lighting in an attempt to explain why Bingling might have wrongly described the hat. This was clearly an inappropriate attempt to lead evidence. There was nothing to suggest that the dimmed lighting in the court room corresponded with that at the scene of the shooting. Defence counsel objected and the trial judge instructed the jury "to ignore the demonstration".

(iii) Assessment of the overall effect of the improprieties in the Crown's conduct

[77] The Crown is entitled to argue its case forcefully but, in the often-quoted words of Rand J. in R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, [1954] S.C.J. No. 54, at p. 24 S.C.R.: "The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty. . . . It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings." The Crown is afforded considerable latitude when making a closing address: see R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161, [2002] O.J. No. 464 (C.A.). But forceful advocacy has clear limits and in making closing submissions, the Crown "should not . . . engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness": R. v. Mallory, [2007] O.J. No. 236, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340.

[78] In my opinion, the trial Crown fell below the expected standard of propriety and fairness conduct in this case. I find two aspects of her conduct disturbing. The first is the number of transgressions. This is not a case where the Crown slipped and stepped over the line on one occasion. The trial judge found it necessary to give corrective instructions on five different points. The trial Crown did not take serious issue with the need for those instructions, nor does the Crown on appeal.

[79] My second concern is that the Crown's improper conduct targeted fundamental procedural rights of the appellant. In her cross-examination of the appellant, she undermined the principle that there is no onus on the accused to prove his innocence. [page380] In her closing address to the jury, she belittled the beyond a reasonable doubt standard and she unfairly attacked the credibility of the appellant because he had exercised his constitutional right to remain silent until he heard the Crown's case in open court. And to make matters even worse, the trial Crown made submissions to the jury that were unsupported by the evidence.

[80] This brings me to the difficult question of whether the corrective instructions given by the trial judge were sufficient to cure the problems created by the Crown's inappropriate conduct and sufficient to preserve the appellant's right to a fair trial.

[81] The appellant does not take serious issue with the adequacy of any of the corrective instructions but contends that when considered cumulatively, the trial Crown's conduct did undermine the appellant's right to fair trial.

[82] To accept this submission, I would have to conclude that the trial judge erred in dismissing the appellant's mistrial application. After considerable reflection and with some hesitation, I conclude that the trial judge did not so err. As this court has held in many occasions, a mistrial is a remedy of last resort and other less drastic remedies must be considered and rejected before a mistrial is granted. Moreover, the trial judge is in the best position to assess the situation and to decide upon the impact of the Crown's misconduct on the accused's right to a fair trial. The determination whether to grant a mistrial is a matter that falls squarely within the trial judge's discretion. This court will only interfere where it concludes that the trial judge's decision is clearly wrong or based upon some erroneous principle: see R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, at para. 14; R. v. G. (A.) (2015), 124 O.R. (3d) 758, [2015] O.J. No. 1217, 2015 ONCA 159, at para. 50.

[83] Applying that standard of review to the case before me, I can identify no erroneous principle in the decision of the trial judge and, at the end of the day, I cannot say that he was clearly wrong in concluding that the situation could be remedied by the strong corrective instructions he delivered.

Disposition

[84] For these reasons, I would dismiss Jimmy John's conviction appeal. It follows that I would also dismiss Curt John's conviction appeal. I would also refuse leave to appeal the sentences imposed by the trial judge.

Appeal dismissed.

[page381]

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