Court of Appeal for Ontario

Date: 2023-05-10 Docket: C69199

Before: Fairburn A.C.J.O., MacPherson and Zarnett JJ.A.

Between: His Majesty the King, Respondent and Jason Ebanks, Appellant

Counsel: Jason Ebanks, acting in person Matthew Gourlay, appearing as duty counsel Erica Whitford, for the respondent

On appeal from the conviction entered by Regional Senior Justice Paul R. Sweeny of the Superior Court of Justice, sitting with a jury, on October 8, 2020, and from the sentence imposed on January 12, 2021.

Reasons for Decision

[1] The appellant was charged with offences arising out of the shooting of Felipe DaCosta in April 2018. He was convicted, after a trial by judge and jury, of attempted murder with a firearm contrary to s. 239(1)(a.1) of the Criminal Code. He was also convicted of discharging a firearm with intent to injure, use of a firearm to commit aggravated assault, and aggravated assault − those convictions were conditionally stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729.

[2] The trial judge imposed a custodial sentence of 11 years, with no credit for pre-trial custody, and made certain ancillary orders.

The Conviction Appeal

[3] The appellant’s primary ground of appeal from the conviction has to do with the portion of the trial judge’s charge to the jury concerning Mr. DaCosta’s identification of the appellant in a photo line-up prepared by the police, approximately three weeks after the shooting. The context is as follows.

[4] Mr. DaCosta was shot multiple times after he opened the door of his home to see who had knocked. The key issue at trial was the identity of the shooter.

[5] The Crown’s theory that the appellant was the shooter was based on Mr. DaCosta’s evidence identifying the appellant, and expert evidence that casings from the scene of the shooting came from a gun that was found in a car driven by the appellant when he was arrested some weeks after.

[6] Mr. DaCosta testified that at the time of the shooting he was able to recognize a person, whom he knew as “Wes”, as the shooter. He told the police shortly after the shooting that “Wes” had shot him. He later picked the appellant’s picture out of a photo line-up shown to him by the police. He testified that he went to the photo line-up looking for a photo of “Wes” whom he believed to be the person who shot him.

[7] There was no issue at trial that the person Mr. DaCosta knew as “Wes” was the appellant, but there was an issue about the identification of “Wes” as the shooter. The trial judge instructed the jury that the Crown’s case depended to a large degree on the eyewitness identification evidence of Mr. DaCosta. He told the jury that they must be very cautious about relying on that testimony. He reviewed in detail the specific weaknesses that had been raised by the defence about Mr. DaCosta’s evidence that he was able to recognize the shooter at the time of the shooting. The trial judge reviewed, among other points, Mr. DaCosta’s need for glasses, his use of drugs about an hour before the shooting, the short period of time during which he was able to see the shooter whose face was partially covered, and the stressful nature of the situation.

[8] The appellant takes no issue with that part of the charge, but submits it was undercut by the trial judge’s treatment of the photo line-up identification.

[9] The appellant argues that although the trial judge cautioned the jury in a general way about identification from line-ups, those cautions are geared to line-up identifications that are probative. Here there was a more specific frailty about which, he submits, the jury was not cautioned. In the appellant’s submission, the line-up identification evidence was of no or little value. There was no issue that “Wes” was the appellant, and that Mr. DaCosta was acquainted with him. The fact that Mr. DaCosta picked the appellant’s picture out of the photo line-up meant nothing − he was identifying the photo of someone he already knew and already believed was the person who had shot him. The failure to caution the jury about this invited the jury to use the photo-line up identification to buttress Mr. DaCosta’s otherwise frail evidence that at the time of the shooting he was able to recognize “Wes” as the shooter.

[10] We do not accept this argument.

[11] A jury must be properly, not perfectly, instructed. Jury instructions are to be assessed functionally in the context of the trial as a whole, the question being whether they enabled the jury to decide the case in accordance with the legal principles and the evidence: R. v. Adan, 2019 ONCA 709, at paras. 61-63. Cautions about the use of eyewitness evidence must be related to the specific facts and issues in the case: R. v. Brown, 2007 ONCA 71, 221 O.A.C. 17, at paras. 17-18.

[12] Although the instructions might have been worded differently, in our view the trial judge equipped the jury with the tools to assess the photo line-up evidence. Defence counsel at trial expressly put to the jury that the photo identification had no value due to Mr. DaCosta’s previous knowledge of “Wes” and the fact that he was looking for “Wes” in the photos he was shown. The trial judge outlined for the jury Mr. DaCosta’s evidence that he knew “Wes” for seven to ten years and saw him about once a week in the past year. He specifically told the jury that “on the issue of photo identification, Mr. DaCosta was looking to identify Wes because it was his belief that Wes was the shooter”. And he reminded the jury of the defence position that Mr. DaCosta’s “subsequent identification of [the appellant] in a photo line-up does not make his prior flawed identification any stronger”.

[13] The jury was therefore well-positioned to evaluate the factual question of what it could take from Mr. DaCosta identifying “Wes” in the photo-lineup in light of the facts of the case and the specific issues raised about that evidence by the defence. In our view, the jury was not invited to use the evidence in a way that would cause them to ignore the cautions they had been given about the use of eyewitness identification or the frailties raised by the defence about the identification evidence.

[14] In light of the view we take on this point, it is not necessary to address the Crown’s argument that in light of the ballistic evidence the proviso should be applied if the jury instruction was found to be in error.

The Sentence Appeal

[15] The notice of appeal indicated that the sentence was being challenged, however, no submissions in support of this were made.

Conclusion

[16] The conviction appeal is dismissed. Leave to appeal sentence is refused.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“B. Zarnett J.A.”