WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.
WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240516 DOCKET: C67914 Simmons, Hourigan and Paciocco JJ.A.
BETWEEN
His Majesty the King Respondent
and
Shamoiey Akindejoye Appellant
Counsel: Jessica Zita and Craig Zeeh, for the appellant Roger Pinnock and Raoof Zamanifar, for the respondent
Heard: March 25, 2024
On appeal from the conviction entered on October 13, 2018 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.
Simmons J.A.:
Reasons for Judgment
[1] Following a jury trial at which he was the sole defendant, the appellant was convicted of first degree murder. He raises three issues on his conviction appeal.
[2] First, the appellant submits that the trial judge erred by failing to include a standalone instruction on collusion in his jury charge. Second, he argues that the trial judge erred by permitting the Crown to lead in-dock identification evidence from an eyewitness who failed to identify him in a photo line-up. Finally, he argues that the trial judge erred in failing to grant his request for a mistrial following prejudicial remarks by the trial Crown in his closing address to the jury.
[3] For the reasons that follow, I would dismiss the appeal.
Background
(i) The shooting
[4] Nathan Miller was shot and killed in the kitchen of a known Hamilton crack house around 9:36 p.m. on January 8, 2015. He and his cousin Brandon Miller (also known as “Archie”) were standing in the kitchen with two occupants of the house, Crystal Potter and Patricia Potter, and Crystal's friend, John Cole, when five men [1] entered through the back door and walked silently, in single file, through the kitchen. [2] Archie ran out the back door at some point after the five men entered.
[5] According to the eyewitnesses, the group of five men stopped as they walked through the kitchen. One of the five men turned to the deceased and said he had heard that the deceased was looking for James. He then shot the deceased seven times. The eyewitnesses were consistent in asserting that the shooter was the person who spoke to the deceased and the biggest of the five men.
(ii) Events leading up to the shooting
[6] It was undisputed at trial that the deceased’s cousin, Archie, was a drug dealer who previously sold drugs at the crack house. He had traveled to Hamilton from Toronto with the deceased that day for the purpose of selling drugs.
[7] An agreed statement of fact filed at trial identified the five men who entered the crack house and provided the following descriptions:
- in June 2015, [the appellant] was 6’3” tall and weighed 291 lbs;
- in June 2015, Jemaal Wilson [also known as James] was 5'9" tall and weighed 146 lbs;
- in June 2015, Devonte Martin was 6'3" tall and weighed 163 lbs;
- in June 2015, [T.B.] was 5'9" tall and weighed 153 lbs;
- in October 2013, [D.R.] was 6'5" tall and weighed 183 lbs.
[8] As of January 8, 2015, Archie had not been to the crack house for some time – it had been at least a few weeks. In the meantime, James had started selling drugs from the house. He would also hang out at the house and play video games in the basement with his friends, including the appellant and the basement tenant. According to Crystal Potter, a few days before January 8, 2015, James told her that she could only buy drugs from him.
[9] Archie and the deceased arrived at the crack house in the early evening of January 8, 2015. While standing in the kitchen, Crystal Potter told Archie that she was only allowed to buy drugs from James or his crew. Archie said, “that’s not right” and said he would resolve things. D.D., a friend of James, emerged from the basement and walked through the kitchen. As he did so, Archie asked him where James was. D.D. ignored Archie and left the residence.
[10] The theory of the Crown at trial was that the murder was a planned and deliberate execution triggered by a turf war between drug dealers. In support of its theory, the Crown introduced cell phone tower and surveillance evidence as well as telephone records that demonstrated the five men’s communications and movements leading up to the murder.
[11] This evidence revealed that, starting at around 7:01 p.m. on January 8, 2015, a series of phone calls took place between various people in the group of five men, D.D. and the land line associated with the crack house. By shortly after 9:30 p.m., the five men had assembled at a convenience store close to the crack house. Martin and D.R. arrived at the convenience store around 9:17 p.m. and remained there. D.D. arrived shortly thereafter but left the convenience store at 9:22 p.m. At 9:34 p.m., the appellant, James and T.B. arrived together in a cab and met up with D.R. and Martin. The five men then walked to the crack house. While en route, James called the crack house land line. Following this call, one of the people inside the crack house opened the back door. The five men then entered and the shooting occurred.
[12] Immediately after the shooting, the five men ran down a hallway of the crack house and out the front door.
(iii) The evidence at trial
[13] During a 911 call placed at 9:40 p.m., Crystal Potter said she could not describe any of the five men if she tried. However, both she and her mother, Patricia Potter, gave statements to the police within about three hours of the shooting in which they provided descriptions of the intruders. The basement tenant also gave a statement shortly after the shooting, but he did not witness the shooting and had not seen the five men. The police arranged for Crystal, Patricia, and the basement tenant to stay at a hotel after giving their statements while a search warrant was executed. It was undisputed at trial that the three of them were not sequestered and had the opportunity to discuss the shooting.
[14] Although she initially denied it, Crystal Potter acknowledged during her cross-examination at trial that she spoke to her mother, Patricia Potter, before they gave their initial police statements. During this time, she told her mother not to tell the police about John Cole being in the kitchen. She also claimed that John Cole told her not to mention his presence to police. Ultimately, neither Crystal Potter nor her mother mentioned his presence in their initial police statements. Nor did they mention Archie’s presence in the kitchen or the fact that Crystal Potter left the residence briefly, soon after calling 911, purportedly to take Archie’s iPad to him.
[15] John Cole subsequently provided a statement to police in February 2015. At that time, he said he would not be surprised if there were only four men who entered the crack house just before the shooting, but that he was pretty sure there were five.
[16] John Cole and Crystal Potter were presented with a photo line-up that included the appellant’s photograph in February 2015 and June 2015 respectively. Neither identified the appellant from the photo line-up. When reviewing the photo line-up, Crystal Potter commented that she was “pretty positive” the shooter had a chipped tooth “because that’s what [she] heard”. Patricia Potter did not participate in a photo line-up as she said she could not identify the shooter. She maintained that position at trial.
[17] John Cole failed to attend the trial, but his evidence was entered at trial as an agreed statement of fact. [3] He described the shooter as someone he knew as Sean, the “muscle” of the group, dark-skinned, Jamaican, 6’1”, 240 lbs, with “chipped teeth on [the] bottom”. He indicated as well that James and D.D. [4] were part of the group, as well as someone he knew as Dot, a “skinny black guy”, 6’2”, maybe 140 lbs. He said there was a fifth person, but he could not remember what he looked like. According to John Cole, all five men drew guns prior to the shooting but Sean was the only one who fired any shots. John Cole acknowledged that he had talked to Crystal Potter, Patricia Potter, and another occupant of the crack house about the shooting to a limited extent prior to giving his police statement.
[18] At trial, Crystal Potter said there were five men: two tall, two short, and one “stubby”. One of the short men was named James and had braids like Snoop Dogg. The two tall men were thin and were named Doc and Dot, but she did not know which was which. She described the shooter as stubby and stocky but taller than the two short men and not as tall as the tall men. She said his skin was dark black and that he was “kind of … bald with little stubbles … growing back.” Although she described the shooter as having a cracked bottom tooth during the photo line-up, she acknowledged that she had heard that from someone else. She said the shooter wore a black bubble vest with a black hoodie underneath. She also testified that she got a fleeting glance of the shooter the day before the shooting when he was sitting in the basement with James and the basement tenant. She had briefly gone partially into the basement, only standing on the stairs but not coming all the way down. The police recovered a bottle with the appellant’s DNA on it from a table beside the chair Crystal Potter said the shooter was sitting in.
[19] Patricia Potter testified that seven or eight men entered the back door of the crack house immediately before the shooting. The shooter was bigger and seemed taller than everyone else in the group, the rest of whom were skinny. In her statement to police, she said that the shooter was between 28 and 34 years old, heavy set with chubby cheeks and that he was wearing a grey hoodie. At trial, she said she only got a side view of him and could not identify him in court.
[20] Crystal Potter and Patricia Potter both testified that the shooter was the only one of the men who had a gun.
[21] Crystal Potter identified the appellant as the shooter for the first time at trial by way of an in-dock identification.
[22] Although all five men were charged following the shooting, by the time of the appellant’s trial, three of the others had pleaded guilty to either manslaughter or second degree murder, and one was awaiting trial and was eventually acquitted. None of the other four men testified at the appellant’s trial.
[23] The appellant did not testify at trial. Although he conceded that he was present at the shooting and that he spoke to the deceased, he maintained through his counsel’s closing that he was not the shooter and that there was no plan to kill the deceased. Rather, he asserted that the shooting arose from a random, unexpected confrontation and that the eyewitness descriptions of the shooter were more consistent with James or T.B. than with him.
Discussion
[24] I will address the three issues raised by the appellant in turn.
(i) The trial judge did not fail to properly warn the jury about collusion
[25] First, the appellant argues that the trial judge failed to properly warn the jury about collusion.
[26] Although there was evidence of discussions about the events among the eyewitnesses and, in some cases, the eyewitnesses and the basement tenant, the trial judge did not provide the jury with stand-alone instructions on collusion.
[27] The appellant submits that the trial judge erred in failing to do so. He asserts that the eyewitnesses were all problematic witnesses for several reasons. All of them were drug users and had criminal records that included offences of dishonesty. In addition to the evidence that they had discussed the events, it was apparent that they had deliberately omitted details, and/or counselled each other to omit details, about who was present at the shooting in their initial statements to the police. Crystal Potter had also acknowledged that she had “heard” that the shooter had a chipped tooth. The appellant submits that all of these factors raised issues concerning the reliability and credibility of the eyewitnesses and supported the real possibility of collusion.
[28] Defence counsel at trial raised the issue of collusion at the pre-charge conference. Both the trial Crown and defence counsel specifically referred to collusion on several occasions in their closing addresses to the jury. Viewed in this context, the appellant submits that the trial judge erred by failing to provide the jury with an express caution about collusion, whether deliberate or unintentional.
[29] I would not accept these submissions for several reasons.
[30] First, as I have said, apart from Crystal’s evidence from the photo line-up that the shooter had a chipped bottom tooth, which the trial judge suggested that the jury discard, the appellant has not identified anything to suggest that the identification evidence that was presented in this case was a product of collusion, whether deliberate or unintentional.
[31] There were only two live issues in this case: identification of the shooter and planning and deliberation. The appellant conceded that he was one of the five men who entered the crack house and was present at the shooting.
[32] Significantly, the police statements and testimony of the eyewitnesses included important differences, which defence counsel relied on at trial, concerning the details of the shooting and the description of the shooter. With respect to the details of the shooting, their evidence differed on the number of intruders, how many were armed, and the order in which they entered the house through the back door. With respect to the description of the shooter, there were differences in the eyewitnesses’ evidence concerning whether he was wearing either a bubble coat or grey hoodie. Some, but not all, eyewitnesses mentioned a gap in his teeth or a chipped bottom tooth.
[33] Although the appellant has pointed to other frailties in the evidence of the eyewitnesses, apart from the chipped bottom tooth issue in Crystal’s evidence, he has not identified any aspect of their identification evidence that would suggest that it was the product of collusion. In particular, he has not explained how he claims their descriptions of the shooter, or of the event, may have evolved or become tainted because of collusion.
[34] Second, even though the trial judge did not provide the jury with a stand-alone caution on collusion, I am satisfied that the cautions he did provide were sufficient to alert the jury to any issues relating to collusion that may have existed in this case.
[35] For example, when giving the jury general instructions about how to assess the evidence of witnesses, the trial judge cautioned the jury to consider whether a witness was testifying about matters learned from other sources:
Did the witness seem to be reporting to you what he or she saw or heard, or simply putting together an account based on information obtained from other sources , rather than personal observation? [Emphasis added.]
[36] The trial judge went on to caution the jury about witnesses who may have lied to police or misled them. He provided several case specific examples of Crystal Potter’s and Patricia Potter’s omissions in their statements to the police (for example, failing to mention that Archie and John Cole were present in the kitchen when the deceased was shot, Crystal failing to mention that she left the house to meet up with Archie shortly after the deceased was shot, and Patricia claiming that James was not present when the deceased was shot). The trial judge concluded this set of instructions with a strong caution that the testimony of witnesses such as the eyewitnesses in this case had to be approached with care and attention:
Experience teaches us that Crown witnesses of this kind , all who are all involved in the criminal lifestyle, or having numerous conviction[s] for crimes of dishonesty, or drug addictions and with their background and affiliations to each other in one respect or another, or discussing some of their evidence with one or more of the other , or withholding important information from the police; that their testimony must be approached with due care and attention . [Emphasis added.]
[37] Later, when discussing Crystal’s identification evidence, the trial judge reminded the jury that Crystal had acknowledged that she heard about the shooter’s chipped tooth from another source and suggested that they ignore that aspect of her evidence. He subsequently again cautioned the jury to consider whether Crystal’s identification was based on her own recollection or information received from others:
You may want to discard [Crystal Potter’s] specific evidence about the shooter having a chipped tooth as that was not first-hand observation, but information she gleaned from another source . You will recall that she admitted speaking with her mother and [the downstairs tenant] at the hotel about what had occurred at the house.
Has the witness ever changed her mind about the identification? Has the witness ever expressed uncertainty about or questioned her identification? Is the identification the witness’ own recollection of her observations or something put together from information received from a number of other sources? Was the witness aware of the accounts or descriptions given by others? Again, recall the witness agreed that there was a discussion amongst her mother and [the downstairs tenant] at the hotel following the incident . [Emphasis added.]
[38] Viewed as a whole, I am satisfied that the trial judge provided the jury with sufficient instructions to properly assess the evidence in this case.
[39] Finally, although defence counsel at trial raised collusion at the pre-charge conference, he did not ask the trial judge to give a stand-alone instruction on the issue at that time. The trial judge made it clear at the pre-charge conference that, although he was not inclined to charge on collusion, nothing was written in stone at that stage, and he was open to receiving further submissions. Despite this, defence counsel at trial did not request a specific collusion instruction, even after receiving a copy of the trial judge’s draft charge to the jury. Nor did he raise an objection to the absence of a specific collusion instruction after the charge was delivered.
[40] In the circumstances, I can only conclude that defence counsel at trial was content with the instructions that the trial judge gave. Although not determinative, this supports my conclusion that the trial judge’s instructions were sufficient and that he did not err in failing to give a specific collusion instruction in this case.
(ii) The trial judge did not err in permitting the Crown to lead in-dock identification evidence from Crystal Potter that the appellant was the shooter
[41] The second issue raised by the appellant is that the trial judge erred in permitting the Crown to lead in-dock identification evidence from Crystal Potter that the appellant was the shooter.
[42] Defence counsel at trial brought a mid-trial application to preclude the Crown from leading in-dock identification evidence. [5] In addition to the inherent problems that can be associated with in-dock identification and its general minimal probative value, he relied on submissions that:
- Crystal Potter said, in her 911 call, that she could not describe any of the intruders if she tried;
- her subsequent description of the shooter was vague, based more on size than any identifiable facial features and was tainted by information she had admittedly gleaned from someone else;
- she failed to identify the appellant in a photo line-up;
- she had subsequently seen the appellant, in the position of an accused person, at his preliminary inquiry, which was held with his then co-accused Jemaal Wilson (James) and Devonte Martin, where in-dock identification was not permitted; and
- the appellant, a very large man, was now the only accused person on trial.
[43] Defence counsel submitted that, in all the circumstances, an in-dock identification of the appellant as the shooter by Crystal Potter would have no probative value. He noted, as well, that, realistically, he would not be able to raise the impact of Crystal Potter having seen the appellant with two co-accused at his preliminary inquiry in cross-examination. This is because doing so would raise questions for the jury concerning why the appellant was the only remaining accused. Permitting in-dock identification evidence in these circumstances would cause extreme prejudice that could not be remedied by jury instructions and certainly outweighed the minimal, if any, probative value of such evidence.
[44] On appeal, the appellant submits that in dismissing his application to exclude in-dock identification evidence, the trial judge failed to meaningfully address the critical question of whether the prejudicial effect of such evidence exceeded its probative value. As the trial judge noted in his mid-trial ruling, in-dock identification evidence can appear deceptively credible to a jury. Here, there were many problems associated with Crystal’s evidence, including her drug use, her criminal record, the omissions in her police statement and the fact that her description of the shooter included information obtained from someone else. She had not identified the appellant in the photo line-up presented to her but had subsequently seen him at the preliminary hearing held with much smaller men, who were co-accused at the time.
[45] The appellant argues that, in the circumstances, the probative value of Crystal Potter’s in-dock identification of the appellant as the shooter was slight, if it existed at all, whereas the potential prejudice arising from it was significant. Importantly, prohibiting this evidence would not have detracted in any significant way from the Crown’s case. The value of her identification evidence derived from her description of the shooter as the biggest of the five men, not from the in-dock identification. As a result, prohibiting her from making an in-dock identification in these circumstances would not have detracted from the Crown’s case.
[46] I would not accept these submissions. In-dock identification evidence is presumptively admissible, subject to the requirement that the trial judge provide a proper caution concerning its frailties. A decision to exclude such evidence is discretionary, based on a weighing of the probative value of such evidence against its prejudicial effect.
[47] Here, the trial judge thoroughly considered the relevant jurisprudence concerning the admissibility of such evidence as well as defence counsel’s submissions. He appreciated that the issue was whether the probative value of the evidence was outweighed by its potential prejudicial effect. In his view, Crystal’s identification evidence concerning the shooter related to more than just his size. Whether correctly or incorrectly, Crystal referred to some distinctive features of the shooter, including his clothing and degree of baldness. This factor was particularly relevant given that the jury had seen video surveillance evidence showing the appellant in the front seat of a taxi shortly before the shooting. The trial judge concluded that, while the “in-dock identification [was] not confirmatory”, its probative value lay in it forming “just part of the entire … eyewitness evidence that will impact on the credibility and reliability of the witness’ evidence.”
[48] The trial judge expressly disagreed with the defence submission that the probative value of the evidence was outweighed by its potential for prejudice. He noted that the in-dock identification was “part of the entire process the jury must consider” and that the jury could draw an adverse inference against the Crown for failing to ask Crystal Potter if she could identify anyone in the courtroom as the shooter. The trial judge pointed out that it was not then known whether Crystal Potter would identify the appellant as the shooter. He observed that, “even if the evidence is, to an extent, somewhat unreliable or subject to credibility issues”, it was “up to the jury to decide”. The frailties of the evidence could be explored through cross-examination. He concluded that the evidence would not render the trial unfair because any prejudice would be met by proper jury instructions as to the frailties and limitations of identification evidence.
[49] Ultimately, the trial judge instructed the jury Crystal Potter’s in-dock identification was “entitled to no weight or zero consideration”. The trial judge explained to the jury that this was because the appellant was the only black person seated in the dock, and that there is a danger, in any event, that witnesses will assume that the person seated in the dock is the person who committed the offence. The trial judge said, “[i]dentification evidence of this type is of poor quality and rife with frailties.”
[50] These instructions followed the Crown’s statements in his closing address to the same effect:
Crystal Potter’s identification in the dock is worth pretty much zero because [the appellant] is all by himself, who else would she pick? So don’t put any weight on that; it’s just part of her identification evidence.
[51] I see no error in the trial judge’s discretionary decision to admit Crystal Potter’s in-dock identification evidence. The appellant has identified no error in principle or other error that would justify appellate interference. The trial judge admitted the evidence so that the whole of the identification process would be in front of the jury, but also instructed the jury to give the actual in-dock identification no weight. In effect, the appellant asks us to reweigh the probative value and prejudicial effect of the evidence. I see no basis for doing so.
(iii) The trial judge did not err in failing to grant a mistrial
[52] The appellant’s third ground of appeal is that the trial judge erred in failing to grant a mistrial following prejudicial remarks in the Crown’s closing address. The trial judge dismissed the appellants’ request for a mistrial because he concluded that the remedy of a mistrial is reserved for the “clearest of cases”, and that, in this case, any prejudice caused by the Crown’s improper remarks could be addressed through corrective instructions.
[53] The appellant does not take issue with the corrective instructions given by the trial judge. Rather, he asserts that jury instructions were incapable of remedying the prejudice caused by the impugned remarks and that the trial judge erred in failing to grant a mistrial.
[54] For reasons that I will explain, I would not give effect to this ground of appeal.
(a) The Crown’s closing submissions
[55] The appellant requested that the trial judge order a mistrial based on two sets of remarks made by the Crown in his closing address.
[56] First, when speaking about a photograph of the appellant, taken two days before the murder, the trial Crown said the following:
We see his build; we see the space in his teeth. We also see on his right hip something concealed under his T-shirt. One could infer that since there is a lot of evidence to suggest that he shot [the deceased] with a semi-auto pistol two days later, that that might be the semi-auto pistol on his hip . [Emphasis added.]
[57] Second, when speaking about the identification evidence which had been led about the five men who entered the crack house, the trial Crown said:
It’s useful to look at the ID evidence that’s been led with respect to everyone that was in that kitchen. Make no mistake: every single one of those gentlemen is guilty of first degree murder. They all participated in the murder, they all had foresight that it was going to happen for the reasons I’ve just indicated. No shock, uniformity of movement, concerted plan as a joint effort. [Emphasis added.]
(b) The trial judge’s corrective instructions
[58] During his charge to the jury, the trial judge cautioned the jury not to speculate about what was under the appellant’s shirt in the photograph taken two days before the murder:
Crown counsel invited you to consider what might be underneath the accused’s shirt in his right hip area. He suggested that it could possibly be a gun. You are to completely disregard the Crown attorney’s suggestion. In other words, you are not to speculate what is underneath [the appellant’s] shirt in that photograph . There is absolutely no evidence whatsoever what that object is or may be: whether a gun, cell phone, a holder of some type or some other object. Further, the Crown’s submission or suggestion to you in this context may invite you to consider the potential for some prior discreditable conduct. As I have already instructed you, such evidence is inadmissible. Again, for these reasons, this specific submission raised by the Crown cannot form any basis of your deliberations or verdict. [Emphasis added.]
[59] The day after the trial Crown’s closing and prior to commencing his charge to the jury, the trial judge told the jury that the trial Crown misspoke when he told them the five men were guilty of first degree murder and had intended only to convey the Crown’s position that the five men had all participated in a planned and deliberate murder. The trial judge also cautioned the jury not to speculate about what happened to the other four men:
In discussing identification, the Crown suggested that every single one of those gentlemen is guilty of first degree murder. Clearly, the Crown attorney misspoke when he said that to you. What the Crown meant to suggest to you is that in their view, all five men acted in concert or participated or aided and abetted each other to plan and deliberate on the murder.
Of course, there's absolutely no evidence before you about what, if anything happened to the other men, and whether or not they faced any criminal charges. Frankly, it is of no concern to you.
I cannot stress enough that not only is this speculation, but rather, it is entirely improper for you to reflect upon, discuss or deliberate on whether the other men should or ought to have been subjected to first degree murder charges, or if they were convicted of any criminal charges or not.
You cannot and must not engage in this type of analysis. It must not form any part of your analysis. Your assessment of the evidence of aiding and abetting of first degree murder is directed to whether the Crown has proven the charge against [the appellant] beyond a reasonable doubt.
(c) The appellant’s position on appeal
[60] The appellant submits that the Crown’s improper remarks rendered the trial unfair and could not be rectified by any remedy short of a mistrial. At the invitation of the Crown, the jury was invited to speculate about the only live issues at the trial: the identity of the appellant as the shooter, and whether the murder was a first degree murder.
[61] The Crown’s position at trial was that there was one gun and one shooter: the appellant. This position was strengthened by the Crown’s improper and speculative claim that a photograph of the appellant, taken two days before the murder, showed that the appellant had a gun. This submission not only invited speculation on a crucial issue. It also introduced evidence of prior discreditable conduct into the trial.
[62] The appellant argues that even more prejudicial, however, was the Crown’s reference to all five men being guilty of first degree murder. The reference invited the jury to assume, without any evidence having been tendered about whether any of them had even been charged, that the four other men had been convicted of first degree murder. This reference not only invited impermissible speculation – it was also factually incorrect and incapable of proper correction without reference to facts that were not before the jury.
(d) Discussion
[63] I would not accept the appellant’s submissions. The trial judge’s discretionary decision to grant a mistrial is entitled to significant deference. An appellate court may only interfere if the decision is clearly wrong or based on an error in principle: see R. v. Wise, 2022 ONCA 586, 417 C.C.C. (3d) 297, at para. 21; R. v. Gager, 2020 ONCA 274, at para. 91; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at para. 82, leave to appeal refused, [2017] S.C.C.A. No. 101; and R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 58.
[64] Here, the trial judge appreciated that the trial Crown’s remarks were improper but concluded that the prejudice arising from them could be cured by appropriate instructions. He crafted instructions making it clear to the jury that they were to disregard the Crown’s improper suggestions that they engage in speculation.
[65] The trial judge’s reasons for refusing to grant a mistrial reveal no error in principle and I see no basis for holding that his decision is clearly wrong. The trial judge was in a far better position than I to assess the prejudice arising from the Crown’s remarks and whether it could be remedied by corrective instructions. His instructions were clear and to the point. I see no basis for concluding that the jury would have been unable to understand them or incapable of following them.
Disposition
[66] Based on the foregoing reasons, I would dismiss this appeal.
Released: May 16, 2024 “J.S.” “Janet Simmons J.A.” “I agree. C.W. Hourigan J.A.” “I agree. David M. Paciocco J.A.”
Footnotes
[1] Two of the five men were under the age of 18.
[2] John Cole indicated that he “pretty much knew” all of the five men and said that he said “hi” to the first three, but no one responded.
[3] In addition to his police statement, John Cole had testified at two preliminary inquiries. The agreed statement of fact was an amalgam of his police statement and prior testimony.
[4] It was undisputed at trial that D.D., who John Cole named using D.D.’s street name, was not part of the group of five men who entered the crack house immediately prior to the shooting.
[5] By the time this application was made, it was clear that John Cole would not be attending at trial. Accordingly, although the application related in part to his potential evidence, the focus of counsel’s submissions and the trial judge’s ruling was on Crystal Potter’s evidence.