COURT OF APPEAL FOR ONTARIO

DATE: 20241119 DOCKET: C68514

Huscroft, Dawe and Wilson JJ.A.

BETWEEN

His Majesty the King Respondent

and

Harris Nnane Appellant

Counsel: Dirk Derstine and Laura Remigio, for the appellant Jeremy Streeter, for the respondent

Heard: June 26, 2024

On appeal from the convictions entered on March 27, 2019 by Justice Kelly P. Byrne of the Superior Court of Justice, sitting with a jury.

Huscroft J.A.:

OVERVIEW

[1] Four people drove to a Toronto LCBO on April 29, 2016 in a Honda Pilot. Joseph Anzolona and Raveena Kancherla left the parked Pilot and entered the store. Minutes later, a Ford Fusion parked at the LCBO. Harris Nnane and Alexander Fountain left the Fusion and entered the store.

[2] Nnane was the first to leave the LCBO. He returned to the Fusion shortly after having entered the store and seen Anzolona. Fountain remained in the store. Anzolona and Kancherla completed their purchase and returned to the Pilot minutes later.

[3] Someone ran from the Fusion and fired several shots at Anzolona as he was entering the Pilot. Cynthia Mullapudi, who was in the back seat, was also shot. Both of them were killed. The shooter then ran back to the Fusion, as did Fountain, who had just left the LCBO. The Fusion sped off and was never found.

[4] Nnane was convicted of first degree murder following a jury trial in 2019.

[5] Nnane appeals. He brings a motion to introduce fresh evidence from Fountain, who identifies a third man as the shooter. Additionally, Nnane argues that the verdict was unreasonable: the evidence was insufficient to establish that he was the shooter and insufficient to establish that the shooting was planned and deliberate. He argues, further, that the trial judge erred in instructing the jury on the requirements of planning and deliberation, misdirected the jury on post-offence conduct, and erred in failing to conduct a post-verdict juror inquiry. He seeks an acquittal or, in the alternative, a new trial or the substitution of a conviction for second degree murder.

[6] I conclude that the fresh evidence is not reasonably capable of belief. It is not in the interests of justice to admit it.

[7] Further, I conclude that the verdict is not unreasonable and that the trial judge did not make any of the errors alleged. I would dismiss the appeal for the reasons that follow.

BACKGROUND

[8] Joseph Anzolona drove to a Toronto LCBO in a Honda Pilot with Chad Pillay, Cynthia Mullapudi, and Raveena Kancherla, intending to purchase alcohol for a party later that evening. Anzolona and Kancherla entered the store while Pillay and Mullapudi waited for them in the Pilot, which was parked near the store entrance. Security footage shows Anzolona and Kancherla walking to a liquor cabinet in the corner of the store, where they speak with an LCBO employee.

[9] The appellant and Fountain drove to the same LCBO in a Ford Fusion. The Fusion was parked somewhat farther from the LCBO than the Pilot. Security footage shows the appellant and Fountain entering the LCBO shortly after Anzolona and Kancherla. The appellant is wearing a grey shirt with dark sleeves and a black baseball hat. He appears to have something in his right hand, possibly the keys to the Fusion.

[10] Once inside the store, the appellant and Fountain walk towards Anzolona and Kancherla. At one point, Anzolona turns from the liquor cabinet and sees the appellant and Fountain approaching. He then turns his back to them and returns to the liquor cabinet. The appellant and Fountain continue to walk towards Anzolona and Kancherla, then stop and stand behind them for several seconds. At this point, the appellant exits the store without looking at any alcohol or making a purchase. He had been in the LCBO for approximately one minute. The appellant returns to the Fusion and appears to enter the four-door car from the driver’s side.

[11] Fountain remains in the store and enters a checkout line to purchase liquor. Anzolona and Kancherla stand in an adjacent line. Before Kancherla has paid for their purchase, Anzolona moves from the line and looks out the store window into the parking lot. He calls Pillay on his cellphone and tells him to start the Pilot and get ready to leave. He also tells him to “be on point”, which Pillay interpreted as meaning “observe your surroundings and get ready to leave”.

[12] After Kancherla completes their purchase, Anzolona and Kancherla leave the LCBO and head towards the Pilot. Security footage from the parking lot shows that someone exits the Fusion and runs towards the Pilot just after Anzolona and Kancherla return to it. That person fires seven shots into the Pilot, killing both Anzolona, who was entering the car, and Mullapudi, who was in the back seat. The shooter runs back to the Fusion, as does Fountain, who has just left the store. Both enter the Fusion through the passenger side and the car speeds off. The car, owned by the appellant’s girlfriend Julianna Talevski, was never found, nor was it reported missing.

[13] The appellant was arrested days later. He was convicted of two counts of first degree murder after a jury trial.

THE EVIDENCE

The parking lot footage

[14] The security footage from the parking lot is of poor quality. It is dark and the Fusion is parked some distance from the camera, but several things are discernable.

[15] The appellant is seen returning to the Fusion from the LCBO and appearing to get into the driver’s side of the car. The victims exit the LCBO approximately four minutes later. Fountain leaves shortly afterwards. The shooter exits the Fusion from one of the passenger side doors and runs to the Pilot. The shooter then runs back to the Fusion. Fountain runs to the Fusion from the LCBO at the same time. Both get into the passenger side of the car and it speeds off.

The eyewitness testimony

[16] Several eyewitnesses provided general descriptions of the shooter, but no one was able to identify the appellant as the shooter.

Bradley Beaton Beaton described the shooter as a black man wearing a long grey jacket or sweater with a plain shirt underneath and grey baggy pants. The sleeves could have been darker, and the pants could have been grey jeans. He said that the shooter was not wearing a hat and that his head was shiny, but agreed that the shine could have come from a hat.

Adnan Ismail Ismail described the shooter as an African American man, 6’1”, but it was hard to gauge from a distance. He had a medium build with wide shoulders, not skinny and not overweight. The shooter’s clothes were dark neutral colours, not bright.

Raveena Kancherla Kancherla was in the victim’s car along with Chad Pillay. She said that the shooter was a black man wearing a hat. She described him as “manly – built like a man” – not thin and not fat, average. She said that she observed that Anzolona was not smiling when he left the LCBO and that this was unusual because he smiled “all the time”.

Chad Pillay Pillay was in the victim’s car with Kancherla. He did not see the shooter and remembered only the shots and screaming. He testified that Anzolona told him to “be on point”, which he understood as “observe your surroundings and get ready to leave”.

Evidence of post-offence conduct

[17] On May 1, 2016, two days after the shooting, police observed the appellant arriving by car at Talevski’s apartment building. The appellant and another man entered the building, which the concierge unlocked for them. The concierge greeted the appellant with a fist bump. He told him: “the police are looking for you guys”. The appellant thanked the concierge and left the building immediately. He and the other man returned to their car and drove away. Police observed the appellant in the passenger seat, which was fully reclined. Detective Olszevski testified he was “almost lying down in the front passenger seat … like he was hiding or didn’t want to be seen in that vehicle.”

THE PROPOSED FRESH EVIDENCE

[18] The appellant seeks to introduce an affidavit sworn by Alexander Fountain. Fountain was unlawfully at large during the appellant’s trial and did not testify. His affidavit alleges that a third person, Jaiden Jackson, was the shooter. Jackson died in 2018.

[19] Fountain’s affidavit asserts the following:

• He was an eyewitness to the shooting and knows the identity of the shooter, Jaiden Jackson, because they were close acquaintances.
• Nnane left the LCBO to wait in the car because he did not have his ID on him and the LCBO would not sell to you if they think you’re buying for an underage person.
• He saw Jackson run towards another vehicle and start shooting. Jackson ran back to the Fusion after the shooting and told the appellant to start driving. A few minutes later, Jackson told Nnane and Fountain that he was taking the car and that they had to get out of it.
• Jackson was wearing a light coloured varsity jacket and a white t-shirt.
• He did not believe that Nnane knew Jackson.
• He was on the run at the time of Nnane’s trial and it was a mistake not to come forward to testify. He assumed Nnane would not be convicted and came forward in an attempt to undo the damage he had caused by not testifying.

[20] The appellant did not testify at trial. He has also filed an affidavit, but it is not offered for admission as fresh evidence. Rather, it is offered “in support of the fresh evidence motion”. The Crown raised no objection to its admission on the motion.

[21] The appellant’s affidavit asserts the following:

• He was with Fountain on the night of the shooting and met Fountain’s friend, who Fountain has identified as Jaiden Jackson, that night.
• The man identified as Jackson would have been introduced to him by his street name, and he did not know his real name. It could have been “‘J’ or something like that”.
• The man identified as Jackson sat in the back seat of the car while he drove and there was not much conversation.
• He had no contact with Fountain for several years until long after his trial was complete. He understood there was a warrant out for Fountain’s arrest and did not know where he was.
• He learned Jackson had been killed when Fountain contacted his lawyers in 2021.
• He did not know who killed Jackson or why he was killed.
• He knew Jackson was the shooter and did not testify because he feared he would be killed if he identified him.

Cross-examination

Fountain

[22] Fountain has a lengthy criminal record. It includes multiple counts of obstructing a police officer, failing to comply with a recognizance, and possessing a firearm with ammunition, theft under $5,000, assault, possession of a schedule one substance, and mischief. He committed several offences while he was on bail. He is currently serving a life sentence for second degree murder.

[23] Fountain’s evidence on cross-examination includes the following:

• He has been friends with Nnane for about 20 years, since they went to grade school together.
• He sees and talks with Nnane all the time. They are in the same range in the same prison, separated by one cell.
• He has not discussed the events of the shooting in detail but has talked about how “tragic” they were and expressed his “sorrows and sympathy”.
• He went to the LCBO to purchase Hennessy.
• Jackson was wearing a varsity jacket, like a bomber jacket, beige, “beige-ish, a light beige… two tone … shiny-ish material” with dark brown sleeves.
• The appellant told him that he forgot his wallet and that he was going back to the car to get it and would return to the LCBO.
• He (Fountain) ran to the Fusion after witnessing the shooting and jumped into the front passenger seat. Jackson was yelling at Nnane, who was driving, “drive, drive, drive”. Jackson took the car once they arrived at the home of Natalie, an old friend of his mother’s.

The appellant

[24] The appellant has a lengthy criminal record that includes possession of a firearm with ammunition, possession of a firearm with a tampered serial number, carrying a concealed weapon, escaping lawful custody, failure to comply with a recognizance (x2), obstructing a police officer, and failure to comply with probation terms. The appellant committed several offences while he was on bail.

[25] The appellant’s testimony on cross-examination includes the following:

• He has been friends with Fountain for over 20 years since grade school.
• He sees Fountain on a daily basis and talks with him all the time.
• Fountain has not discussed what happened on the day of the shooting with him but has discussed how “tragic” the case is and expressed his “sympathy”.
• He met Jackson on the night of the shooting and thought his street name was J.
• Jackson was wearing a light beige jacket, “beige-ish, cream colour …kind of shiny…with two tone …dark brown arms.”
• They went to the LCBO to purchase Hennessy, which was what he and Fountain usually drank.
• He forgot his wallet and told Fountain he was going to find it and would be back.
• He went back to the Fusion thinking his wallet was there. He looked in the car and in the gym bag in the trunk. He did not speak with Jackson.
• Jackson did not tell him what he was going to do. “Out of the blue” he got out of the Fusion, ran over and shot the victims. The appellant did not see the shooting but heard the shots.
• Jackson returned to the Fusion and ordered the appellant to “drive, drive, drive”. Jackson took the car after he and Fountain were dropped off.
• Jackson was wearing a hat and the appellant could not identify him.
• He did not testify because he did not know who the shooter was but feared him.

The fresh evidence is inadmissible

[26] Fresh evidence may be received where the court considers it in the interests of justice to do so: Criminal Code, s. 683 (1)(d). It is not in the interests of justice to uphold a verdict that fresh evidence demonstrates is unreasonable. But nor is it in the interests of justice to undermine the finality of verdicts, and hence the integrity of the judicial process, by admitting fresh evidence routinely, especially several years later. The admission of fresh evidence is therefore exceptional: R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509 at paras. 89-90.

[27] The Palmer test for admitting fresh evidence is well-established and requires little elaboration. It involves consideration of three criteria:

1. Admissibility – is the evidence admissible under the rules of evidence?;
2. Cogency – could the evidence reasonably be expected to have affected the verdict?; and
3. Due diligence – does the explanation offered for the failure to adduce the evidence at trial affect its admissibility?

R. v. Palmer, [1980] 1 S.C.R. 759.

[28] The Crown accepts that the admissibility criterion is satisfied. I agree. The assertions are direct evidence of the connection of a known third party, Jackson, to the murders: see, e.g., R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at para. 59. Fountain would likely have been called as a witness if he had been available at the time of the trial. Parenthetically, I note that the Crown does not contest that Jaiden Jackson existed at the time of the shooting and has since died.

[29] Accordingly, the admissibility of the proposed fresh evidence turns on the application of the latter two criteria. As I will explain, the appellant fails at the cogency stage and as a result the due diligence criterion need not be addressed. It is not in the interests of justice to admit the fresh evidence.

Cogency

[30] The cogency criterion requires the court to make a qualitative assessment of the proposed fresh evidence. The evidence must be:

1. relevant to a decisive or potentially decisive issue at trial;
2. credible in that it is reasonably capable of belief; and
3. sufficiently probative when taken with the other evidence adduced at trial that it could reasonably be expected to have affected the result.

Truscott (re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 99-100.

[31] The appellant argues that the proposed fresh evidence is extremely relevant and probative because it sheds light on the identity of the shooter, the central issue in the case. The security footage is poor and no one could provide more than a basic description of the shooter. Fountain is a crucial eyewitness to the shooting and the only compellable witness who could identify the shooter. His evidence is consistent with the evidence at trial that the shooter exited the passenger side of the Fusion. If the shooter entered the passenger side following the shooting, there must have been another person in the driver’s seat and the appellant submits that it was him.

[32] This court’s task is not to determine the ultimate credibility or reliability of the proposed fresh evidence; it is to determine whether the evidence is sufficiently cogent to warrant its admission. This depends on a careful evaluation of the potential value of the evidence as well as the credibility of the witnesses: R. v. Snyder, 2011 ONCA 445, 278 O.A.C. 233, at para. 50.

[33] Although the proposed fresh evidence bears on the identity of the shooter, in my view it does not come close to being “reasonably capable of belief”. It is so obviously flawed – so compromised and self-serving – that no finder of fact could reasonably believe it. It is not remotely credible.

[34] This conclusion is based, in part, on the affidavit proffered by the appellant as part of the motion. As noted earlier, the appellant did not seek to have his affidavit admitted as fresh evidence on the appeal. Plainly, it would have been inadmissible as such, based not only on cogency problems but also his failure of due diligence, given his decision not to testify at trial: R. v. Maciel, 2007 ONCA 196, 222 O.A.C. 174, at para. 50.

[35] However, the inadmissibility of the appellant’s affidavit as fresh evidence does not render it irrelevant to the cogency analysis. It is part of the record compiled by the appellant in support of his motion to introduce Fountain’s fresh evidence, and it may be used in this context despite its inadmissibility as evidence on the appeal. Accordingly, I consider the cogency of Fountain’s evidence against the backdrop of the appellant’s affidavit and cross-examination.

[36] I begin with Fountain’s credibility. As noted above, he has a lengthy criminal record that includes offences of dishonesty. He is currently serving a life sentence for without parole eligibility for 17 years. He has every reason to lie to help the appellant – his lifelong friend – and little reason not to.

[37] Fountain’s affidavit evidence concerning the events in the LCBO conflicts with his testimony on cross-examination as well as the security footage. For example, Fountain says the appellant left the LCBO because he had forgotten his identification and that he returned to wait in the Fusion. However, on cross-examination he says that the appellant left the LCBO to get his identification and was going to return to the store. Fountain says the appellant told him why he was leaving the store, but the security footage does not show any conversation between them or any physical reaction indicating that the appellant had forgotten his identification.

[38] But the larger problem is plain: Fountain’s evidence is the product of deliberate collusion with the appellant. Not only are Fountain and the appellant lifelong friends, but they are held in the same prison, one cell apart. They see each other and speak on a daily basis. They have had ample opportunity to discuss the case and their stories, yet both claim not to have discussed the case in any detail. Their denial is utterly implausible and it is problematic even on its own terms: both affiants use the same words in referring to their supposedly limited discussion of the case, describing the events as “tragic” and stating that “sympathy” was expressed.

[39] The affiants’ claim that they have not discussed the matter in any detail is further belied by the striking similarity of the details they provide at several points in cross-examination. Each affiant remembers the same details from the day of the shooting: a trip to the gym, dropping the appellant’s child and her mother downtown, and preparing to go to a party in the west end of the city for a girl named only “Tiffany”. Yet neither of them can remember numerous other details from the day. For example, the appellant cannot remember where he awoke on the morning of the shooting; Fountain cannot remember what car they were in that day.

[40] Fountain’s detailed evidence as to what Jackson was wearing is telling of collusion. Seven years following the shooting, his description of the jacket worn by Jackson is identical to that provided by the appellant in all significant respects: it was “two-tone”, a “varsity” jacket, a “bomber”, “shiny/shiny-ish”, with “dark brown” arms. Both Fountain and the appellant use the same unusual term in describing the colour of the jacket: “beige-ish”. Fountain’s description of Jackson’s actions following the shooting is also telling. Like the appellant, Fountain says that Jackson ordered the appellant to “drive, drive, drive”.

[41] It is no answer that Fountain swore his affidavit before the appellant swore his. The evidence in the motion record demonstrates that Fountain has colluded with the appellant about what each of them will say when questioned under oath. And it shows that he is willing to lie about having done so in order to implicate another man as the shooter – a man who died several years ago, and against whom there is no independent evidence of any involvement in the murders. Fountain’s collusion with the appellant strikes at the heart of his credibility and reliability. His evidence cannot be relied on in these circumstances. The proposed fresh evidence is not reasonably capable of belief.

[42] That is sufficient to reject the fresh evidence motion, but I add this: the appellant’s account of the shooting is absurd. The evidence establishes that the appellant entered the LCBO, saw Anzolona and Kancherla, walked over to them and stood behind them, and returned to the Fusion moments afterwards. Anzolona reacted to seeing the appellant in the LCBO by calling Pillay before he left the store to make the short walk back to the Pilot, telling him to be "on point" – ready to leave. The only reasonable inference is that, having seen the appellant, Anzolona perceived danger from him.

[43] Yet the proposed fresh evidence is that minutes later, another man, Jackson, suddenly ran from the Fusion and killed Anzolona and Mullapudi. Fountain offers no explanation for Jackson doing so; he says simply that he saw him do it. Of course, this proposed eyewitness evidence cannot be corroborated: Jackson is dead and there is no independent evidence supporting his involvement in the murders. There is only the appellant’s cross-examination proffered on the motion, in which he explains the shooting as a “total” coincidence: shortly after he (the appellant) returned to the Fusion, Jackson, whom he had just met, ran from the car to shoot the very person the appellant had apparently intimidated in the LCBO minutes earlier. All with nothing being said.

[44] The proposed fresh evidence is not reasonably capable of belief. The interests of justice would not be served by admitting it. The fresh evidence motion must be dismissed.

THE VERDICT WAS NOT UNREASONABLE

[45] The test for an unreasonable verdict is well established. A verdict is unreasonable if it is one that a properly instructed jury acting judicially could not reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. The court explained the limited re-weighing of the evidence that the test requires in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28:

… On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”. Thus, in deciding whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience. [Citations omitted; emphasis in original.]

[46] The appellant argues that the jury’s verdict was unreasonable on two bases. First, the evidence of identity was insufficient to establish that he was the shooter. Acceptance of this argument would require this court to enter an acquittal. Second, even if the evidence of identification was sufficient, it was insufficient to establish that the murder was planned and deliberate. Acceptance of this argument would permit this court to order a new trial or substitute a conviction for second degree murder. I will address each of these arguments in turn.

The evidence was sufficient to establish that the appellant was the shooter

[47] The appellant submits that the security footage was incapable of providing sufficient identification of the shooter, while the eyewitness evidence was generic in nature, inconsistent, and at times contradictory. At best, the eyewitnesses’ descriptions were consistent with a black male wearing non-distinctive clothing.

[48] Further, the appellant submits that the security footage clearly shows that he got into the driver’s side of the car, while the shooter emerged from the passenger side and ran back to the passenger side after the shooting. This strongly suggests that the appellant was in the driver’s seat of the car when the shooting occurred. Security footage from inside the LCBO shows that the appellant appeared to have a key in his hand, and the headlights flashed when he returned to the Fusion, consistent with the use of a key fob to unlock the car. If the appellant was the shooter, someone else would had to have moved into the driver’s seat, but there is no evidence that this occurred. The appellant says that if he were the shooter, “he would have had to leave the driver’s seat, squirm his way to the back seat, leave from that side to shoot the people and have someone else squirm their way into the driver’s seat.”

[49] The Crown accepts that the eyewitness evidence was equivocal but submits that identification of the appellant as the shooter did not turn on it. There was ample additional evidence from which the jury could have concluded that the appellant was the shooter. Security footage from within the LCBO showed the appellant engaged in highly unusual activity involving Anzolona, and the parking lot footage allowed the jury to track the appellant’s movements from arrival and return to the Fusion. The jury could discern the appellant’s distinctive grey shirt with dark sleeves and grey pants and could reasonably conclude from the opening of the driver’s side door and movement around the vehicle that the appellant repositioned himself on the passenger side of the car with someone else in the driver’s seat. The jury could find that the appellant then exited the car from the passenger side to commit the murder. Finally, the Crown notes that this court is entitled to consider the appellant’s failure to testify once the evidence presented a case for him to meet. His failure to do so leaves no inference alternative to guilt.

[50] I accept the Crown’s submissions.

[51] The jury’s verdict did not depend on eyewitness evidence. It was supported by a substantial body of circumstantial evidence implicating the appellant.

[52] The appellant’s presence in the store is clear from the security footage from the LCBO. It is also clear that the appellant and Anzolona saw each other when Anzolona turned away from the alcohol cabinet briefly as the appellant and Fountain approached. The appellant and Fountain then walked towards the victims and stood behind them for a few seconds, and the appellant left the LCBO seconds later without shopping or buying anything. As the Crown notes, this is unusual behaviour for which no innocent explanation exists.

[53] After the appellant left the LCBO, Anzolona called the driver of the Pilot to make sure that he was ready to leave, even though the Pilot was only a short distance away from the store. His actions suggest that he perceived a threat from the appellant, as does the evidence that he was not smiling as he left the LCBO, behaviour that was described as unusual. Although the parking lot security footage is of poor quality, I am satisfied that it was open to the jury to conclude that the shooter wore the same clothing as the appellant and that the appellant switched his position in the Fusion before committing the murder.

[54] The final piece of evidence was the appellant’s behaviour two days after the shooting, consistent with attempting to avoid the police.

[55] This evidence, taken as a whole, was sufficient to establish guilt beyond a reasonable doubt. The appellant chose not to testify, as was his right, but in all of these circumstances his failure to testify left no reasonable inference alternative to guilt: R. v. Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, at para. 141.

The evidence was sufficient to establish that the murder was planned and deliberate

[56] The appellant submits that the evidence was incapable of establishing the requirements of planning and deliberation. As for planning, there was no evidence suggesting that he would have known the victims were at the LCBO. The shooting must have been a crime of opportunity following a chance encounter with the victims. There was little time to make a plan; shots were fired approximately four minutes after the appellant and Fountain had entered the LCBO.

[57] The appellant cites several cases in which this court has substituted convictions for second degree murder where there were relatively short periods of time leading up to a murder: R. v. Campbell, 2020 ONCA 221, 149 O.R. (3d) 675 (nine minutes); R. v. Hafizi, 2019 ONCA 2, 373 C.C.C. (3d) 264 (16 minutes); and R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503 (seconds or a few minutes). The appellant argues that, even if planning and deliberation was possible in the limited time available, the Crown failed to negate the other plausible inference that the shooting was spontaneous. There was no indication that a plan was in place. The shooter simply ran from the car, shot the victims, then returned to the car. The appellant argues that if the shooting had been planned, he and Fountain would have waited in the parking lot rather than walk into the LCBO where their presence be caught by the security cameras.

[58] The Crown argues that evidence of planning and deliberation is clear from the appellant’s actions caught on the security footage. The appellant picked his target once inside the LCBO and left the store immediately after doing so. He changed seats in the Fusion so that someone else would be driving and ready to leave as soon as the shooting was complete. The appellant did not commence the shooting until Fountain had also left the LCBO, so that both could get away quickly. The time between the appellant’s attendance at the LCBO and the shooting was relatively brief, but this was not a case in which the appellant was reacting to an unfolding event such as a fight or confrontation; the appellant initiated contact with Anzonola in the LCBO and implemented a plan to murder him.

[59] I accept the Crown’s submission.

[60] The cases cited by the appellant are decided on their unique facts. They are not authority for the proposition that any particular period of time is required to support a finding of planning and deliberation, or more generally that planning and deliberation is not possible in a relatively brief period of time.

[61] In Campbell, the first appellant was angry with the victim and the second appellant shot the victim when told to do so by the first appellant following a chance meeting. This court substituted a conviction for second degree murder because the evidence was equally consistent with an impulsive act.

[62] In Hafizi, the appellant, then 18 years old, killed the victim after he was ejected from a nightclub following an altercation with the victim and his friends. Armed with a knife, he ran towards the victim and stabbed him as he left the club. This court considered that the swiftness of the attack was indicative of an impulsive act and substituted a conviction for second degree murder as a result.

[63] In Robinson, the appellant, who had been drinking with the deceased, left the room and returned minutes later with a pipe that he used to hit the deceased in the head. Significantly, the appellant became upset when the victim fell to the ground following the assault; he searched for a pulse and insisted the victim could not be dead. He told his partner, present at the time of the attack, that he had not meant to hurt the victim, much less kill him. In these circumstances, this court concluded that the appellant’s conduct belied any inference that he had planned his attack knowing that he would kill the victim and that he deliberated upon his plan before executing it. The court entered an acquittal on the charge of first degree murder and ordered a trial on second degree murder as a result of errors in the instructions to the jury.

[64] The relatively brief periods of time involved in these cases were not determinative of the lack of planning and deliberation. Brief time periods may well support a finding that a killing was impulsive, but they do not require it. Planning and deliberation can occur in a brief period of time and a simple plan can be carried out quickly.

[65] The features of this case provide ample basis for the jury to have been satisfied beyond a reasonable doubt that the appellant was guilty of first degree murder. There is no evidentiary support for the conclusion that the appellant acted impulsively or spontaneously in shooting the victims. There was no prior incident at the LCBO precipitating any response from the appellant, let alone a deadly one.

[66] The facts of this case speak to a planned and deliberate execution, albeit one for which there is no apparent motive. The absence of motive is a cause for wonder, but it does not change the inherent nature of the appellant’s actions. In particular, it neither precludes nor undermines the conclusion that the killing was planned and deliberate.

[67] The jury could reasonably have found that the appellant returned to the Fusion intent on killing Anzolona after he saw him in the LCBO. As part of his plan, he changed seats in the car so that someone else could drive, thereby facilitating his getaway. The plan in place, the appellant waited for the victims to leave the LCBO. He ran from the Fusion to shoot Anzolona after Fountain had left the store to ensure that both could get away following the shooting.

[68] This was a simple plan, but it was a plan. The appellant had time to think about what he was doing as he left the LCBO, walked to his car, and lay in wait for the victims. He made a considered decision to kill Anzolona and ensured that he was dead by taking several shots as Anzolona entered the Pilot, killing Mullapudi as well. It was open to the jury to conclude that this was a planned execution rather than an impulsive, thoughtless act, and to find the appellant guilty of first degree murder beyond a reasonable doubt.

[69] This ground of appeal fails.

The trial judge properly instructed the jury on planning and deliberation

[70] The appellant acknowledges that the trial judge correctly stated the law and properly distinguished between planning and deliberation. However, he argues that the trial judge conflated the two concepts, failed to specify which evidence was relevant to each requirement, and failed to review the defence position or even tell the jury what the defence position was. The jury was not told that the defence disputed the inference of planning and deliberation sought by the Crown. In summary, the charge was “too generic and unbalanced” to meet the standards set out in R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508 and R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101.

[71] There is no merit to this submission.

[72] The trial judge properly explained the concepts of planning and deliberation and emphasized the Crown’s burden to prove both beyond a reasonable doubt. She instructed the jury that the primary issue they had to decide was the identity of the shooter and that planning and deliberation were relevant only if they were satisfied that the appellant was the shooter. The trial judge properly instructed the jury not to consider the appellant’s post-offence conduct in determining whether the murder was planned and deliberate. The jury would have well understood its task.

[73] The trial judge’s instructions reflect the defence’s primary position that the appellant was not the shooter. As the Crown suggests, more specific recitation of the defence position on planning and deliberation might have undermined its primary position. It is clear, however, that the trial judge did everything possible to ensure the fairness and sufficiency of the instructions she gave. She held extensive pre-charge discussions with counsel over a period of several days. She provided not one, not two, but three draft versions of her instructions, each time revised to address concerns raised by counsel. In addition, counsel were permitted to craft their own summaries of their cases, which the trial judge read to the jury as part of her instructions.

[74] No objection to the instruction was made at trial. Now, before this court, counsel for the appellant (who also represented the appellant at trial) argues that the jury was misdirected.

[75] I accept that the failure to object at trial is not determinative where instructions are legally erroneous. But the failure to object is highly relevant where, as here, the complaint concerns not pure legal error but, instead, the manner in which the trial judge recounted and related the evidence: see R. v. Papasotiriou, 2023 ONCA 358, 166 O.R. (3d) 266, at para. 125. Trial counsel had ample opportunity to review the instruction before it was given and to have his concerns addressed. His failure to object demonstrates that he was satisfied that the instruction was fair and sufficient. I agree.

[76] This ground of appeal fails.

The trial judge properly instructed the jury regarding post-offence conduct evidence

[77] The appellant argues that the trial judge misapprehended the evidence in telling the jury that he was “avoiding” the police when he may have simply reclined in the passenger seat of the vehicle for comfort, and that he was prejudiced as a result.

[78] There is no merit to this argument.

[79] The appellant’s account of his conduct at the apartment omits the evidence that he left the apartment building immediately after being informed by the concierge that the police were looking for him – a matter set out in the agreed statement of facts. And the evidence was not that the appellant was reclined; it was that he was “almost lying down in the front passenger seat”. This makes plain that he was avoiding the police. Not only did trial counsel not object to this aspect of the instructions, he used the word he now complains of in his closing address, asking rhetorically “don’t you think that [a person who had driven a person from the scene of a killing] would want to avoid the police?”

[80] This ground of appeal fails.

The trial judge did not err by refusing to conduct a post-verdict juror inquiry

[81] After the trial was completed, the trial judge received a letter from a juror. The juror’s letter made two points. First, the juror complained of the poor quality of the courtroom monitors and the computer/TV in the juror room and suggested improvements. Second, the juror discussed the concept of cognitive bias and suggested that the court provide a summary of cognitive biases to juries and enclosed a poster setting out a lengthy list of cognitive biases. The trial judge notified counsel of the letter, provided a summary of its contents, and convened an in camera hearing.

[82] The appellant sought a mistrial and, in the alternative, asked the court to conduct a juror inquiry to create a record for consideration on appeal. Relying on R. v. Henderson (2004), 191 O.A.C. 201 (C.A.), the trial judge concluded that she was functus after the jury rendered its verdict and that neither of two narrow exceptions applied: there was no indication that the verdict recorded was not the one reached by the jury, nor did the appellant raise the defence of entrapment. The trial judge determined, further, that it would not be appropriate to conduct an inquiry for the purpose of establishing an appeal record, as nothing in the letter amounted to or suggested exposure to extrinsic information or outside sources.

[83] The appellant acknowledges that the trial judge was functus and had no jurisdiction to declare a mistrial. He argues that the trial judge ought to have exercised her discretion to conduct a post-verdict inquiry and that her failure to do so was unreasonable in the circumstances, as the juror’s letter suggested that extrinsic information had been introduced into the deliberations and there was no valid reason not to conduct an inquiry for the purpose of preserving a record for an appeal to this court.

[84] The appellant concedes that the juror’s letter does not specifically state that extrinsic evidence was brought into deliberations, but says it alludes to the possibility that the juror introduced materials related to research into cognitive bias. The juror who wrote the letter should have been asked whether they introduced any material into the deliberations, and the jurors should have been asked if the quality of the video frustrated their deliberations.

[85] This argument must be rejected.

[86] The trial judge found that there was no credible basis to conclude that extrinsic information made its way to the jury. This was a discretionary decision that was hers to make and it is entitled to deference: R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 217; R. v. Lewis, 2017 ONCA 216, 137 O.R. (3d) 486, at para. 35. The trial judge’s finding is amply supported by the record and there is no basis for this court to interfere with it. As for the quality of the court’s audio-visual equipment, the question the appellant submits that the trial judge should have posed to the jurors would have undermined the secrecy of the jury’s deliberations and is improper on that account.

[87] The appellant’s submission that the trial judge “opted to prejudice the appellant on appeal, rather than risk violating the jury secrecy rule” is baseless. The trial judge was under no obligation to conduct a hearing for the purpose of facilitating an appeal.

CONCLUSION

[88] I would dismiss the motion to introduce fresh evidence and would dismiss the appeal.

“Grant Huscroft J.A.”

“I agree. D.A. Wilson J.A.”

Dawe J.A. (Dissenting):

[89] I have had the benefit of reading my colleague Huscroft J.A.’s reasons explaining why he would dismiss the appeal. I agree with his conclusion that the jury’s guilty verdicts were not unreasonable, since I agree that there was evidence on which the jury could find that the appellant was the shooter. I would accordingly not give effect to the appellant’s first ground of appeal, which, if successful, would have led to an acquittal.

[90] However, I respectfully disagree with my colleague’s conclusion that the proposed fresh evidence of Alexander Fountain identifying the shooter as a different man, Jaiden Jackson, is so patently unworthy of belief that it should not be received on appeal. As I will explain, I do not agree that Mr. Fountain’s eyewitness evidence, viewed in the context of the evidence as a whole, can be rejected as not being “reasonably capable of belief”. In my view, it is sufficiently cogent that the interests of justice support its admission. I would accordingly admit the fresh evidence, allow the appeal, and order a new trial.

[91] Since I would allow the appeal and order a new trial on the basis of the fresh evidence, I will not address the appellant’s other grounds of appeal that would, if successful, lead to either a new trial or substituted verdicts of second degree murder.

A. Legal principles

[92] The legal framework for determining whether fresh evidence should be admitted on appeal is well-settled. The overarching question is whether “the interests of justice” require the evidence to be received. This question must be considered having regard to the criteria listed by McIntyre J. in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193, at p. 775, and restated by this court in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321 at para. 92.

[93] Huscroft J.A. would find Mr. Fountain’s evidence inadmissible based entirely on the third Palmer factor: the requirement that fresh evidence be “reasonably capable of belief”. Indeed, the Crown does not dispute that the other Palmer criteria are satisfied.

[94] The “reasonably capable of belief” criterion “involves ‘a form of credibility assessment’ to ascertain whether the fresh evidence should be accepted”: R. v. Smithen-Davis, 2022 ONCA 832, 421 C.C.C. (3d) 56, at para. 41, quoting from R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.) at p. 602. However, our task “is not to determine the ultimate credibility of the evidence, but rather to assess whether the evidence is sufficiently cogent to warrant admission on appeal”: R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 323, at para. 33; see also R. v. Smithen-Davis, at para. 40; R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509, at para. 108, leave to appeal refused, [2020] S.C.C.A. No. 298.

[95] Put another way, the issue we must decide is not whether we believe Mr. Fountain’s evidence, but whether it is reasonably capable of being accepted by a jury. This critical question must be assessed contextually. As Watt J.A. explained in Allen, at para. 108:

[A]s is well known and firmly established by authoritative precedent, the potential probative value of proposed fresh evidence on its own falls short of what is required to warrant its reception on appeal. We must assess the potential value of that evidence more holistically. And that assessment, which is of necessity qualitative, demands a careful evaluation of the proposed evidence, viewed in light of the trial evidence and the credibility of the witness whose evidence is put forward.

B. The factual context

[96] I will accordingly begin by briefly reviewing the evidence at trial bearing on the critical disputed question of the shooter’s identity. My colleague has summarized this evidence in his reasons, and I will simply highlight some of the particularly salient evidence, and what it established.

[97] As I will discuss, a main source of the disagreement between myself and my colleague is our respective assessments of the strength of the Crown’s case against the appellant. He dismisses Mr. Fountain’s evidence as patently incredible in part because he considers it highly unlikely that anyone other than the appellant could have been the shooter, based on his own assessment of the evidence. In my view, the evidence at trial was much more equivocal, and it was reasonably open to the jury to draw different inferences and conclusions than those my colleague would draw.

[98] The most important pieces of trial evidence were two video surveillance recordings. The first recording, from a camera that overlooked the parking lot from a considerable distance away, is of poor quality. It is sufficiently clear to conclusively establish some important facts, but not others. In contrast, the image quality of the second video from the LCBO is excellent. However, it only shows events inside the store, and because of the viewing angles and obstructions, it does not show everything.

[99] The parking lot video shows one of the two shooting victims, Mr. Anzolona, entering the LCBO with his friend, Ms. Kancherla, at 9:40 p.m. according to the time stamp. [1] Although their vehicle is difficult to see on the parking lot video, other evidence established that they came to the plaza in a Honda Pilot SUV that had pulled into a bay near the west side of the LCBO. Two other people, Mr. Pillay and the second shooting victim, Ms. Mullapudi, waited in the vehicle while Mr. Anzolona and Ms. Kancherla went into the liquor store.

[100] The parking lot video shows that the car in which the appellant and Mr. Fountain were travelling – a four-door Ford Fusion sedan – then arrived at the parking lot approximately two minutes later, at 9:41 p.m. It can be seen backing into a stall further to the west of the LCBO, roughly three car lengths away from where the victims’ vehicle was already parked. The Ford Fusion parks facing the store, such that the passenger side of the vehicle is visible on the parking lot video.

[101] There was no evidence at trial that the appellant and Mr. Fountain had been following the victims, or that they had any reason to expect to find them at the LCBO. Rather, it seems to have been purely coincidental that they ended up in the same place at the same time.

[102] The parking lot video then shows two people exiting the Ford Fusion and going into the LCBO. One gets out of the front passenger side door, and the other appears to get out of the driver’s side door, although this cannot be clearly seen. Because of the poor video quality, these two people cannot be identified until they enter the LCBO, but it was undisputed at trial that the higher-quality LCBO video reveals them to be the appellant and Mr. Fountain. The appellant is carrying what might be vehicle keys in his hand.

[103] The LCBO video then shows the appellant leaving the LCBO approximately a minute later and walking back to the Ford Fusion. He appears to get into the driver’s seat, but because of the poor quality of the video and the orientation of the vehicle with respect to the camera this is difficult to make out. However, the parking lot video is sufficiently clear enough to show that the appellant enters the vehicle on the driver’s side rather than on the passenger side.

[104] Approximately a minute later, at 9:44 p.m., a close examination of the parking lot video shows movement around the Ford Fusion that might be the driver’s side opening. A few seconds later movement can be seen near the passenger side that might possibly be the rear passenger side door opening, but could also simply be a moving shadow caused by the headlights of a car driving through the parking lot. The video does not clearly show anyone exiting the vehicle out of either door.

[105] The Crown’s theory is that at this point the appellant, who had been in the driver’s seat, switched seats with a previously-unseen third man who had been seated in the rear of the vehicle on the passenger side. However, the video quality is too poor to show definitively that this was what happened. In my view, the most that can be said is that the video does not rule out the possibility that the appellant and the third man might have switched seats. It does not clearly establish that this was what actually happened.

[106] The LCBO video then shows Mr. Anzolona and Ms. Kancherla leaving the store at 9:45 p.m., after Ms. Kancherla purchased some liquor. Mr. Fountain leaves the store approximately 15 seconds later, carrying his own liquor purchase. Almost simultaneously, the parking lot video shows someone getting out of the rear passenger side of the Ford Fusion and running in the direction of the victim’s vehicle. It is common ground that this person is the shooter, and that when he got to the Honda Pilot he fired multiple shots, killing Mr. Anzolona and Ms. Mullapudi, although the shooting cannot be clearly seen on the parking lot video. The Crown’s theory at trial was that the shooter’s intended target was Mr. Anzolona, and that Ms. Mullapudi was shot and killed when the shooter fired indiscriminately into the rear seat area of the Honda.

[107] The parking lot video shows that the shooter then runs back to the Ford Fusion and gets into the vehicle through the rear passenger side door. Mr. Fountain also runs to the car and gets in on the front passenger side. The car then drives out of the parking lot.

[108] Importantly, it is common ground that this video evidence circumstantially establishes that there must have been at least three people in the Ford Fusion: the appellant, Mr. Fountain, and at least one other unidentified person. When the shooter and Mr. Fountain get back into the vehicle, they both get in on the passenger side, and the car immediately drives away. It is clear that a third person must have been in the driver’s seat. It is also clear from the video that Mr. Fountain was neither the shooter nor the driver. The critical disputed question at trial was what roles were played by the other two people. If the appellant was the shooter, the unidentified third person must have been the driver. That was the Crown’s theory. Conversely, if the unidentified third person was the shooter, the appellant was the driver. That was the defence theory.

[109] I agree with my colleague that it was reasonably open to the jury to conclude on the evidence as a whole that the appellant was the shooter. However, the evidence supporting this conclusion was not overwhelming, and different evidence pointed in different directions.

[110] While the Crown argued that the parking lot video shows the shooter to have been wearing similar clothing to the appellant, the quality of the video was, in my view, far too poor to establish this conclusively. The eyewitness descriptions of the shooter were consistent with the appellant’s appearance in some respects (e.g., that he was a black male), but some were inconsistent in other respects (e.g., one eyewitness described the shooter as 6’1” tall, several inches taller than the appellant).

[111] The strongest circumstantial evidence favouring the Crown’s theory that the appellant was the shooter was Mr. Pillay’s evidence, confirmed by the LCBO video, that while Mr. Anzolona was in the LCBO waiting for Ms. Kancherla to complete her purchase, he phoned Mr. Pillay, who was waiting in the Honda Pilot, and told him to “be on point”. Mr. Pillay interpreted this as an instruction to “observe your surroundings and get ready to leave”. It was open to the jury to infer that Mr. Anzolona must have seen something while he was in the LCBO that concerned him. One possibility is that he saw and recognized either the appellant and/or Mr. Fountain, and believed that they presented a threat. However, I disagree with my colleague that the “only reasonable inference” is that Mr. Anzolona must have seen the appellant and perceived a threat from him, specifically. In my view, the LCBO video evidence and Mr. Pillay’s testimony are much more equivocal.

[112] On the other hand, the Crown did not adduce any evidence that either the appellant or Mr. Fountain knew either of the victims, or that the appellant had any known reason to want to kill them.

[113] The Crown adduced post-offence conduct that two days later the appellant made efforts to avoid being seen by the police. However, since even on the defence theory the appellant had driven the shooter away from the scene of a double homicide, he faced obvious jeopardy whether or not he had committed the murders personally.

C. The admissibility of the fresh evidence under Palmer

[114] At the outset, it is important to note that the fresh evidence at issue here is the evidence of Mr. Fountain. The appellant filed his own affidavit as evidence on the application, but he is not seeking to adduce his own evidence as fresh evidence on his appeal. I agree with my colleague that we are still obliged to consider the appellant’s evidence when we apply the Palmer criteria. However, in doing so, we must bear in mind that if we admit Mr. Fountain’s fresh evidence and order a new trial, the appellant may choose not to testify. If he does not testify, the version of events he gives in his affidavit and under cross-examination on his affidavit will not be evidence that can be put before the jury: see R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 39–40.

(1) The three unchallenged Palmer criteria

[115] In my view, the proposed fresh evidence plainly meets three of the four Palmer criteria.

[116] First, it is undisputed that when the appellant’s trial took place in 2019, Mr. Fountain was facing his own murder charge and was hiding from the police, and was thus not available to be called as a defence witness.

[117] Second, the trial judge ruled that there was no basis for leaving liability for murder as an aider or abettor with the jury. Accordingly, she instructed the jurors that the appellant could only be found guilty if it was proved beyond a reasonable doubt that he was the shooter. Mr. Fountain’s evidence that the appellant was not the shooter accordingly bears on the central disputed issue at trial.

[118] Third, if Mr. Fountain had testified at trial, and if the jury had believed his evidence, they would have been obliged to acquit the appellant. Even if the jurors did not affirmatively accept Mr. Fountain’s evidence, it was capable of contributing to a reasonable doubt.

(2) Is the fresh evidence “credible in the sense that it is reasonably capable of belief”?

[119] The admissibility of Mr. Fountain’s fresh evidence thus hinges on the third Palmer criterion: whether his evidence is “credible in the sense that it is reasonably capable of belief”.

[120] My colleague concludes that it is not. Indeed, he evidently sees this as not a close call, declaring Mr. Fountain’s evidence to be “not remotely credible” and “the product of deliberate collusion with the appellant”.

[121] For the following reasons, I respectfully disagree with my colleague’s conclusion, in part because I disagree with some aspects of his reasoning path.

[122] I will begin with two preliminary observations. First, Mr. Fountain’s fresh evidence has two different material parts: (i) his positive identification of the third man in the Ford Fusion as his childhood friend, Jaiden Jackson, now deceased; and (ii) his evidence that it was Mr. Jackson, and not the appellant, who was the shooter. Either or both of these things could potentially be true or false: for instance, Mr. Fountain could be lying about the third man’s identity but telling the truth when he says that the third man was the shooter, or vice versa.

[123] Second, Mr. Fountain’s evidence does not present some of the particular credibility problems that often arise on fresh evidence applications. This does not mean that his evidence is necessarily credible, only that it cannot be dismissed as incredible for these specific reasons:

i) Mr. Fountain is not lying about there being a third man in the car. Rather, it is common ground that this third man existed. This is accordingly not a case like Smithen-Davis, where there was reason to be concerned that the fresh evidence witness was inventing the existence of an unidentified and unidentifiable third person in order to shield the defendant from liability;

ii) Mr. Fountain knows who the shooter was. The shooting occurred a short distance away from him as he was leaving the LCBO. Even if he did not actually see the shooting, he would certainly have known who was driving when the Ford Fusion left the parking lot with Mr. Fountain in the front passenger seat. In the circumstances here, whoever was driving at that point could not have been the shooter. In short, the concern in this case is not over whether Mr. Fountain is lying about having material information, but whether he is being truthful about what he knows;

iii) The Crown appears to accept that the man Mr. Fountain identifies as the third man, Jaiden Jackson, was a real person who was himself murdered in 2018. Accordingly, this is not a situation where it would be impossible for the Crown to test the truth of Mr. Fountain’s claim that Mr. Jackson was present that night because his identity cannot be established: see e.g., Smithen-Davis;

iv) Mr. Fountain is not a recanting witness who is resiling from a previous statement or testimony that implicated the appellant.

[124] On this last point, recanting witnesses present special credibility concerns. As Rosenberg J.A. observed in R. v. Babinski (1999), 44 O.R. (3d) 695 at p. 720, “[s]imple recantations are properly subject to strict scrutiny because they can be easily fabricated.” A recanting witness who gave contradictory evidence under oath at trial will necessarily have lied under oath at least once. Moreover, recanting witnesses raise special concerns about the finality of trial verdicts. As Watt J.A. noted in Allen, at para. 99:

Where the proposed fresh evidence is a post-trial recantation of a witness’ trial testimony, there is an urgent need for a particularly rigorous qualitative assessment. The finality of criminal verdicts would be all too ephemeral if they were to fall whenever an important trial witness chose to recant their trial testimony.

[125] I will begin by addressing the first important aspect of Mr. Fountain’s proposed fresh evidence: his identification of the unknown third man in the car as his friend, Jaiden Jackson. Having regard to the evidence as a whole, I am unable to dismiss Mr. Fountain’s evidence on this point as not reasonably capable of being believed. Critically, it is undisputed that there was, in fact, a third person in the car that night. There is no other evidence, one way or the other about who this third person might have been. However, it stands to reason that he was probably a friend of either the appellant or Mr. Fountain, or of them both.

[126] I appreciate that Mr. Jackson’s death by homicide in 2018 may have made it more difficult for the Crown to investigate Mr. Jackson’s whereabouts that night. However, it did not make such an investigation completely impossible. If Mr. Fountain was falsely naming Mr. Jackson as the third man in the car, he ran the risk that the Crown might be able to disprove this aspect of his account, which would destroy his credibility entirely. The Crown has not adduced any responding evidence on the application demonstrating that Mr. Jackson was somewhere else that night.

[127] On balance, and bearing in mind that it is not our task to decide whether Mr. Fountain’s evidence is true, I am satisfied that his identification of the third man as Mr. Jackson meets the third Palmer criterion of being reasonably capable of belief.

[128] The more difficult and contentious issue is over the second, and much more important, aspect of Mr. Fountain’s evidence: namely, his further contention that the shooter was Mr. Jackson, and not the appellant.

[129] My colleague finds Mr. Fountain’s evidence to not be reasonably capable of belief because he finds it to be the product of collusion. He reaches this conclusion based on the evidence that when Mr. Fountain and the appellant were cross-examined on their affidavits on November 3, 2023, they were both on the same range together at the Collins Bay Institution.

[130] I agree with my colleague that there is reason to be concerned that Mr. Fountain and the appellant may have discussed their evidence with each other before they were cross-examined. However, Mr. Fountain swore his affidavit more than a year earlier, on September 20, 2022. In his affidavit, he committed himself to the two key elements of his account: namely, his identification of the third man in the car as Jaiden Jackson, and his claim that it was Mr. Jackson, rather than the appellant, who left the car and shot the victims.

[131] During the hearing of the appeal, counsel for the appellant advised the panel that it was an agreed fact between counsel that the appellant and Mr. Fountain only became inmates together at Collins Bay seven weeks later, on November 8, 2022. Crown counsel took no issue with this assertion. There is no evidence that Mr. Fountain and the appellant had any opportunity to communicate with one another before they were moved onto the same range in the same institution.

[132] In summary, the key aspects of Mr. Fountain’s account emerged before he had any established opportunity to collude with the appellant. In my view, this substantially undermines my colleague’s conclusion that Mr. Fountain’s evidence on these key points “is the product of collusion”.

[133] I appreciate that the absence of evidence of collusion does not guarantee that Mr. Fountain’s affidavit evidence is true. Mr. Fountain would not have needed to collude with the appellant to know that it would work to the appellant’s advantage for him to identify the shooter as someone else. There is also an obvious concern that Mr. Fountain might now be prepared to falsely identify Mr. Jackson as the shooter in order to shield the appellant, because Mr. Jackson is dead and can no longer be prosecuted.

[134] My colleague also points to what he characterizes as evidence that Mr. Fountain and the appellant have colluded since the time they have been incarcerated together. In particular, he notes that they are both able to remember some of the same details of their movements and activities that day, but not others. He also attributes considerable significance to the similarities in their description of the clothing the third man was wearing that night.

[135] I agree that the similarities between Mr. Fountain and the appellant’s evidence are a cause for some concern. However, some of these points of similarity were included in Mr. Fountain’s affidavit, which he swore weeks before he had any established opportunity to communicate with the appellant. These include:

i) His recollection that he and the appellant went to the gym that afternoon;

ii) His evidence that Mr. Jackson was wearing a “varsity jacket” that night;

iii) His memory of Mr. Jackson telling the appellant to “start driving” after they got into the car.

[136] In contrast, the appellant did not swear his own affidavit until January 20, 2023, by which time he and Mr. Fountain had been together in the same cell block for several months. I agree that the presence of similar factual assertions in the appellant’s affidavit raises a legitimate concern that he may have tailored his evidence on these points to match Mr. Fountain, and that this weighs against the appellant’s credibility. However, the appellant is not seeking to have his own evidence admitted as fresh evidence, and circumstances undermining his credibility do not render Mr. Fountain’s evidence less worthy of belief.

[137] As far as the key factual assertions in Mr. Fountain’s affidavit are concerned – that is, his evidence that Mr. Jackson was the third man in the car, and his identification of Mr. Jackson as the shooter – the arrow of potential collusion points only in one direction. It does not, in my view, support the inference that Mr. Fountain’s evidence about these matters, which he committed himself to before he had any known opportunity to collude with the appellant, can be dismissed as the product of such collusion.

[138] I agree with my colleague that there are other points where the similarities between the appellant’s evidence and Mr. Fountain’s testimony in cross-examination on November 3, 2023, support the inference that Mr. Fountain’s testimony may have been influenced by his conversations with the appellant. At that point they had been living on the same range for nearly a year. I also agree that this weighs to some extent against Mr. Fountain’s overall credibility. However, these areas of potential collusion are peripheral to the core of Mr. Fountain’s fresh evidence: namely, his contentions that Mr. Jackson was the third man, and that it was Mr. Jackson, rather than the appellant, who was the shooter.

[139] My colleague gives three other reasons for concluding Mr. Fountain’s evidence is not reasonably capable of belief.

[140] First, he notes that Mr. Fountain and the appellant both have extensive criminal records, that include convictions for crimes of dishonesty. I agree that this is a relevant consideration, but it is not determinative: see e.g. Smithen-Davis, at para. 52.

[141] Second, my colleague concludes that Mr. Fountain’s evidence about the appellant’s stated reason for leaving the LCBO – namely, his having forgotten his wallet – is contradicted by the LCBO video evidence, which “does not show any conversation between them or any physical reaction indicating that the appellant had forgot his identification”. However, before the appellant left the LCBO, he and Mr. Fountain were both standing with their backs to one surveillance camera, and the appellant then walked behind a pillar, blocking him from view. From another camera angle, Mr. Fountain is behind a wall. In my view, it cannot be determined from the videos whether or not they exchanged any words before the appellant left the store. I would also note that Mr. Fountain’s evidence that he stayed in the store and bought a bottle of liquor is confirmed by the video, which shows him queuing at a checkout and then leaving the store with an LCBO bag in his hand.

[142] Third, my colleague and I disagree about the extent to which the evidence at trial weighs against Mr. Fountain’s contention that the appellant was not the shooter.

[143] My colleague notes that Mr. Fountain “offers no explanation” for why Mr. Jackson would have suddenly run from the car and shot the victims. I agree that any scenario in which Mr. Jackson was the shooter only makes sense if he knew about Mr. Anzolona’s presence. I also agree that the evidence supports the inference that the appellant might have seen and recognized Mr. Anzolona when they were both inside the liquor store.

[144] However, the parking lot video also shows that the Ford Fusion was parked facing the LCBO, only a few car lengths away from the store exit, and with what appears to be a clear line of sight towards the west exit doors. The LCBO video also shows that Mr. Anzolona stood in front of the large lighted store windows for nearly a minute, waiting for Ms. Kancherla to make her purchase, and then left the store through the west exit. On this record, I am not satisfied that it can be ruled out that Mr. Jackson may have simply seen and recognized Mr. Anzolona from his vantage point in the parked car.

[145] I would also note that Mr. Fountain cannot reasonably be expected to explain how Mr. Jackson could have known about Mr. Anzolona’s presence. Mr. Fountain was still in the LCBO when Mr. Anzolona left the store, so he has no way to know what Mr. Jackson might have been able to see from the car. Mr. Fountain also has no way to know what the appellant might have said to Mr. Jackson when they were together in the car, but Mr. Fountain was still in the store.

[146] My colleague also dismisses the appellant’s own evidence as “absurd”, apparently because, on the appellant’s account, he did not say anything to Mr. Jackson that might have prompted Mr. Jackson to then go commit two murders. However, in my view, the premise that Mr. Jackson could only have learned about Mr. Anzolona’s presence from the appellant is unsound. The evidence does not rule out the possibility that Mr. Jackson saw and recognized Mr. Anzolona as Mr. Anzolona was leaving the store.

[147] Moreover, disbelief of the appellant’s evidence does not automatically translate to a basis for rejecting Mr. Fountain’s evidence. The appellant could be lying about not having said anything to Mr. Jackson about seeing Mr. Anzolona in the store, but he and Mr. Fountain could still both be telling the truth about Mr. Jackson being the shooter. Disbelieving the appellant’s evidence does not, on its own, support the conclusion that the opposite of what he said must be true, and that he must have been the shooter himself. I would also reiterate that the appellant’s evidence on this application will not be admissible at a new trial unless he chooses to testify.

[148] The overarching question we must consider is whether the interests of justice require the fresh evidence to be admitted. This requires a contextual and holistic assessment of its cogency, considered in light of the evidence at trial.

[149] On the trial record, it is clear that either the appellant or the third man in the car – the man Mr. Fountain now identifies as Mr. Jackson – was the shooter. Since there is no evidence that either the appellant or Mr. Jackson had any known motive to want to harm Mr. Anzolona – the person who, on the Crown’s theory, was the shooter’s intended target – this does not assist in choosing between them.

[150] The Crown’s theory, which the jury evidently accepted, is that the appellant saw Mr. Anzolona in the store, recognized him and decided to kill him, and went back to his car to wait for Mr. Anzolona to come out. In support of this theory, the Crown points to the call that Mr. Anzolona placed to Mr. Pillay telling him to “be on point”, in support of the inference that Mr. Anzolona had in turn recognized the appellant and/or Mr. Fountain, and had some reason to fear them.

[151] The competing possibility is that Mr. Jackson learned of Mr. Anzolona’s presence in the store, either from the appellant or because he saw Mr. Anzolona leaving, and decided for some unknown reason of his own to shoot Mr. Anzolona and his friend, Ms. Mullapudi. I appreciate that this competing theory does not provide a ready explanation for why the appellant left the store when he did. It also requires Mr. Jackson to have made the decision to shoot the victims more quickly than the appellant would have to have done if he was the shooter. Perhaps most importantly, while Mr. Anzolona’s phone call to Mr. Pillay could perhaps be explained on the basis that his recognition of either Mr. Fountain or the appellant caused him to be concerned that some other person who he feared – perhaps Mr. Jackson – might be with them, this latter possibility is difficult to square with Mr. Fountain and the appellant’s denials that they knew or recognized Mr. Anzolona. On these points, the Crown’s theory has the advantage.

[152] However, the competing defence counternarrative also has one very significant point in its favour. It is clear from the video evidence that when the appellant went back to the car he got in on the driver’s side. It is equally clear that when the shooter left the vehicle approximately two minutes later, he came out of the rear passenger side door. For the Crown’s theory that the appellant was the shooter to work, he and the other man in the vehicle must have switched seats. However, this is not something that actually can be seen happening on the parking lot video. In contrast, when the shooter exits through the rear passenger door, his movements, while blurred and indistinct, are readily observable on the recording.

[153] The jury was evidently satisfied that the other branches of the Crown’s case were sufficiently compelling to bridge this gap in the evidence. I agree with my colleague that the jury was reasonably entitled to come to this conclusion: the video evidence does not conclusively show that the appellant and the third man could not have changed seats without this being observable on the video.

[154] However, even taking into account Mr. Fountain’s frailties as a witness – including his criminal history, his motive to protect his still-living friend, and the possibility that he may not have been forthright about the extent to which he and the appellant have discussed their evidence – I am not satisfied that his evidence that Mr. Jackson was the shooter can be dismissed as not reasonably capable of belief, in the context of the evidence as a whole. It would not be unreasonable for a jury to accept his evidence and acquit the appellant. (Indeed, the jurors would be obliged to acquit the appellant if Mr. Fountain’s evidence leaves them with a reasonable doubt, even if they do not affirmatively accept his testimony).

[155] In these circumstances, I would conclude that the interests of justice require that the fresh evidence be admitted. I would accordingly admit the fresh evidence of Mr. Fountain, allow the appeal on this basis, and order a new trial.

Released: November 19, 2024 “G.H.”

“J. Dawe J.A.”

[1] The time stamps on the two videos are not synchronized, and the times shown on the LCBO video are 42 seconds ahead of those on the parking lot video. For consistency, I will use the time stamps on the parking lot video.