Court of Appeal for Ontario

Date: 2025-06-25
Docket: C68466
Panel: Fairburn A.C.J.O., Huscroft and Monahan JJ.A.

Between

His Majesty the King
Respondent

and

David Kawal
Appellant

Appearances:
Brian Snell, for the appellant
Andrew Hotke, for the respondent

Heard and released orally: June 17, 2025

On appeal from the convictions entered by Justice David Harris of the Superior Court of Justice, dated July 13, 2018, sitting with a jury.

Reasons for Decision

[1] This is an appeal from conviction for attempt murder, robbery with a restricted or prohibited weapon, and kidnapping with a restricted or prohibited weapon. The appellant is serving a life sentence for the attempt murder with corresponding statutory parole eligibility, along with 10 years concurrent on the other two offences. Among other things, a police officer, responding to an emergency call from a kidnapping victim, was shot at 10 times and struck in the arm. As the trial judge said at sentencing, “modern day miracles do occur.” This is true of the officer’s close call with death, along with the kidnapping victim who also survived after being shot at three times at close range.

[2] The appellant raises four grounds of appeal. First, the appellant maintains that the jury verdicts were unreasonable in the sense that no jury, properly instructed and acting judicially, could have reached the verdicts. On this basis, the appellant seeks an acquittal. Respectfully, we see no merit in this argument.

[3] We need not repeat the overwhelming evidence supporting the verdicts, as that evidence was recounted by Harris J. in the sentencing decision: see R. v. Kawal, 2018 ONSC 7531. There was ample evidence, including but not limited to video, cell phone, DNA, and GSR evidence, upon which this jury could have arrived at the verdicts reached.

[4] Second, the appellant contends that the trial judge erred in his instructions to the jury in relation to the inference drawing exercise they were required to undertake in this circumstantial case. He argues that the trial judge left the jury with the impression that they could not draw inferences from an absence of evidence. We disagree. Read contextually, the jury was properly instructed on this point and would have well understood that an absence of evidence can give rise to a reasonable doubt.

[5] Third, the appellant argues that the instructions on eyewitness identification evidence fell short of the mark. In our view, the trial judge was right not to provide a longer instruction on this point as it would have undermined the defence position. The fact is that the eyewitness identification evidence was arguably more exculpatory than inculpatory. This likely explains why there was no objection to the charge on this point.

[6] Fourth, the appellant argues that the trial judge erroneously instructed the jury by telling them that if they were satisfied beyond a reasonable doubt that there was a kidnapping and robbery, about which there was no dispute at trial, then they should convict the appellant. We do not share this interpretation of the charge. The elements of the offence and the need for the Crown to prove beyond a reasonable doubt the appellant’s participation in those offences was made clear to the jury.

[7] The conviction appeal is dismissed. The sentence appeal was previously abandoned.

“Michal Fairburn”
“Grant Huscroft”
“Paul Monahan”