Court of Appeal for Ontario

Date: July 16, 2025
Docket: COA-23-CR-1087 & COA-24-CR-1384
Panel: Trotter, Thorburn and Sossin JJ.A.

Between:
His Majesty the King (Respondent)
and
Andrew Smoke (Appellant)

And Between:
His Majesty the King (Respondent)
and
Eric Smoke (Appellant)

Appearances:

• Delmar Doucette, for the appellant Andrew Smoke
• Ingrid Grant and Paul Alexander, for the appellant Eric Smoke
• Roger Pinnock and Étienne Lacombe, for the respondent

Heard: June 18, 2025

On appeal from the convictions entered on March 1, 2023 by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury.

Reasons for Judgment

Trotter J.A.:

[1] The appellants, Andrew Smoke (“Andrew”) and Eric Smoke (“Eric”), appeal their convictions for the second degree murder of Andrew “Scruff” Davis. The following reasons explain why I would dismiss their appeals.

A. Factual Overview

[2] Mr. Davis was shot in the head while he sat in his vehicle, with his two-year-old daughter, Andreanna, sitting in his lap. Andreanna was not harmed.

[3] Mr. Davis used to be in a relationship with Benita Hill. They had a child together – Andreanna. On weekdays, Mr. Davis picked up Andreanna from Benita’s mother’s house, where they both lived. He would watch her for a few hours before dropping her off in the evening.

[4] When these events happened, Andrew was dating Benita.

[5] On November 29, 2020, Benita and Mr. Davis got into a heated argument. Benita complained to Andrew that Mr. Davis had been verbally abusive. She wanted Andrew to speak to him about it. That happened the next day, November 30, 2020, when Mr. Davis came to pick up Andreanna.

[6] Andrew arrived at the house with another man, who the jury found to be Eric. Benita was busy preparing Andreanna for her visit with Mr. Davis. She only interacted with the two men briefly. She had never been introduced to Eric before. However, when he arrived, he asked Benita if “his brother” could use the washroom. Benita’s other daughter, Jukasa, was also present. She did not know Eric. Jukasa asked Andrew if the other man was his brother. He said “no.”

[7] When he arrived at the house that day, Mr. Davis turned on the audio-recording function of his phone. What happened over the next 18 minutes, culminating in his death, was recorded. Some of the events were also captured on a mobile phone video taken from the house.

[8] During the initial stages of the audio-recording, Mr. Davis, Andrew and Eric were outside the house. Andrew and Mr. Davis argued about Mr. Davis’ treatment of women. They exchanged profane insults. Andrew made numerous threats to kill Mr. Davis. He did not mention a gun. He wanted to settle the dispute with a fight, right then and there. Mr. Davis did not want to fight at that time, especially with Eric present. He said he would fight at another time when he, too, had backup.

[9] At some point during this dispute, and it is not exactly clear when, Andreanna came out of the house. Mr. Davis took her to his vehicle, and sat her on his lap. Andreanna can be heard at various points during the recording. The dispute between Andrew and Mr. Davis continued. At certain points, Eric interjected. The video-recording from the house showed that the brothers were positioned in a manner that prevented Mr. Davis from closing the door of his vehicle.

[10] As the argument continued, things seemed to escalate. On a couple of occasions, Andrew said “Buddy, green light’s on you” and “The Green light’s on you, you’re dead.” It was unclear what Andrew meant by this statement. Just before the shooting, referring to Andreanna, Eric said: “Put her in her car seat.” A little while later, Andrew said: “Put her down, she’ll go in the house by herself.” Again, he told Mr. Davis “put your kid in the seat” and “put your kid over there.” At one point, Eric spoke directly to Andreanna and asked her to go back into the house. Eric then accused Mr. Davis of “wearing” Andreanna as “body armour”. Mr. Davis responded: “That’s right, I told ya, there’s a place and a time.” This back-and-forth continued until the following exchange:

Eric Smoke: Yeah, all right, ready?
Andrew Smoke: Up to you.
Mr. Davis: You think I’m scared?

[11] Mr. Davis was then shot in the head.

[12] The video recording shows Andrew and Eric walking away from Mr. Davis’ vehicle. They left together in Andrew’s Dodge Caravan. In the meantime, Benita came out of the house to get Andreanna from Mr. Davis’ vehicle. Benita can be heard screaming. She ran back into the house and called 911.

[13] A few kilometers from the scene, Andrew lost control of his van, went into a ditch, and hit a tree. Andrew flagged down a pickup truck driven by Quentin Thomas. He agreed to give Andrew a ride, at which point Eric, carrying a satchel, came out of the bush. He rode in the back of the pickup truck. Mr. Quentin dropped the brothers off at the Sit-N-Bull gas bar.

[14] A customer at the gas bar, Bryan Hill, recognized Andrew, but not Eric. Andrew told Mr. Hill that he had crashed his van, that his “buddy” had shot Mr. Davis, and he did not know where his “buddy” had gone.

[15] Andrew’s much older brother, Patrick Skye, was working at the Sit-N-Bull that day. Andrew asked if he could borrow his Jeep. Patrick saw the other man with Andrew, but he did not recognize him as his brother, Eric. As Andrew was about to drive away, he stopped and asked Mr. Skye how to turn on the lights in the Jeep. The other man who Mr. Skye said he did not recognize was seated in the back seat of the vehicle, rather than in the front passenger seat.

[16] The brothers were charged with second degree murder. There were two main issues at trial. First, did Andrew intentionally aid or abet the person who shot Mr. Davis? Second, was the other man Eric? The jury found both men guilty. Andrew and Eric were sentenced to life imprisonment with no eligibility for parole for 14 and 15 years, respectively.[^1]

B. Andrew Smoke’s Appeal

[17] Andrew raises two grounds of appeal. First, he submits that the trial judge erred in failing to instruct the jury that there was no direct evidence that Andrew knew that the unidentified man had a gun. Second, he argues that the trial judge erred in his instructions on after-the-fact conduct evidence.

(1) The Instruction on Aiding and Abetting

[18] Andrew submits that the trial judge erred in his instructions on aiding and abetting. The focus of this ground is narrow. No issue is taken with what I will refer to as the legal or substantive aspects of this instruction. The trial judge properly conveyed the requirements for liability under s. 21(1)(b) and (c) of the Criminal Code, RSC 1985, c C-46. Instead, the focus of this ground of appeal is on the trial judge’s discussion of the evidence that was relevant to Andrew’s state of mind at the time of the shooting.

[19] It was common ground at trial that there was no direct evidence that Andrew knew that Eric had a gun. The video of the event, based on its angle and poor quality, was inconclusive on whether Andrew could have seen the gun that was used to kill Mr. Davis. However, the Crown relied on circumstantial evidence from which the jury could infer knowledge on Andrew’s part, based on his words and actions in and around the time of the shooting.

[20] During a break in the trial judge’s delivery of his charge, after he had completed his instructions on aiding and was about to discuss abetting, trial counsel for Andrew requested that the trial judge tell the jury that there was no direct evidence that Andrew knew that the shooter had a gun. This was the first time that the request was made. The Crown did not object to the inclusion of such an instruction. However, the trial judge decided against it. He said:

All right. As to the two suggestions that Mr. Brodsky is making, I’m, I’m not prepared to accede to the second one about when the gun was visible that might inform what Andy Smoke might have known. There is no evidence that the gun was visible. That would be sheer speculation…

…we don’t know if it was visible. Maybe it was, maybe it wasn’t. Maybe it was brandished. We have no idea. And I think that would just be speculative on my part to say that to the jury.

[21] The trial judge instructed the jury in accordance with the draft he had provided to counsel. However, he added the following sentence to his discussion of the evidence: “Was there any indication that a gun was present?”

[22] Andrew submits that the trial judge erred in failing to give the instruction that counsel requested. He submits that the trial judge engaged in improper speculation when he said “maybe it was brandished.” Further, his omission ran afoul of the foundational principle that reasonable doubt may arise from the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, para 30.

[23] In my view, the trial judge made no error in refusing to accede to defence counsel’s last-minute, mid-charge request. The trial judge properly instructed the jury on reasonable doubt, including the standard direction that: “It is a doubt that arises logically from the evidence or from the absence of evidence” (emphasis added). The trial judge also instructed the jury on the differences between direct and circumstantial evidence. He repeatedly warned the jury to consider all the evidence before them and only that evidence in reaching their verdict. There was no legal requirement to tell the jury that there was no direct evidence on this element of the offence. That is the role of counsel.

[24] In his closing address, the Crown did not suggest that there was direct evidence of Andrew’s prior knowledge of the gun. Defence counsel stressed that there was no direct evidence of Andrew's state of mind on this issue.

[25] Taking a functional approach to reviewing the jury charge in this case, the jury was properly instructed. No unfairness was caused by the trial judge’s decision not to give the requested instruction.

[26] I would not give effect to this ground of appeal.

(2) Instruction on After-the-Fact Conduct

[27] Andrew submits that the trial judge erred in his instructions on after-the-fact conduct evidence by allowing the jury to “consider the actions of both men immediately after the gunshot.” He told the jury that the evidence was of no consequence to the guilt of Eric because it did not relate to the issue of identity. However, the trial judge said:

However, you may find that the evidence assists you to determine, as to your consideration of the charge against Andrew Smoke, the nature of the reaction by each of the two to the shooting which in turn may assist in your decision about whether the shooting was intended. [Emphasis added.]

[28] The appellant submits that the instruction was erroneous because the after-the-fact conduct of one co-accused is irrelevant to the state of mind of another. The trial judge should have instructed the jury that they could not use the shooter’s after-the-fact conduct to infer that Andrew knowingly participated in the murder.

[29] I do not accept this submission. The evidence that was the subject of this instruction was very limited. As the trial judge stated:

You have seen the video evidence from the time of the shooting, including the few moments immediately after the event. As well, you have seen surveillance video and photos of the silver Dodge Caravan vehicle leaving the scene, and soon after being found disabled off the side of River Range Road. For convenience, I shall refer to this as “after-the-fact conduct”. Andrew Smoke and the unidentified man are shown walking away from the Cadillac Escalade where the shooting had just taken place. They appear to have left the scene in the minivan. The video is not of sufficient clarity to show the facial expressions of either of them.

After-the-fact conduct is a type of circumstantial evidence. As with all circumstantial evidence, you must consider what inference, if any, may be drawn from it. An inference you may draw from this evidence is that Andrew Smoke appeared to be calm and not surprised or shocked by the event which in turn could be indicative of what he knew or anticipated could happen in the confrontation with Andrew Davis. [Emphasis added.]

[30] Although the trial judge’s initial instruction referred to “the nature of the reaction by each of the two”, when discussing the inference that may be drawn, the trial judge focused solely on Andrew’s conduct. I see no error.

[31] Counsel for Andrew draws our attention to the evidence of subsequent events, including when Andrew crashed his van, flagged down a ride, whereupon Eric alighted from the ditch. He also points to the various interactions at the Sit-N-Bull between Andrew, Eric, and Patrick Skye. He submits Eric’s behaviour was indicative of someone trying to conceal their identity. It would be unfair for the jury to consider this evidence in determining whether Andrew had the requisite intent under s. 21 of the Code.

[32] I do not accept this submission. This body of evidence was not the subject of the trial judge’s after-the-fact conduct instruction. The jury would have understood that this instruction related only to this narrowly defined body of evidence discussed above.

[33] Lastly, trial counsel expressed no concern about the instruction. It had been vetted at the pre-charge conference. After the trial judge’s final instructions were delivered, counsel said “It’s the first time in 33 years I have no further issues.”

[34] I would not give effect to this ground of appeal.

C. Eric Smoke’s Appeal

[35] Eric Smoke raises two grounds of appeal. He submits that the trial judge erred in his jury instructions on the use they could make of statements attributed to Andrew. He also submits that the verdict was unreasonable and unsupported by the evidence.

(1) Instructions on Andrew Smoke’s Statements

[36] Eric submits that the trial judge erred in how he instructed the jury on the use of two utterances attributed to Andrew. As discussed above, the first utterance was made at the house before the confrontation with Mr. Davis. Benita Hill’s other daughter, Jukasa, asked Andrew if the other man was his brother. Andrew said no. The second utterance was made at the Sit-N-Bull. Andrew told Bryan Hill that Mr. Davis had been shot and “my buddy shot him”.

[37] Eric submits that the trial judge erred by giving the jury contradictory instructions on how to approach this evidence. After summarizing the relevant evidence, the trial judge said:

However, even if you do not believe the testimony that Andrew Smoke made the statements, if the testimony leaves you with a reasonable doubt about whether Eric Smoke was present when Andrew Davis was killed, you must find Eric Smoke not guilty. Even if the testimony that Andrew Smoke made the statements does not raise a reasonable doubt about whether Eric Smoke was present when Andrew Davis was killed, if, after considering all the evidence, you are not satisfied beyond a reasonable doubt of his guilt, you must acquit.

Unless you decide that Andrew Smoke made a certain remark or statement, you must not use it in deciding this case. [Emphasis added.]

[38] Eric submits that, while the first underscored sentence from this passage was legally correct, the second one was erroneous. It reversed the burden of proof by placing the onus on Andrew to prove that the utterances were made.

[39] The Crown concedes that the second underscored portion of the trial judge’s instruction was an erroneous slip. An exculpatory statement can form the basis of a reasonable doubt even if it is not affirmatively believed by the jury: R. v. Bucik, 2011 ONCA 546, para 33. Thus, an accused person has no persuasive burden to prove that an exculpatory statement was made before it can be used by the jury to decide a case.

[40] The Crown, however, submits that this single, problematic statement did not undermine the fairness of the charge which contained numerous instructions on the burden and standard of proof. The Crown relies on R. v. Abdullahi, 2023 SCC 19, para 41: “A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue … One misstatement might be compensated for by an accurate statement elsewhere in the charge, provided the jury would have accurately understood the law it must apply” (citations omitted).

[41] When the impugned passage is considered in its entirety, and in the context of the charge as a whole, the error was innocuous. As noted, the jury was thoroughly instructed throughout on the burden of proof and reasonable doubt.

[42] The impugned instruction was acceptable to defence counsel at trial. No objection was made. I do not accept Eric’s submission that this aspect of the charge may have been missed by defence counsel due to the distraction caused by the many issues that were discussed during the pre-charge conference. This could be said of any jury trial, especially in a homicide case.

[43] Perhaps most importantly, at trial, the Crown did not dispute that Andrew made these utterances; instead it asserted that the statements were false. Everybody at trial proceeded on the basis that Andrew made these utterances. The only issue was whether they were true.

[44] I would not give effect to this ground of appeal.

(2) The Verdict Was Not Unreasonable

[45] Eric submits that the evidence at trial was not capable of supporting the inference that he was the shooter. He submits that there was only weak circumstantial evidence to support this proposition. On the other hand, there was strong direct evidence of the opposite. Accordingly, no properly instructed jury, acting judicially, could have found him guilty of the murdering of Mr. Davis.

[46] The Crown, on the other hand, submits that there was a formidable circumstantial case against Eric, such that the verdict was not unreasonable. Acknowledging the entirely circumstantial nature of this case, the Crown relies on R. v. Lights, 2020 ONCA 128, para 39: “Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused.”

[47] It is true that no one identified Eric as being the shooter. Some evidence that pointed in the other direction – the evidence of Quentin Thomas and Patrick Skye. Additionally, the jury had to consider Andrew’s utterances, discussed in the previous ground of appeal.

[48] Set against this evidence was significant circumstantial evidence upon which a jury could convict. When considered in its totality, the only reasonable inference to be drawn from it was that Eric was the shooter.

[49] The Crown relied on video surveillance from the Sit-N-Bull. Andrew and Eric are shown on the video, although both of their faces are partially covered. The Crown introduced an image of the person who was with Andrew at the Sit-N-Bull alongside a booking photograph of Eric taken 12 days after the shooting. The Crown invited the jury to compare similarities in skin tone, nose, and lips. The images are consistent with each other. Standing alone, this could not carry the weight of the Crown’s case. However, there was further circumstantial evidence that may have been cumulatively compelling to the jury.

[50] There were other important images from the Sit-N-Bull. The man standing and walking beside Andrew wore a hoodie with distinctive bright red markings and red drawstrings. An identical hoodie was found at Eric Smoke’s residence just four days later. The hoodie also contained gunshot residue. It was conceded by counsel for Eric on appeal that this was in fact the piece of clothing worn by the man in the images – it was the hoodie worn by the shooter.

[51] Eric’s DNA was found on the neckline and cuff of the hoodie. DNA from another source was also found in the same places. It was Eric’s position that there was no evidence as to when the appellant’s DNA was transferred onto the shirt. As the Crown submits, this is not a case in which it matters when Eric’s DNA was deposited on the items because it need not be shown that the DNA was deposited during the shooting. The evidence was probative because it tended to prove that the hoodie depicted in the video was associated with Eric.

[52] There was further DNA evidence. The surveillance evidence shows the man beside Andrew wearing a satchel. The man pulls a watch out of the satchel. The police subsequently recovered a similar looking satchel from the vehicle that Andrew and Eric borrowed from Patrick Skye. The satchel and a watch inside it contained Eric’s DNA (along with two other sources). On appeal, Eric concedes that this is the same watch worn by the shooter.

[53] When all of this evidence is considered together, it leads to the only reasonable inference that Eric shot Mr. Davis. As the Crown submitted, an alternative inference inconsistent with guilt would require the jury to accept the following cluster of coincidences: (1) the real shooter looked like Eric; (2) the real shooter wore a satchel that contained a watch with Eric’s DNA; and (3) the real shooter wore an identical hoodie that was found in Eric’s home just days later, and which tested positive for gunshot residue.

[54] This court has held that, when considering whether a verdict is unreasonable, “an appellate court may consider the failure of an accused to testify as indicative of the absence of an exculpatory explanation”: R. v. Grant, 2022 ONCA 337, para 108. See also Lights, at para. 33 and R. v. Alvarez, 2021 ONCA 851, para 173. Eric did not testify. There was no exculpatory explanation.

[55] Even though there was some exculpatory evidence adduced at trial, it did not undermine the reasonableness of the verdict. In R. v. Dadollahi-Sarab, 2021 ONCA 514, para 46:

When a verdict is said to be unreasonable, the question is not whether the jury could reasonably have acquitted, but whether the jury, acting judicially, that is applying the law as provided by the trial judge to the facts as found by the jury, could reasonably have concluded the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: see R. v. Spencer, 2020 ONCA 838, para 44.

[56] I would not give effect to this ground of appeal. The verdict was reasonable.

D. Conclusion

[57] I would dismiss both appeals.

Released: July 16, 2025
“G.T.T.”
“Gary Trotter J.A.”
“I agree. Thorburn J.A.”
“I agree. Sossin J.A.”

[^1]: Both appellants abandoned their appeals against sentence.