R. v. Falconer, 2026 ONSC 4903

CITATION: R. v. Falconer, 2026 ONSC 4903

OSHAWA COURT FILE NO.: CR-25-16902

DATE: 20260827

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

STEPHEN NATHANIEL FALCONER

Defendant

P. Affleck, Counsel for the Crown

C. Gupta, Counsel for the Defendant

HEARD: July 20, 21, 22 and 29, 2026

REASONS FOR JUDGMENT

M. L. EDWARDS, J.:

Overview

[1] Mr. Falconer is charged with numerous offences related to the use of a handgun. The charges include two counts of aggravated assault, and two counts of assault, one of which involves the use of a handgun. The only issue in this trial is identity. If Mr. Falconer is determined to have been the individual with the handgun on the night in question, it is conceded by both the defence and the Crown that Mr. Falconer would be guilty of the charges for which he stood trial.

The Facts

[2] The events which give rise to the charges all occurred on June 19, 2022, at a rural property in Clarington, Ontario. What occurred on June 19 arose during the course of a grade 12 graduation party. While the number of people in attendance varied, based on the evidence at trial, it is reasonable to suggest that at least 50 students from a local high school were in attendance celebrating their forthcoming graduation.

[3] While the students from the local high school may have been invited guests, a group of five individuals arrived at the party and were, on all accounts, strangers to the graduating students. One of the uninvited guests might have been Mr. Falconer.

[4] What follows is a review of the evidence of the various witnesses called by the Crown as it relates to the identity of Mr. Falconer.

[5] Jacob McKenzie was in attendance at the party. He described a fight which had broken out at the top of the driveway to the property. One of the individuals was Tyson Baddely and another was an individual who was described as a shorter Black male, possibly five foot, five inches to five foot, six inches in height.

[6] Jacob McKenzie’s brother, Logan, was also in attendance at the party and testified. He also observed the fight involving Tyson Baddeley and described the other person involved in the fight as being a short, Black male wearing a black surgical mask. He described the individual as being five foot, four inches, to five foot, five inches in height and as wearing a black Nike sweatshirt. In cross-examination, Logan conceded that he had told the police that the sweatshirt was in fact a blue sweatshirt and acknowledged that it was dark outside.

[7] Tyson Baddeley, who was in the fight described by the McKenzie brothers, described the individual who he was fighting with as approximately five foot, five inches in height. The individual was Black; and he didn’t recall anything about the individual’s face. He described the individual as wearing dark clothes with a Covid mask. He described the mask as a blue mask.

[8] After the fight ended, Mr. Baddeley testified that the Black male individual with whom he was fighting went to a vehicle where he testified that this person looked in the trunk and pulled out a gun. Mr. Baddeley was ultimately struck by a bullet in his kneecap. He testified that he did not know the names of any of the people who he saw go to the car other than that he heard that the Black male was called “MK.”

[9] In cross-examination, Mr. Baddeley testified that he could not recall the hairstyle of the individual nor whether the individual had ear piercings. He did not recall the type of shoes he was wearing, nor did he recall the style of hair, scars or tattoos that might have been visible on the individual.

[10] Zander Atkinson was also at the party. He recalls seeing the fight in which Mr. Baddeley was involved. He testified that the individual that Mr. Baddeley was fighting was wearing a Nike tracksuit. He testified that the person wearing the Nike tracksuit was wearing a blue Covid mask. He stated that this individual was small and shorter than himself. Mr. Atkinson estimated the height of this individual as five foot four inches in height. He described the individual as a Black male. In cross-examination, Mr. Atkinson testified that he could not see the face of the individual in the Nike tracksuit as he had a mask on as well as a hoodie. In cross-examination, Mr. Atkinson conceded that his evidence at trial was the first time that he described the invidual as being “dark skinned.”

[11] . Seth Chisholm was in attendance at the party. Initially, Mr. Chisholm was in an area near a fire pit. He described hearing a lot of screaming and yelling and going to where the altercation was taking place. He saw Mr. Baddeley arguing with someone he had never seen before. Mr. Chisholm tried to play peacemaker but ultimately acknowledged that both he and Mr. Baddeley retaliated against the other individual involved. Mr. Chisholm testified that he told Mr. Baddeley to lay off and told the other individual to leave. He testified that he had never seen the person involved in the fight. He testified that the individual involved in the fight walked away towards his car parked in the front of the driveway. He testified that the individual involved in the fight was a shorter male individual, possibly five foot, five inches in height. He was wearing gray sweatpants with a blue Covid facemask and a hoodie. He acknowledged that he had no opportunity to describe any defining features. This individual, upon reaching his car, went into the right, passenger side and stepped out and pointed a gun at him and Mr. Baddeley. Mr. Chisholm testified that he froze in disbelief and then both he and Mr. Baddeley began to run. He testified that he was grazed by a bullet.

[12] In cross-examination, Mr. Baddeley confirmed his description of the individual as being Black, roughly five foot, five inches in height. He conceded in cross-examination that he told the police in his police statement that the individual was five foot, two inches tall. He further conceded in his police statement that he told the police that the individual was “more brown than black.”

[13] Nicholas Barrett was also at the party. Mr. Barrett was one of the individuals who was shot. He described the fight and confirmed that he was involved and punched the individual who was fighting with Mr. Baddeley. He stated that this individual then stood up and walked away towards his car. He describes the individual as a Black male person, five foot, six inches, to five foot, eight inches tall. He testified that the individual was wearing a blue Covid mask and black clothing.

[14] Not surprisingly, Mr. Barrett conceded that when he heard the gunshots, he was extremely scared as he never expected a gun at the party.

[15] Lucas Albertini was another 18-year-old student at the party. He described the altercation testified to by all the previous witnesses as involving an individual who he described as being very short. He’d never seen the person before. This individual he described as wearing a Covid facemask over his face. He testified that he was “very, very short – kind of a scrawny kid”. He testified that the individual had on a black hoodie with a Nike logo. He was wearing gray sweatpants. He stated that the individual had black skin.

[16] Mr. Albertini was specifically asked by Crown counsel as to whether he saw the individual before him in the courtroom. Mr. Albertini confirmed that the person sitting beside defence counsel was the person that he saw on the night in question. He stated that the person sitting beside defence counsel, known to be Mr. Falconer, was “very short and he had put on some weight.” Mr. Albertini wasn’t sure how much time he had to make observations of the individual at the party when the fight broke out.

[17] Mr. Albertini testified that the person in the fight was apparently referred to as “MK.” Mr. Albertini believed that MK was a fake name.

[18] Mr. Albertini observed the person who he called MK ultimately leave the fight and proceed towards his car where he saw MK reach inside. He saw MK lift up a black handgun and proceeded to smile and open fire on all of his friends.

[19] At the end of his evidence-in-chief, Mr. Albertini testified that he recognized the person in court. He described that individual as a very short, Black male who was wearing a Covid mask. He testified that he could see the individual’s eyes and that the person sitting beside defence counsel was “very similar”. He was a Black, short, scrawny individual. In total, he confirmed that he may have had five minutes at the party to observe him.

[20] In cross-examination, Mr. Albertini agreed that he was not paying a lot of attention to the individual that he had identified and that this individual had his hood up. He confirmed that he had never seen this individual prior to the evening in question.

[21] Mr. Albertini confirmed that he had never been asked by the police to attend a photo line up and that prior to his evidence in court, he had never identified the individual who was involved in the fight and who shot a gun as a person he described as MK.

[22] The last witness for the Crown was Marianna Gordon. She was one of the uninvited guests who was in attendance at the party. She conceded at the very beginning of her evidence-in-chief that she had given two statements to the police. She readily conceded that in her first statement, she had lied.

[23] Ms. Gordon testified that she went to the party with a number of individuals, one of whom she knew as “Verna”. She testified that she had met Verna approximately one year prior, through another friend, Austin.

[24] In her evidence-in-chief, Ms. Gordon testified that she had been with Verna for no more than a few hours and that “he looks different than today.” She was asked whether she recognized him in court, to which she testified that she did. She acknowledged that the person identified in court as the person sitting beside defence counsel looked different than he did four years ago. She testified that the person she knew as Verna was wearing a tracksuit. His face was covered with a mask. She acknowledged that she recalled a fight breaking out at the party and that Verna was in the middle of it. She testified that things happened very quickly, particularly when she,Verna, and the others got to their car. She testified that when Verna got to the car, he immediately began to shoot. She did not see the gun but saw the flashes. She stated that she was shocked and frightened. After the shooting, Verna got into the passenger seat and they left very quickly.

[25] Ms. Gordon testified that she believed that the people at the party were calling the person that she referred to as Verna as “SK.”

[26] In cross-examination, Ms. Gordon conceded that she had told the police in her initial police statement that she was very drunk.

[27] In cross-examination, Ms. Gordon acknowledged that she had met Verna approximately one year prior to the party and that on that occasion she had been drinking, and he was wearing a mask with his hood up. She further acknowledged that she knew nothing about him and that she did not know his real name, nor did she know where he lived. She acknowledged that when she had given her statement to the police that she had only met Verna on three occasions. The first occasion was approximately a year prior to the party. The second occasion was approximately a week prior to the party and the third occasion was the actual party itself.

[28] In cross-examination, Ms. Gordon acknowledged that her first identification of the shooter occurred in the courtroom. She acknowledged that she had never been asked by the police to participate in a photo line up, nor was she asked to provide a sketch or photograph of the person she described as Verna.

[29] Of particular significance as it relates to the reliability and credibility of Ms. Gordon, was her acknowledgment that she had been in court on the first day of the trial, contrary to a witness exclusion order. While Ms. Gordon provided an explanation as to why she was in court, her reliability and credibility are not only impacted by the fact that she was in violation of the witness exclusion order, but more significantly, when questioned as to what she heard in the courtroom during cross-examination, she stated, “I can’t recall.”

[30] In addition to Ms. Gordon’s inability to recall something that had occurred only two days prior to her evidence, I observed Ms. Gordon on numerous occasions during the course of her examination with answers that reflected, “I don’t remember.”

Position of the Crown

[31] Mr. Affleck concedes that this court must be cautious in its determination as to the identity of the shooter on the evening in question. As it relates to the evidence of Mr. Albertini, Mr. Affleck suggests that Mr. Albertini had more than a fleeting opportunity to make observations of “MK.” In that regard, Mr. Affleck refers to the evidence of Mr. Albertini who was around MK for a few hours before the stabbing and the shooting occurred. It is acknowledged that it was dark outside but there were brief opportunities for Mr. Albertini to make observations of MK.

[32] As it relates to the reliability of the evidence of Ms. Gordon, Mr. Affleck argues that her evidence is corroborated by a number of other witnesses who observed the shooting as involving a Black male individual who was at the right side of the car at the bottom of the driveway. In addition, it is argued that Ms. Gordon had more than one opportunity to observe the person she described as Verna, given that she had seen him one year prior to the shooting.

[33] Crown counsel argues that it is not incredible that someone like Ms. Gordon could identify someone with a black mask on given that she had met this person previously also wearing a mask.

[34] Finally, Crown counsel argues that it would be a remarkable coincidence that Ms. Gordon recalled that Verna was identified as SK during the course of the party while Mr. Albertini recalled this person being identified as MK.

Position of the Defence

[35] Defence counsel fundamentally argues that the Crown has not met its burden in proving the identity of Mr. Falconer beyond a reasonable doubt. In that regard, defence counsel argues there was no corroboration, no DNA evidence and no video evidence. Pejoratively, it is suggested that this is somewhat remarkable given that the party was attended by at least 50 individuals, all students who likely would have had cell phones.

[36] As it relates specifically to the evidence of Mr. Albertini, the defence argues that he only had a very brief opportunity to observe a stranger in dark surroundings during a very traumatic event that lasted no more than five minutes. It is suggested that Mr. Albertini gave no more than a generic description of a short, Black male. The defence argues that any in-dock identification should carry negligible weight, particularly in the context of identification evidence during traumatic events which happened four years ago.

[37] As it relates specifically to the evidence of Ms. Gordon, the defence points to the two totally inconsistent statements by Ms. Gordon to the police. It is also argued that Ms. Gordon’s evidence must be considered unreliable, not just from the fact that she disobeyed a witness exclusion order but rather from the fact that she could not recall what was testified to when she was in court.

[38] As it relates specifically to the identification of Mr. Falconer, the defence argues that Ms. Gordon had only ever seen him once when he was not wearing a mask and that was a year prior to the shooting. The only time that she actually identified Mr. Falconer as the shooter was at the trial.

Analysis

[39] The evidence of an eyewitness is widely viewed as one of the least reliable forms of identification evidence largely because of the frailties that arise from what many courts have referred to as the unreliability of human observation and recollection – see R v Burke 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 at para. 52.

[40] The Court of Appeal most recently in R v Buoc 2026 ONCA 492 at para. 35 reinforced the core concern with eyewitness identification arises because the eyewitness may very well appear to be honest and convincing but nonetheless mistaken especially when the eyewitness is identifying a stranger.

[41] From Watts Manual of Jury Instructions (2024,) trial judges begin their instruction to jurors about eyewitness identification evidence with a warning that they must be “very cautious” about relying on eyewitness evidence to find an accused person guilty of any criminal offence. Jurors are given context for this warning by reference to miscarriages of justice that have happened in the past where innocent people have been found guilty because eyewitnesses have made honest mistakes in identifying people who they believed committed a crime.

[42] More fundamentally, jurors are also warned about convicting an accused person where the identification of an accused occurs for the first time in the courtroom. Jurors are cautioned that if the only evidence of identification is an in-dock identification, then it would be unsafe to convict the accused person.

[43] It has been said many times before that evidence of identification must be scrutinized with extreme care, particularly when the determination of the guilt or innocence of an accused is founded on eyewitness identification. It has also been said many times before that eyewitness identification is replete with inherent frailties that have regrettably led to far too many wrongful convictions in this country.

[44] The evidence for the Crown against Mr. Falconer was almost exclusively based on the identity of Mr. Falconer being established by the in-dock identification of Mr. Albertini and Ms. Gordon.

[45] What is of particular concern about the identification evidence of both Ms. Gordon and Mr. Albertini is that neither of them ever identified Mr. Falconer until asked to do so in the courtroom. Both of them gave a description to the police of the shooter. Neither of them were ever asked by the police to participate in either an in-person line up, let alone a photo lineup. Until the trial, both Ms. Gordon and Mr. Albertini gave similar descriptions of the shooter as being a Black male person wearing a Covid mask. The person was described as short. Much the same descriptions were given by all of the witnesses who testified at trial.

[46] It is conceded that an in court, in-dock identification of an accused while problematic is not impermissible. In R v Tat (1997) 117 CCC 93d) 481 at paras. 40, 46-50 Doherty J.A explained the value of an in court identification must be tied to what supports that testimony. Specifically at paras. 36 and 37 Doherty J.A stated:

36Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification: e.g. R. v. Langille, supra, at 555; Di Carlo v. United States, 6 F.2d 364 (2d cir. 1925) at 369, per Hough J., concurring; Clemons v. United States, 408 F.2d 1230 (D.C. cir. 1968) at 1243. The central importance of the pre-trial identification process in the assessment of the weight to be given to identification evidence is apparent upon a review of cases which have considered the reasonableness of verdicts based upon identification evidence: e.g. see R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.).

37If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.”

[47] In this case none of the witnesses called by the Crown ever identified Mr. Falconer as the accused prior to trial. Neither Mr. Albertini nor Ms. Gordon identified the shooter as Mr. Falconer. The first time either identified Mr. Falconer was in court. With the guidance given by Doherty J.A. in Tat, I give little weight to the in-dock identification of Mr. Falconer.

[48] I am also guided by the caution provided by the Supreme Court in R v Hibbert 2002 SCC 39 of in-dock identification evidence. To understand Hibbert, it is worth reproducing the charge that the trial judge gave to the jury as it relates to an in-dock identification of the accused. Specifically, the jury was told:

However, you must consider the possibility that Mrs. McLeod identified the accused in court from her memory of either the photograph in the line up or the television newscast instead of from her memory of the person she saw at 151 Campbell Street on October 24, 1993. You must also consider the same possibility in respect of Mrs. Baker’s in court identification of the accused. I also remind you that both Mrs. McLeod and Mrs. Baker positively identified the accused for the first time when each was asked to identify him in the courtroom at the preliminary hearing and at the first trial and at this trial and the law provides that the identification of the accused for the first time in the courtroom after a failure to positively identify him from a photo line up is to be accorded little weight.

[49] Some might consider that the trial judge in Hibbert provided some very strong words of caution and guidance to the jury in terms of how they should treat the in-dock eyewitness identification evidence. The Supreme Court in Hibbert disagreed and at para. 50 held as follows:

I am of the view that, in the circumstances of this case, the trial judge should have cautioned the jury more strongly that the identification of the accused in court, by Mrs. McLeod and Mrs. Baker, was highly problematic as direct reliable identification of the perpetrator of the offence. I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identification should be accorded “little weight”, goes far enough to displace the danger that the jury could still give it weight that it does not deserve.

[50] Mr. Albertini was an honest witness. He had experienced an incredibly traumatic event-an event which occurred almost 4 years before the trial. I have no doubt that Mr. Albertini in identifying Mr. Falconer as the shooter honestly believes that the shooter was in fact Mr. Falconer. But to accept his in-dock identification would fly in the face of all of the cautionary guidance provided by the Supreme Court in Hibbert and the many other cases that have provided similar guidance to trial judges.

[51] While I accept that Mr. Albertini was an honest witness, I am more concerned with the reliability of his evidence. In that regard, the court should be guided by the comments of Epstein J.A. in R v Jack 2013 ONCA 80 at para 15-17 where the following guidance is provided in terms of how to assess the reliability of eyewitness evidence:

15The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? R. v. Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1. Was the sighting by the witness in circumstances of stress? Nikolovski, at 1210; R. v. Francis (2002), 2002 CanLII 41495 (ON CA), 165 O.A.C. 131, at 132.

16As well, the jury must be instructed to carefully scrutinize the witnesses’ description of the assailant. Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? R. v. Ellis, 2008 ONCA 77, [2008] O.J. No. 361, at paras. 5, 8; R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 184 O.A.C. 324, at para. 64; R. v. Richards, (2004) 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737, at para. 9. R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

17Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at pp. 468-69; R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 172 O.A.C. 148, at para. 19.

[52] In the case of Mr. Albertini, the shooter who he identified in court was not known to him. Mr. Albertini did not have much time to take stock of any identifying features of the shooter other than he was a short black male person wearing a hoodie and a medical mask. It is also worth observing that any observations made of the shooter were made at night. The observations were made during a time of stress. All of these observations are featured in Jack as reasons why jurors and for that matter, trial judges must exercise caution in determining the credibility and reliability of an eyewitness.

[53] Ms. Gordon is a slightly different witness from Mr. Albertini. In addition to the caution I must bring to her in-dock identification of Mr. Falconer, I must also consider her credibility and reliability. In that regard, there are two fundamental facts that must be taken into consideration. The first is that Ms. Gordon by her own admission lied to the police when she gave her first statement, shortly after the shooting. The second is that Ms. Gordon was in the courtroom on the first day of the trial in violation of a witness exclusion order made by the court.

[54] As it relates to the credibility of Ms. Gordon, I accept her explanation as to why she was in the courtroom on the first day of the trial. I do not view her evidence as tainted simply because she violated the court order. What is concerning are her answers about what she heard in the courtroom. Ms. Gordon acknowledged that she heard the evidence-in-chief and the cross examination of the witness. When pressed in cross examination about what she heard while seated in the courtroom her evidence was “I don’t recall”

[55] Ms. Gordon testified within 48 hours of having been in court, listening to the evidence of another witness. She could recall what happened four years ago at the party when a shooting occurred yet she couldn’t recall what she heard in a courtroom 48 hours prior. Her inability to recall something so proximate in time undermines the credibility and reliability of her evidence as it relates to the events of June 19,2022.

[56] The facts of this case bear some resemblance to the facts in R v Phillips 2018 ONCA 651 where ultimately Huscroft J.A.’s conclusion at para. 70 is worth repeating:

This was a case based entirely on eyewitness evidence. The weakness of the eyewitness identification evidence; the flaws in the in-dock and lineup identification; the unreliability of Shawn George’s testimony; and the absence of independent confirmatory evidence relevant to the identity of “the black man” combine to render the appellant’s conviction unreasonable. In short, there is evidence that the crime was committed by a black man, but it is not reasonable to conclude that the appellant was “the black man”.

[57] [57] The evidence of all of the witnesses who testified leave little doubt that the shooter was a relatively short Black male person wearing a hoodie and medical Covid mask. The Crown however has the heavy onus of proving beyond a reasonable doubt that the shooter was Mr. Falconer. The in-dock identification of both Ms. Gordon and Mr. Albertini, while not completely worthless, is of little value in ultimately proving beyond a reasonable doubt that Mr. Falconer was the shooter. He might have been the shooter, but “possible” and “might” fall far short of proof beyond a reasonable doubt. As the Crown has not proven Mr. Falconer was the shooter all of the charges against Mr. Falconer must be dismissed.

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