COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Araya, 2013 ONCA 734

DATE: 20131205

DOCKET: C54733

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nahoor Araya

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Michael Bernstein, for the respondent

Heard: July 19, 2013

On appeal from the conviction entered by Justice John B.
    McMahon of the Superior Court of Justice, sitting with a jury, on November 4,
    2011, and the sentence imposed on December 8, 2011.

Gillese
    J.A.:

OVERVIEW

[1]

On the evening of October 3, 2008, 17-year-old Boris Cikovic was shot
    and killed just outside some tennis courts in Buttonwood Park in Toronto, where
    he and a large group of his friends and acquaintances had been socializing and drinking.
    Some members of the group had also smoked marijuana.  Lighting in the park was
    not good.

[2]

Although precisely what led to the shooting is unclear, witnesses testified
    that at around 10:30 p.m. that evening they saw three or four young black men walk
    by the outside of the tennis court.  Words may have been exchanged between the
    two groups, but in any event, the young black men turned around, walked back
    and entered the tennis court.  They robbed some of the individuals in the
    tennis courts but when they tried to take the victims knapsack, he resisted.
    He tasered one of the robbers.  The robbers fled and the victim pursued them.
    One of the robbers turned and shot the victim.

[3]

The witnesses to the shooting could only give generic descriptions of
    the black men involved in the robbery at the tennis court.  A number of the
    witnesses described three or four young, thinly built, clean-shaven, unimposing
    black men with short haircuts, who were wearing dark clothing, baseball hats
    and bandanas.

[4]

No witness identified Mr. Araya, the appellant, as being present in the
    park on the evening in question, either at trial or in any pre-trial
    identification procedure.

[5]

The Crown and the defence agreed that the appellant was not the shooter.
    The shooter had been described as short, between 54 and 58.  At the time of
    the shooting, the appellant was approximately 61.

[6]

The appellant was charged with second degree murder.  The Crowns case
    relied heavily on the evidence of one of the appellants teachers.  According
    to the teacher, four days after the shooting, the appellant approached him,
    asking for his advice on what to do.  He told his teacher that he had been in
    the park at the time of the shooting but was not involved and did not have a
    gun.

[7]

At trial, the appellant testified that he had not been in Buttonwood
    Park on the night of the shooting, did not know who was involved and had
    nothing to do with it.

[8]

At the time of the shooting, the appellant was 18 years old.  By the
    time of trial, he was 21 years old and his appearance had changed.  The trial
    judge permitted the Crown to introduce two photographs of the appellant taken
    at the time of his arrest, five days after the shooting.  The first was a
    frontal shot, showing the appellant from head to toe.  The second was a
    close-up of the appellants face.

[9]

In his charge, the trial judge told the jury that they could consider how
    the appellant looked in the photos as a piece of circumstantial evidence that
    the appellant was in Buttonwood Park on the evening of the shooting.

[10]

The
    appellant was convicted, after trial by a jury, of manslaughter.  He was found guilty
    on the basis of party liability under s. 21(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, and sentenced to 8 years in prison, less credit for the
    equivalent of 15 months pre-trial custody.

[11]

He
    appeals against both his conviction and sentence.

[12]

For
    the reasons that follow, I would allow the appeal against conviction.  In the
    circumstances, it is not necessary to consider the sentence appeal.  However, as
    I will explain, the sentence is predicated on an error in principle.
    Accordingly, had it been necessary to consider the sentence appeal, I would
    have allowed it as well.

THE CONVICTION APPEAL

1.       THE CRITICAL GROUND OF APPEAL

[13]

The
    appellant raised seven grounds of appeal on the conviction appeal.  Because I
    would allow the conviction appeal on the ground relating to the photos of the
    appellant that were admitted at trial, these reasons address only that ground.

2.       THE PARTIES POSITIONS ON THIS GROUND

[14]

The
    appellant raises two issues in respect of the photos.  First, he contends that
    the trial judge erred in admitting them.  Second, if the photos were properly
    admitted, the appellant says that the trial judge erred in his jury instruction
    on them.

[15]

On
    the first issue, the appellant says that at trial, the defence did not dispute that
    the appellant fit the generic eyewitness descriptions of the robbers.  In the
    circumstances, he submits, the photos had no or minimal probative value.  He says
    that it would have been improper for the police to have shown the witnesses a
    single photo of the appellant and asked whether he was one of the suspects in
    the tennis court that night.  By showing the jury only photos of the appellant
    and directing them to compare the photos with the eyewitnesses generic
    descriptions of the robbers, the appellant contends that the jury was invited to
    do the very thing that the police could not have asked the witnesses to do.

[16]

Alternatively,
    if the photos were admissible, the appellant submits that the instruction was
    flawed because it told the jury that what was, in effect, an in-court, single photo
    lineup was one piece of circumstantial evidence that could be considered in
    determining whether the appellant was in the park that evening and/or one of
    the men who participated in the robbery. This, the appellant contends, was
    fundamentally wrong and ran the risk of a serious miscarriage of justice.

[17]

The
    appellant submits that this error was compounded by the trial judges failure to
    adequately instruct the jury on the dangers of eyewitness evidence and the
    particular dangers associated with the comparison analysis they had been
    invited to undertake.  He notes that the eyewitness evidence in this case was
    plagued by virtually all of the judicially recognized dangers associated with
    eyewitness identification:  poor lighting conditions; many of the witnesses
    were high or intoxicated or both; the suspects were strangers to the witnesses;
    identification was cross-racial, with virtually all of the witnesses being
    white and all the suspects black; the absence of distinguishing features on the
    part of the robbers; and, most of the witnesses were distracted and/or engaged
    in other activities while the events were ongoing.

[18]

The
    Crown submits that the photos were relevant and properly admitted. The jury
    necessarily had to engage in some type of comparison between the appellant and
    the generic eyewitness descriptions of the robbers in order to decide what weight
    to give to the eyewitness descriptions.  It made sense that the comparison would
    focus on the appellants appearance at the time of the shooting, not his
    appearance at trial three years later when he looked significantly different.

[19]

The
    Crown says that defence counsel at trial admitted that the photos were relevant
    and argued against their admission on the basis that the jury might improperly
    use them.  Moreover, the Crown says, the trial judge identified and applied the
    relevant legal principles when assessing the probative value of the photos
    against their prejudicial effects.  There is no suggestion that he
    misapprehended the evidence when he exercised his discretion and admitted the
    photos.  Accordingly, the Crown submits, there is no basis for this court to
    interfere with that exercise of discretion.

[20]

As
    for the instruction, the Crown submits that the trial judge gave an appropriate
    limiting instruction, to which defence counsel at trial made no objection.

[21]

Before
    considering the two issues raised in respect of the photos, it is necessary to
    consider the trial judges ruling, in which he held the photos to be admissible,
    and that part of the charge in which the trial judge instructed the jury on how
    they might use the photos.

3.       THE RULING

[22]

When
    the Crown applied to introduce the photos, it argued that they were relevant because
    they enabled the jury to see the appellants physical stature and appearance at
    the time of shooting.  The Crowns position was that there was no prejudicial
    effect to their admission.

[23]

The
    defence opposed admission of the photos, saying that even though they may be
    relevant, they were highly prejudicial.  The defence described the prejudice as
    the jury using the photos to do a backwards identification because they had
    only a very general description of the robbers.

[24]

The
    trial judge clarified the defence submission on prejudice, saying:

So [the concern] is the jury [is] going to use the fact of
    those vague descriptions looking at what [the appellant] looks like now and use
    that for the purpose of assessing whether he could fit anybodys description on
    the day when they see him here each day in court?

[1]

[25]

Defence
    counsel agreed with this.  The trial judge responded by saying that the jury
    would be told that the appellant had not been identified by any witness and
    that the vague descriptions were a piece of circumstantial evidence.
[2]

[26]

The
    trial judge delivered his ruling the following day.   In it, the trial judge
    noted that identity was a live issue at trial and none of the eyewitnesses
    could identify the three or four black males they said were present as part of
    the robberies leading to the shooting.  He described the generic nature of the
    eyewitnesses evidence, saying that the descriptions given varied greatly
    from witness to witness.  In the following extract from the trial judges
    ruling, he explains why he found the photos to be admissible.

For the past two weeks, the jury have had an opportunity to
    view how the accused looks three years later as the witnesses to this alleged
    robbery and shooting gave their descriptions.  At this time, before the jury,
    his head is shaven, he is clean-shaven and he has glasses.  He is heavier set
    than he was three years ago.

It is [the] defence position that such photos are highly prejudicial.
    Since none of the eyewitnesses can identify the accused, the jury, armed with
    the photos, could improperly use the photos to conclude that the accused may
    have been there because he may have fit a general description of some
    eyewitnesses who could only provide vague descriptions.  It is submitted by the
    defence that this is the risk of prejudice to the accused.

In this trial in my final instructions, this jury will clearly
    be instructed that no one who was present at the night of the shooting can in
    any way identify [the appellant] as being present.  Further, the jury would be
    instructed that they cannot conclude, because they have a photograph of the
    accused taken five days after, that he is the person described by the witnesses
    in such vague descriptions.

I find, however, the jury is entitled to consider as a piece
    of circumstantial evidence whether the accused had any of the vague physical
    attributes described by any of the witnesses.  I find that it is relevant to that
    limited purpose.
I am satisfied there is probative value to the jury
    knowing in an identification case what the accused looked like at the time of
    the event.  The risk of prejudice is limited by a limiting instruction.

Therefore, I am satisfied that the probative value of these
    photographs outweigh[s] the prejudicial effect, and, as such, the photos are
    admissible.
[3]
[Emphasis added.]

[27]

No
    mid-trial instruction was given.

[28]

As
    will become evident, the emphasized sentences in the ruling are important when
    contrasted with the instruction that was given.

4.       THE INSTRUCTION

[29]

The
    trial judge organised his charge under headings.  The instruction on the photos
    was given in that part of the charge in which the jury was asked to decide
    whether the appellant was in the park on the evening in question.  The relevant
    parts of the instruction, beginning with the heading, is as follows:

Was Mr. Araya in Buttonwood Park on the evening of October
    3, 2008?

What you have to do is look at all the evidence on the issue
    of whether he was in the park, and based on that, you have to reach your
    decision.

Now, members of the jury, along with all the evidence I have
    already reviewed on this issue about whether or not he was in the park that
    night, you should also consider how the people that were in the tennis court
    that night described the black males that came in.  I want to remind you that
    none of the young people in the park can identify [the appellant] as being
    there.  Many of the people in the tennis court told you because of how dark it
    was, how the black males were dressed and how quickly events took place, they
    could not tell you what any of the males faces looked like.

[The trial judge discussed the vague descriptions.]

Now, you have photographs of what [the appellant] looked
    like five days after the shooting.   You can consider whether he fits or does
    not fit the vague descriptions provided by the various witnesses.  You cannot,
    of course, however, conclude based only on the vague descriptions of what [the
    appellant] looked like in the photographs that he must be the person.  That
    would be completely improper since the descriptions are so vague and people
    cant identify anyone.
If there are features described which are
    dissimilar to the accused, they may be used to demonstrate that the accused was
    not present.

[The trial judge noted that no witness described seeing facial
    hair, whereas the photos showed the appellant with some facial hair on his
    chin.  He said that it was for the jury to decide whether the witnesses would
    have noticed the facial hair, considering the opportunity to observe, the
    condition of the witnesses and the lighting conditions.]

You can, however, consider how the accused looked and the
    vague descriptions of the males as but one piece of circumstantial evidence,
    whether the accuseds physical appearance fit or did not fit the vague
    descriptions.  You would consider this along with the totality of the evidence
    to determine whether the Crown has satisfied you beyond a reasonable doubt that
    [the appellant] was one of the black males who attended the tennis court.
[4]
[Emphasis added.]

5.       ANALYSIS

(1)     Did the trial judge err in admitting the
    photos?

[30]

To
    the extent that the appellant submits that the photos had no probative value, I
    cannot agree.

[31]

As
    the trial judge stated in his ruling, the appellants appearance had changed
    materially between the time of the shooting and trial.  At the time of the
    shooting, the appellant was 18 years of age.  He had a small bit of facial hair
    on his chin, an afro hairstyle and did not wear glasses.  By the time of trial
     some three years later  he had gained a substantial amount of weight, his
    features had matured, he was shorthaired, clean-shaven, and wore glasses.  Identity
    was a critical issue at trial.  The trial judge found the photos to be relevant
    and probative on the basis that the jury needed to know what the appellant looked
    like at the time of the shooting.  In the circumstances, I see no error in his
    finding that the photos had probative value.

[32]

I
    would accept the appellants submission, however, that in the circumstances of
    this case, the photos had minimal probative value.  The defence did not contest
    the fact that the appellants appearance at the time of the shooting fit the
    generic eyewitness descriptions.  (The issue of the small amount of facial hair
    was raised after the photos were ruled admissible.)  Furthermore, the jury was
    given evidence on the appellants appearance at the time of the shooting from
    both the appellants teacher, who was extensively examined on this matter, and
    the appellants then-girlfriend.  That evidence also confirmed that at the time
    of the shooting, the appellant fit the generic eyewitness descriptions.

[33]

I
    do, however, accept the appellants submission that the photos had significant prejudicial
    effect.  As the defence argued at trial, admission of the photos could lead the
    jury to engage in impermissible reasoning.  That reasoning would be along the
    following lines.  The photos of the appellant at the time of the shooting reveal
    a young, thin, relatively clean-shaven black male.  Thus, at the time of the
    shooting, the appellant fit the eyewitness generic descriptions of the robbers in
    the tennis courts.  Therefore, the appellant was in the park and/or one of the
    robbers.

[34]

The
    fallacy in this reasoning is readily apparent.  A great many young black men in
    Toronto on the date of the shooting fit the generic description of the
    robbers.  That does not mean they were in the park or one of the robbers.  The
    photos relevance went only to the question of whether the appellant had some
    or all of the physical attributes described by the eye witnesses.

[35]

The
    dangers flowing from this type of impermissible reasoning are underscored by
    the fact that the evidence in question are photographs and that the only
    photographs admitted into evidence were those of the appellant.

[36]

Photographs
    can be powerful.  The dangers associated with the use of single photos for
    identification purposes have been well documented: see
R. v. Smierciak
,
    [1947] 2 D.L.R. 156 (Ont. C.A.);
R. v. Sutton
[1970] 2 O.R. 358
    (C.A.);
R. v. Goldhar
(1941), 76 C.C.C. 270 (Ont. C.A).  Canadian
    courts have recognized that the use of single photos for identification
    purposes compromises the independence of a witnesss judgment through
    suggestion, assistance or bias created directly or indirectly:
Smierciak
,
    at p. 157.  The risk is that the person who has seen the photograph will have
    stamped upon his memory the face he has seen in the photograph, rather than the
    face he saw on the occasion of the crime:
Goldhar
, at p. 271.

[37]

I
    recognize that the situation in this case is very different from that in
Smerciak

and
Goldhar
.  Nonetheless, concerns of a similar nature may arise
    because admission of the photos resulted in the jury having before them photos
    of only a single individual, the appellant, in a case where identification was
    a central issue and where they knew that the photos had been taken by the
    police when they arrested the appellant for the murder.  At a minimum, these
    concerns highlight the need for clear instruction about both the permissible and
    impermissible uses of the photos.

[38]

The
    trial judge recognized that the jury might engage in the impermissible
    reasoning.  However, he was satisfied that the prejudicial effect could be
    dealt with through an appropriate instruction.  In his ruling, it will be
    recalled, the trial judge stated that he would instruct the jury that they
    could not conclude because of the photos that the appellant was one of the
    people described by the witnesses.  Significantly, the trial judge stated that
    the jury would be instructed that the photos were relevant for the limited
    purpose of considering whether [the appellant] had any of the vague physical
    attributes described by any of the witnesses.

[39]

It
    may be that I would have balanced the photos probative value and prejudicial
    effect differently than did the trial judge. As noted, in the circumstances of
    this case, the photos had limited probative value because the defence did not
    dispute that the appellant fit the eyewitness generic descriptions and evidence
    of his appearance at the time of the shooting was given by a number of other
    sources.  And, the prejudicial effect of admission of the photos was
    significant.

[40]

But
    the fact that I might balance the photos probative value and prejudicial
    effect differently does not amount to a basis for appellate intervention with
    the trial judges exercise of discretion.  An appellate court is not to re-assess
    the admissibility of evidence when a trial court has identified the proper
    guiding principles, considered the probative and prejudicial effect of the
    evidence, and exercised its discretion to make a determination as to
    admissibility: see, e.g.,
R. v. G.R.
(1993), 80 C.C.C. (3d) 130 (Ont.
    C.A.), at p. 140.

[41]

Therefore,
    I would not give effect to the submission that the trial judge erred in
    admitting the photos.

(2)    Did the trial judge err in
    his instruction on the photos?

[42]

In
    light of the photos significant prejudicial effect, the jury needed clear
    instruction of two sorts in respect of the photos.  First, they needed to be
    clearly told what permissible use could be made of the photos.  Second, they
    needed to be clearly told of the dangers of the impermissible reasoning and
    warned that they could not engage in that kind of reasoning.  Where evidence
    can have significant prejudicial effect, the need for clear instruction on its
    impermissible use is heightened, in my view, especially where as in the present
    case, the evidence is of minimal probative value.

[43]

In
    his ruling, the trial judge expressly recognized the need for both components
    in the instruction.  In respect of the first, he stated that he would instruct
    the jury that they could use the photos for the sole purpose of determining
    whether the appellant had any of the vague physical attributes described by
    any of the witnesses.  In respect of the second, he spelled out the defence
    concern that the jury would engage in impermissible reasoning: that based on
    the photos the jury would conclude that the accused was in the park on the
    night in question because he fit the generic eyewitness descriptions.  The
    trial judge stated that he would instruct the jury that they could not reason
    in such a fashion.

[44]

In
    my view, it was with these goals in mind that the trial judge gave his
    instruction, reproduced below.

Now, you have photographs of what [the appellant] looked like
    five days after the shooting.   You can consider whether he fits or does not
    fit the vague descriptions provided by the various witnesses.  You cannot, of
    course, however, conclude based only on the vague descriptions of what [the
    appellant] looked like in the photographs that he must be the person.  That
    would be completely improper since the descriptions are so vague and people
    cant identify anyone.

[45]

In
    the second sentence, the jury is instructed on how they could use the photos.
    While it would have been preferable had the trial judge stressed that they
    could use the photos
only
to determine whether the appellant fell within
    the class of people who had any of the vague physical attributes described by
    the eyewitnesses, in my view, the second sentence adequately instructs the jury
    on the permissible use of the photos.

[46]

The
    third sentence, in my view, is the trial judges attempt to caution the jury on
    the impermissible use of the photos.  I find this sentence confusing.  In it,
    the jury is told that they could not conclude, based only on the vague
    descriptions of what the appellant looked like in the photographs, that he must
    be the person.  There are no vague descriptions of what the appellant looked
    like in the photographs.  The vague descriptions were given by the
    eyewitnesses.  Moreover, it is not clear that in telling the jury not to
    conclude the appellant was the person that they could not conclude that the
    appellant was in the park or one of the robbers.

[47]

In
    short, the instruction does not clearly explain to the jury the chain of
    impermissible reasoning.  The jury needed to be told that if they found that
    the appellants appearance in the photos fit the generic eyewitness descriptions,
    they could not conclude from that comparison that the appellant was one of the
    robbers in the tennis courts.  All they could conclude was that the appellant
    fit within the class of people that shared those vague general physical
    characteristics.

[48]

The
    lack of clarity in this part of the instruction is compounded by the concluding
    paragraph, which suggests that the photos were a piece of circumstantial
    evidence that the jury could use when deciding whether the appellant was in
    Buttonwood Park on the night of the shooting.  The concluding paragraph, it
    will be recalled, reads as follows:

You can, however, consider how the accused looked [in the
    photos] and the vague descriptions of the males as but one piece of
    circumstantial evidence, whether the accuseds physical appearance fit or did
    not fit the vague descriptions.  You would consider this along with the
    totality of the evidence to determine whether the Crown has satisfied you
    beyond a reasonable doubt that Mr. Araya was one of the black males who
    attended the tennis court.
[5]

[49]

Were
    the instructions adequate?  In answering this question, it is important to keep
    in mind two things.  First, this was not a strong Crown case  it depended
    almost wholly on the teachers evidence and whether the jury believed it.
    Second, admission of the photos carried with them a risk of substantial prejudicial
    effect.  Against that backdrop, the lack of clarity in the instruction leads me
    to conclude that there was a risk that the jury could have arrived at a
    decision on whether the appellant was in the park and/or one of the robbers by
    engaging in improper reasoning.  At a minimum, the instruction did not serve to
    displace the danger that the jury could give the photos weight that they did
    not deserve.

[50]

This
    case was not like
R. v. Nikolovski
, [1996] 3 S.C.R. 1197, where the trier
    of fact was presented with a video of a suspect committing the offence and had
    to decide whether the person in court was the person on the video.  The
    instruction in this case effectively invited the jury to treat an in-court,
    single photo lineup as one piece of circumstantial evidence that could be
    considered in determining whether the appellant was in the park that evening
    and/or one of the men who participated in the robbery. This was fundamentally
    wrong and ran the risk of a serious miscarriage of justice.

[51]

Accordingly,
    I would allow the appeal on this ground.

THE SENTENCE APPEAL

[52]

In
    light of my conclusion on the conviction appeal, strictly speaking I need not
    address the sentence appeal.  Nonetheless, there is utility in addressing the
    appellants submission that the sentencing judge erred in principle in treating
    use of a firearm as an aggravating factor when sentencing the appellant for
    manslaughter.

[53]

In
    my view, the appellant is correct in this submission.

[54]

The
    mandatory minimum sentence for manslaughter, where a firearm is used in the
    commission of the offence, is four years imprisonment: s. 236(a) of the
Criminal
    Code
.  Section 236 reads as follows:

Manslaughter
Every person who commits
    manslaughter is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of
    the offence, to imprisonment for life and to a minimum punishment of
    imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

[55]

In
    my view, on a plain reading of s. 236, the mandatory minimum punishment of four
    years imprisonment for manslaughter is predicated on a firearm having been
    used in the commission of the offence.  Given that the mandatory minimum
    sentence necessarily takes into consideration that the death resulted from an
    offence committed with the use of a firearm, it is an error in principle to
    also treat use of a firearm
simpliciter

as an aggravating
    factor.  This error appears particularly significant in this case where the appellant
    was not the shooter, his participation in the manslaughter was limited and
    unknown, and he was not in possession of a firearm.

DISPOSITION

[56]

Accordingly,
    I would allow the conviction appeal and remit the matter for a new trial.

E.E. Gillese J.A.

I agree.
    John Laskin J.A.

Strathy
    J.A. (Dissenting):

A.

overview

[57]

On
    a dark Friday night in early October 2008, a group of about 15 teenagers was
    gathered on and around the bleachers of a tennis court at Buttonwood Park in
    Etobicoke. They were chilling out, talking and laughing. Some were drinking
    beer and smoking marijuana. One boy was teasing another with a Taser, to the
    amusement of his friends.

[58]

Around
    10:30 p.m., a smaller group of three or four, or by one account possibly four
    or five, young black men walked by the tennis court. Words were exchanged
    between members of the two groups. The smaller group stopped, turned around and
    walked back, and some or all of them entered the tennis court. Some were
    wearing hoodies or baseball caps, obscuring their faces, or bandanas covering
    their noses and mouths.

[59]

A
    gun was produced by one of the members of the smaller group. Some witnesses
    thought they saw two men with guns. One thought they all might have had guns.
    Threats were made. Some of the intruders robbed members of the larger group, at
    gun point. The boy with the Taser was one of those robbed  his bag was taken.
    He tasered his assailant. The assailant fired a warning shot. The boy followed
    his assailant. Another shot was fired directly at the boy, hitting him in the
    stomach. He fell to the ground. The intruders ran from the scene.
    Seventeen-year-old Boris Cikovic lay bleeding on the ground. He died later in
    hospital.

[60]

No
    one present in the park on October 3, 2008, could identify any of the
    intruders, except by vague descriptions. They all appeared to be young, black
    and slim. The shooter was described as short, between 54 and 58 tall; the
    rest were taller. Another was described as having crooked teeth. One witness, a
    neighbour who had seen the youths pass by his home on their way to the park,
    said that none appeared to have facial hair.

[61]

A
    few days later, a young man at a local high school approached his English
    teacher and pleaded to speak to him urgently. The teacher testified at trial that
    the youth told him that he had been involved in the incident at the park. He
    was there, he said, but he was not the one with the gun. He wanted to know what
    he should do. The teacher told him to man up and tell the authorities. After
    the conversation, the teacher spoke to the principal and ultimately to the
    police.

[62]

That
    young man, the appellant, admitted at trial that he had a conversation with his
    teacher. He denied, however, that he had confessed to any involvement in a
    crime. Instead, he said, he had made up a story about other people committing a
    crime, so that the teacher would feel sorry for him and would let him stay at
    his home overnight; otherwise, he would have had to sleep in a shelter. He
    admitted that his story did not make much sense. He insisted, however, that he
    was not in Buttonwood Park on the night of the shooting and that he had spent
    the evening at a friends home.

[63]

After
    the teacher spoke to the police, a warrant was issued for the appellants
    arrest. He surrendered, was arrested, and was charged with second degree
    murder.

[64]

No
    other member of the intruder group was ever apprehended. It was acknowledged at
    trial that the appellant, who was 61 tall, was not the shooter.

[65]

After
    a four-week trial by judge and jury, the appellant was convicted of
    manslaughter and sentenced to eight years imprisonment, less credit for
    pre-trial custody.

[66]

He
    appeals his conviction and sentence. For the reasons that follow, I would
    dismiss the conviction appeal, on all grounds.

[67]

In
    overview, I conclude that the trial judge made no reversible error in the
    conduct of the trial and his instructions to the jury were satisfactory. The
    jury was properly instructed to examine all the evidence and it was for them to
    determine what evidence to believe or disbelieve and what weight to attach to
    the evidence they believed. There was ample evidence on which the jury could
    conclude that: the appellant was a member of the small group who invaded the
    tennis court; he was party to an agreement to rob the others; he participated
    in the robbery; the deceased was shot in the execution of the robbery; and the
    appellant knew or should have known that the shooter would use the gun during
    the robbery.

B.

the conviction appeal

[68]

My
    colleagues reasons address only the first ground of appeal from conviction. As
    I would dismiss the appeal, it is necessary for me to address all grounds. The
    appellant asserts that the trial judge made the following errors:

(a)
permitting the introduction in evidence of two
    photographs of the appellant when he was arrested, or in failing to properly
    instruct the jury concerning those photos;

(b)
failing to caution the jury concerning how to use
    disbelief of the appellants alibi;

(c)
failing to give a
Vetrovec
caution with
    respect to the evidence of one eyewitness, George Athens;

(d)
failing to properly instruct the jury regarding
    party liability under s. 21(2) of the
Criminal Code
, R.S.C. 1985, c.
    C.46 (
Code
);

(e)
failing to adequately instruct the jury that they
    could not rely on the teachers interpretation of his conversation with the
    appellant;

(f)
failing to instruct the jury that it was improper
    for the Crown to ask the appellant to comment on why his teacher would lie and
    implicate him in the shooting, given their positive relationship; and

(g)
permitting the Crown to lead evidence of the appellants
    demeanour at the time he learned of the warrant for his arrest, and following
    his arrest, as after the fact conduct capable of supporting an inference of
    guilt.

[69]

I
    will review each of these grounds in turn. First, I will explain the factual
    background.

C.

Factual Background
[70]

This
    section of my reasons provides context for the review of the grounds of appeal.
    I will add additional facts, where necessary, in discussing each ground.
[71]

The
    appellant ran an alibi defence. He testified he was not at the park on the
    night of the shooting and had spent the evening with three friends  first at
    the home of his friend, Javier Hernandez, then at the home of another friend,
    John Kenny, where he spent the late evening and night with his girlfriend,
    Keelie Cook, and with Kenny. I review their evidence below.
[72]

The
    key evidence linking the appellant to the shooting came from his teacher,
    Cordel Browne. Browne testified that the appellant told him that he was at the
    park when the shooting occurred, that he was involved, but that he was not
    the shooter. The appellant denied saying that he was involved, although he admitted
    that he had told Browne a story about a shooting. He said that he had made it
    up. I will describe the two versions of the conversation in due course.
[73]

There
    are five main events to be considered:
1.
    the robbery and shooting at the park;
2. the
    appellants activities on October 3 and his alibi;
3. the
    appellants conversations with Browne at the school on October 7;
4.
    the appellants conduct on October 8, before he surrendered to the police; and
5. the appellants conversation with Browne at the detention centre
    after his arrest.
(1)

The robbery and shooting at the park
[74]

There
    was evidence at trial from nine of the young people who had been present in
    Buttonwood Park when the intruders arrived. Six gave
KGB
statements to
    the police soon after the shooting that were played at trial.
[6]
Not surprisingly, their evidence was not uniform.
[75]

Some
    of the witnesses had been drinking or smoking marijuana. All agreed that it was
    dark inside the tennis court, although there was some light coming from a shed
    nearby. They were positioned in different locations  most were sitting on the
    bleachers, but a few were located beside the bleachers and closer to the
    entrance to the tennis court. Some may have seen things that others did not
    observe or may have had different perceptions of the events. After the
    shooting, rumours and gossip circulated and they undoubtedly talked to other
    witnesses or to friends who had not been present. The events happened quickly
    and were obviously frightening and ultimately traumatic.
[76]

The
    witnesses generally testified that after words were exchanged between the two
    groups, the smaller group of black youths stopped, turned around, and proceeded
    into the tennis court, where three or four began to threaten those present,
    making threats like, Wheres the weed at?, Empty your pockets, Do you want
    to get popped? and Ill pop you right now.
[77]

The
    witnesses said that some or all of the intruders had taken steps to conceal
    their identities. Some hid their faces with hoodies or baseball caps pulled down.
    Others masked their faces with bandanas. Some witnesses said they saw one man
    with a gun, others said they saw two guns. One said they all gestured as if
    they all had guns.
[78]

Four
    of those inside the park were robbed at gunpoint. One was the deceased, Boris
    Cikovic, the boy with the Taser. One of the intruders demanded his bag. When
    Cikovic refused, he was hit in the face with a gun and his bag was taken from
    him. At some point during this confrontation, Cikovic Tasered one of the men.
    One of the assailants fired a warning shot in response. Cikovic then chased the
    assailants as they left the tennis court and one or two more shots were fired.
    He was hit in the stomach.
[79]

Most
    of the eyewitnesses said that the intruder group consisted of three or four
    young black men. One witness said there might have been four or five. No
    witness was asked to identify the appellant as being present in the park that
    evening and no witness could provide any useful description of the intruders
    other than their skin colour, approximate heights and descriptions of dark
    clothing.  They were described as having unimposing builds, short hair and
    being clean shaven. Most of the witnesses described the shooter as short.
[80]

A
    witness who lived near the park testified that he had seen four black males
    walk by his home between 9:30 and 10:00 p.m. that night. He said that they
    appeared to be between 16 and 18 years old, and wore dark clothing and hoodies.
    He did not see bandanas, nor did he see them carrying bags or backpacks. He
    said that one of the men was very small, between 5 feet and 51, two were 55
    or 56 and the other was 60 or 61.
[81]

The
    following day, the deceaseds bag was discovered by one of his friends on a
    bush near the park, in the direction the young males had fled.
(2)

The appellants activities on October 3 and his alibi
[82]

The
    appellants opportunity to participate in the crime was bracketed by two times.
    There was no dispute that at 9:35 p.m. on October 3 he made a call from his
    friend Hernandezs house to his girlfriend Cooks cell phone. His evidence was
    that he left Hernandezs house 20 to 25 minutes after the call and walked the
    short distance to his friend Kennys house, where he spent the rest of the
    evening and night.
[83]

The
    other bracket is 10:35 p.m., when the police began to receive 911 reports of
    the shooting. Thus, based on the eyewitness testimony, the intruders would have
    arrived at the park a few minutes before 10:35.
[84]

Buttonwood
    Park was about eight kilometers from Kennys house. There was no independent
    evidence of what means of transportation the appellant used after he left
    Hernandezs house. There was evidence that he did not have a car or bicycle,
    and that he usually walked or took public transit, usually buses.
[85]

The
    appellant testified that he had been hanging out with Cook and Kenny earlier in
    the day, but when they went to work, he went to Hernandezs house, arriving
    there around 3:00 or 4:00 p.m. He stayed there for dinner. While he was there,
    he called Cook on Hernandezs home phone after she finished work and arranged
    to meet up with her at Kennys house. He walked to Kennys house about 20 or 25
    minutes later. That took about two minutes. He was not sure what time he got
    there, but he stayed there for the entire night, until he left for work before
    8:00 a.m. the next morning.
[86]

Hernandez
    testified that the appellant came to his house between about 5:00 and 6:00 p.m.
    and they played video games, used his computer and watched TV in the basement.
    His mother made dinner for them. They were going to go out with friends, but
    those plans fell through. Telephone records for the phone in Hernandezs house
    showed that two calls had been placed to Cooks cell phone at 9:16 p.m. and at
    9:35 p.m. Although he could not be precise, and said that he was not really
    paying attention to the time, Hernandez said that the appellant left his house
    between 10 and 30 minutes after making the second call. He did not know where
    he was going or how he was going to get there. He would have had no problem
    giving the appellant a place to stay for the night, if he had asked.
[87]

Kenny
    and Cook testified that they spent the evening together at Kennys house.
    Although they agreed that the appellant came to Kennys house at some point
    during the evening, and that he stayed overnight, their evidence was not
    consistent.
[88]

Cook
    said the three of them hung out at Kennys house during the day, smoking
    marijuana until she and Kenny went to work around 4:00 to 4:10 p.m. She and the
    appellant agreed to meet after her shift, which ended at 9:30 p.m. Kenny picked
    her up after work and they went back to his house. She got a call from the
    appellant, either en route to Kennys house or when she got there, saying he
    would be over within half an hour. He seemed to arrive less than half an hour
    after the phone call. They stayed at the house all evening and went to bed
    around midnight.
[89]

Kenny
    testified he picked Cook up after they both finished work and went back to his
    house, arriving there between 9:40 and 9:45 p.m. The two of them watched videos
    and smoked marijuana. He said that at some point Cook told him the appellant
    would be coming over. He said the appellant arrived at his house some time
    before midnight, but he could not say when. Kenny thought the appellant went to
    bed at around 1:00 a.m.
[90]

Cook
    was, therefore, the only witness to confirm the appellants alibi that he had
    been at Kennys house at the time of the shooting. Cooks evidence was not free
    of difficulties. Her time estimates were, by her own admission, unreliable. She
    admitted she had smoked marijuana during the day and the evening and this
    affected her ability to estimate times.
[91]

More
    problematic for the appellant was the fact that Cooks cell phone records
    showed that she had made a call to Kenny at 10:18 p.m., by which time, according
    to her, she, Kenny and the appellant were all at Kennys house. When confronted
    with why she would telephone Kenny at his own house, both Kenny and Cook
    suggested that Kenny might have gone outside the house to have a cigarette or,
    they said, it might have been a pocket dial. The cigarette explanation made
    little sense, because Cook and Kenny had been in his room for much of the day
    and evening smoking marijuana, though Kenny said they had a method of masking
    the smell of marijuana, but they had to smoke cigarettes outside. The pocket
    dial explanation was also problematic, because the call lasted 67 seconds and
    would have soon gone to voicemail, had it not been answered. The Crown argued
    that this cast doubt on their evidence that they were together that evening.
[92]

As
    well, Cook had testified at the preliminary hearing that when the appellant
    came to Kennys house that evening he told her that he had been at a party in a
    park where there were lots of people. At trial, Ms. Cook said that the
    appellant never told her he was at a park.
(3)

The appellants conversation with Browne at the school
Brownes Version
[93]

Browne
    was one of four African-Canadian teachers at the appellants high school. He
    was the head of the English department. Browne had a positive relationship with
    the appellant and encouraged him to pursue his studies. The appellant liked and
    trusted Browne and enjoyed his English class. Browne had previously offered to
    lend the appellant money, if he needed it.
[94]

Browne
    testified in chief about two interactions with the appellant. The first was on
    Tuesday, October 7, 2008, four days after the shooting. The other was about two
    weeks later, on Thursday, October 23, after the appellants arrest, when Browne
    visited him at the detention centre where he was being held.
[95]

On
    the first occasion, October 7, Browne was showing a film to his mid-morning
    English class when the appellant knocked on his door and asked to speak
    privately with him. The appellant was agitated and did not want to talk where
    they might be overheard, so Browne led him to an alcove outside. Browne
    described their dialogue:
Well, the door closes, and during the school day the doors lock
    automatically. The only door thats open is the main door, thats for security
    reasons, and at that point we were now alone, so he turned to me and he said,
    um, Mr. Browne, did you hear what happened this weekend? And I said to him,
    Are you referring to the thing that happened in Buttonwood Park? And he said
    Yes. And I said, I read about it this morning in the paper, so yeah, I knew
    that there had been a murder. And he said, I need to talk to you about
    something and I just want you to set aside your role right now as a teacher and
    just speak to me sort of as a friend. And I said to him, Nahoor, I cant do that.
    Like Im your teacher and, you know, we have a rapport and were friendly with
    each other, but I am your teacher.
So then he went on to say, I just want to let you know I was
    there but I didnt do it. And I said  I  I was confused. I didnt understand
    what he was saying sort of thing. I said, Nahoor, I dont understand. He
    said, Well, you know, someone got shot but I  I didnt do it. I didnt have
    the gun. And he kept stressing that, that he didnt have the gun, but he was
    there and he was involved. He was one of the people saying, No, no, no, and
    he was telling me this because he wanted to know what he should do, like its,
    I want your advice, what should he do. And I said to him, You dont have a
    choice. You have to turn yourself in.
[96]

Browne
    said the appellant told him he did not want to turn himself in and had related
    a story about another occasion when his brother had gone to the police and
    snitched and had been assaulted as a result.
[97]

Browne
    said the appellant did not give details of his involvement: He just said that
    he was part of a group of guys who were gonna  roll up on this person.
    Browne interpret roll up as meaning to rob.
[98]

The
    appellant had asked him several times what he should do and Browne told him
    that he had to man up, and turn himself in to the authorities.  At the end of
    the conversation, Browne told the appellant he would have to do something about
    the information he had been given. The appellant walked away without saying
    anything.
[99]

Later
    that afternoon, after discussing the matter with the principal, Browne spoke to
    a police officer assigned to the school and gave a recorded statement to the
    police the following day.
[100]

In
    cross-examination, defence counsel put to Browne that in chief, he had said the
    appellant told him that he was there, involved, but didnt have the gun.
    Browne agreed.  When counsel asked him to confirm this, he said the gist of the
    conversation was:
I was there, I was involved, I didnt have the gun. We rolled
    up on the guy, things went down, shots were fired. What should I do? That was
    the gist of the conversation.
[101]

Browne said that
    if he was being asked to summarize a five to eight minute conversation, that
    would be the summary. Counsel then asked,
Okay, the summary would be I was there, involved, didnt have
    the gun?
[102]

Browne replied:
No, the summary would be I was there, I was involved. We rolled
    up on some guys. I didnt have the gun, things went down, someone got hit, but
    I wasnt the one carrying the gun. Mr. Browne, what should I do?
[103]

Defence counsel
    then put to Browne that in his police statement he had said that the appellant
    had told him that he was at the park but was not involved, as opposed to was
    involved, and that they, as opposed to he had rolled up the people anyway.
    His statement had said, in part, that the appellant had told him:
I was there but I
wasnt
involved and I said what
    do you mean Nahoor? And hes like, I was there but I
wasnt
involved,
    I didnt have the gun and he went on to explain basically that um he had said
    no he didnt want to be involved in it but
they
rolled up on the guys
    anyway. Things went down, a shot was fired and this kid got hit  [Emphasis
    added.]
[104]

Defence counsel
    cross-examined Browne on the differences between his evidence at trial and his
    statement to the police. These questions, which were of course entirely proper,
    put Browne in the position of trying to explain his apparently contradictory
    statements.
[105]

After being questioned
    about the differences, Browne repeated the statement and began to explain what
    he meant. The trial judge intervened and cautioned him:
The Court: No, you cant interpret what it means.
The Witness: Okay.
The Court: I just want you to tell us what you heard Mr. Araya
    say.
The Witness: Thats what he said.
The Appellants Version
[106]

The appellants
    evidence at trial was that Browne had misunderstood him. He said he told Browne
    a made-up story to convince Browne to let him stay overnight at his house, because
    he had been living in a youth shelter, and could not bear staying another
    night. He claimed that Browne had previously offered to let him stay overnight.
    Browne denied this.
[107]

The appellants
    evidence of the conversation bears setting out in full:
A. Um, I started the conversation off by just asking him for
    his advice and he still seemed kinda like he was trying to shrug me off, like
    he didnt have time and I sort of panicked and I just said, Look, um, I need
    your advice, and I told him that there were a couple guys hanging out at a
    plaza. I told him, uh, that some of the guys that were hanging out at the plaza
    wanted to roll up on another group of kids and I told him that other guys were
    like, no, were not doing this, um, its not  its not our thing, its really
    stupid and ultimately I basically told him I wasnt involved, um, I wasnt at
    the park,
[7]
and I was one of the guys that was like no, no, we shouldnt do this.
Q. And do you remember how you started out the conversation?
A. Yes. Um, I basically asked him for  for advice is what
    how the conversation started.
Q. All right. And do you remember during that conversation, was
    Buttonwood Park ever mentioned?
A. I think he  he may have mentioned it, yes.
Q. Did you ever tell him that you were at a park?
A. No.
Q. And can you remember anything else, Mr. Araya, about  about
    what you said to Mr. Browne in that conversation?
A. Yeah, um, I told him I wasnt involved, I didnt do
    anything. In my mind it was like the more  the more desperate my situation
    got, the more help he was willing to provide, and I just kinda panicked.
Q. And when you first approached the  the door of Mr. Brownes
    classroom that day, had  had it been your plan to  to tell him the story?
A. No, no, no, it hadnt.
Q. Was there any truth to the story?
A. No, I was, uh  I was never at a  with a group of guys at
    that park or a plaza or  I was uh, just not involved whatsoever, just not
    there, not with a group of guys, no truth whatsoever.
Q. Did you use the term roll up during the conversation?
A. Yes.
Q. Okay. And  when you used the term roll up, what did you
    mean by that?
A. I basically meant to approach someone with a  like with a
    bad intent sort of, nothing  nothing specific.  I didnt know too many  like
    I didnt know specifics about  what happened that night, so my use of the word
    was just a general kind of approaching someone with a bad intent.
[108]

The appellant
    was cross-examined at some length concerning the story he told Browne. He
    repeatedly admitted that it did not make sense and was irrational. He
    testified that he thought the worse he made his situation seem to Browne, the
    more likely he was to help him.
[109]

The appellants
    explanation that he was panicked into making up his story had to be
    considered in the context of Hernandezs testimony that the appellant could
    have stayed overnight at his house and in light of the fact that the appellant
    ultimately claimed to have spent the night at Kennys house, just a few days
    before.
(4)

The appellants surrender on October 8
[110]

In addition to
    the evidence concerning the events of October 3, 2008, there was evidence from
    the appellant, Cook and Kenny about the events of October 8, when the appellant
    became aware that there was a warrant for his arrest.
[111]

The appellant
    testified in examination-in-chief that he had discovered there had been a
    shooting on the afternoon of Saturday, October 4, when he finished work. The
    following Wednesday, October 8, he was at Cooks house when someone telephoned
    to say there was a news report on the television about a warrant having been
    issued for his arrest. He said that on hearing this news, he wanted to speak to
    an adult about what he should do, so he and Cook went to Kennys house to speak
    to Kennys mother.
[112]

On
    cross-examination, the appellant was asked whether at this point he had told
    Cook about his conversation with Browne. He said that he had not. He said that
    he was not thinking straight, that it seemed surreal, and he did not connect
    the arrest warrant to the shooting incident that had occurred the previous
    Friday night. He did not tell Cook that Browne might have misinterpreted their
    discussion the previous day.
[113]

In her
    examination-in-chief of Cook, defence counsel asked whether, after they heard
    that there was a warrant for his arrest and before he went to the police
    station, she had had any conversation with the appellant concerning what they
    had been doing on the night of October 3, 2008. She replied that they had not.
[114]

In Kennys
    examination-in-chief, defence counsel asked about what happened on October 8
    when he heard on the news that there was a warrant for the appellants arrest.
    He said that he telephoned Cook, who said that the appellant was with her. He
    said to her, You should probably come on over to my house so we can figure
    this out. The appellant and Cook went to Kennys house. With his mother
    present, they discussed the situation:
we talked amongst ourselves, my mom was there as well, and,
    uh, we were just wondering where he was on the Friday night. Uh, we figured out
    that he was at my house that night, so we figured our best course of action was
    to go down to the 22 Division and speak to the police there.
After talking it over, Kenny testified that his mother
    drove the appellant to surrender to the police. The appellant, Kenny, Cook,
    Kennys mother and Kennys brother rode together to the police station.
[115]

On
    cross-examination, Kenny said that he, Cook and the appellant discussed the
    night of Friday, October 3, and agreed with the suggestion that they tried to
    figure out a timeline for that evening. He said that he thought he asked the
    appellant where he was before he came to his house that night, but he could not
    remember what the appellant told him.
(5)

The conversation at the detention centre
Brownes Version
[116]

Brownes second
    interaction with the appellant was about two and a half weeks later, on October
    23, when he visited him in the Metro West Detention Centre. He went after Cook
    had made several requests that he do so.
[117]

They spoke over
    a telephone at the jail, separated by a glass partition. The conversation was
    brief. The appellant said to Browne, We never had the conversation. Brownes
    evidence was as follows:
He just  I said, like, basically What do you want? He just
    said
he only said one thing and that was, We never had the
    conversation.
And I said  I sort of shook my head. I said, Nahoor, I
    know what youre trying to say without you saying it, but we did have that
    conversation.
And he just repeated it, We never had the conversation, Mr.
    Browne. And I said, Nahoor, we had the conversation, it occurred and, you
    know, I  I wish it hadnt. I wish that you had never come to me because I
    dont want to be involved in this, but we had the conversation.
And the
    other thing is, you know, for you to suggest that we didnt have this
    conversation, youre putting me in a really, really bad position because Im
    not going to jeopardize my career for an 18 year old student. Two and a half
    credits to go. You can do it. And I said to him, You can just do what you
    need to do. You can get out. You can go on with your life, but Im not going to
    sacrifice my career for  by lying to say that I didnt have the conversation
    with you because thats what  thats what was implied by the statement that
    we did not have the conversation. Thats my interpretation of what he was
    saying. [Emphasis added.]
[118]

At this point,
    the trial judge interrupted, saying:
The Court: You cant tell us what he was thinking. You can just
    tell us what he said to you.
The Witness: Okay. What he said to me was, We did not have
    that conversation.
[The Crown]: Q. Did he say anything else during the  this
    conversation?
A. No, he just repeated that sentence two or three times.
[119]

When
    cross-examined about his visit to the appellant at the detention centre, it was
    put to Browne that he could not remember the exact words used by the appellant.
    Browne said that he could, because it was a very short conversation, and he
    remembered it very clearly. The appellant had repeated the same sentence twice:
    We never had the conversation.
The Appellants Version
[120]

The appellant
    testified that when Browne came to visit him at the detention centre he
    appeared cold towards him and told him that it was serious. He said the
    appellant should cooperate with the police and tell them about his involvement
    in the incident. He said that he told Browne,
We never had that conversation about my involvement in
    anything. I  like I never told you I was involved in anything, so I dont
    really know what youre talking about. I dont remember a conversation even
    remotely close to the one that youre, uh, telling me about.
[121]

In
    cross-examination, it was put to the appellant that he had been sitting in jail
    for two and a half weeks, facing a charge of second degree murder, wondering
    why he had been arrested over a made-up story to his teacher. He was asked why
    he did not explain to his teacher that it had all been a terrible
    misunderstanding. It was also brought to his attention that when he was
    arrested he was informed by the police that Browne had told them the substance
    of their discussion. In other words, he knew that he was there because of what
    Browne had told the police.
[122]

He was also
    cross-examined about the fact that he never told Cook about the made-up story
    that he had told to Browne. His answer was that his lawyer had told him not to
    talk to anyone about the events. However, this did not explain why he did not
    tell Cook and Kenny about his conversation with Browne, once he became aware of
    the warrant for his arrest, and before he spoke to counsel.
D.

grounds of appeal
(1)

The
    Photographs
(a)

Background and
    reasons for admission
[123]

I begin my
    review with the photographs, the ground on which my colleague would allow the
    appeal.
[124]

At the
    conclusion of its case, the Crown sought to introduce two photographs of the
    appellant taken shortly after his arrest. The Crown pointed out that it was an
    identity case and that the appellant looked quite different at the time of
    trial than at the time of the incident.
[125]

To put that
    submission in context, the trial took place three years after the shooting. In
    October 2008, the appellant was 18 years old, had bushy hair, some facial hair,
    a slight build and did not wear glasses. He was 61 tall. By the time of
    trial, he was 21 years old, wore glasses, had short hair, was clean shaven and
    heavier.
[126]

Prior to the
    introduction of the photographs, Browne had identified the appellant in court.
    Browne said that the appellants appearance had changed significantly since
    the fall of 2008. In 2008, the appellant had an afro, his hair was really
    big, standing up. He did not wear glasses and was a little bit thinner.
[127]

The Crown
    submitted that it was relevant for the jury to know what the appellant looked
    like at the time of the shooting. The pictures were relevant and necessary to
    correct the distorted picture the jury would have of the appellant, seeing him
    sitting before them in the courtroom three years later. The photographs had no
    prejudicial effect.
[128]

The defence took
    the position that although the photographs might be probative, they were
    prejudicial, because the jury might use the photographs to slot the appellant
    into the vague descriptions given by the witnesses. In the words of defence
    counsel, the concern was that the jury would look at this skinny black young
    male and say, you know what, he could have been here because his description
    actually matches the identification evidence that we have.
[129]

In his ruling,
    the trial judge noted that identity was a live issue and the eyewitnesses, all
    of whom had testified by that point, could not identify any of the three or
    four black males who were involved. He noted that their faces were covered, the
    only identifying feature noted was the crooked teeth of one of the
    participants, and no one had been asked to identify the accused as having been
    present. At best, the witnesses were able to give very vague descriptions of
    the height, age, hair length and facial hair of the participants. These
    descriptions varied greatly from witness to witness. The trial judge observed
    that the Crowns case on identity relied heavily on the alleged confession by
    the appellant to his teacher that he was present and participated in the
    robbery, but was not the shooter.
[130]

The trial judge
    continued:
For the past two weeks, the jury have had an opportunity to
    view how the accused looks three years later as the witnesses to this alleged
    robbery and shooting gave their descriptions. At this time, before the jury,
    his head is shaven, he is clean-shaven and he has glasses. He is heavier set
    than he was three years ago.
[131]

After reviewing
    the positions of the parties, he concluded that the photographs should be
    admitted, but the jury would be instructed about their use:
In this trial in my final instructions, this jury will clearly
    be instructed that no one who was present at the night of the shooting can in
    any way identify Mr. Araya as being present. Further, the jury would be
    instructed that they cannot conclude, because they have a photograph of the
    accused taken five days after, that he is the person described by the witnesses
    in such vague descriptions.
I find, however, the jury is entitled to consider as a piece of
    circumstantial evidence whether the accused had any of the vague physical attributes
    described by any of the witnesses. I find that it is relevant to that limited
    purpose. I am satisfied there is probative value to the jury knowing in an
    identification case what the accused looked like at the time of the event. The
    risk of prejudice is limited by a limiting instruction.
Therefore, I am satisfied that the probative value of these
    photographs outweigh[s] the prejudicial effect, and, as such, the photos are
    admissible.
[132]

At the
    conclusion of the Crowns case, the two photos of the appellant, taken after
    his arrest, were introduced in evidence by way of an admission of fact,
    pursuant to s. 655 of the
Code
and

were made an exhibit.
[133]

The first photo
    is a head-to-toe picture of the appellant, standing in the corner of a room,
    close to a brick wall. He is wearing casual clothing and his arms are hanging
    at his sides. The second photo is a close-up of his head and face. It is not
    possible to judge his height from the photos. He appears to have a slight
    build. His hair is full and bushy. He has a small amount of facial hair.
[134]

The appellant
    was shown the two photos in the course of his cross-examination and he agreed
    that they accurately depicted the way he looked on October 8, 2008, when he was
    arrested. He agreed that his appearance on October 3 had not been markedly
    different. He also agreed that he was significantly stockier at the time of
    trial than he was three years earlier. He volunteered that he also had a lot
    less hair at the time of trial.
[135]

Defence counsel
    showed one of the photos to Cook, who said it was an accurate depiction of the
    appellant in October 2008, and emphasized his facial hair.
[136]

The witness who
    had seen the smaller group of males walking towards the park had testified that
    none of them appeared to have facial hair. In closing submissions, defence
    counsel referred to this evidence and pointed out that in the photographs, as
    confirmed by Cooks evidence, the appellant had some facial hair. She relied on
    this evidence as excluding the appellant from the group of intruders in the
    park and told the jury: Just as he testified to before you, he was not there.
    He was not at Buttonwood Park.
[137]

The Crowns only
    reference to the photographs in its closing was that the appellants facial
    hair, depicted in the photographs, might not have been noticed by the witnesses
    in a very dark, enclosed space with an event that happens very quickly.
(b)

The trial judges
    instructions
[138]

In his charge,
    the trial judge told the jury that the first in a series of questions they had
    to decide to determine liability was whether the Crown had satisfied them
    beyond a reasonable doubt that the appellant was in Buttonwood Park on October
    3, 2008. This was obviously the threshold question, and he told them that if
    they were not satisfied beyond a reasonable doubt that the appellant was in the
    park, their verdict would be not guilty, and their deliberations would be over.
[139]

The trial judge
    then reviewed at length the evidence pertaining to that question, including the
    evidence of the appellant, his friends Cook, Kenny and Hernandez, and his
    teacher, Browne.
[140]

The trial judge
    began with the telephone records, noting that the records could place the
    appellant at Hernandezs house at 9:35 p.m. when a call was placed to Cook.
    Since the 911 calls about the shooting started coming around 10:35, the jury
    might conclude that the events in the park and the shooting took place a few
    minutes before that. If the jury accepted that evidence, they would have to
    consider whether the appellant had the opportunity to get to the park from
    Hernandezs house.
[141]

The trial judge
    also referred to the phone call at 10:18 p.m. from Cook to Kenny. As I have
    noted, this cast some doubt on their evidence that they were together the
    entire night. The trial judge referred to their explanation that Kenny may have
    been outside the house smoking at the time or that it may have been a pocket
    dial.
[142]

The trial judge
    reviewed the appellants evidence concerning his activities on October 3, his
    conversation with Browne at the school on October 7, the events leading up to
    turning himself in to the police on October 8 and his conversation with Browne
    at the detention centre on October 23.
[143]

The trial judge
    also reviewed Brownes evidence of his discussions with the appellant at the
    school, including his testimony at trial, and his statement to the police. He
    reviewed Brownes evidence about the conversation at the detention centre, as
    well.
[144]

After a detailed
    review of this evidence, the trial judge turned to the description of the black
    males by the witnesses in the park. He reminded the jury that none of the
    witnesses could identify the appellant as being there and that their
    descriptions of the individuals were vague. He said:
Now, members of the jury, along with all the evidence I have
    already reviewed on this issue about whether or not he was in the park that
    night, you should also consider how the people that were in the tennis court
    that night described the black males that came in. I want to remind you that
    none of the young people in the park can identify Mr. Araya as being there.
    Many of the people in the tennis court told you because of how dark it was, how
    the black males were dressed and how quickly events took place, they could not
    tell you what any of the males faces looked like.
Some of them were, however, able to provide vague descriptions
    of clothing, height and skin colour. Some were able to provide descriptions of
    hair style, and my recollection is that none of the people described the males
    as having facial hair. I also believe none of the witnesses say that they saw
    any of the males, when I say males, the black males that came in, as having a
    bag or knapsack when they arrived.
[8]
As you heard, these descriptions were very vague.
[145]

The trial judge
    then referred to the two photographs taken of the appellant after his arrest.
    He instructed the jury in the following terms:
Now, you have photographs of what Mr. Araya looked like five
    days after the shooting. I believe his evidence and Ms. [Cooks] was that is
    what he looked like about that time of October 3. You can consider whether he
    fits or does not fit the vague descriptions provided by the various witnesses.
    You cannot, of course, however, conclude based only on the vague descriptions
    of what Mr. Araya looked like in the photographs, that he must be the person.
    That would be completely improper since the descriptions are so vague and
    people cant identify anyone. If there are features described which are
    dissimilar to the accused, they may be used to demonstrate that the accused was
    not present.
You will recall that none of the witnesses described seeing
    facial hair. Now, you will have a picture of Mr. Araya taken five days later
    which witnesses say reflect[s] how he looked on October 3. It would appear he
    has some facial hair on his chin. Obviously he does not have a bushy beard. It
    is what it is in the picture. It will be for you to decide whether it is
    something that the witnesses would have noticed considering the opportunity to
    observe, the condition of the witnesses and the lighting conditions.
If you believe and accept the witnesses that the males were all
    clean shaven, then Mr. Araya could not have been one of the males. Later in my
    review of the witnesses, I will go over each witness evidence and their brief
    description.
You can, however, consider how the accused looked and the vague
    descriptions of the males as but one piece of circumstantial evidence, whether
    the accuseds physical appearance fit or did not fit the vague descriptions.
    You would consider this along with the totality of the evidence to determine
    whether the Crown has satisfied you beyond a reasonable doubt that Mr. Araya
    was one of the black males who attended the tennis court.
[146]

The trial judge
    repeated that if, on the totality of the evidence, the jury was not satisfied
    beyond a reasonable doubt that the appellant was in the park that night, they
    should find him not guilty.
[147]

He then turned
    to the elements of common unlawful purpose liability and he reviewed, as he
    promised he would, the evidence of all the young people who were present in the
    park on October 3 and their descriptions of the appearance and actions of the
    intruders. I will discuss this portion of the instruction when I consider the
    fourth ground of appeal.
(c)

Parties positions on
    appeal
[148]

The appellant
    submits that the photographs had minimal probative value, because eyewitness
    identification was not in issue, and the effect of the introduction of the
    photographs was overwhelmingly prejudicial to the appellant. There was no issue
    that his appearance was different by the time of trial and that he fit the
    generic description of some of the intruders given by the witnesses. The
    introduction of the photographs amounted to an invitation to the jury to
    compare the photographs of what the appellant looked like at the time to the
    vague and generic descriptions given by the eyewitnesses and to convict him
    because he appeared to match those descriptions. Therefore, the photographs
    ought not to have been admitted.
[149]

In the
    alternative, the appellant says that the trial judges instruction to the jury
    was inadequate and did not alleviate the risk that the jury would use the
    photographs improperly. Once the photographs were admitted, the jury should
    have been given a much more extensive caution about the dangers associated with
    eyewitness identification.
[150]

The appellant
    also submits that the trial judge failed to give the jury a specific
    instruction on the frailties of eye witness testimony, with particular
    reference to the circumstances of this case, including the poor lighting, the
    fact that the witnesses had been drinking and/or smoking marijuana, the fact
    that the witnesses did not know the suspects and were invited to make a
    cross-racial identification.
[151]

The respondent
    submits that the trial judge properly exercised his discretion to admit the photographs
    and emphasizes defence counsels failure to object to the limiting instruction,
    having received it in advance.
(d)

Analysis
[152]

Absent an error
    in principle or a misapprehension of the evidence, considerable deference is
    owed to a trial judges probative value/prejudicial effect assessment:
R.
    v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para 73;
R. v.
    Chenier
(2006), 205 C.C.C. (3d) 333 (Ont. C.A.), at p. 363;
R. v. R.
    (G.)
(1993), 80 C.C.C. (3d) 130 (Ont. C.A.), leave to appeal to S.C.C.
    refused, 83 C.C.C. (3d) vi;
R. v. Dooley
, 2009 ONCA 910, 249 C.C.C.
    (3d) 449. In no small measure, this is due to the trial judges unique ability
    to assess, in the context of all the evidence and the course of the trial, the
    significance of the evidence, its probative value, and its potential impact on
    the jury, in terms of its prejudicial effect.
[153]

In a case in
    which there was
some
identification evidence, albeit vague and
    general, evidence of the appellants physical characteristics at the time of
    the offence was unquestionably relevant. His counsel conceded as much. Prior to
    the introduction of the photographs, Brownes evidence about the appellants
    appearance in 2008 was received, without objection, because it was relevant. It
    was relevant because it was capable of including or excluding the appellant as
    a member of the intruder group. If it included him, its probative value was
    obviously low, because it simply meant that he fell within a broad category of
    young, slim, black males. But, it had some probative value and fell to be
    considered by the jury along with all the other evidence.
[154]

The appellant
    had made no admission at trial, prior to the introduction of the photographs,
    that he met any of the general descriptions given by the eyewitnesses. Nor did
    he offer to. He was not, of course, required to do so, but in the absence of an
    admission it remained a live issue.
[155]

As to
    prejudicial effect, the appellant says that there was a real risk that the jury
    would arrive at a decision on identification by comparing the general
    descriptions given by the witnesses to the appellants appearance at the time,
    as shown in the photographs. He says that there was a risk that if the jury was
    left with uncertainty as a result of Brownes evidence, they would use the
    photographs as a tie-breaker or make-weight. The appellant assumes that
    because of the photographs, the jury will engage in impermissible reasoning
    that he must be guilty because he matches the description of the robbers.
[156]

My colleague
    acknowledges that the trial judge did not err in admitting the photographs in
    evidence. Her concern is that he did not adequately caution the jury about the
    impermissible use of the photographs, and cast the permissible use of the
    photographs too broadly. She argues that the risk of improper reasoning was
    present because the Crowns case was weak and the admission of the photographs
    carried significant prejudicial effect. She concludes with the observation that
    the use of the photographs was effectively an in-court single photo line up
    as a piece of circumstantial evidence used against the appellant (at para. 50).
[157]

In my respectful
    view, the potential prejudicial effect of the photographs, and the extent to
    which the trial judges instructions mitigated that effect, must be considered
    having regard to all the evidence before the jury, the arguments of counsel,
    and the trial judges charge, taken as a whole:
R. v. Hay
, 2013 SCC
    61, at para. 47, referring to
R. v.
Jaw, 2009 SCC 42, [2009] 3 S.C.R.
    26, at para. 32. On my review of the record, the significance of the
    photographs at trial has been unduly magnified on appeal.
[158]

The only
    reference to the photographs during the trial was when they were shown to the
    appellant and Cook. In their closings, defence counsel referred to them as
    excluding the appellant as a participant in the robbery, and the Crown only
    noted the possibility that the appellants facial hair might not have been
    noticed due to poor lighting. In his charge, the trial judge also pointed to
    the potentially exculpatory value of the photographs depiction of the
    appellants facial hair.
[159]

The trial judge
    explained to the jury the use they were permitted to make of the photographs
    and explained the other side of the coin. In light of the vague descriptions
    given by the witnesses, the trial judge instructed them that they could not
    conclude he must be the person. This could only have been understood by the
    jury to mean one of the intruders in the park. While the instruction might have
    been phrased more elegantly, in the context in which it was given and in
    association with the instruction as to the permissible use, in my view, the
    jury would have understood the warning and the instruction to have regard to
    the totality of the evidence.
[160]

My colleagues
    concern about improper reasoning from the photographs is predicated, in part,
    on her assessment of the Crowns case as weak. Respectfully, on my view of
    Brownes evidence, the appellant admitted that he had been in the park. It was
    never suggested that Browne held any animus towards the appellant or had any
    reason to distort what had occurred. The appellant admitted that his
    explanation of the conversation did not make sense. It was for the jury to
    determine whether it made any  sense that he would make up an elaborate story
    about a shooting in a plaza so that Browne would feel sorry for him and let him
    stay overnight at his house. Particularly when, according to him, Browne had
    previously made the offer. Particularly when he had friends like Hernandez and
    Kenny who would have let him stay overnight. The jury could reasonably have
    concluded that Brownes evidence was credible and that the appellants was not.
[161]

The jury could
    also reasonably have concluded that the appellants alibi was, as the Crown
    contended, full of inconsistencies and improbabilities. It was supported only
    by Cook, who had earlier admitted that he had told her he had been in a park
    with friends before he came to Kennys house. The appellants explanation of
    his actions on October 8, before surrendering to the police, made little sense.
    The jury may well have questioned his claim he did not appreciate that the
    warrant for his arrest might relate to the shooting in Buttonwood Park or to
    his conversation with Browne the previous day. His post-offence conduct at the
    detention centre could reasonably be considered consciousness of guilt.
[162]

The appellant
    may have been a reluctant participant in the robbery, and he may have been
    reluctant to come forward, out of a sense of loyalty to his friends or because
    he did not want to suffer the same fate as his brother. However, there was
    ample evidence on which the jury could have found him guilty.
[163]

The photographs
    provided reliable evidence of the appellants physical characteristics at the
    time of the alleged offences, which was markedly different from his appearance
    at trial. They were relevant to the issue of whether the appellant fell within
    or without the descriptions of the assailants given by the eyewitnesses. They
    could be used, in accordance with the trial judges instruction, to determine
    whether the appellant fit or did not fit the vague descriptions. They could
    then be used, along with all the other evidence, to determine whether the Crown
    had proven beyond a reasonable doubt that the appellant was a member of the
    group of black males who went to the tennis court.
[164]

The appellant
    refers to
R. v. James
, 2011 ONCA 839, 283 C.C.C. (3d) 212, in support
    of his submission that the photographs should not have been put before the
    jury. In that case, there was evidence that a black man was seen fleeing the
    scene of a robbery and shooting. The accused was black. This court found that
    the trial judge had in effect instructed the jury that they could use the
    flight of a black man to lift what would otherwise have been an insufficient
    case of identification over the hurdle of reasonable doubt. Doherty J.A. held,
    at para. 53: The evidence of the flight of the black man could not possibly
    carry that heavy load on the identification issue. The instruction constitutes
    misdirection.
[165]

This court
    agreed, however, that the flight of a black man had some minimal indirect
    value to the Crowns case on the issue of identification. The jury could infer
    from flight that the man was involved in the robbery and the fact that the
    man was black offered some minimal support for the Crowns case, since the
    appellant was black (at para. 52).
[166]

The appellant
    also relies on
R. v. Ellis
, 2008 ONCA 77, [2008] O.J. No. 361. In that
    case, a trial by judge alone, an eyewitness had described a robber as a tall
    black man wearing a dark jacket, dark hat and dark pants. The appellant was
    arrested on the street nearby. He was tall and black and was wearing a dark
    jacket. His hat was different from the description given by the witness and he
    was wearing blue jeans. He had an imitation handgun on his person, but it did
    not match the description of the gun given by the witness and she did not
    recognize it. The witness gave an in-court identification of the appellant,
    which the Crown conceded had no evidentiary value. There was no other
    identification evidence and the appellant did not testify.
[167]

This court
    found, at para. 8, the conviction unreasonable because [t]he description of
    the assailant provided no detail that could distinguish the assailant from
    thousands of other people. Some of the few details that were given did not
    match the appellants appearance. This court quashed the conviction and
    entered an acquittal.
[168]

This case is,
    patently, different from
Ellis.
Here, the description of the
    assailants, and the appellants match of some aspects of that description, is
    but a small part of the identification evidence. Its probative value is low,
    but it is nevertheless, as the trial judge said, but one piece of
    circumstantial evidence for the jury to consider on the issue of
    identification.
[169]

In his charge,
    the trial judge referred to the photographs only after reviewing all the other
    evidence. The only physical characteristic shown in the photographs to which he
    made express reference was the appellants facial hair, which was inconsistent
    with some of the descriptions of the robbers. The trial judge accurately
    described the probative value of the photographs to the Crowns case. He also
    cautioned the jury against making improper use of the evidence.
[170]

The trial judge
    was well positioned to assess the significance of the photographs in light of
    all the evidence on the issue, the progress of the trial, and the positions
    taken by the parties. He was also well placed to determine how to address any
    potential prejudicial effect. In my view, his caution was adequate to the task.
[171]

It is of some
    significance that the defence did not object to the trial judges instructions
    to the jury on this issue. Defence counsel was obviously alive to the issue,
    having argued for the exclusion of the evidence. If its prejudicial effect
    remained a concern at the conclusion of the trial, defence counsel had ample
    opportunity to request a stronger instruction. She may not have requested one
    because the photographs had little significance in comparison with Brownes
    evidence, the appellants illogical explanation of his conversation with
    Browne, his after-the-fact conduct and the confused and inconsistent evidence
    of his friends.
[172]

The appellant
    also relies on the authorities emphasizing the dangers associated with
    eyewitness identification, in-dock identification and photographic
    identification. Those dangers are well-known and include:
·

the inherent frailties and unreliability of eyewitness
    identification:
R. v. Miaponoose
(1996), 110 C.C.C. (3d) 445 (Ont.
    C.A.);
·

the deceptively credible and dramatic impact of in-dock identification:
R. v. Tebo
(2003), 175 C.C.C. (3d) 116 (Ont. C.A.), at para. 18;
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445; and
·

the strongly suggestive nature of a photo lineup or of showing a
    witness a single photograph:
R. v. Smierciak
(1946), 87 C.C.C. 175
    (Ont. C.A.), at p. 177.
[173]

As my colleague
    notes, the facts of
Smerciak
and
R. v. Goldhar
(1941), 76
    C.C.C. 270 (Ont. C.A.),

were markedly different from this case. In
Smerciak
the police had shown a bank teller a single photograph of the accused,
    whom she identified as the perpetrator. This court said that this method of
    identification was improper and that in the absence of any other evidence to
    identify the appellant with the commission of the offence charged against him,
    it would be unfair and unsafe to convict him (at p. 180). In that case, the
    single photograph, shown to the eyewitness, was the only identification of the
    accused prior to his arrest. In this case, of course, the photographs had
    nothing to do with the arrest. It was the appellants confession to Browne that
    led to his arrest.
[174]

The facts of
Goldhar
are not clear from the brief reasons, but the courts concern, at p. 271,
    was the suggestive impact of showing a photograph to an eyewitness, because
there is always the risk that thereafter the person who has
    seen the photograph will have stamped upon his memory the face he has seen in
    the photograph, rather than the face he saw on the occasion of the crime. The
    usefulness of such person as a witness may thereafter be seriously impaired
[175]

In
R. v.
    Sutton
, [1970] 2 O.R. 358 (C.A.), at pp. 360 and 369, while there was a
    conflict in the evidence of the investigating officers and the eyewitness, the
    witness claimed that after being unable to identify the accused in two groups
    of photographs, the police showed her a single photograph of the accused and
    she was asked to look at it carefully.
[9]
Again, the suggestive nature of a single photograph was, in the circumstances,
    bound to taint the identification.
[176]

The appellant
    says that in introducing the photographs, the Crown was inviting the jury to do
    what, given these authorities, no witness to the shooting would have been
    permitted to do: compare the photograph with the persons they saw and answer
    the question, Does this person match the description of the intruders? My
    colleague compares this case to
R. v. Nikolovski
, [1996] 3 S.C.R.
    1197,

and describes the photographs as an invitation to the jury to
    engage in an in-court single photo lineup.
[177]

I respectfully
    disagree. This is not a case in which any witness could describe the facial
    features of any of the assailants, other than one youth who was said to have
    crooked teeth. It was never suggested that the appellant had crooked teeth or
    matched that description. All the other intruders were described in vague
    terms, not in terms of their facial features, but in terms of their build,
    height, skin colour and lack of facial hair. If the witnesses described the
    assailants as skinny, the jury was entitled to know whether the appellant fit
    that description. And if the appellant was not skinny at the time of trial,
    the jury was entitled to know how he looked at the time of the shooting. A
    photograph, agreed to be accurate, was undoubtedly the best evidence of how he
    looked at that time.
[178]

The appellants
    core argument seems to be that having seen the photographs, the jury would
    abandon reason and conclude that he was involved because he was the black youth
    with a skinny build shown in the photo.
[179]

In my view, this
    gives no credit to the jurys common sense and no weight to the trial judges
    instruction that it was precisely what they should not do: see,
e.g.
,
R.
    v. Corbett
, [1988] 1 S.C.R. 670, at p. 692.
[180]

I would add that
    I do not agree with the appellants submission that the trial judge was
    required to give more detailed instructions on the dangers of eyewitness
    identification in the circumstances. He noted the poor lighting, the condition
    of the witnesses and the speed at which the events unfolded. In my view, given
    the limited nature of the identification evidence, no more detailed instruction
    was required.
[181]

In summary, the
    photographic evidence was relevant, the trial judge had regard to the
    appropriate principles and I would defer to his balancing of the probative
    value of the evidence in relation to its prejudicial effect. Having determined
    to admit the evidence, the trial judge gave an appropriate instruction to the
    jury concerning the limited use they could make of the photographs. The
    instruction was fair and emphasized the defence argument that the appellants
    physical characteristics shown in the photographs served to exclude him from
    the group of young men. The defence took no objection to that instruction.
(2)

Disbelief of Alibi Instruction
[182]

The trial judge
    carried out a detailed review of the alibi evidence. He told the jury that the
    Crown was required to prove that the appellant was in Buttonwood Park on the
    night of October 3, 2008, and that he was a party to the offence. He told the
    jury that if they believed the appellants evidence that he was at Kennys
    house, with Kenny and Cook, when the offence was alleged to have occurred, or
    were left in reasonable doubt by his evidence, they must find him not guilty.
    If they did not believe his evidence, or were not left in reasonable doubt by
    it, they were required to determine whether the rest of the evidence they did
    accept left them in reasonable doubt.
[183]

In its closing,
    the Crown did not dispute that the appellant was at Hernandezs home until just
    after 9:30 p.m. on October 3, 2008. The issue for the jury, Crown counsel
    submitted, was where he went after that. Kenny could not say what time the
    appellant came to his house, except that it was before midnight. The Crown told
    the jury that Kenny could not and would not testify that the appellant was at
    his house at the time of the shooting, because the appellant was not at his
    house at the time.
[184]

The Crown noted
    that the 911 calls put the shooting at around 10:30 p.m. and that this left the
    jury with Cooks evidence, which the Crown described as so full of vague answers
    and inconsistencies that you simply cannot believe it. The Crown pointed out
    that when she was interviewed by the police a week after the shooting, Cook
    said she could not remember times. It also pointed out that her cell phone call
    to Kenny at 10:18 p.m. for one minute and seven seconds did not make sense if
    they were together at that time.
[185]

The Crown also
    noted that Cook had testified at the preliminary inquiry that the appellant had
    told her he had been at a party in a park on the night of October 3, 2008,
    before he arrived at Kennys house.
[186]

At the
    conclusion of his extensive review of Cooks evidence and the inconsistencies
    in it, the Crown stated:
Simply put, Ms. Cooks evidence cannot be believed. You should
    reject it. It should not leave you with a reasonable doubt. She herself admits
    that she has no ability to judge times accurately. In addition, her evidence
    was fraught with inconsistencies and points that just dont make sense.
Ladies and gentlemen, when you look at the evidence of these three
    witnesses, [Cook, Kenny and Hernandez,] it does not assist you in establishing
    that Mr. Araya could not have been at Buttonwood Park that night.
[187]

The appellant
    concedes that the alibi evidence was imprecise and incomplete. He submits,
    however, that the Crown invited the jury to draw an adverse inference of guilt
    based upon a concocted alibi and that the trial judge should have instructed
    the jury on the distinction between an alibi that is disbelieved, and therefore
    rejected, and one that is found to be concocted or fabricated, and can be used
    to infer guilt: see
R. v. Badiru
, 2012 ONCA 124, 289 O.A.C. 74, at
    para.
23;
R. v. OConnor
(2002), 62 O.R. (3d) 263 (C.A.),
at
paras. 17-27,
    34-38, 42-46.
[188]

He submits that,
    before the Crown invited the jury to infer guilt from a concocted alibi, it
    should have asked the trial judge to rule on whether an inference of
    fabrication was available on the evidence. If it had done so, it would have
    been clear that the evidence could not be accurately described as concocted or
    fabricated: see
R. v. Pollock
(2004), 187 C.C.C. (3d) 213 (Ont. C.A.),
    at paras. 152-56.
[189]

The Crowns
    observations concerning Cooks evidence, including her evidence about the
    events of October 8, were made in the context of a vigorous attack on her credibility.
    Cooks evidence was central to the appellants alibi, because she alone
    confirmed the appellants evidence that he was at Kennys house at the time of
    the shooting. The Crown pointed to a number of parts of her evidence that it
    said either do not make any sense or are flat out untruthful.
[190]

One of these was
    Cooks evidence that there had been no discussion at Kennys house on October
    8, the night the appellant was arrested, about what they had been doing on the
    night of October 3, because she did not know the appellants arrest warrant
    related to that night. The Crown argues that her evidence was false, because
    Kenny testified that they knew that October 3 was an important night and they
    discussed what they had been doing that night and worked out a timeline. The
    Crown said, Ms. Cook would not give that [admission] to you. Shes
    deliberately deceiving you on this point.
[191]

While the
    appellant acknowledges that the Crown did not directly assert that the alibi
    was concocted, he submits that the Crown planted the seed of fabrication in
    cross-examining the appellant regarding the discussion on October 8, 2008.
[192]

The appellant
    testified that although he went Kennys house on October 8, the purpose of the
    visit was to get advice from Kennys mother about what he should do, after
    learning that a warrant had been issued for his arrest. The Crown suggested to
    him that he spoke to Kenny and Cook about their movements on October 3: its
    crystal clear in your mind that you have to sort out what you did that night
    and that the three of you talked about it right there and then. He replied
    that he wanted to speak to Kennys mother, because she was a secretary at a
    high school and knew how to deal with tense situations
[193]

The Crown asked:
So its your evidence, sir, that at that point, at Mr. Kennys
    house, you havent connected the dots that this is to do with Friday night,
    October 3rd. Youre wanted for murder because of an incident on that night. You
    dont know at this point?
[194]

The appellant
    replied:
No, I  I knew I was wanted for murder and I knew it was  it
    was regarding that incident, but it just  it just didnt click. I dont know
    how to put it besides, like  I dont want to say I wasnt thinking straight
    when I  when I found it, but it just  it seemed so surreal for me.
[195]

He continued
    that in spite of being aware that he was wanted for murder, and that it related
    to the incident at the park, he did not tell Cook that it was all due to a
    misunderstanding of his conversation with Browne. A jury might well have concluded
    that his failure to tell his girlfriend that it was all a misunderstanding cast
    some doubt on the credibility of this explanation.
[196]

In submissions
    to the jury, the Crown argued that the evidence of Cook and Kenny about the
    cell phone call at 10:18 p.m. should not be believed: Their language in
    explaining this problem with this phone call was almost identical. The call
    does not make sense, and it challenges their version of the fact they were
    together that whole night. Their explanations are too coincidental.
[197]

In
O'Connor
,
    at para. 34, OConnor A.C.J.O. described the duty of a trial judge where alibi
    evidence is introduced: a
Parrington
instruction is required:
[10]
In all cases in which alibi evidence is introduced, whether by
    the Crown or the defence, the first step for the trier of fact is to determine
    whether the trier believes or has a reasonable doubt about the truthfulness of
    the alibi. In this regard, the court should follow the approach set out in
R.
    v. Parrington
,
supra
. The judge should direct the jurors (or in a
    trial before a judge alone, self-direct) along the following lines: 1) if they
    believe the alibi, they must acquit; 2) if they do not believe the alibi, but
    are left with a reasonable doubt by it, they must acquit; and 3) even if they are
    not left with a reasonable doubt by the alibi, then on the basis of all the
    evidence, they must determine whether they are convinced beyond a reasonable
    doubt of the accused's guilt.
[198]

This is
    precisely what the trial judge did. In his charge, he stated:
Mr. Araya is charged with the second degree murder of Boris
    Cikovic. He is alleged to have committed this offence at Buttonwood Park on the
    night of October 3, 2008.
The Crown must prove beyond a reasonable doubt that Mr. Araya
    was at Buttonwood Park on October 3, 2008, was a party to the second degree
    murder of Mr. Cikovic as I will describe.
You have heard evidence that Mr. Araya was someplace else when
    the offence was alleged to have been committed. He told you he was at his
    friends house, John Kenny, in the company of John Kenny and his girlfriend
    Keelie Cook.
If you believe the evidence of Mr. Araya that Mr. Araya was
    elsewhere when the offence was committed, then you must find him not guilty.
If you do not believe that evidence that Mr. Araya was elsewhere
    when the offence was committed, but the evidence leaves a reasonable doubt in
    your mind that Mr. Araya committed the offence, you must find him not guilty.
If you do not believe the evidence that Mr. Araya was elsewhere
    when the offence was committed, and that evidence does not leave a reasonable
    doubt in your mind that Mr. Araya committed it, you must consider whether the
    rest of the evidence you accept satisfied you beyond a reasonable doubt that
    Mr. Araya committed the offence charged.
[199]

In
OConnor
,
    at para. 17,

this court explained the difference between an alibi that
    is
d
isbelieved and a concocted alibi:
It is well settled that there is a distinction between an alibi
    that is disbelieved and, therefore, rejected and an alibi that is found to be concocted
    or deliberately fabricated. The former has no evidentiary value; the latter can
    constitute evidence from which an inference of guilt may be drawn:
R. v.
    Hibbert
, 2002 SCC 39, 163 C.C.C. (3d) 129 at pp. 148-52;
R. v. Coutts
(1998), 40 O.R. (3d) 198, 126
    C.C.C. (3d) 545
(C.A.) (leave to appeal dismissed,
[1998] S.C.C.A. No. 450
(QL)); and
R. v. Blazeiko
(C.A.). In
R. v. Hibbert
, Arbour J. made it
    clear at p. 151 C.C.C. that [e]ven if an alibi is advanced by the accused
    himself and is rejected, the finding that the alibi is untrue cannot serve to
    corroborate or complement the case for the prosecution, let alone permit an
    inference that the accused is guilty. However, where the Crown adduces
    evidence from which it can be infe
(2000), 48 O.R. (3d) 652, 145
    C.C.C. (3d) 557
rred that an accused fabricated an alibi,
    that evidence is capable of supporting an inference of guilt. [Citation
    omitted.]
[200]

Where the court
    finds that there is sufficient independent evidence of fabrication to support a
    finding of fabrication, the trial judge must instruct the jury concerning the
    use to be made of the evidence. As OConnor A.C.J.O, stated in
OConnor
,
    at para. 37:
If the judge concludes that there is sufficient independent
    evidence of fabrication of either an accused's out-of-court statement or an
    accused's testimony, then the judge should instruct the jurors that it is open
    to them to find that the accused fabricated the exculpatory version of events
    because he or she was conscious of having done what is alleged and that they
    may use that finding, together with other evidence, in determining if the Crown
    has proven the case beyond a reasonable doubt.
[201]

In my view, the
    cross-examination of Cook and of the appellant was directed to their
    credibility. It was not aimed at establishing that the appellants alibi had
    been fabricated. There was no suggestion by the Crown to any witness or to the
    jury that the appellants alibi had been fabricated. Defence counsel did not
    request an instruction on the issue of fabricated alibi. There was no objection
    to the Crowns closing in that regard, nor was there an objection to the trial
    judges charge.
[202]

Therefore, in my
    view, the trial judge did not err by failing to give an instruction on
    fabricated alibi and I reject this ground of appeal.
(3)

Failure to Give a
Vetrovec
[203]

George Athens was
    one of the young people present in Buttonwood Park on October 3 when the
    intruders arrived. He was a friend of the deceased. The appellant claims that
    Athenss evidence had particular significance because he was the only witness
    who said that all of the intruders participated in the robberies. He claims
    that without Athenss evidence, there was no basis to convict the appellant as
    a participant in a common unlawful purpose under s. 21(2) of the
Code
.
    For these reasons a
Vetrovec
warning was required.
[11]
[204]

While the
Vetrovec
issue was not strenuously pursued on the appeal, the s. 21(2) issue
    remained live. It is therefore necessary to review Athenss evidence. For the
    reasons set out below, I find that a
Vetrovec
warning was not required
    and that there was evidence on which the jury could find the appellant was a
    party to the offence under s. 21(2).
(a)

Athenss evidence
[205]

Athens testified
    that before going to the park he had met up with friends and had consumed about
    six beers. When they got to Buttonwood Park, he drank between one and three
    more beers.
[206]

He testified
    that he saw four black males in dark clothing walk past the tennis court, stop,
    turn around, and walk back towards the tennis court. He thought they were about
    his age (18 years old). As they approached, he went outside the tennis court to
    confront them. Three of the men entered the tennis court and the other
    approached him, put a gun to his head and demanded his cell phone. When he did
    not comply, the man struck him in the left temple with the gun. He still
    refused to surrender his phone.
[207]

He saw one of
    the other intruders inside the tennis court struggling with Cikovic over a bag.
    He went over to assist him. Out of his peripheral vision he was able to see the
    other two black men intimidating his friends on the bleachers. They were
    grabbing at peoples waists and saying things like give me the weed. From
    their gesturing, he believed all the men were armed. According to Athens, at
    least one of the men, and possibly two, were wearing bandanas pulled up over
    their noses.
[208]

Athens said he
    heard a warning shot fired by the man who was struggling with Cikovic. The
    other three men ran from the tennis court. Cikovic then Tasered the man in the
    neck with whom he was struggling. The man fell backward and Cikovic threw the
    Taser at him. The man had Cikovics bag and started running from the tennis
    court after the other young black men. Cikovic ran after the man who had his
    bag and Athens followed. At this point, the man turned and fired at Cikovic at
    close range.
[209]

Athens was on
    bail and out past his curfew that evening. He was also with a girl with whom he
    was not supposed to associate. He had a criminal record. He fled the scene
    after the shooting, and did not speak to the police until he received
    assurances that he would not be charged with breach of his bail.
[210]

Athens said that
    he ran away after the shooting because he was in breach of his bail. He did not
    go to the police immediately, but after speaking to the deceaseds family, he
    negotiated an arrangement with the police that if he gave a statement he would
    not be charged.
(b)

The trial judges
    ruling
[211]

During the
    pre-charge conference, counsel for the appellant requested a
Vetrovec
warning
    in relation to Athens. The trial judge did not agree, but stated that when he
    reviewed Athenss evidence he would explain why the jury must be cautious
    before relying on it. I will discuss his instructions shortly. First, I will
    explain his reasons.
[212]

In reasons for
    his ruling, released after the trial, the trial judge reviewed the appellants
    arguments that: (a) Athens was of unsavoury character due to his youth record
    and his adult convictions; (b) he fled the scene on October 3, 2008, because he
    was on bail, out past curfew and in the company of a girlfriend with whom he
    was not supposed to have contact; (c) he did not speak to the police until he
    had received assurances that he would not be charged with breaching his bail;
    and (d) he was an important Crown witness.
[213]

In determining
    whether to provide a
Vetrovec
warning, the trial judge stated that he
    was guided by
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, which
    requires an examination of the significance of the witnesss evidence as well
    as the background and antecedents of the witness. The trial judge specifically
    referred to the following observation of Fish J.,

at para. 3:
It is therefore of the utmost importance, in a trial by judge
    and jury, for the jury to understand
when
and
why
it is unsafe to find an accused guilty on
    the unsupported evidence of witnesses who are "unsavoury",
    "untrustworthy", "unreliable", or "tainted". For
    present purposes, I use these terms interchangeably. And I mean to include all
    witnesses who, because of their amoral character, criminal lifestyle, past
    dishonesty or interest in the outcome of the trial, cannot be trusted to tell
    the truth  even when they have expressly undertaken by oath or affirmation to
    do so. [Emphasis in original.]
[214]

The trial judge
    noted that Athenss criminal record spanned only three years, two of which were
    when he was a youth. He had convictions as a youth for two robberies in 2007
    and 2008, failure to comply with bail and possession of stolen property. He
    received three months deferred custody for the robberies, and four days in
    jail, community service and probation for the other offences. In 2009, when he
    was an adult, he was convicted of assault and breach of bail, and received a
    conditional discharge. He had an additional conviction for possession of a
    single counterfeit bill, for which he did community service.
[215]

By the time of
    trial, he was twenty-one years old, going to community college, and working on
    a diploma in heavy duty mechanics. The trial judge concluded that Athenss
    criminal record was a factor for the jury to consider in assessing his
    credibility, but was not, on its own, something that required a
Vetrovec
warning.
[216]

In response to
    the appellants submission that Athens only agreed to speak to the police after
    he had been assured that he would not be charged with breach of his bail, the
    trial judge noted that Athens had testified that as a friend of the deceased he
    would have spoken to the police even if he was going to be charged with breach
    of his bail. The trial judge held that this was not the same as a witness
    facing criminal charges trying to negotiate a substantial benefit, but it was
    nevertheless a factor to consider.
[217]

The trial judge
    then considered the significance of Athenss evidence in the Crowns case. He
    found that Athens was simply one of a number of witnesses at the park that
    night. He was not the only witness to put a gun in the hands of more than one
    person or to have more than one person involved in the robberies. He noted that
    the Crown did not rely solely on Athenss evidence and that the evidence of
    those at the park, which was all over the map, could not identify the
    appellant as the perpetrator. It could simply be used to establish that a
    robbery took place using guns.
[218]

The trial judge
    found, therefore, that having regard to all the evidence, and the factors
    identified in
Khela
, it was not necessary to give an exhaustive
Vetrovec
warning to the effect that it would be dangerous to rely on Athenss evidence
    unless it was confirmed by other evidence. He did note, however, that he had
    included specific instructions with respect to Athenss evidence in his charge.
(c)

The trial judges
    instructions
[219]

In his charge,
    the trial judge made several observations with respect to Athenss evidence.
[220]

The trial judge
    had given a mid-trial instruction immediately after Athens testified concerning
    the use the jury could make of Athenss previous convictions. In his charge,
    under the heading of Previous Convictions of Witnesses,
[12]
he told them that they could only use the convictions to decide how much or how
    little they relied on the witnesss testimony. He reviewed Athenss convictions
    and explained:
Looking at the records, some convictions, for example, ones
    involving dishonesty may be more important than others in deciding how much or
    little you will believe of and rely upon the testimony of a witness in deciding
    this case. Use your common sense and experience in considering the impact of
    these criminal convictions on whether you believe some, all or none of their
    evidence.
A previous criminal conviction, or many, does not necessarily
    mean that you cannot or should not believe or rely upon the testimony of a
    witness to help you decide the case. The prior convictions are just one of the
    many factors for you to consider in assessing their credibility. Use your
    common sense and life experience.
[221]

Later in his
    instructions, in the course of a thorough review of the evidence of all the
    young people who were in the park, the trial judge summarized Athenss
    evidence. He reminded the jury of his instructions regarding the use of his
    Athenss criminal record. He said:
Now, members of the jury, you must examine his evidence very
    carefully, not simply because he has a criminal record. Consider at the time he
    was in breach of his bail by being out after his curfew and being in the
    company of [a woman] [whom] he was not supposed to be with. Consider also that
    he fled the scene knowing that his friend was shot. Also consider that he did
    not speak to the police until he was assured he would not be charged with
    breaching his curfew. Did he have a motive to be untruthful and help the police
    since he arranged not to be charged? Consider as well his evidence that he said
    he would have spoken to the police even if he did not get an agreement not to
    be charged. For all of these reasons, you should carefully scrutinize his
    evidence. Look at how it fits or does not fit with the other evidence.
[222]

The trial judge
    reviewed Athenss evidence. At the conclusion of his review, he observed again
    that Athens had negotiated an agreement that he would not be charged with
    breach of bail if he gave a statement. He told the jury that [t]he fact that a
    witness seeks to obtain a benefit from the police for giving a statement is a
    factor you can and should consider in assessing Mr. Athens credibility.
(d)

Analysis
[223]

The appellant
    submitted in his factum that although the trial judge told the jury that they
    should carefully scrutinize Athenss evidence, he should have given them a full-blown
Vetrovec
warning.
[224]

The appellant
    submitted that in deciding not to give a
Vetrovec
warning the trial
    judge failed to take into account not only Athenss unsavoury character, but
    also the significance of his evidence. The appellant argues the jury could only
    find that he shared a common intention to commit a robbery, and was thus a party
    to murder or manslaughter, if they were satisfied beyond a reasonable doubt
    that he was present in the park that evening and that
all
the black
    men at the park participated in the robbery. He submits that Athens was the
    only witness to say that all the men were participants. As a consequence, his
    evidence was critical to the Crowns case. This gave his evidence a
    significance that required the warning.
[225]

The appellant
    properly conceded that this is not a case in which a full
Vetrovec
warning
    was so essential to a fair trial that the judge had no discretion not to give
    one: see
R. v. Glasgow
(1996), 110 C.C.C. (3d) 57 (Ont. C.A.), at pp.
    60-61. In such circumstances, the nature of the cautionary instruction is a
    matter for the trial judge:
Khela
, at paras. 4-6, 13.
[226]

In my view, the
    trial judges instruction concerning Athenss evidence was thorough, effective
    and fair.
[227]

I will consider
    the appellants submissions about the significance of Athenss evidence in the
    next section, dealing with party liability.
(4)

Party Liability
[228]

The appellant
    submits that the trial judge should have instructed the jury that they could
    only convict him if they were satisfied that
all
the intruders in the
    park participated in the robbery. This submission is tied to the appellants
    argument about Athenss evidence, because, as I have noted, he says Athens was
    the only witness to testify that all the intruders were active participants in
    the robbery. If the jury was not satisfied beyond a reasonable doubt that each
    of the intruders was a participant in the common unlawful purpose, the
    appellant says, they could not properly convict him.
[229]

The Crowns
    position at trial was that the appellant was a party to the offence pursuant to
    s. 21(2) of the
Code
, because: he was one of the group of men who formed
    a common intention to rob one or more of the young people in the tennis court
    and to assist one another to that end; the shooting occurred in the course of
    carrying out the original unlawful purpose; and he was aware that at least one
    of his companions was carrying a gun and that he intended to use it in the
    course of the robbery.
[230]

In my view, the
    appellants submission on this point is inconsistent with the evidence. It
    over-states the significance of Athenss evidence, focuses on only some of the
    evidence of what took place at the park, and ignores Brownes evidence of what
    the appellant said to him in their conversations at the school: that he was
    part of a group that was going to roll up on someone; and that he was
    involved, but did not have the gun. It also ignores Brownes evidence of the
    appellants post-offence conduct, namely, that the appellant told him, We
    never had that conversation. Finally, it ignores the appellants explanation
    of his activities on the evening in question; his explanation of the discussion
    with Browne; and the evidence of his friends in support of his alibi.
[231]

In determining
    whether the appellant was a party to the offence, the jury was required to
    consider all of this evidence, not just what the eyewitnesses testified they
    saw at the tennis court.
[232]

As I have noted,
    the evidence of the eyewitnesses was by no means uniform. The trial judge aptly
    described their evidence as all over the map. They agreed that it was very
    dark inside the tennis court, although there may have been some illumination
    from a nearby shed. The perceptions and memories of some witnesses may have
    been affected by consumption of alcohol or drugs and their evidence may have
    been tainted by rumours, gossip and discussions about the shooting. Their evidence
    varied about how many people were in the intruder group, the number of guns
    produced and the extent of their involvement in the robbery.
[233]

However, if
    believed, there was testimony from the witnesses in the tennis court
    establishing that:
·

the group of young black men walked past the tennis court, then,
    as a group, changed direction and walked towards and into the tennis court,
    where a much larger group of youths had congregated;
·

some or all of the members of the intruder group had their faces
    obscured by hoodies, hats or bandanas;
·

threatening words were spoken by members of the intruder group,
    such as who has the weed?; wheres the weed at?; empty your pockets; and
    do you want to get popped?;
·

one or more guns were produced, brandished and used to threaten
    one or more people and to strike at least one person;
·

several people were robbed or threatened with robbery;
·

the intruders argued with, intimidated and fought with the people
    in the park;
·

at some point a warning shot was fired;
·

the fatal shot was fired;

·

the intruders fled from the scene as a group; and
·

the deceaseds bag was taken from him and was later found on the
    route the group took when they left the tennis court.
[234]

There was
    evidence that these actions took place in the presence of all the intruders and
    there was no evidence that, after the gun was produced or after the robberies
    began, any member of the intruder group protested, withdrew from or abandoned
    the activity, or sought to disassociate himself from what was taking place.
[235]

The trial judge
    reviewed this evidence. It was up to the jury to decide what evidence to
    believe and what weight to give it.
[236]

From this
    evidence alone, the jury could have found that there was a common agreement
    amongst the intruders to rob those in the tennis court and to assist one and
    other in that purpose. From the bold and purposeful way in which the small
    group confronted a much larger group and proceeded to rob them, and from the
    production and brandishing of one or more guns at an early stage, and the
    firing of the warning shot, the jury could have found that every participant in
    the common agreement knew that the shooter had a gun, that it was loaded and
    that the shooter would put the people in the tennis court at risk of grievous
    harm or injury in the course of carrying out the robbery.
[237]

But the jury had
    more than this.
[238]

It had Brownes
    evidence, which it was entitled to believe, that the appellant had told him
    that:
·

he was part of a group of guys who were going to roll up (i.e.
    rob) a guy;
·

he was not the one with the gun, but he was involved;
·

he was at the park where some things went down, and someone
    got hurt.
In assessing the reliability and credibility of
    Brownes evidence, the jury also had the appellants explanation of the
    conversation, which he himself admitted did not make sense.
[239]

In addition, the
    jury had Brownes evidence about the appellants conduct at the detention
    centre, where he allegedly said, We did not have that conversation. The trial
    judge told the jury on the use they could make of the appellants post-offence
    conduct. No objection is taken to the adequacy of that aspect of the charge on
    appeal and none was made at trial. The trial judge gave a thorough review of
    the evidence of both Browne and the appellant concerning the interaction at the
    detention centre and explained the inquiry the jury was required to make before
    making use of that evidence.
[240]

The trial judge
    explained to the jury that it was up to them to determine whether the appellant
    said the words at issue at the detention centre. He explained that if they
    believed Brownes evidence, the inference was open to them to conclude that the
    appellant was trying to get Browne to lie and say that he never had the
    conversation. He suggested that they approach the issue in two steps. First,
    they must decide whether the appellant actually said what he was alleged to
    have said. And second, if he made the comments and said them to get Browne to
    lie, whether this was related to an agreement to rob people at Buttonwood Park.
    They only reached the second question if they accepted he said the words.
    Otherwise, they could not consider them in reaching the verdict.
[241]

He cautioned
    them that they should not immediately conclude that his words related to him
    being at the park and being involved in the agreement to rob. In particular,
    they must consider other explanations for his conduct or statements and they
    could only use if the evidence if they rejected any other explanation.  He
    emphasized that they were not to consider post-offence conduct evidence on its
    own, and were required to consider it together with and in light of all the
    other evidence, including any other explanations for what was said and done
    that emerge from the evidence.
[242]

I do not accept
    the submission that the trial judge was obliged to tell the jury that it could
    only convict the appellant if they believed Athenss evidence or found that all
    the intruders participated in the robbery. The appellants statements to Browne
    could be understood as an admission that he was part of an agreement to roll
    up on the people in the park and that, although he did not have the gun, he
    participated in the robbery. His statements to Browne at the detention centre
    were capable of being construed as an attempt to persuade Browne to recant his
    statement to the police and as evidence of the appellants consciousness of
    guilt.
[243]

The trial judge
    carefully and thoroughly reviewed all the evidence on these issues. It was up
    to the jury to determine what evidence to accept and what evidence to reject
    and they were required to consider all the evidence, not just the eyewitness
    evidence. On all the evidence, it was open to the jury to find liability under
    s. 21(2) of the
Code.
(5)

Brownes Evidence
[244]

The appellant
    attacks Brownes evidence, accusing him of providing the jury with his own
    interpretative spin on his evidence, rather than simply stating what the
    appellant told him. This attack is central to the appeal, because Browne was
    the only witness to place the appellant at Buttonwood Park on the night of the
    shooting.
[245]

The appellant
    asserts that instead of conveying to the jury the words spoken by the
    appellant, Browne persistently testified about what he thought the appellant
    meant. In so doing, he says, Browne turned otherwise exculpatory evidence  I
    was not involved/I was involved and they rolled up/we rolled up  into
    potential evidence of guilt. He says that the trial judge should have told the
    jury that Brownes interpretation was irrelevant because the plain meaning of
    the words conveyed quite the opposite. The appellant submits that once Brownes
    interpretation is excluded from the jurys consideration, the statements are
    exculpatory.
[246]

Because of its
    central importance to the Crowns case, the trial judge thoroughly reviewed the
    evidence of both the appellant and Browne concerning their two conversations. I
    have reviewed the differences between their versions.
[247]

The trial judge
    also explained the use the jury was entitled to make of prior inconsistent
    statements of witnesses other than the accused. He used the example of Brownes
    statement to the police. He reminded the jury of what Browne had said in his
    police statement, and told them that because Browne had adopted his prior
    statement, they were entitled to consider it as part of his evidence. They were
    also entitled to consider his explanation of any differences:
Cordel Browne told you in examination-in-chief that Mr. Araya
    told him he was there and involved in the robbery but not the shooting. In
    cross-examination he was asked about the video statement he gave to the police
    the day after that conversation. He admitted telling the police that Mr. Araya
    said he was not involved. He also admitted that what he told the police was the
    truth. He also provided an explanation for the difference between what he said
    here and what he said in his earlier statement. Since it would appear Mr.
    Browne adopted his prior statement, you may consider that as part of his
    evidence. You must also consider his explanation for the differences.
[248]

The trial judge
    reviewed the appellants explanation of what had taken place when he went to
    see Browne on October 7, and he reviewed Brownes evidence both at trial and in
    his statement to the police.
[249]

Later in his
    instructions, when addressing the question of whether the appellant was part of
    an agreement to rob any of the people in the tennis court, the trial judge
    noted that the jury would consider Brownes evidence and cautioned them:
You will consider what you find he [Browne] said Mr. Araya told
    him. You will consider whatever facts you find on that. Remember, it is what
    Mr. Browne was told that is relevant, not what Mr. Browne thinks Mr. Araya
    meant by what he said.
[250]

Finally, in
    summarizing the position of the defence, the trial judge noted the defence
    position that Brownes evidence should be approached with great caution. It was
    only his interpretation of what the appellant had said that led him to believe
    that he was involved in a robbery.
[251]

The appellant
    submits that Brownes evidence, taken at its highest, was only capable of
    putting the appellant in the park on the evening of the killing. It is not
    evidence that he agreed to participate in a robbery. He therefore submits that
    it was important for the trial judge to explain to the jury that there were
    significant inconsistencies between Brownes evidence at trial and his
    statement to the police. Specifically, in his evidence at trial he said that
    the appellant said, I
was
involved, I didnt have the gun.
We
rolled up on the guy, things went down, shots were fired (emphasis added). In
    his police statement, he said the appellant had said, I was there but I
wasnt
involved, I didnt have the gun, and he went on to explain basically that um
    he said no he didnt want to be involved in it but
they
rolled up on
    the guys anyway (emphasis added).
[252]

The appellant
    also says that the trial judge should have instructed the jury that Brownes
    spin on the evidence was inadmissible and had the effect of turning the
    otherwise exculpatory evidence in his police statement into a confession of
    guilt.
[253]

I would reject
    the appellants submission. The two statements were conflicting, largely due to
    the ambiguity of the word involved. The defence put this conflict to Browne
    and asked him to explain it. He proceeded to do so. In the course of doing so,
    defence counsel summarized his evidence, inviting him to give his own summary,
    which he did.
[254]

The same is true
    of Brownes evidence of the conversation at the jail. He described what the
    appellant said to him and what he said to the appellant. His understanding of
    what the appellant was saying to him by we never had that conversation was
    what prompted him to say to the appellant, I know what youre trying to say
    without you saying it and Im not going to sacrifice my career  by lying to
    say that I didnt have the conversation with you. He was not putting a spin on
    his evidence. He was simply explaining why he said what he did.
[255]

It was not for
    the trial judge to remove the witnesss explanation from the jurys
    consideration. On the contrary, it was for the jury to consider the explanation
    of the alleged inconsistency and to determine what to make of the evidence. The
    trial judge gave the jury a full explanation of their duties in regard to the
    evidence, and reminded them that it was Brownes evidence of the appellants
    words, and not his interpretation of those words that mattered.
(6)

Why Would Browne Lie?
[256]

In the Crowns
    cross-examination of the appellant about his conversation with Browne at school
    on the Tuesday after the shooting, the following exchange took place:
Q. So can you think  this is a teacher that you  you admire
    you  you like him, you think he likes you, hes treated you well, and yet hes
    recounted this story to us last week thats quite different than the story
    youve told us.
A. Mm-hmm.
Q. Can you think in your mind of any reason why he would come
    up with this story?
[257]

The trial judge
    immediately intervened to foreclose this line of questioning:
The Court: Okay. Yes, [Crown counsel], well leave that for
    argument.
[258]

Crown counsel
    replied Okay, but proceeded to refer to a section of the appellants
    statement to the police where the appellant had asked rhetorically why Browne
    would have told police he was involved in the incident when he had distinctly
    told him he was not involved.
[259]

At this point,
    the trial judge excused the jury and reminded the Crown that it is improper to
    ask a witness, particularly the accused, to comment on why another witness
    would lie:
R. v. Ellard
, 2003 BCCA 68, 172 C.C.C. (3d) 28. After
    further discussion, Crown counsel said he did not intend to pursue the issue.
    The portions of the appellants statement the Crown was about to refer to were
    never brought to the jurys attention. The defence did not request a mid-trial
    instruction.
[260]

The Crown says
    there was a good reason why the defence let the issue pass without comment. To
    interrupt the cross-examination, and draw attention to the question would not
    have benefitted the appellant. Instead, the trial judge exercised his
    discretion appropriately. He told counsel, in the presence of the jury, that it
    was a matter for argument  and it was, in fact, addressed in argument.
[261]

The appellant
    now argues that the trial judge did not do enough. He should have instructed
    the jury that it was improper for the Crown to ask the appellant to comment on
    Brownes motive to lie and should have explained that the appellant had no
    obligation to explain why others testified the way they did. He says that not
    only did the trial judge fail to do anything when the incident occurred, he did
    not say anything about it in his charge and did not caution the jury against
    attributing undue weight to the absence of evidence that Browne had a motive to
    fabricate.
[262]

The appellant
    submits that the question had the potential to shift the burden of proof by
    deflecting the jury from determining whether the Crown had proven beyond a
    reasonable doubt that the charges were true, as opposed to focusing on whether
    the appellant could provide an explanation for Brownes allegations.
[263]

The appellant
    says that the issue is of particular concern because the Crown, in closing,
    referred to the absence of any motive for Browne to fabricate a story:
consider the fact that Mr. Araya, the accused, the defendant,
    on his own evidence, agrees that much of what Mr. Browne said is true in terms
    of the conversation that morning. Consider also what reason Mr. Browne would
    have to make up a story that implicates Mr. Araya in a murder. On Mr. Arayas
    own evidence, Mr. Browne was a good teacher, the only class he still attended
    regularly, a teacher he respected and had a good relationship with, a teacher
    who would make time for him, talk to him about other things in his life, a
    teacher who advised him to attend every class and told him he could be whatever
     he wanted to be, a teacher who supposedly gave him money and offered him a
    place to stay. All these good things Mr. Araya says of Mr. Browne. Does it make
    sense to you that this teacher would make up an account implicating Mr. Araya
    in a robbery, that he would alert the authorities over a made-up account? Mr.
    Browne told you himself  that it was a lot to process, receiving this
    confession from Mr. Araya. He told you that on the jailhouse visit, he told Mr.
    Araya, I wish you had never told me these things. That was his evidence. He
    told you the whole confession he received and what he had to do about it was
    very sad to him. He has no reason to make this up.
[264]

This was a
    proper argument for the Crown to make to the jury.
[265]

The impropriety
    of asking the accused to comment on the veracity of a Crown witness is trite
    law. Doing so can shift the burden of proof from the Crown to the accused,
    thereby undermining the presumption of innocence and the doctrine of reasonable
    doubt: see,
e.g.
,
Ellard
, at paras. 21-22;
R. v. Rose
(2001), 53 O.R. (3d) 417 (C.A.), at paras. 27-28.
[266]

In my view, the
    trial judges intervention in this case was appropriate and sufficient to
    address the issue. As Labrosse J.A. noted in
R. v. Henderson
(1999),
    44 O.R. (3d) 628 (C.A.),

at p. 641:
It is a rare case where the prejudice that could otherwise flow
    from an improper cross-examination cannot be effectively checked by the trial
    judge. At the first sign by either counsel of questions which may lead to an
    improper cross-examination of a witness, a well-placed comment by the trial
    judge or a more explicit reminder in the absence of the jury of the proper role
    of counsel has, in my experience, invariably nipped any problem in the bud. If
    not, other means are available to the trial judge to assure the proper conduct
    of counsel.
(Cited in
Ellard
, at para. 30.)
[267]

The trial judge
    did exactly what he was supposed to do. Even though the defence did not object,
    he acted as a gatekeeper. He told the Crown to leave it for argument and it was
    left to argument.
[268]

The defence was
    content to let the matter go at the time and made no request for an instruction
    in the charge, notwithstanding that a copy of the charge was provided to
    counsel in advance. The trial judge properly instructed the jury, repeatedly,
    on the presumption of innocence and the burden of proof. It was made clear to
    the jury that the appellant had no obligation to prove his innocence or to
    explain why others testified as they did.
(7)

Demeanour as After-the-Fact Conduct
[269]

The appellant
    claims that the trial judge failed to properly instruct the jury concerning his
    conduct when he learned that there was a warrant for his arrest, his failure to
    tell his friends about his conversation with Browne and his failure to give his
    friends and family an explanation of his alibi as soon as he was aware that he
    had been charged.
[270]

I have already
    reviewed the appellants rationale for making up his story to Browne, and his
    explanation for telling Browne at the jail that they had not had the
    conversation. Shortly after the latter testimony, defence counsel asked him:
Q. Mr. Araya, why didnt you tell the police when you were
    arrested that this whole story was made up?
A. Thats a good question. I actually  actually wanted to
[271]

At this point,
    the trial judge intervened and excused the jury. He then pointed out that if
    the defence opened up the issue of why the appellant did not give an
    explanation to the police, it might be open to the Crown to cross-examine on
    his evidence. After some discussion, defence counsel said that she would give some
    thought to whether to pursue the matter.
[272]

Defence counsel
    proceeded to ask him about his actions after hearing there was a warrant for
    his arrest. He described going to Kennys house and speaking to Kennys mother.
[273]

Somewhat later,
    immediately before concluding her examination-in-chief of the appellant,
    defence counsel once again asked him why he did not tell the police or anyone
    else after he was arrested that the story he had told Browne was untrue. He
    replied that after he was arrested he spoke to duty counsel, who told him that
    he should not talk to the police about anything. He said that his own lawyer
    gave him the same advice.
[274]

It was this
    questioning that led to the Crowns examination of the appellant about why he
    had not told Cook or his friends about his made-up story or that the warrant
    for his arrest was due to a misunderstanding arising from that story. This
    related to the time of their meeting at Kennys house on October 8, before he
    had spoken to a lawyer. It was a logical and proper question. The jury might
    well conclude that he said nothing to Cook because his story to Browne had been
    true.
[275]

After the
    appellant testified, the trial judge gave a mid-trial instruction to the jury
    on several issues. Specifically in relation to the appellants evidence as to
    why he did not tell the police that his story to Browne was false, the trial
    judge explained the right to silence and informed the jury they could not draw
    an adverse inference from his exercise of his right to silence and his decision
    not to talk to the police. He said that it was simply not relevant to their
    deliberations.
[276]

The trial judge
    also referred to the appellants evidence that he had never told his
    girlfriend, his friends or family that he had fabricated the story he told to
    Browne. He had said that he was following the advice of his lawyer. The trial
    judge explained that if the jury found that he was following the advice of his
    lawyer, they could draw no adverse inference from his failure to tell anyone.
[277]

In the trial
    judges charge, he reminded the jury of his mid-trial instruction and reminded
    them that they could not draw an adverse inference from the appellants
    exercise of his right to silence or following the advice of counsel. He pointed
    out that the evidence indicated that he had spoken to a lawyer around 8:00 p.m.
    on October 8.
[278]

The appellant
    says that the trial judges instruction did not go far enough to inform the
    jury that they could not use evidence of the appellants demeanour when confronted
    with allegations of a criminal charge as evidence of consciousness of guilt.
[279]

There is no
    dispute that evidence of an accuseds demeanour in the face of criminal
    allegations is frequently unreliable and its prejudicial effect may outweigh
    its probative value:
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont.
    C.A.), at paras. 25-28. Such evidence has been described as highly suspect and
    easily misinterpreted:
R. v. Bennett
(2003), 67 O.R. (3d) 257
    (C.A.), at para. 118.
[280]

In my view, the
    Crowns cross-examination on this issue did not go to demeanour. It went to
    credibility. Browne testified that he had told the appellant: Nahoor, you
    realize that I have to do something with this [information]? Yet the appellant
    testified that he did not draw a link between the warrant for his arrest and
    the made-up story he had told Browne. On the night he surrendered to the
    police, he did not tell his friends Cook and Kenny, or Kennys mother that it
    was all a big mistake and Browne had misinterpreted his story. This all
    happened before he sought legal advice and his lawyer allegedly told him not to
    discuss the evidence with anyone. The Crowns questions and the appellants
    answers went directly to credibility.
[281]

In my view, the
    trial judge did not err in admitting this evidence, and he properly instructed
    the jury on the appellants right to silence and reliance on the advice of
    counsel.
E.

summary and conclusion
[282]

In my view, the
    jury was properly instructed and, after examining and weighing the evidence,
    came to a conclusion that was available on that evidence. I would not have
    interfered with their decision.
[283]

For these
    reasons, I would have dismissed the appeal from conviction.
[284]

As my colleagues
    would allow the conviction appeal, I do not propose to address the sentence appeal,
    except to say that I respectfully agree with my colleague that the trial judge
    should not have treated the use of a firearm as an aggravating factor, because
    the potency of that factor was spent in the four year mandatory minimum
    sentence applicable to the offence.
Released: December 5, 2013 (J.L.)
G.R. Strathy J.A.

[1]
Submissions on admissibility, October 19, 2011: see transcript of proceedings
    at trial, at p. 1102.

[2]

Ibid
. at p. 1103.

[3]
Ruling on admissibility, October 20, 2011: see transcript of proceedings at
    trial, at pp. 1111-13.

[4]
Charge to the jury, November 2, 2011: see transcript of proceedings at trial,
    at pp. 1911-13.

[5]
Charge to the jury, November 2, 2011; see transcript of proceedings at trial,
    at p. 1913.

[6]

R. v. B. (K.G.)
, [1993] 1 S.C.R. 740.

[7]
In cross-examination, the appellant said that his use of the word park was in
    error.

[8]
The reference to a bag or knapsack was germane because the appellant had
    testified that he carried his belongings in a knapsack out of fear that his
    property would be stolen if he left it at the youth shelter. Kenny confirmed
    that he usually carried a knapsack.

[9]
The officers maintained they showed her a series of photographs one at a time.

[10]

R. v. Parrington
(1985), 20
    C.C.C. (3d) 184 (Ont. C.A.).

[11]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.

[12]
Brent Nisula, another of the teenagers present at Buttonwood Park who
    testified, also had a criminal record.