COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Laing, 2016 ONCA 184

DATE: 20160304

DOCKET:  C57316

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geary Laing

Appellant

Carlos Rippell, for the appellant

Gillian Roberts, for the respondent

Heard: October 19, 2015

On appeal from the conviction entered on January 21, 2013
by Justice Nancy L. Backhouse of the Superior Court of Justice, sitting with a
jury.

Huscroft J.A.:

[1]

The appellant, Geary Laing, was arrested by several officers in the
parking lot of a shopping mall and charged with two counts each of possession
of a loaded firearm, possession of a firearm without authorization and possession
of a firearm without being the holder of a licence, and six counts of violating
a prohibition order. He was convicted following a twelve-day jury trial and
sentenced to a term of imprisonment of eight and one-half years.

[2]

Laing appeals from his convictions. He raises three grounds of appeal:

a)

the trial judge erred in dismissing his
Corbett
application to
suppress all or part of his record, and he did not testify as a result;

b)

the trial judge erred in dismissing his application for a stay based on
the failure of the police to preserve a surveillance video; and

c)

the trial judge erred in her instructions to the jury.

[3]

In my view, all of these grounds fail. I would dismiss the appeal for
the reasons that follow.

A.

BACKGROUND

(1)

The arrest and seizures

[4]

P.C. De Sousa was a member of the Guns and Gangs Task Force conducting surveillance
of Laing, who had an outstanding warrant for his arrest. De Sousa observed Laing
arriving at the home of his girlfriend on October 2, 2010 by car and leaving by
taxi several hours later. He testified that Laing was holding the waistband of
his pants with his left arm and his left elbow was held tight to his body. De
Sousa considered that Laing was armed and sent a radio message alerting other members
of the surveillance team.

[5]

As a result of this information Detective Brian Johnston, who was
supervising the surveillance team, ordered a high-risk takedown. Laings taxi
was followed to the Fairview Mall parking lot. The taxi was blocked by several
police cars once it came to a stop near the entrance to a Sears store, and Laing
was removed from the taxi by Detective Chant and Sergeant Tsianos.

[6]

Detective Johnston testified that he seized a silver Taurus semi-automatic
handgun from the back of Laings waistband and called out: Gun. The gun was
loaded with eight rounds and was ready to fire. Shortly afterward he said he
heard Detective Little yell: Gun, gun, gun. He saw her remove a black FN
Herstal semi-automatic handgun from the side of Laings waistband. It was a
military firearm loaded with five rounds of armour-piercing bullets.

[7]

Detective Little testified that she saw Detective Johnston remove the
silver firearm from Laings waistband and call out: Gun, gun, gun. She said
that she found another firearm shortly afterwards and called out: Gun, gun, gun.
She gave the gun to Detective Johnston.

[8]

Detective Philp testified that he was not involved in removing Laing
from the taxi or his arrest or search, but heard officers yell: Gun, and knew
that they had recovered a gun.

[9]

Detective Chant testified that he did not see the seizure of the
firearms while he was subduing the appellant. He said that he searched Laing prior
to arresting him and found drugs and cash. When Detective Constable Tan
processed those items, they amounted to 6.94 grams of cocaine, $1085 Canadian and
$42 in U.S. currency.

[10]

Sergeant
Tsianos testified that he heard Detectives Johnston and Little each yell:
Gun, but did not see the seizure of the weapons. He saw the guns with Detective
Johnston after they had been seized.

[11]

Sergeant
Steeves testified that he arrived on the scene following completion of the
takedown. He heard Detective Johnston say: Gun, and saw him seize a silver
firearm. He said that he heard Detective Little say: Gun, and saw her remove
a black firearm from Laings waistband. Sergeant Steeves identified the firearms
Detective Johnston gave him to process. No fingerprints or DNA evidence was recovered
from the guns.

(2)

The surveillance DVD

[12]

Officer
Philp testified that he called the Sears store at Fairview Mall when he returned
to the station and was informed that a surveillance DVD was available. He
watched the DVD at Sears and again at the station before giving it to Detective
Tucker, the exhibits officer. Officer Philp said that the DVD did not record
the takedown because the camera was angled towards the front door of Sears. He
said he did not know what happened to the DVD. Although he made no notes, he
remembered what was on the video because of the type of firearm and ammunition
seized.

[13]

Detective
Little testified that she watched the DVD at the station and that it captured
only the front part of the taxi and police vehicles, not the takedown.

[14]

Detective
Tucker testified that he watched the DVD on a computer monitor at the police
station along with several other officers (Chant, Philp, and Johnston). He
testified that the DVD showed only the front of the vehicles and not the
takedown. Detective Tucker testified that he did not follow the procedure for
seizing and inventorying the DVD because he forgot that it was in the computer,
and that subsequent efforts to find the DVD were unsuccessful.

[15]

No
officers who viewed the DVD made notes as to its contents.

B.

THE GROUNDS OF APPEAL

[16]

As
noted above, Laing makes three submissions on appeal:

a)

The trial judge erred in dismissing his
Corbett
application;

b)

The trial judge erred in dismissing his stay application; and

c)

The trial judge erred in her instructions to the jury.

I will address each of these in turn.

(1)

The
Corbett
application

[17]

The
appellant has an extensive criminal record dating to 1995. It includes Youth
Court convictions for mischief, robbery, assault, aggravated assault, uttering
threats, and possession of a prohibited weapon. His adult record includes
probation violations, possession of a Schedule II substance, assault, carrying
a concealed weapon, and possession of a loaded firearm.

[18]

The
appellant made a
Corbett
application seeking to prohibit the Crown
from cross-examining him on his criminal record. He did not seek to have his
entire record excluded. He argued that his Youth Court convictions and his
convictions for carrying a concealed weapon, possession of a Schedule II
substance, and possession of a loaded firearm should be excluded because their
potential prejudice outweighed their potential probative value.

[19]

Section
12 of the
Canada Evidence Act,
R.S.C. 1985, c. C-5, allows the Crown
to cross-examine accused persons on their criminal record if they choose to
testify. However, a trial judge has the
discretion to limit cross-examination on an accuseds criminal record in order
to safeguard the accuseds right to a fair trial:
R. v. Corbett,

[1988] 1 S.C.R. 670.
The
discretion to limit cross-examination arises if the probative value of the
prior convictions is outweighed by their prejudicial effect.

[20]

In
Corbett,
the Court adopted out a non-exhaustive list of factors that
were to be considered in exercising the discretion to exclude evidence of an
accuseds record. These factors include the nature of the previous
conviction(s); the similarity of the previous conviction(s) and the offence(s)
being prosecuted; the remoteness or nearness in time of the previous
conviction(s); and the fairness of limiting cross-examination in cases in which
the accused has attacked the credibility of a Crown witness and resolution of
the case boils down to a credibility contest between the accused and that
witness:
Corbett
, at pp. 740-42.

[21]

It
is important not to lose sight of the purpose for which these factors were
promulgated. They are considerations relevant to the exercise of the trial
judges discretion. At the end of the day, the question is whether it is
necessary to limit cross-examination on an accuseds criminal record in order
to guarantee the accuseds right to a fair trial. That question is best
answered in the context of the trial, and the decision of the trial judge must
therefore be accorded considerable deference.

[22]

In
this case, the trial judge denied the appellants
Corbett
application,
ruling that his entire criminal record was admissible. The appellant chose not
to testify following the trial judges ruling.

[23]

The
trial judge reasoned as follows:

The references to the cross-examination of the officers in this
case are sufficient to demonstrate that the defense mounted a serious attack on
not just the credibility of the officers but on their character. The cross-examination
in this case did not simply challenge the accuracy and reliability of their
evidence. While the officers were not directly accused of conspiring to commit
perjury and subvert the course of justice, the only conclusion is that they did
so if they did not seize loaded firearms and the drugs from the accused or if
they deliberately destroyed the DVD. The conviction for the possession of the
firearm in 2009 is relevant to Mr. Laings credibility of whether weapons and
drugs were seized from him and whether the officers are not telling the truth
about seizing firearms from him in this case. While I recognize that there is a
danger that the 2009 firearm offence which is identical or very similar to the
offences in issue proximate in time might be misused by the jury, I am
satisfied that any potential prejudice can be overcome by a strong limiting
instruction. To allow cross-examination on Mr. Langs criminal record will
permit a more informed assessment by the jury on the credibility of the
competing versions of the events that bring us here.

After considering the relevant factors, I conclude that it
would not be proper to insulate Mr. Laing from his criminal past because this
would present a distorted view to the jury. In the present circumstances, the probative
value of permitting cross-examination on his prior record clearly exceeds any
potential prejudice.

[24]

The
appellants argument turns on the fourth factor from
Corbett
. He submits
that the trial judge erred in finding that he attacked the officers character
in cross-examination. He says that his counsels questions were directed to the
lack of reliability and honesty of the officers accounts of the takedown, and
that he was entitled to deny his guilt and repudiate the officers allegations.
The appellant submits, further, that it was not necessary to admit his entire
criminal record in order to avoid creating an imbalance. Admission of
some
of his offences would have addressed the concern of presenting a distorted view
to the jury; there was no need to include his 2009 firearm conviction. In
addition, the appellant argues that the other three
Corbett
factors
the nature of the previous conviction, proximity in time to the present charge,
and similarity to the present charge  all favoured exclusion of his 2009
firearm conviction at a minimum.

[25]

The
appellant argued at length that this case is virtually identical to
R. v.
Brown
(2002), 166 C.C.C. (3d) 570, [2002] O.J. No. 2562 (C.A.). In that
case, this court held that the trial judge erred in allowing cross-examination
on an accuseds criminal record. Writing for the court, Goudge J.A. stated, at
para. 24:

While the cross-examination attacked both the reliability and
the honesty of the police officers, it did so on the basis of matters which
were directly connected with the offence and which were raised in an attempt by
the defence to meet the prosecutions evidence. This is unlike
Corbett
where the attack on the credibility of the Crown witnesses was based on their
character, especially as disclosed in the criminal record, rather than arising
out of events surrounding the offence.

[26]

The
cases are similar, in that both are concerned with a reasonable inference that
could be drawn from cross-examination of the Crowns witnesses that the police
had planted evidence on the accused. But in my view there are several relevant
differences between this case and
Brown
. For example, the
Corbett
application was denied in
Brown
despite the Crowns agreement that the
order should be made. Moreover, the criminal record of the accused in
Brown
was much less substantial than that of the appellant, and there were
significant gaps between the convictions in
Brown
, which is not the
case here.

[27]

But
the larger concern is that care must be taken when it comes to assessing
decisions made in ostensibly similar factual circumstances. The appropriateness
of the exercise of a trial judges discretion in one set of circumstances is
not determinative of how another judge must exercise his or her discretion in
another. The decision in every case turns on its own facts considered in light of
the relevant context:
R. v. Talbot,
2007 ONCA 81, 217 C.C.C. (3d) 415,
at para. 38.

[28]

In
Brown
, the court concluded that the cross-examination of the police
properly attacked the reliability and honesty of the police on relevant
matters, and as a result, it was not unfair to limit cross-examination of the
accused.

[29]

The
circumstances in this case are qualitatively different. The trial judge was
entitled to regard the appellant as having mounted a serious attack on the
credibility and character of the police. I set out some extracts from the
cross-examination to establish the flavour of the proceedings:

Officer Philp

Q: I suggest what happened, sir, was that there was  you were
present for a calculated decision made to have this video disposed of because
its contents would not be in accordance with what occurred, what the police say
occurred outside of the Sears store?

A: I disagree with you.

Detective Little

Q: I suggest, Detective Little, that what occurred in this case
is that you did not find or seize any firearms off of Mr. Laing, because he was
never in possession of them; isnt that correct?

A: Thats not correct.

Q: And isnt it further correct that you and the other officers
seized and subsequently disposed of the only independent evidence of that fact
in this case, namely the surveillance video?

A: Absolutely not.

Detective Johnston

Q: I suggest, sir, the exact opposite. In fact, the debrief is
an opportunity to make sure you and your other officers all get your stories
straight?

A: Thats incorrect.

Q: I suggest to you what happened is that you didnt find or seize
any firearms off of Mr. Laing in the course of this investigation because he
wasn't in possession of any?

A: Totally totally incorrect.

Q: And that you debriefed with Officer Little and the other
officers involved in order to make sure there was a script to follow as to what
occurred that day; isnt that true?

A: Incorrect

Q: And your other members of the team, your team, seized and
disposed of the only independent evidence of what occurred, namely the
surveillance video; isnt that true?

A: Absolutely incorrect.

Detective Chant

Q: I suggest that you were never told that at that point
because there were never any firearms seized off of Mr. Laing as he was
arrested outside of Fairview Mall?

A: No, there were two firearms seized off his person at Fairview
Mall.

Q: And I suggest further that you never found any cocaine on
Mr. Laing when you searched him later on?

A: No, I found cocaine in his front right pocket.

Q: I suggest either you or told by other officers that he was
in possession of cocaine and that you were told to say that you seized it off
of him, isnt that correct?

A: No, I seized that cocaine out of his front right pocket.

Sergeant Tsianos

Q: Im going to suggest that you never, as your notes indicate,
that you in fact never heard Johnston or Little yell out gun, gun, gun when
Mr. Laing was arrested outside the Fairview Mall?

A: I heard him yell gun, so your suggestion is incorrect.

Q:      Okay. I suggest the reason you never heard that is
because there was no firearm seized from Mr. Laing outside of the Fairview
Mall outside the taxi; isnt that correct?

A: Thats totally incorrect.

Q: And your notes are accurate in that it was information you
were told about or something you were told about from the other detectives, but
they didnt tell you about it here, they told you about it back at the debrief
when you were making these notes; isnt that correct?

A: No.

Q: Similarly, I suggest, werent you involved with Detective
Chant in planting cocaine on Mr. Laing as well; isnt that correct?

A: No.

Detective Tucker

Q: And I suggest that you diminished whats on that video for
the purposes of minimizing the problem that that missing DVD has created?

A: No, I disagree with you.

Sergeant Steeves

Q: I suggest that you were told about the events at the debrief
and youve recorded them in your notes as personal observations, but they
werent, in fact, anything you observed?

A: I made those direct observations.

Q: I suggest to you that you couldnt have made those direct
observations because there were never any firearms seized off of Mr. Laing at
4:03 outside the Fairview Mall because he wasnt in possession of them.

A: Thats incorrect.

[30]

Plainly,
the appellants questions on cross-examination were designed to suggest that he
had been framed in what can only be described as a massive police conspiracy,
involving not only the planting of drugs and firearms but also the destruction
of video evidence and fabrication of stories. This goes far beyond simply
challenging the reliability and honesty of the officers accounts of the
takedown. It goes far beyond simply meeting the prosecutions evidence. The
impact of these questions on the character of the police cannot reasonably be
described as incidental.

[31]

In
these circumstances, it was open to the trial judge to conclude that the
appellant attacked the credibility and character of the police and that, in the
circumstances, it was appropriate to allow cross-examination on the appellants
entire record, including his recent firearms offence. The trial judge was alive
to the danger of allowing cross-examination on the firearms offence but
considered that a proper instruction to the jury would be sufficient to address
any possible prejudice. That was a judgment call the trial judge was entitled
to make, and her judgment is in keeping with Dickson C.J.C.s admonition in
Corbett
,
at p. 692:

We should regard with grave suspicion arguments which assert
that depriving the jury of all relevant information is preferable to giving
them everything, with a careful explanation as to any limitations on the use to
which they may put that information. So long as the jury is given a clear
instruction as to how it may and how it may not use evidence of prior
convictions put to an accused on cross
‑
examination,
it can be argued that the risk of improper use is outweighed by the much more
serious risk of error should the jury be forced to decide the issue in the
dark.

[32]

I
would reject this ground of appeal.

(2)

The stay application

[33]

The
appellant sought to have the proceedings against him stayed on the basis that
the police had lost the surveillance DVD. He submits that the failure of the
police to preserve the DVD evidence breached s. 7 of the
Canadian Charter
of Rights and Freedoms
and, if the failure was deliberate, constitutes an
abuse of process. Laing argues that the officers evidence as to the contents
of the video was unreliable given the absence of notes and contradictions in
the evidence as to who watched the video.

[34]

The
leading case on the failure to preserve evidence is
R. v. La,
[1997] 2
S.C.R. 680, the principles of which are summarized in
R. v. Bero
(2000),
151 C.C.C. (3d) 545, 39 C.R. (5th) 291 (Ont. C.A.), at para 30. For present
purposes, the key consideration is whether the DVD was lost as a result of what
Justice Sopinka termed unacceptable negligence.

[35]

The
trial judge concluded that in order to establish that the standard of
unacceptable negligence had been met, the conduct of the police would have to
be such as to shock the conscience of the average citizen.

[36]

That
was a mistake. Conduct that shocks the conscience of the average citizen is
relevant to determining whether a failure to meet the disclosure obligation
constitutes an abuse of process, but it is not necessary to find such conduct
in order to establish unacceptable negligence. As Justice Sopinka stated in
La,
a failure of disclosure may also suggest that an abuse of process has
occurred, but that is a separate question. It is not necessary that an accused
establish abuse of process for the Crown to have failed to meet its s. 7
obligation to disclose: at para. 20.

[37]

The
most important consideration is whether the police took reasonable steps to
preserve the DVD for disclosure. In determining this, the relevance that the
DVD was perceived to have at the time must be considered. The police are not
held to a standard of perfection in their duty to preserve evidence. Justice
Sopinka specifically acknowledged that evidence will occasionally be lost by
the police. He was prepared to countenance even the loss of relevant evidence so
long as the conduct of the police was reasonable, but the degree of care expected
of the police increases with along with the relevance of the evidence:
La,
at paras. 20-21.

[38]

All
of this is to say that every case is unique and must be considered in light of
its own circumstances.

[39]

The
trial judge noted that the police disclosed the existence of the DVD early in
the process and that the defence did not seek production for some 18 months.
There was no evidence that the DVD was deliberately destroyed or deliberately
not produced. The trial judge accepted the testimony of the officers that they
could recollect what was on the DVD; that the DVD did not show the takedown;
and that it contained little relevant information. She found that the officers
were distracted from submitting the DVD into the property management system by
their conclusion that it did not show anything that would assist either the
defence or the Crown, and characterized the loss of the DVD as an inadvertent
oversight  a mistake that did not rise to the level of unacceptable negligence
or an abuse of process.

[40]

Although
the trial judge misstated the legal test for unacceptable negligence, her error
is harmless to the result. The trial judge considered and rejected the
appellants submission that the loss of the DVD caused him significant
prejudice. Her conclusion that s. 7 of the
Charter
was not breached is
supported by the record and there is no basis for this court to interfere with
it.

[41]

I
would reject this ground of appeal.

(3)

The jury charge

[42]

The
appellant argues that the trial judge erred in instructing the jury concerning
the loss of the DVD and in failing to instruct the jury as required in
Bero
.
He argues, further, that read as a whole, the trial judges charge was
unbalanced in favour of the Crown.

[43]

There
is no merit to this submission.

[44]

The
trial judge provided counsel for the appellant and the Crown with a copy of her
draft charge and invited submissions. She then conducted two pre-charge
conferences to address their concerns. At no point in the proceedings did the
appellants trial counsel raise concerns about the adequacy of the instruction
concerning the DVD, nor did counsel request that the trial judge give a specific
Bero
instruction.

[45]

The
failure of counsel to object to a proposed instruction, or to request that a
discretionary instruction be given, is not determinative, but it is a significant
consideration in determining whether or not appellate intervention is
warranted:
R. v. Austin
(2006), 214 C.C.C. (3d) 38,
[2006]
O.J. No.

4660 (C.A.), at para 14.

[46]

In
any case, I am satisfied that the trial judges charge adequately addressed the
relevant considerations. Although she did not couch her remarks in the language
from
Bero
, the trial judge informed the jury of the shortcomings of
the evidence including the loss of the DVD and the failure of the police to
make notes about what they saw when they watched it. She made clear to the jury
that the missing DVD was a factor for [them] to consider in considering
whether the Crown has proven its case beyond a reasonable doubt.

[47]

I
see no basis to impugn the fairness of the charge. The trial judge fairly
reviewed the evidence and the absence of evidence as they related to the
Crowns burden to prove the charges beyond a reasonable doubt.

C.

Disposition

[48]

I would dismiss the appeal.

Released: March 4, 2016 (DW)

Grant
Huscroft J.A.

I
agree David Watt J.A.

I
agree C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCracken, 2016 ONCA 228

DATE: 20160329

DOCKET: C54127

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian McCracken

Appellant

Philip Campbell and Saman Wickramasinghe, for the
    appellant

David Lepofsky, for the respondent

Heard: November 12, 2015

On appeal from the conviction entered by Justice Mary Lou
    Benotto of the Superior Court of Justice, sitting with a jury, on February 18,
    2011.

Tulloch J.A.:

A.

OVERVIEW

[1]

Following a three-week trial, the appellant, Adrian McCracken, was
    convicted of second degree murder and sentenced to life imprisonment with a 10-year
    period of parole ineligibility.

[2]

The deceased, Ricardo Kelly, and his girlfriend, Abimbola Nikki Bello,
    lived in apartment 2006 on the 20th floor of a Scarborough apartment building.
    Kelly was a 22-year-old student who sold marijuana in the building to
    supplement his income. Bello was also a student.

[3]

On April 24, 2008, Kelly left his apartment after receiving a call from
    Corey Stephens asking him to bring marijuana to apartment 1610. He got into an
    altercation in the stairwell and was stabbed in the hallway of the 20th floor.
    Bello witnessed the stabbing.

[4]

Bello provided numerous statements to police between April 24, 2008 and
    October 17, 2008, when she identified the appellant as Kellys killer upon
    viewing the buildings elevator security videos. The appellant submits that the
    identification process was tainted and resulted in an unreasonable verdict.

[5]

The appellant also raises the following arguments on appeal:

·

The jury charge on the frailties of the identification evidence
    was inadequate;

·

The trial judge failed to direct the jury on the exculpatory effect
    of Mohamed Nurs testimony in accordance with the principles in
R. v. W.
    (D).
, [1991] 1 S.C.R. 742; and

·

The trial judge misdirected the jury on the
mens rea
for
    murder and manslaughter.

[6]

A further ground of appeal, the alleged impropriety of the Crowns jury
    address on Stephenss evidence, was abandoned during oral arguments.

[7]

For the reasons that follow, I would dismiss the appeal.

B.

Ricardo Kellys Death

[8]

At 12:09 a.m. on April 24, 2008, Ricardo Kelly received a phone call
    from Corey Stephens asking for some marijuana. Stephens lived in apartment 1610
    on the 16th floor of their building. Kelly left for the 16th floor, saying he
    would be back. Nikki Bello followed him to the door and looked out. She saw a
    tall man in black peeking out of the door to the staircase. Kelly walked past
    the elevators and Bello closed the apartment door. Earlier that evening, Bello saw
    that Kelly had between $300 and $400 in his pocket.

[9]

Bello heard Kelly arguing with someone and went back outside. She could
    not see either Kelly or the man he was arguing with. She called out to Kelly.
    Moments later, he came out of the staircase and was fighting with a
    light-skinned black man - not the tall man who peeked originally. The man Kelly
    was fighting with pulled out a knife and waved it near Kellys chest, saying
    something to the effect of [y]ou think youre bad.

[10]

Kelly
    told him to chill and the two men progressed down the hallway toward Bello,
    who was standing at the door. She tried to intervene twice but backed off when
    the man with the knife stabbed at her. She noticed that the tall man was
    standing near the elevator. He did not take an active part in the fight and
    told the assailant that they should leave.

[11]

Bello
    called out for help and for someone to call 9-1-1. She then saw the man stab Kelly
    twice in the chest. No blood was drawn from the first stab. The second time,
    Bello saw blood and ran to her apartment to get a knife to give Kelly to defend
    himself. When she returned, the stabber had left and the taller man commented
    that he was not involved.

[12]

Bello
    stopped Kelly from pursuing the two men and they returned to their apartment. Kelly
    said the men had taken his money. He was upset and said that he was going to
    get them back and that he could not believe they did this to him.

[13]

Kelly
    collapsed within minutes. The police were called at 12:18 a.m. Paramedics
    arrived shortly thereafter, but Kelly died in the ambulance on the way to the
    hospital. One of the two stab wounds had punctured his heart and caused fatal
    internal bleeding.

[14]

The
    knife used to stab Kelly was found by police on the ground behind the building
    the next morning. Blood on the knife matched Kellys DNA. Bellos description
    of the knife at trial matched the one found by police.

[15]

It
    was the Crowns theory that Stephenss phone call had been made to lure Kelly
    out of his apartment and that two of Stephenss friends, the appellant and
    Mohamed Nur, waited in the stairwell to rob him. During the fight that ensued,
    the appellant killed Kelly by stabbing him in the heart with a knife.

[16]

The
    appellant did not call any evidence and did not testify. The defence position
    at trial was that Bellos identification could not be relied upon. The defence
    argued that Bello disliked Stephenss friend, Tamen Hashimi (Tali), because
    of a dispute he had with Kelly over a marijuana transaction the night before
    the stabbing. When she learned, from her inquiries in the community, that Tali
    had said that the stabber did not intend to kill Kelly, she concluded that Tali
    knew the stabber. She then remembered having seen a light-skinned man in
    Stephenss 16th floor apartment in the days before the stabbing. It was the
    defence theory that she simply identified
that man
, the appellant,
    whom she had seen in the apartment, and not the stabber.

[17]

The
    overall defence contention was that Bellos descriptions were inconsistent and
    fatally tainted as a result of her own investigation and the flawed use of the
    elevator videos to identify the appellant.

C.

Analysis

(1)

The Reasonableness of the Verdict

(a)

Positions of the Parties

[18]

The
    appellant submits that the verdict in this case depends on the reliability of
    Bellos identification of the appellant as the man who stabbed Kelly. The
    appellant argues that the circumstantial evidence was not capable of supporting
    the verdict without her irredeemably flawed identification.

[19]

According
    to the appellant, Bellos identification evidence became tainted as of April
    27, 2008, when she initiated her own investigation into her boyfriends death.
    The appellant argues that it was only Bellos improper reliance on the
    inferences from her inquiries in the community that led to her identification
    of the appellant.

[20]

Further,
    the appellant argues that the identification procedure ultimately used by the
    police in relation to the appellant was fatally flawed. The appellant was
    identified as the stabber after Bello was shown security video footage from
    each of the three elevators on the night of the stabbing. She was asked to stop
    the video and comment on any individuals she recognized. This process meant that
    she observed a repeated series of sequential images of the suspected
    individuals.

[21]

Also
    contrary to the proper procedure for a photo line-up, she spoke with the
    officer throughout the process of reviewing the footage. She was not
    videotaped, though her comments were recorded. Bello had a unique linguistic
    pattern that made it sometimes difficult to understand what she said. She
    acknowledged that she had difficulty expressing herself and that English was
    not her first language. The process of reviewing the elevator footage was
    repeated with Bello at trial.

[22]

The
    Crown argues that the court must decide whether the evidence, in its totality,
    overcomes unreasonable verdict scrutiny and that Bellos identification
    evidence must be enriched by all of the circumstantial evidence and not viewed
    in isolation. Together, the identification evidence combined with
    circumstantial evidence provided a basis upon which a jury could convict.

(b)

Applicable Principles

[23]

The
    question for an appellate court assessing an unreasonable verdict argument is
    whether, on the whole of the evidence, the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered:
R. v.
    Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36;
R. v. Yebes
,
    [1987] 2 S.C.R. 168, at p. 186. The reviewing court is required to review,
    analyse and, within the limits of appellate disadvantage, weigh the evidence:
Biniaris
,
    at para. 36.

[24]

The
    issue is not whether the reviewing court would have convicted the appellant,
    but whether the evidence, viewed through the lens of judicial experience, was
    reasonably capable of supporting a finding of guilt. The reviewing court must
    ask itself whether the jurys verdict is supportable on
any
reasonable view of the evidence and whether proper judicial fact-finding
    applied to the evidence
precludes
the conclusion reached by the jury (emphasis
    in original):
R. v. W.H.,
2013 SCC 22, [2013] 2 S.C.R. 180, at paras.
    2, 26-28.

[25]

Even
    at the best of times, identification evidence is subject to well-known and
    inherent frailties:
R. v. Olliffe
, 2015 ONCA 242, 322 C.C.C. (3d) 501,
    at paras. 36-40;
R. v. Goran
, 2008 ONCA 195, 234 O.A.C. 283, at paras.
    19-20 and 31-33. Honest and convincing, but mistaken, eyewitness
    identification, has been the source of wrongful convictions because it appears
    deceptively reliable. Particular vigilance is therefore required in relation to
    this type of evidence. Although familiarity may enhance the reliability of
    evidence, the same cautions and concerns apply to recognition evidence:
R.
    v. Benson
, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 25.

(c)

Discussion

[26]

The
    reasonableness of the verdict must be considered in light of the identification
    evidence and the circumstantial evidence. I accept that the identification
    evidence alone cannot justify the conviction. Furthermore, I accept that Bellos
    identification evidence most likely became tainted once she formed the strong
    belief that an acquaintance, Tali, knew the killer. As I explain below, this
    occurred before her fourth statement to police on May 12, 2008, but after her
    third statement on May 7
[1]
,
    2008. I also accept that the identification evidence obtained by the police through
    the use of the video identification procedure on October 17, 2008 was tainted.

[27]

The
    question to be determined is whether the identification evidence, pre-May 12,
    2008, together with the circumstantial evidence, provides a satisfactory basis
    for the conviction. I have concluded that it does.

[28]

In
    my view, there are three crucial inferences that can reasonably be drawn from
    the evidence: (i) The robbers came from Stephenss apartment on the 16th floor
    immediately after the phone call to the victim; (ii) The appellant and Nur
    frequented the apartment and were in the apartment when the call to the victim
    was made by Stephens; and (iii) There were four people known to be in the
    apartment when the call was made. Of the four, two could be excluded as
    possible suspects, leaving only Nur and the appellant. I will discuss each of
    these inferences and conclude with an analysis of the identification evidence.

(i)

The robbers came from Stephenss apartment after the call to the victim

[29]

There
    is no question that Stephens knew Kelly and bought marijuana from him. The two
    also spent time together socially. Stephens testified that he called Kelly at
    around midnight on April 23, 2008. Kelly did not respond to the first call and
    Stephens called again. Telephone records show that the phone used by Stephens
    called Kellys phone at 12:08 a.m. and went to voicemail. Another call was made
    at 12:09 a.m., which was answered by Kelly. Stephens asked Kelly to bring him a
    dime of marijuana. Kelly agreed to bring it down to Stephenss apartment on
    the 16th floor of their building.

[30]

The
    timing corresponds to Bellos account of the events, which was that Kelly
    received a call, told her he would be back, and left the apartment. Bello
    walked Kelly to the door and saw a tall man peeking out of the stairwell.

[31]

Kelly
    was then confronted in the stairwell and involved in an altercation in the
    hallway of the 20th floor. Bello said she heard arguing and went back outside
    about five to ten minutes after Kelly left. Bello called the police at 12:18
    a.m., after Kelly had been stabbed.

[32]

It
    is reasonable to infer that the robbers knew Kelly would be leaving his
    apartment to deliver marijuana, and were waiting in the stairwell for him to
    come down. Bellos evidence that the taller man involved in the altercation was
    peeking out of the stairwell when Kelly left supports this. They then
    intercepted Kelly while he was on his way to the 16th floor. The elevator
    security videos confirm that the appellant and Nur would occasionally take the
    stairs up or down a few floors, as they would enter the elevator on a different
    floor than the one on which they last exited.

[33]

The
    telephone records establish that Stephens did not contact Kelly after 12:09
    a.m. to inquire where he was or when he would be delivering the marijuana to
    apartment 1610. This strengthens the inference that the call lured Kelly out of
    his apartment, and that the robbers knew Kelly would be descending to the 16th
    floor apartment with marijuana just after 12:09 a.m. It also indicates that
    those in the 16th floor apartment were not concerned that Kelly never arrived.

(ii)

The appellant and Nur frequented the apartment and were in the apartment
    when the call to the victim was made by Stephens.

[34]

First,
    the evidence indicates that the appellant and Nur were frequently in the
    building and, more specifically, apartment 1610. Stephens acknowledged that the
    appellant, Tali, and Nur would spend time in apartment 1610. Stephens is the
    godfather of the appellants child. The appellants child and the childs
    mother lived on the 9th floor of the same apartment building as Stephens and
    Kelly. Neither Tali nor Nur lived in the building.

[35]

Sherissa
    Newell was the official tenant at apartment 1610, but allowed Stephens to stay
    there with her. Newell was close friends with the mother of the appellants
    child, and testified that she spent the night at her friends 9th floor
    apartment on April 23, 2008.

[36]

Newell
    also testified that she would see the appellant at the apartment building two
    to three times a week, both at her friends 9th floor unit and in her own 16th
    floor apartment. She said the appellant would come to spend time with Stephens,
    Nur, and Tali.

[37]

Second,
    the evidence clearly supports that both the appellant and Nur were in the
    building on April 23, 2008. The appellant appears on the elevator security
    footage ten times between 8:49 p.m. and 12:02 a.m. Nur admitted he was in the
    building.

[38]

Finally,
    the phone records and the elevator security footage support the reasonable
    inference that the appellant and Nur were in Stephenss apartment on the night
    of April 23, 2008, and at the time of the call to Kelly.

[39]

Stephens
    admitted that he had seen the appellant on April 23, 2008, but claimed that
    both visits took place earlier that day. He also testified that he did not have
    the appellants phone number and that they had no reason to call each other.
    Yet telephone records showed that the appellant called Stephens four times on
    April 23, 2008, and that only one of these calls was not answered. The last
    call, at 11:13 p.m., lasted 28 seconds.

[40]

According
    to Stephens, Nur was also not in the apartment with Tali and himself when they
    called Kelly after midnight. He said he saw Nur coming out of the stairwell on
    the 16th floor at around 1 a.m. They then went to the store together, and spoke
    to the police who were in the lobby. Stephens said Nur spent the night in
    apartment 1610 and they left together in the morning, along with Tali, as they
    had to attend court.

[41]

Nur
    acknowledged that he was at Stephenss apartment with Stephens and Tali on
    April 23, 2008, but denied being involved in robbing Kelly. He was equivocal
    about whether the appellant was there as well.

[42]

There
    is no doubt that Nur and the appellant were captured on the apartment
    buildings three elevator security videos multiple times that evening. Newell
    identified both Nur and Tali from photographs taken from the videos. Nur and
    Stephens also identified themselves, Tali, and the appellant.

[43]

The
    elevator videos show the appellant on the 16th floor five times between 9:24
    p.m. and 12:02 a.m. that evening. At 11:27 p.m., the appellant exited the
    elevator on the 16th floor and turned left toward apartment 1610.

[44]

He
    was next seen entering the elevator with Nur on the 16th floor at 11:49 p.m.
    They spoke as they rode to the lobby. The appellant left the elevator but Nur
    returned to the 16th floor. Nur exited in the direction of Stephenss
    apartment.

[45]

The
    appellant was captured again, minutes later, at 12:02 a.m. He entered the
    elevator in the lobby, exited on the 16th floor, and headed in the direction of
    apartment 1610.

[46]

The
    elevator security videos support the inference that Nur and the appellant were
    together in Stephenss 16th floor apartment on the night of April 23, 2008.
    They are seen coming and going from that floor, together and separately.
    Shortly before the call was made to Kelly to bring down some marijuana, they
    separately took the elevator back up to the 16th floor.

[47]

There
    was no evidence that they had any reason to be on that floor except to see
    Stephens in apartment 1610. Rather, the evidence was that they would often
    spend time in apartment 1610. It is reasonable to infer that they were doing so
    on that night and, specifically, just after midnight when Kelly was called to
    deliver marijuana.

(iii)

Of the four people known to be in the apartment when the call was made,
    two could be excluded as possible suspects, leaving only Nur and the appellant.

[48]

There
    were four people known to be in the apartment when the call was made: Stephens,
    Tali, Nur, and the appellant. This is not to say there were definitely only
    four there, but the evidence was that there were four known persons.

[49]

Importantly,
    both Stephens and Tali were known to Bello. Bello spoke to the police about
    Tali on May 12, 2008, and identified him in a photo line-up on that day. She
    also testified that Tali and Kelly had a dispute over a marijuana transaction
    the night before Kellys death.

[50]

On
    May 17, 2008, Bello also identified Stephens in a photo line-up. She wrote no
    in relation to his photo, but also wrote that she knew this person and that he
    was not the one who killed Kelly. She wrote that he lived in her building on
    the 16th floor and that she thought he knew Tali.

[51]

Though
    I am not considering Bellos identification evidence from May 12, 2008 onwards
    with respect to the identification of the appellant, there is nothing to
    indicate that her identification of Stephens or Tali were tainted in any way by
    her inquiries in the community. The appellant admits that Bello easily
    selected Tali and Stephens from the photo line-ups and knew both of them
    through their association with Kelly.

[52]

Bello
    was not able to identify Nur in a photo line-up on May 17, 2008. She was never
    shown a photo line-up that included the appellant.

[53]

On
    appeal, the appellant argues that Bellos identification evidence should be
    considered as recognition evidence, and that her failure to immediately
    identify the appellant is exculpating. I do not agree.

[54]

Bello
    told police on May 17, 2008, that she had briefly seen a light-skinned person
    who kind of matches her description of the stabber a few days before Kellys
    death. At trial, she explained that she had gone with Kelly to an apartment on
    the 16th floor. A short man, later identified as Stephens, held the door open.
    She saw the light-skinned man through the doorway of the apartment as he walked
    past her line of vision. This is therefore not a recognition case in the
    traditional sense.

[55]

The
    circumstantial evidence, and in particular the elevator security videos,
    supports the reasonable inference that Stephens, Tali, Nur, and the appellant
    were in apartment 1610 at the time of the call: Two of these men, Tali and
    Stephens, were known to Bello and were not the robbers.

(iv)

Identification Evidence

[56]

This
    brings me to the identification evidence. Bello gave recorded statements to the
    police on April 24, April 27, May 7, May 12, May 17, and October 17, 2008.

[57]

In
    my assessment of the reasonableness of the verdict, I will consider only the
    circumstantial evidence and the descriptions given by Bello before May 12,
    2008. This is because Bello had formed the strong belief that Tali knew the
    killer by May 12. On May 17, 2008, she had associated the light-skinned man she
    saw in apartment 1610 with the man who stabbed Kelly. I am therefore willing to
    accept the appellants proposition that Bellos identification could have been
    contaminated by her own investigation and the use of the security video
    identification procedure.

[58]

I
    am not willing, however, to set aside all of the statements given by Bello as
    of April 27, 2008, as argued by the appellant. Though Bello stated then that
    she would collect information in the community about Kellys death, there was
    no evidence that the statements she made on that day or on May 7, 2008 were
    tainted.

[59]

She
    was forthright in telling police about her discovery of what she believed was a
    connection between Kellys death and Tali on May 12, 2008 and providing them
    with information about the light-skinned man she remembered from the 16th floor
    apartment on May 17, 2008. There is no indication that she had gathered
    relevant information before her May 7, 2008 interview or that her pre-May 12,
    2008 statements were tainted.

[60]

Bello
    first spoke to police on April 24, 2008, after having just been told that Kelly
    had died. She testified at trial that she had not given the police all the
    information she had because she was upset and wanted to leave.

[61]

She
    told police that she did not see the stabbers face. She said that he was not
    wearing a hat and, though she could not specify his height, he may have been a
    bit taller than Kelly. She said that she would not recognize him if she saw him
    again and that she did not know the people who stabbed Kelly.

[62]

On
    April 27, 2008, Bello told police that she was ready to provide a statement.
    She said that on the night of Kellys death, she was looking at Kelly and that
    her eyes were never fully on the stabber. It happened quickly and she only
    glimpsed at his face.

[63]

She
    added several details to her previous description of the stabber. She said he
    was: (i) a fair-complexioned, light-skinned, black man, (ii) skinny, and (iii)
    wearing a white t-shirt. She did not describe his facial features. Bello did
    not say anything about having recognized the stabber or that he was connected
    to Stephenss 16th floor apartment.

[64]

On
    May 7, 2008, Bello spoke to police again. She reiterated that the stabber was a
    skinny, light-skinned, black man wearing a short sleeved white t-shirt. Bello
    also said that he had nappy hair, cut close to his head. She noted that the
    stabber wore light-coloured jeans just below the ankle, though she was unsure
    of the colour. She also stated that he wore white shoes, though again she was
    not sure. She thought he had facial hair  maybe a goatee.

[65]

She
    also described the taller man who looked out from the stairwell. She described
    him as: (i) a black man, (ii) the tallest of the three men in the hallway,
    (iii) a little chubby but not too chubby, (iv) in his twenties to early
    thirties, (v) having some facial markings  maybe acne or facial hair, (vi)
    wearing long hair in a ponytail, and (vii) dressed in all black  black puffy
    vest, black pants and shirt, and a black baseball cap.

[66]

The
    potential cogency of the untainted part of Bellos identification evidence has
    to be weighed, not in the abstract, but in the context of the totality of the
    circumstantial evidence which was capable of narrowing the suspect pool
    significantly.

[67]

In
    all, Bellos description of the man who stabbed Kelly was that he was a skinny,
    light-skinned black man. He was one to three inches taller than Kelly and was
    wearing a white t-shirt. He had close cut, nappy hair, and some sort of
    facial hair.

[68]

Most
    of the descriptors given by Bello during her April 27 and May 7, 2008,
    statements matched the identifiable features of appellant on the night of the
    stabbing. The elevator footage showed the appellant wearing a white t-shirt in
    the late hours of April 23, 2008. He is skinny and has a fair, light-skinned
    black complexion. The appellant is five feet ten inches and Kelly was five feet
    seven inches tall.

[69]

At
    trial, the May 7, 2008, identification evidence was challenged by the defence
    on the basis that, in the elevator security videos, the appellant was not
    wearing light coloured pants. It was also noted that she had not described the
    stabber as wearing a hat, although the elevator footage showed the appellant wearing
    one throughout the evening.

[70]

With
    respect to Nur, Bello described him as the tallest of the three men in the
    hallway. He was black in complexion, in his twenties or early thirties, a
    little chubby but not too chubby, and possibly had facial hair like
    sideburns. He may have had a ponytail or a do-rag and wore all black  pants,
    shirt, puffy vest, and baseball hat.

[71]

The
    elevator footage showed Nur  who was six feet two inches tall, in his
    twenties, with brown skin and some facial hair  wearing black pants, a black
    shirt, a black hoodie, and a black baseball hat. He did not have a ponytail,
    and wore a black hoodie and not a puffy vest. The defence at trial also pointed
    out that his hat had light-coloured emblems on it.

[72]

In
    my view, Bellos initial descriptions of the stabber and his companion were
    reliable and largely consistent, despite that she was focused on Kelly and not
    the faces of the two men. That she did not recognize the appellant does not
    discount this evidence, as she had only briefly glanced at him through an open
    door on one occasion.

[73]

The
    reasonableness of the appellants conviction is based on Bellos uncontaminated
    identification evidence together with a constellation of circumstantial
    evidence and the inferences that can reasonably be drawn from that evidence. Because
    the circumstantial evidence pointed to the assailants coming from Stephenss 16th
    floor apartment, Bellos somewhat general description which was consistent with
    both Nur and the appellant, two of the four people known to be in the apartment
    on the 16th floor, could reasonably be given substantial weight despite its
    generalities and at least one inconsistency.

[74]

On
    the basis of this evidence, it is reasonable to conclude that the appellant was
    the fair-complexioned man in the white t-shirt who stabbed Kelly while he was
    on his way to deliver marijuana to the 16th floor. To infer otherwise would be
    to ignore a series of improbable coincidences. The jurys verdict is
    supportable on a reasonable view of the evidence.

(2)

The Adequacy of the Jury Charge on the Frailties of the Identification
    Evidence

[75]

The
    appellant submits that the trial judge erred by not specifically alerting the
    jury to the most fundamental shortcoming in the Crowns case: that Bello failed
    to identify a man she had recently seen. The appellant argues it was a
    non-direction amounting to misdirection, to not instruct the jury in language
    that reflects the dangers of that evidence.

[76]

I
    do not accept this argument. The trial judge properly and carefully instructed
    the jury on the dangers of identification evidence. In fact, counsel on appeal
    concedes that the jury charge was, in many respects, sympathetic to the defence;
    as well, it highlighted some of the major flaws which were evident in the
    identification process. I also note that experienced trial counsel took no
    objection to the charge on the identification evidence.

[77]

At
    trial, counsel did not submit that the factual issue had to be put to the jury
    in the manner now articulated on appeal. Counsel on appeal emphasizes the issue
    of Bellos observation of the appellant just days prior to the attack and her
    failure to identify him as the stabber until convinced by her own inquiries.

[78]

A
    jury instruction does not have to meet the standard of perfection:
R. v.
    Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. The jury instruction
    on identification evidence given in this case both functionally and adequately
    informed the jury of all the considerations relevant to their analysis when
    dealing with the frailties of that evidence.

[79]

The
    trial judge first told the jury that they must be very cautious in relying upon
    eyewitness testimony to find the appellant guilty. She cautioned that mistakes
    in eyewitness identification have led to wrongful convictions and that even
    honest witnesses can be mistaken. The trial judge explicitly told the jury that
    they could not rely upon Bellos in-dock identification of the appellant as the
    man who had stabbed Kelly.

[80]

The
    trial judge then carefully reviewed all of the factors that a jury should
    assess in considering the reliability of a witnesss identification of an
    accused and before determining whether identity has been proven beyond a
    reasonable doubt.

[81]

The
    trial judge also provided a detailed review of Bellos evidence, not just in
    terms of what Bello said, but also when she said it. This was done to assist
    the jury in assessing whether [Bellos] recollection is being affected or, to
    be more blunt, tainted by information or from other sources.

[82]

The
    trial judge explicitly told the jury that it was the defences position that
    once Bello heard that Tali knew the identity of the stabber, she focused on the
    appellant. Bello knew that Tali frequented the 16th floor apartment so she
    identified the only light-skinned man that she associated with the apartment.
    The trial judge emphasized to the jury that because of the defences position,
    the timing of Bellos statements to the police was important.

[83]

The
    trial judge also reminded the jury that Bello had called the police on May 25,
    2008, and incorrectly identified a man who had nothing to do with the crime, as
    the stabber.

[84]

Importantly,
    the jury was reminded that it was not until several months later, in October
    2008, when Bello viewed the video surveillance from the elevator with the
    police, that she first identified the appellant as the stabber. At that time,
    Bello said he was the man she saw in Stephenss apartment. This aspect of the
    instruction alone counters the appellants position on appeal that the trial
    judge failed to alert the jury to Bellos failure to identify a man she had
    recently seen.

[85]

The
    trial judge also highlighted for the jury some of the key inconsistencies
    relied upon by the defence, including the details added by Bello about whether
    the man who stabbed Kelly was wearing a hat and the colour of his jeans.

[86]

The
    trial judge noted that it was against this general background that she referred
    to the factors to be considered in assessing a witnesss testimony,
    specifically telling the jury to consider the timing of the various statements
    in assessing the evidence. She then reviewed each of the factors against the
    specific circumstances of Bellos identification, including again the
    variations and specific timing of each of her descriptions. This review of the
    circumstances included whether the witness had seen the person on a prior
    occasion. The trial judge explicitly noted Bellos evidence that she had seen
    the appellant at Stephenss apartment and yet had not mentioned this to the
    police until May 17, 2008, after she became convinced of Talis involvement.

[87]

The
    trial judge then reviewed the specific frailties of the identification
    procedures used with Bello. She placed those concerns within the context of the
    known frailties of identification evidence and procedures at large and the
    rationale behind the preferred methods.

[88]

In
    all the circumstances, in light of the trial judges careful instruction on
    identification evidence, which emphasized caution and specifically set out the
    frailties of the evidence, I do not accept the appellants contention that the
    jury charge on identification evidence was insufficient.

(3)

The Lack of a
W. (D.)
instruction on the
    Exculpatory Effect of Mohamed Nurs Testimony

[89]

The
    appellant submits that the trial judge erred by failing to instruct the jury on
    the exculpatory effect of the testimony of Mohamed Nur in accordance with the
    principles in
R. v.

W. (D.)
. He argues on appeal that the
    jury should have been told that if they believed Nurs testimony or found that it
    raised a reasonable doubt, they must acquit. The appellant also submits that
    the trial judge did not adequately emphasize Nurs evidence.

[90]

A
W. (D.)
instruction is not mandatory, even when an accused testifies.
    It was proposed as a possible approach that may assist a trier of fact to not
    simply treat credibility as an either/or contest. It is an explanation of the
    legal effect of reasonable doubt.

[91]

This
    court recognized in
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at
    para. 105, that a
W. (D.)
instruction might also be applicable to
    cases where the accused did not testify. However, the
W. (D.)
decision
    itself and subsequent authorities make it clear that what is important is that the
    jury understood the burden and standard of proof. It is not necessary to
    slavishly follow the
W. (D.)
formula:
B.D.
, at paras.
    103-104.

[92]

The
    trial judge properly instructed the jury on the burden of proof beyond a
    reasonable doubt and then reiterated those principles in relation to the
    identification evidence. It is telling that defence counsel at trial did not
    request that the jury charge include greater reference to Nurs evidence or a
W.
    (D.)
instruction in relation to it. Nur had significant credibility
    problems and trial counsel may have had good reason not to want Nurs evidence
    emphasized.

[93]

Nurs
    evidence was not particularly cogent or necessarily exculpatory. He denied
    robbing Kelly and witnessing his stabbing.  He claimed he could not remember a
    number of details surrounding the stabbing, such as the day of the killing, who
    was at apartment 1610, what he was wearing, having used the stairs, whether he
    had a cell phone, being with the appellant on the elevator, what they talked
    about in the elevator minutes before the stabbing, why he didnt get off at the
    lobby, or where the appellant was going. He did not claim to be elsewhere with
    the appellant or otherwise provide the appellant with an alibi.

[94]

When
    the charge to the jury is considered as a whole, the jury would have understood
    the burden of proof and the standard of proof such that an explicit
W. (D.)
instruction on Nurs evidence was not required. In
B.D.
, the
    exculpatory evidence went to an essential element of the offence. There was
    nothing like that in Nurs evidence. The issue of whether the Crowns theory
    became untenable unless the jury rejected Nurs denial that he was present is a
    separate issue from how reasonable doubt was defined for the jury.

[95]

Moreover,
    the adequacy of a jury charge is assessed as a whole, in light of the charge
and
the entire trial:
Araya,
at para. 39. In this case, a significant
    portion of defence counsels closing address to the jury emphasized the high
    standard of evidence required to meet the necessary and standard of proof.
    Defence counsel also spent some time urging the jury to accept Nurs evidence
    and his forthright position that he did not do it. In light of the jury charge
    and the trial as a whole, the jury would have known to consider all of the
    evidence, including Nurs testimony, in deciding whether a reasonable doubt
    existed.

[96]

The
    failure to specifically instruct on
W. (D.)
in relation to Nurs
    evidence was not an error.

(4)

The Instruction on the
Mens Rea
for Murder and
    Manslaughter

[97]

The
    appellant argues that the trial judge erroneously instructed the jury on the
mens
    rea
for murder by using the language of possibility  that the stab
    could cause death  a reduced state of moral blameworthiness equivalent to
    the state of mind for manslaughter. The appellant also points to the trial
    judges direction under s. 229(a)(ii) that reckless means that he saw the
    likelihood that Mr. Kelly could die from the injury but went ahead anyway and
    took the chance.

[98]

The
    trial judge first instructed the jury correctly on the required state of mind
    for murder and then went on to define the term reckless. The use of the word
    could in the definition of reckless is an error without any prejudicial
    effect. This court has repeatedly noted that recklessness is not the essence of
    the provision and is largely redundant:
R. v. Rodgerson
, 2014 ONCA 366,
    309 C.C.C. (3d) 535, at para. 23, affd on other grounds 2015 SCC 38, [2015] 2
    S.C.R. 760;
R. v. Moo
, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 63.
    No harm was occasioned by this instruction.

[99]

The
    other impugned use of the word could arose later in the charge, after the
    trial judge reviewed Bellos description of the stabbing. The trial judge told
    the jury that they need to consider whether the facts that you accept
    establish this intent to kill, or an intent that he saw the likelihood that Mr.
    Kelly could die from these stab wounds and went ahead and stabbed anyway.

[100]

Importantly,
    this misstatement on the foreseeability requirement in s. 229(a)(ii) was preceded
    and followed by a correct instruction. The correct instruction that immediately
    followed the mistake invoked the proper probability language of likelihood
    that death would result from the stab.

[101]

Similar
    misstatements have arisen in a number of cases before this court: see
Rodgerson
,
    at para. 22;
R. v. MacDonald
, 2008 ONCA 572, 92 O.R. (3d) 180, at
    para. 46.

[102]

The key issue is
    whether the jury would, in the context of the charge as a whole, have
    understood that the accused must foresee a likelihood of death flowing from the
    bodily harm that he or she is occasioning the victim:
Rodgerson
, at
    para. 25;
MacDonald
, at para. 49.

[103]

Although the
    trial judge did say could when she should have said would, the jury charge
    started and ended with the proper language. The misstatement was not in
    response to a question by the jury on this point. It is my view that this
    misstatement did not constitute reversible error, as the jury would have understood
    that s. 229(a)(ii) requires that the appellant foresaw the probability of
    Kellys death.

[104]

The appellant
    also submits that the jury charge should have provided a more comprehensive
    definition of manslaughter. Defence counsel at trial did not make any such
    request. As indicated above, the intent for murder was adequately defined,
    leaving manslaughter, which does not require any foresight of the possibility
    of death, as the alternative. The instruction was adequate in the circumstances
    of this case.

D.

Conclusion

[105]

In all the
    circumstances and for the reasons stated, I would dismiss the appeal.

Released: DD MAR 29 2016

M. Tulloch J.A.

I argee. Doherty
    J.A.

I agree. J.I. Laskin
    J.A.

[1]
There are inconsistencies in the record on appeal about whether this statement
    was given to police on May 7, 2008 or May 8, 2008. For clarity and consistency,
    it will be referred to as the May 7 statement.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mullings, 2016 ONCA 171

DATE: 20160301

DOCKET: C58150

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jennoi Mullings

Appellant

Richard Fedorowicz, for the appellant

Brock Jones, for the respondent

Heard: February 25, 2016

On appeal from the conviction entered on June 3, 2013 and
    the sentence imposed on September 19, 2013 by Justice Nancy Backhouse of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of various firearms offences, possession of
    marijuana for the purpose of trafficking, and possession of the proceeds of
    crime.  He appeals on the basis that the trial judge misapprehended evidence
    and that the verdict was unreasonable.

A.

Facts

[2]

Police officers executed a search warrant on a suspected drug operation
    at around 5 a.m. on December 13, 2011. They broke down the front door of the
    residence and used two distraction devices  one near the front door and the
    other into the basement.

[3]

Officers went downstairs to the basement and encountered the appellant
    and a co-accused near the bed in a bedroom. The two were wedged behind a box
    spring and mattress against a wall. The appellant was lying on his left side.
    There was an overturned television in the room. The police officers told them
    to raise their hands in the air. The co-accused complied; the appellant did not
    immediately raise his left hand. He did so after being asked three times. The
    appellant initially gave a false name to the police.

[4]

At the time, the appellant was subject to two prohibition orders under
    s. 109 of the
Criminal Code
, R.S.C. 1985, c. C-46, having been
    convicted of firearms offences in 2007 and again in 2008.

[5]

The officers found a loaded .40 calibre handgun under the mattress one
    to two feet from the appellant. The gun had 14 bullets in the magazine and 1 in
    the chamber. In the same basement bedroom, the police found 3.41 grams of
    marijuana on a desk, five working cell phones (none of which were associated
    with the appellant), three digital scales, and an accounting list. In the
    basement hall closet, police found 50 rounds of 9mm ammunition and $2,000 in
    bundled cash. Personal documents belonging to the co-accused were also found in
    the closet. In the basement storage room, the police found three empty vacuum
    bags that smelled of marijuana. In the living room/dining room, police found
    13.34 grams of marijuana. The co-accused also had $1,000 in his pocket.

B.

The trial

[6]

The co-accused pleaded guilty to possession of marijuana for the purpose
    of trafficking and possession of the proceeds of crime, and was found guilty of
    three firearms-related offences.

[7]

The trial judge held that the appellant had either joint or constructive
    possession of the firearm. She concluded that the appellant and the co-accused
    were involved in drug trafficking together and that they both had possession of
    the marijuana in the basement bedroom and the cash. The appellant was convicted
    of possession of a loaded prohibited firearm, possession of a firearm knowing
    its possession is unauthorized, possession of a prohibited device (a high
    capacity magazine), possession of the proceeds of crime, possession of
    marijuana for the purpose of trafficking, and breaching two s. 109 firearm
    prohibition orders.

C.

The firearm convictions

[8]

The appellants submissions as to misapprehension of evidence and
    unreasonable verdict overlap on the issue of the firearm convictions. The
    convictions stem from the trial judges conclusion that the appellant was in
    possession of the loaded weapon. The appellant submits that this conclusion was
    based on findings that ignored other reasonable inferences that raised a
    reasonable doubt.

[9]

The first issue is why the appellant did not raise his arm quickly
    enough when told to do so. He submits that the trial judge ignored the
    reasonable inference that his arm was stuck either under him or in between the
    mattresses. He relies in part on the following testimony of Officer Overbeek:

Q.      And might [his position on the left side of his body]
    pose some difficulty in him raising that left arm when hes lying on top of
    that arm in a tight space?

A.      Yes.

[10]

The
    second reasonable inference allegedly ignored by the trial judge was that the
    co-accused had, without the appellants knowledge, placed the firearm
    underneath the bed. The trial judge opined that one of the men, to the others
    knowledge, put the gun under the mattress moments before the police came in so
    that it could be used by either of them. The appellant submits that there was no
    basis for this conclusion as there was no evidence about what transpired inside
    the bedroom prior to the police entry.

[11]

According
    to the appellant, the trial judges rejection of these inferences amounts to a
    misapprehension of the evidence that led her to an unreasonable verdict. There
    was no evidence that the appellant had possession of the firearms  either
    actual or constructive.

[12]

We
    do not agree.

[13]

The
    trial judge found as a fact that the appellant understood the commands and did
    not raise his left hand in the air. She considered some of the discrepancies in
    the evidence of officers, but found that they were consistent on the key points
    that both the appellant and the co-accused were in close proximity to the
    firearm and that the appellant failed to raise his left arm immediately. She
    rejected the possibility that his hand was stuck. These findings were available
    on the evidence and disclose no misapprehension of the evidence.

[14]

The
    trial judge based her conclusion that the appellant knew the firearm was next
    to him on the whole of the circumstances, including the defensive position he
    took when the police entered, that the gun was loaded and ready to be used, his
    proximity to the gun, and the delay in raising his hand. This conclusion was
    supported by the evidence and was not unreasonable.

D.

The Convictions for possession of the proceeds of crime and Possession
    of marijuana for the purpose of trafficking

[15]

The
    appellant submits that the verdicts in relation to the possession of the
    proceeds of crime and the drugs found in the basement bedroom were unreasonable.

[16]

The
    trial judge found that the appellant and the co-accused were engaged in the
    drug trafficking business together. They therefore had joint or constructive
    possession of all the items in the basement. Those jointly engaged in a
    criminal enterprise would be expected to share in the proceeds.

[17]

The
    appellant submits that there was no evidence that he was involved in the
    illegal drug operation and no evidence connecting him to the money or the
    drugs.

[18]

On
    this issue, we agree with the appellant.

[19]

The
    trial judge based her conclusions on these counts on evidence that the items in
    the home were tied to an illegal drug operation. But there was no evidence that
    the appellant was part of that operation. In particular, there was no evidence
    connecting him to the $1,000 found in the co-accuseds pocket or the $2,000
    found in the closet in the basement hallway. There was no evidence that he knew
    of or had control over the money.

[20]

There
    was also nothing connecting the appellant to the marijuana. The officer who
    seized it did not say where on the desk the marijuana was located, or that it
    was in plain view. Officer Caton testified that he did not recall seeing drugs
    or drug paraphernalia on the desk when he entered the basement bedroom. Simply
    put, other than the appellants presence in the basement, there was no evidence
    connecting him to the drugs or the money.

E.

Sentence

[21]

The
    appellant was sentenced to nine and a half years imprisonment, less credit for
    pre-sentence custody. He received eight and a half years for possession of a
    loaded firearm and an additional year for the breaches of two prohibition
    orders. The sentences for the other charges were to run concurrently and did
    not impact the total sentence.

[22]

The
    appeal as to sentence rests entirely on the appeal from conviction. Despite our
    conclusion on the convictions for possession of the proceeds of crime and
    possession for the purpose of trafficking, the overall sentence is not affected
    and remains fit.

F.

Disposition

[23]

The
    appeal is allowed in part. The convictions for possession of the proceeds of
    crime and possession for the purpose of trafficking are quashed and acquittals
    are entered. The appeal relating to the firearms offences is dismissed. The
    sentence appeal is dismissed.

Robert J. Sharpe J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Piekarski, 2016 ONCA 183

DATE: 20160302

DOCKET: C58604

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zdzislaw Piekarski

Appellant

Tina Kaye, for the appellant

Alexander Hrybinsky, for the respondent

Heard: March 1, 2016

On appeal from the conviction entered on January 24, 2014
    by Justice Nancy S. Kastner of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant challenges his conviction on the basis that the trial
    judge applied a different standard of scrutiny to the testimony of the
    complainant than she applied to the testimony of the appellant.

[2]

As this court has said on many occasions, this is an argument that is
    very difficult to successfully make in this court. The standard is a stringent
    one and is not met in this case. We are simply not satisfied that the findings
    of the trial judge reflect such uneven scrutiny. The findings the trial judge
    made were open to her and available on the evidence adduced at trial.

[3]

The appeal is dismissed


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shepherd, 2016 ONCA 188

DATE: 20160307

DOCKET: C50446

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maria Shepherd

Appellant

James Lockyer and J. Thomas Wiley, for the appellant

Howard Leibovich, for the respondent

Heard and released orally: February 29, 2016

On appeal from the conviction entered on October 22, 1992
    by Justice Kenneth A. Langdon of the Ontario Court (General Division), sitting
    without a jury.

ENDORSEMENT

[1]

Over two decades ago, Maria Shepherd pleaded guilty to manslaughter in
    connection with the death of her three-year-old stepdaughter. She entered her
    plea shortly after her trial began. She was represented by counsel.

[2]

When it was entered, Ms. Shepherds plea of guilty was informed,
    voluntary and unequivocal.

[3]

Counsel at trial proposed a joint submission on the issue of sentence.
    The trial judge accepted the submission and sentenced Ms. Shepherd to
    imprisonment for a term of two years less one day to be followed by probation
    for three years on the statutory and some optional terms.

[4]

Ms. Shepherd completed both the carceral and probationary terms of her
    sentence without incident.

A.

The Background Facts

1.

The
    Preliminary Events

[5]

In the early part of 1991, the deceaseds health began to deteriorate.
    She lost about one-third of her body weight. Areas of bruising appeared on her
    face, head and back. Police and CAS authorities were notified. She spent a
    month in hospital before she was released into the care of her natural father
    and Ms. Shepherd, her stepmother. Health and CAS officials monitored her
    condition.

2.

The
    911 Call

[6]

Later the same year, her condition worsened. She vomited frequently. She
    developed breathing problems. A 911 call was made. Paramedics found her
    unconscious. She was taken to a local hospital, then to the Hospital for Sick
    Children where she expired.

3.

The
    Post-mortem

[7]

Dr. Charles Smith conducted the post-mortem examination on the body of
    the deceased. He noticed a contusion on the underside of the deceaseds scalp
    at or towards the back of her head. He attributed the injury to a blow or blows
    to the back of her head. He associated the contusion with a subdural hemorrhage
    in the same region of the brain.

[8]

Dr. Smith asked the police to search for a donut-shaped object that he
    considered had caused the injury. Police seized Ms. Shepherds watch. Dr. Smith
    overlaid photos of the watch and the contusion. For him, there was a match. He
    concluded that the deceased was the victim of a homicide. He certified the
    cause of death as cranial cerebral trauma.

4.

The
    Guilty Plea

[9]

The cause of death opinion by Dr. Smith was the linchpin of the case for
    the Crown. A privately retained local pathologist could not refute Dr. Smiths
    claim that the mechanism of death was a backhand blow by Ms. Shepherd to the
    back of the deceaseds head, struck while Ms. Shepherd was wearing her watch on
    her wrist. It was this unlawful act upon which the trial Crown relied when Ms.
    Shepherd entered her plea of guilty.

5.

The
    Pathology Review

[10]

In
    early 2007, a commission of inquiry concluded that Dr. Smith had made serious
    and fundamental errors in about 20 pediatric autopsies he had conducted, or
    about which he had provided a consulting opinion.

[11]

Among
    the cases of flawed pathology, was that of Maria Shepherd.

6.

The
    Extension of Time

[12]

In
    2009, about sixteen and one-half years after Ms. Shepherd pleaded guilty to,
    and was sentenced for manslaughter in the death of her stepdaughter, a judge of
    this court granted Ms. Shepherd an extension of time within which to serve and
    file a notice of appeal against her conviction. She filed her notice of appeal
    that day.

B.

The Appellate Proceedings

1.

Setting
    Aside the Guilty Plea

[13]

It
    is firmly established that this court has jurisdiction to set aside a guilty
    plea entered at first instance. This jurisdiction extends to proceedings in
    which the plea, on its face, is voluntary, informed and unequivocal and entered
    in proceedings in which the appellant has counsel. In these cases, we examine
    the trial record, as well as any additional material proffered by the parties,
    which in the interests of justice should be considered in assessing the
    validity of the plea: see,
R. v. T.(R.)
(1992), 10 O.R. (3d) 514, at
    para. 12. The further material may explain the circumstances that led the plea
    of guilty and may demonstrate a miscarriage of justice has occurred: see,
R.
    v. Kumar
, 2011 ONCA 120, at para. 34.

[14]

The
    justice system held out a powerful inducement to Maria Shepherd to change her
    plea to guilty of manslaughter. The evidence about cause and mechanism of death,
    as provided by Dr. Smith, pointed directly at her and at no one else. Efforts
    to locate a contrary opinion were pursued, but failed. Her conviction on the
    evidence assembled by the Crown approached near certainty.

[15]

In
    pre-trial and during ongoing discussions, the trial Crown had indicated that
    she would be seeking a substantial penitentiary sentence in the event of
    conviction after trial. A penitentiary sentence might well have had implications
    for custody of Ms. Shepherds three children. She did not want to lose custody
    of them. She was three months pregnant with her fourth child. She faced the
    prospect of giving birth in the Prison for Women and losing custody of her
    newborn to the CAS immediately.

[16]

On
    the other hand, the joint submission included recommendations for custody in a
    nearby correctional centre, minimum security, open family visits and the
    likelihood of early parole.

2.

The
    Fresh Evidence

[17]

The
    parties have assembled and tendered for admission an impressive array of expert
    evidence about the cause and mechanism of the deceaseds death. It is, in our
    view, in the interests of justice to receive this evidence, which we consider
    satisfies the conditions precedent articulated by the Supreme Court of Canada in
Palmer
. The evidence is relevant, not only to our assessment of the
    validity of the guilty plea, but also to the disposition we should make of this
    appeal.

[18]

Among
    the experts whose evidence has been tendered on appeal, there is unanimity
    about several flaws in Dr. Smiths evidence about cause and mechanism of death.
    They include:

i.

the overlaid diagram of hemorrhage in the right occipital scalp is
    medically unsupportable and cannot be matched to Ms. Shepherds watch;

ii.

no pathological determination can be made that this hemorrhage was
    caused by a fall, an accidental impact or an intentional impact;

iii.

Dr. Smiths opinion that a significant degree of force was necessary to
    cause this injury is unsupportable; and

iv.

what Dr. Smith described as a subdural hemorrhage in the right occipital
    region is not a subdural hemorrhage, rather blood that pooled there during
    dissection.

[19]

The
    fresh evidence we have decided that it is in the interests of justice to
    receive, has two implications. The first has to do with the validity of the
    plea of guilty and the second relates to our ultimate disposition for this
    appeal.

3.

The
    Fresh Evidence and the Guilty Plea

[20]

Maria
    Shepherd pleaded guilty on the basis of the cause and mechanism of death
    advanced by Dr. Charles Smith  a significant blow, indeed a fatal blow to the
    back of the head while wearing a watch. The fresh evidence has thoroughly discredited
    that mechanism and cause of death. As a result, the plea of guilty, in our view,
    can no longer be said to be informed. Nor can the conviction recorded on that
    basis be considered reasonable or supported by the evidence. There is no
    demonstrated nexus between Maria Shepherds conduct and her stepdaughters
    death. It follows that the plea of guilty entered and the conviction the trial
    judge recorded must be set aside.

4.

The
    Fresh Evidence and the Disposition

[21]

The
    experts take different views about what caused the deceaseds death. This
    uncertainty amongst the experts means that responsibility for that death cannot
    be brought home to Maria Shepherd. Crown counsel acknowledges that, in these
    circumstances, there is no reasonable prospect of conviction. The appropriate
    remedy is an acquittal.

C.

Conclusion

[22]

For
    these reasons, the appeal is allowed. The plea of guilty and conviction are set
    aside and an acquittal is entered.

David Watt J.A.

P. Lauwers J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simpson, 2016 ONCA 212

DATE: 20160315

DOCKET: C57114

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Simpson

Appellant

Benjamin Goldman, for the appellant

Shawn Porter, for the respondent

Heard: March 11, 2016

On appeal from the order of Justice E. Libman of the
    Ontario Court of Justice, dated July 11, 2012, dismissing the appeal from the
    convictions entered by His Worship Justice of the Peace P. Kowarsky, dated
    August 5, 2011.

APPEAL BOOK ENDORSEMENT

[1]

Leave to appeal was granted on the issue of law whether the Justice of
    the Peace erred in saying he was
functus officio
before the appellant
    identified himself to the trial court.  On the motion for leave, evidence was tendered
    on behalf of the appellant (not by counsel on this appeal) that he had a
    defence to the charge in that he had valid insurance from BelairDirect at the
    time.

[2]

On this appeal, the Crown has tendered fresh evidence, which we accept,
    that the BelairDirect insurance did not exist.  As a result, the letter of
    insurance dated July 20, 2009 is false.

[3]

In these circumstances, although we accept the Justices
    statement that he was
functus officio
, even if he was incorrect, under
    s. 120(1)(b) of the
Provincial Offences Act
, R.S.O. 1990,

c.
    P.33, the appeal is dismissed as there has been no miscarriage of justice.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vernon, 2016 ONCA 211

DATE: 20160314

DOCKET: C60937

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Matthew Vernon

Respondent

Michael Fawcett, for the appellant

Adam Little, for the respondent

Heard: March 11, 2016

Leave to appeal sought from the decision of the Summary
    Conviction Appeal Court dated August 6, 2015 by Justice
M.
    Gregory
Ellies of the Superior Court of Justice, affirming the acquittal
    entered on October 8, 2014 by Justice
Alain H.

Perron of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown asks this court to grant leave on the basis that it raises
    important questions about a detainees obligation of diligence in a s. 10(b)
Charter
application.

[2]

In our view, this case does not raise those questions. On the findings
    of the trial judge  ratified by the summary conviction appeal judge  the police
    officer failed to satisfy his obligations to afford Mr. Vernon (the detainee)
    not only a reasonable opportunity to contact counsel of his choice but also to
    facilitate that contact: see
Traicheff
, 2010 ONCA 851, at paras. 2-3.

[3]

In light of those failings, it is unsurprising that the trial judge
    accepted Mr. Vernons evidence that he felt he had no choice but to speak with
    duty counsel.

[4]

Accordingly, this matter does not meet the
R.R.
test and leave
    is denied.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 539(1), (2), (3) or (4) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

539(1)          Prior to the commencement of the
    taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the
    prosecutor, and

(b) shall, if application therefor is made by any
    of the accused, make an order directing that the evidence taken at the inquiry
    shall not be published in any document or broadcast or transmitted in any way
    before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the
    trial is ended.

(2)     Where an accused is not represented by
    counsel at a preliminary inquiry, the justice holding the inquiry shall, prior
    to the commencement of the taking of evidence at the inquiry, inform the
    accused of his right to make application under subsection (1).

(3)     Everyone who fails to comply with an order
    made pursuant to subsection (1) is guilty of an offence punishable on summary
    conviction

(4)      [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st
    Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Webster, 2016 ONCA 189

DATE: 20160307

DOCKET: C60789

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher John Webster

Appellant

Robert Sheppard, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: February 29, 2016

On appeal from the judgment of Justice A. Duncan Grace of
    the Superior Court of Justice, dated July 22, 2015, granting certiorari setting
    aside the order of Justice Wayne G. Rabley of the Ontario Court of Justice,
    dated May 8, 2015, discharging the appellant.

ENDORSEMENT

[1]

The appellant was discharged at the conclusion of a preliminary inquiry
    into several offences alleged to have been committed against his domestic partner.
    The preliminary inquiry judge was of the view that there was no evidence that
    the person before the court was the person who committed the offences alleged.

[2]

The Crown applied to a judge of the Superior Court of Justice (the
    motion judge) to quash the discharge and have the matter remitted to the
    preliminary inquiry justice with a direction that the justice order the
    appellants committal. That application succeeded.

[3]

The appellant appeals the order of the motion judge and seeks to have his
    discharge reinstated.

[4]

In this court, the appellant says that what constituted the whole of
    the evidence was a question of law for the preliminary inquiry justice to
    decide. Even if he erred in holding that he could not consider the biographical
    details about the person charged contained in the information, such an error
    was not jurisdictional in nature, and thus not remediable on an application for
    an extraordinary remedy.

[5]

As the complainant began her evidence at the preliminary inquiry, she
    testified that:

i.

she knew Christopher Webster;

ii.

Christopher Webster had been her fiancé; and

iii.

she and Christopher Webster lived in the same apartment at the same
    address specified in the information.

The complainant did not make any dock identification
    because she testified in a sequestration suite not in the courtroom and had no
    view of the dock or of the appellant.

[6]

It is well settled that the identity of names a complainant identifies
    as her assailant and the person charged constitutes some evidence of identity.
    It is all the more so, when the name is accompanied by an address and other
    biographical details:
R. v. Chandra
(1975), 29 C.C.C. (2d) 570
    (B.C.C.A.), at p. 573; and
R. v. B.(D.)
, [2007] O.J. No. 1893 (C.A.),
    at para. 1.

[7]

In our view, the failure of the preliminary inquiry justice to consider
    the identity of names as some evidence of identity amounts to a failure to
    consider the whole of the evidence as required by s. 548(1) of the
Criminal
    Code
. Such a failure, in our view, in the circumstances of this case, constituted
    a jurisdictional error and was properly remedied by the motion judge.

[8]

The appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.