[November 26, 2021] Self Defence and Source of Evidence, Air of Reality [Marina Paperny, Barbara Lea Veldhuis, and Jo'Anne Strekaf JJ.A.]
AUTHOR’S NOTE: The self-defence provisions in the Criminal code did not result in a good outcome for Mr. Khill (2021 SCC 37) in the most recent SCC interpretation of those provisions. This case provides a positive route through those provisions in addition to directly addressing the issue that the source of the evidence supporting such a defence need not be the accused directly. Here, a lack of memory of the crucial moments of the application of force should not have resulted in a finding of no air of reality to the defence. Even a denial of the act of application of force by the accused may not be sufficient in some circumstances to remove this defence on the air of reality test.
 The appellant was convicted of aggravated assault and possession of a weapon for the purpose of committing an offence. She appeals on the basis of incompetence of counsel and that the trial judge erred in finding that there was no air of reality to her claim of self-defence.
 At the time of the offences, the appellant was addicted to alcohol and was homeless. On Thursday, December 13, 2018, the complainant was staying in a basement suite across the street from the appellant’s parents’ home. The appellant approached the complainant and he agreed to let the appellant come inside and have some drinks. The parties disagree on what happened next. The appellant stated that the complainant sexually assaulted her, while the complainant alleged that the appellant was naked and was knocking on his neighbor’s door. The appellant called 911 and the police took her to a shelter for the night.
 The appellant left her cell phone at the complainant’s suite and returned the following morning to pick it up. She was later picked up by the police for failing to comply with a recognizance and was held in custody for 26 hours. She spent the following two nights sleeping in an apartment entryway and outside. She returned to the complainant’s basement suite on Monday, December 17, 2018 and found the doors unlocked and no one home. She let herself in and locked the door behind her. The complainant returned and was locked out, so he stayed at a friend’s house. He returned on the evening of Tuesday, December 18, 2018, after having drank approximately six beers, and broke into his basement suite. He found the appellant hiding behind the couch. The place was a mess; food and cigarette ashes were all over the place.
 The appellant had been drinking alcohol that day. After the complainant broke into the basement suite, the parties continued to drink together into the evening. The complainant was angry about the mess the appellant created and for locking him out. He threated to call the police. He alleged that when he went to the bathroom and started to brush his teeth, he saw the appellant in the mirror and that is when she stabbed him four times.
 The appellant alleged that the complainant threatened to call the police unless she would perform sexual favours for him. She agreed. He told her to get naked and into the shower. There, he forced her to perform oral sex on him. Later, when they were laying on his bed, and after he took her phone away so she could not call the police on him, he became physical with her. She told him that she wanted to leave and to take her stuff back. She said that he struck her, breaking her teeth and bruising her eye. She recalled picking up the knife, but her evidence vacillated between statements that she did not remember stabbing him and statements that she did not stab him at all. She remembered him telling her to get out and that he was going to kill her. She also remembered running outside. The police attended shortly afterwards. The appellant had blood on her pants and told the police that she had a gun as she wanted them to shoot and kill her.
 Video evidence obtained from a residential surveillance camera across the street showed a woman matching the appellant’s description leaving the basement suite on December 18, 2018 wearing a jacket and her bare breasts exposed.
 The trial judge found the appellant to be credible and the allegations of sexual assault on December 13, 2018 were corroborated by the police attendance. He also found that there was some sexual activity on the night of December 18, 2018 as corroborated by video of the appellant leaving the basement suite with bare breasts exposed. The trial judge concluded that the complainant was not being truthful.
 The trial judge also found that on the night of December 18, 2019 a struggle ensued where the appellant grabbed a knife and stabbed the complainant.
 He next considered self-defence, but because the appellant denied stabbing the complainant, he concluded there was no air of reality to the defence and he convicted her.
Air of Reality to Self-Defence
 The leading case from the Supreme Court of Canada on air of reality is R v Cinous, 2002 SCC 29,, where the majority of the SCC stated at paras 53-54:
... There is no requirement that the evidence be adduced by the accused. ...
...Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue....
Determining whether there is an air of reality to a defence is a question of law: Cinous at para 55. The burden is on the accused to establish an evidentiary foundation; this burden is evidential, not persuasive: Cinous at para 52.
 The accused has met the evidentiary threshold if there is evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: Cinous at para 82. Thus, for an air of reality to arise for self-defence under s. 34(1) of the Criminal Code, RSC 1985, c C-46, there must be evidence supporting each of the following elements:
(a) the accused believes on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
 Section 34(2) provides further guidance about what is reasonable in the circumstances. The court “shall” consider the relevant circumstances of the person, the other parties, and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
 These provisions were recently considered by the Supreme Court in R v Khill, 2021 SCC 37, ...:
The upshot of Parliament’s choice is that the defence is now more open and flexible and additional claims of self-defence will be placed before triers of fact. Even in situations where the extent of the accused’s initial involvement is contested or the violent encounter developed over a series of discrete confrontations, the unified framework under s. 34 means judges need only provide juries with a single set of instructions.
Replacing preliminary and qualifying conditions with reasonableness factors also means these factors must be considered in all self-defence cases in which they are relevant on the facts. ...
The transposition of mandatory conditions into mere factors suggests more flexibility in accessing the defence, but this added flexibility is counter-balanced by the requirement to consider certain factors — including proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute.
 The trial judge’s conclusory statement that self-defence lacked an air of reality because the appellant denied the stabbing fails to reveal what element or elements he found were lacking the requisite evidentiary foundation.
 We agree that a jury acting reasonably could conclude from circumstances described by the appellant, including the physical and sexual assaults on December 13 and 18, that she reasonably believed that the complainant was using force against her. This is consistent with the Supreme Court’s discussion of the “catalyst” in paragraphs 52-58 of Khill.
 Determining whether an accused had a subjective purpose of defending herself from force when she committed the act underlying an offence is a “subjective inquiry”: Khill at para 59. That said, there is no requirement that the accused establish an evidentiary foundation for this purpose by testifying at trial. ...As the Supreme Court of Canada wrote in paragraph 53 of Cinous: [Emphasis by PM]
… The evidential foundation can be indicated by evidence emanating from the examination in chief or cross examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.
 In his reasons, the trial judge stated, “If [the accused] says she did not inflict those wounds, then she cannot argue that they were inflicted in self-defence. As a result, I find there is no air of reality to the claim of self-defence.” The error reflected in this statement is that the trial judge did not determine whether there was an air of reality to a subjective purpose of self-defence on “the totality of the evidence”: Cinous at para 53. Instead, he erred by making credibility determinations and findings of fact, and by weighing the evidence to determine that the offence was made out, before determining whether there was an air of reality to self-defence: Cinous at para 54. ... Most importantly, he did not consider the accused’s testimony that she did not remember committing the offence; instead, he only considered the accused’s denial of committing the offence, finding that such a denial precluded the presence of an air of reality.
 The accused’s testimony that she either did not remember committing the offence or did not commit the offence at all put forward two inconsistent defences: that the accused did not commit the offence but, if she did, it was in self-defence. Inconsistent defences, however, are not self-defeating at the air of reality stage. So long as each defence has an evidentiary foundation, it is for the ultimate trier of fact to determine which defence, if any, was made out, and whether the testimony supporting one defence may undermine the other: see for example, R v Othman, 2018 ONCA 1073; R v Mustard (G), 2016 MBCA 40. [Emphasis by PM]
 There was enough evidence before the trial judge to lend an air of reality to a subjective purpose of self-defence on the part of the accused. Testimony from the accused and complainant established an unstable and acrimonious relationship between the two. The accused testified that the complainant had sexually assaulted her days before the stabbing. Regarding the day of the stabbing itself, both the accused and complainant testified that they had been drinking, and the complainant testified that he was upset with the accused because she had locked him out of his own apartment the day before and had made a mess of the place. Further, the accused testified that the complainant coerced her into having sex with him and later struck her with his fist. After the stabbing occurred, officers inspected the apartment and found signs of a struggle.
 ... there was evidence on the record about the nature of the force and the appellant’s threats; the complainant’s force against her; the appellant’s role in the incident; the history of the parties, including the December 13 sexual assault; the nature and proportionality of the appellant’s response, being the four stab wounds; and the difference between the two, namely their genders, that if accepted by the jury could support a finding that the response was reasonable.
 ... In other words, no one factor (i.e. the appellant’s denial that she stabbed the complainant) should be determinative of the reasonableness of the action.
 As a result, it was a legal error for the trial judge to conclude that there was no air of reality to the defence. This ground of appeal is allowed and a new trial ordered.
[November 30, 2021] Eye-Witness Identification: Need for Bespoke Jury Instructions Identifying Specific Weaknesses of Crown's Case [Reasons by David Watt J.A., with Alexandra Hoy and I.V.B. Nordheimer JJ.A. concurring]
AUTHOR’S NOTE: The difficulty with the reliability of eye-witness identification is well known in the jurisprudence. However, juries are not equipped with this knowledge unless specifically instructed. General instructions are good enough for general cases. Where the problems in the eye-witness identification get complicated, the jury needs bespoke instructions to identify the specific weaknesses so that they can make a legally sound decision. Here, credibility problems with the two Vetrovec complainants seemed to be the push necessary to overturn a conviction based on a general instruction. Specific instructions here would have been useful in relation to the case law on exculpatory features and improper identification procedures that occurred (ie. single photo shown to complainant) - the difference here was a height estimate by two witnesses. Further, the fact that these identifications appeared to be "recognition" as opposed to stranger identifications did not release the court from the need for a bespoke instruction.
Introduction and Background
 Two men in a pickup truck. Driving along a residential street. Each in his fifties. Each white. Brothers.
 Two pedestrians. Walking along the same residential street. Both young. And Black.
 Some insults. Anti-Black racial epithets. An argument starts. The passenger gets out of the truck. He picks up a baseball bat from the back of the truck. He moves forward. Maybe he puts the bat back. Maybe not.
 One of the pedestrians fires four shots. The passenger from the truck was hit. The shooter and his companion leave in a car. Next day, police arrest two men. And they find the gun from which the shots were fired.
 A jury found the appellant guilty of aggravated assault and possession of a weapon for a purpose dangerous to the public peace.
 The central issue at trial was the identity of the shooter. What the jury had to decide was whether the Crown had proven beyond a reasonable doubt that the appellant shot and wounded Tyler Bradley.
 And so it was that the criminal liability of the appellant fell to be decided on the basis of the jury’s assessment of the eyewitness identification evidence given by two Vetrovec witnesses. Each contemptuous, to a greater or lesser extent, of the court and its processes. Both, at best indifferent to truth-telling, save as a last resort.
 Tyler Bradley ... When he testified at trial, Tyler Bradley was in custody awaiting trial on unrelated charges. In over three decades, Tyler Bradley had been convicted of 70 criminal offences. Those convictions included 39 for offences of dishonesty and a further 19 for offences against the police or the administration of justice.
 Shane Bradley is Tyler Bradley’s older brother. Over a period of 37 years, he had been convicted of 25 criminal offences. Eleven convictions involved offences of dishonesty. Three were for offences against the administration of justice....
The Garage Incident
 One or two nights before the shooting, an incident occurred in the garage at 175 Morton Way. Tyler Bradley and Brian Larman lived in the house at that address. Shane Bradley was a frequent visitor.
 Tyler Bradley recalled that he and Shane were in the garage. Two Black youths, whom Tyler Bradley identified as “O” and “Rico”, were also there. “O” was Voshaun Grant. “Rico” was the appellant. ...
 Brian Larman remembered things differently. Tyler Bradley was yelling at a Black youth in the garage. Shane Bradley was not there. Tyler Bradley restrained the youth who was trying to leave the garage. They began to fight. Brian Larman restrained Tyler. He told the youth to leave. The youth ran away....
 Brian Larman did not recognize the youth in the garage. He asked Tyler the youth’s name. Tyler explained that the youth was “C’s” younger brother, “Rico”. Mr. Larman had seen Rico previously walking back and forth from 175 Morton Way. Rico, according to Brian Larman, was a “small kid” in his early or mid-teens, maybe five feet tall and about 100 pounds.
 Brian Larman ... police interview ... according to Larman ... They showed him an array of six – eight photographs on a single page. The officers asked whether Rico’s picture was included in the array. Larman was unable to identify Rico among the photographs.
 According to the ASF, the Crown was unable to refute:
- Larman’s claim that he had been shown an array of photographs; and
- if such photographs existed, they have been destroyed or lost.
There was no record of any interaction between the police and Larman after his interview had concluded and before he left the station over three hours later.
 ... Either just before or shortly after they got underway, one of them got into an argument with two young Black men who were on foot. The two young men walked by the truck. They egged the Bradley brothers on. The exchange of words included racial epithets from Shane Bradley. Tyler Bradley got out of the truck. He took a baseball bat from the area behind the cab of the truck. He walked towards the two young men. Accounts differed as to whether he had the bat with him or had already returned it to the back of the truck.
 The appellant, known to the Bradleys as Rico, fired four shots. According to the Bradleys, the first two shots struck Tyler in his left hand and arm, the last two in his abdomen.
After the Shooting Stopped
 Tyler Bradly either walked or was assisted back to the passenger side of the pickup truck. Rico dropped the gun. O picked it up. Rico and O headed towards a silver-grey car that was already parked or had just arrived on the street. They left in this vehicle.
 Shane Bradley drove back to 175 Morton Way. He called 911. He identified the shooter as Rico, the other man as O....
The Identification Evidence
 The identification of the appellant as the shooter – Rico – rested entirely on the eyewitness testimony of Shane and Tyler Bradley. Their evidence was also the subject of a Vetrovec caution. Each gave extensive evidence at trial about the circumstances of their identification of the appellant as the shooter. This included their contact with police after the shooting, the display of photographs, and their demands of police throughout the identification process.
 Shane Bradley was arrested on an outstanding warrant when police arrived to investigate the shooting of his brother. He remained in custody during the course of the investigation....
 In his first statement, recorded within hours of the shooting, Shane Bradley told police that he did not know either the shooter or his companion. He told the interviewer, Cst. Lovell, that if he (Lovell) wanted to know the identity of the shooter (he) Lovell should release him (Shane Bradley) on a promise to appear. He also said, “I don’t even know these fucking punks...fuck off, go catch the fucking little n***ers yourself”.
 Shane Bradley also wanted his prescribed methadone. He demanded to be driven to a pharmacy to obtain his prescription. En route to the pharmacy, police took Shane Bradley by the scene of the shooting. Shane pointed to three houses, 69-71-73 Morton Way. He said that one of the three of them, Jay or Rico, who were brothers, or their friend, Chris, lived there. ...
 Cst. Lovell showed Shane Bradley single photos of both O and Rico, Voshaun Grant and the appellant. This occurred in the cells. Shane Bradley said that the photos were of O and Rico. This exchange was not recorded. Prior to this discussion at the cells, Bradley said that Cst. Lovell had shown him an array of six – eight photographs which included photos of O and Rico. No documentation supports this display of an array. Nor could Bradley’s claim of an array be refuted....
 Cst. Lovell knew that best practices required an independent non- investigating officer to show a randomized group of photographs to an eyewitness. Despite his role as the principal investigator, Cst. Lovell showed the single photographs to Shane Bradley. The officer considered the police protocolinapplicable. He was investigating a “recognition” case, not an identification case. Nor did the difference between Larman’s description of Rico as a small kid, as short as 4’5”, and the appellant’s actual age and height, being in his twenties and 5’5”, cause Cst. Lovell any concern. He showed the single photographs to Shane Bradley in the cells because Bradley refused to come out of his cell. Cst. Lovell did not make efforts to preserve the video recording of the cell area.
 At trial, Shane Bradley testified that the shooter was “just a Black guy” about 5’5” tall. He had a regular build and weighed between 140 and 150 pounds. Shane Bradley “sort of” knew the two men. They looked familiar. He then went on to say that their names were O and Rico. He had met them at different times to buy drugs from them. His testimony varied as to the number of times he had met them. However, despite these many prior meetings, Shane Bradley could not say whether Rico had a tattoo. At both the preliminary inquiry and trial, Shane Bradley identified the appellant as Rico.
 Tyler Bradley provided a statement to police three weeks after he had been shot. He refused to have the statement recorded. He told police that he had dealt with O through his brother Shane Bradley. He had seen Rico, but had never dealt with him. O and Rico looked the same. They always had the hoods of their hoodies up. He believed they were brothers. One of them had a tattoo around his face or neck. Both had been in the garage at Brian Larman’s house to deal with Shane.
 According to Tyler Bradley, the police showed him “a bunch of photos”, possibly when he gave his statement. However, in an ASF filed at trial, no police officer had any recollection, notes, or record that Tyler Bradley had been shown photographs, whether in an array or separately. If there had been any photographs displayed, they had been destroyed or lost.
 When he testified at the preliminary inquiry, Tyler Bradley made an in-dock identification of both the appellant and Grant, the only two persons sitting in the prisoner’s box. This was the first time Tyler identified the appellant as the shooter. Tyler denied that his brother’s comment “You fucking put him away, Tyler. He, he done it, you seen him do it. Now you got to put him away” influenced him in any way. Tyler also testified that both O and Rico had guns. This was something Shane had told him even though Tyler himself had not seen O with a gun. From the witness box, Tyler Bradley could see that the appellant had a tattoo on his neck. He testified that Rico had a tattoo on his neck.
 On the first day of his testimony, Tyler gave evidence that he and his brother encountered two men with dark complexions at the T-intersection of Morton Way. The men, who were of medium size, wore hoodies. He could not tell whether they were Black or South Asian. He believed that his brother had referred to one of them as “Rico” and the other as “O”. He wasn’t sure whether he had ever seen themen among those who came to 175 Morton Way to sell drugs to his brother. He had never spoken with these men.
 Initially, Tyler Bradley testified that both men were about 5’8” tall. Then he described the shorter as “maybe a foot shorter” than the other man. He could not provide any identifying features of the shooter, such as facial hair or tattoos. He said he would be lying if he identified the appellant as the shooter. He explained that his brother pressured him to identify the appellant as the shooter at the preliminary inquiry. When asked whether he saw the shooter in the courtroom at trial, Tyler Bradley said that he did not see the shooter there. At one point, he indicated that one of the jurors could have been the shooter.
 At this point, the Crown brought an application under s. 9(2) of the Canada Evidence Act seeking to cross-examine Tyler Bradley on his preliminary inquiry evidence, in which he identified the appellant as the shooter. During Crown counsel’s cross-examination of Tyler on his testimony at the preliminary inquiry, the witness said that he didn’t know whether the shooter had a tattoo on his neck because he (Tyler) had not been close enough to see that and the shooter had the hood of his hoodie up. He identified the appellant and Grant as the shooter at the preliminary inquiry because they were the only two persons “in the penalty box”.
 The Crown then brought a B.(K.G.) application to have Tyler Bradley’s preliminary inquiry testimony admitted. During his testimony in-chief on the B.(K.G.) voir dire, Tyler Bradley claimed that he had been subjected to general threats for being a “rat”. As he later clarified, the threats were not connected to theappellant. He also said that he didn’t want to “put a guy away if he didn’t do it”. He said he could not recall whether he knew the person who shot him.
 On his return to the witness box, Tyler Bradley admitted that he had testified falsely for fear of being labelled a rat. He reiterated that none of the threats he received were connected to the appellant. He explained the information that he had received from the guards and his concern that, if he were charged with perjury or the obstruction of justice, his plan to plead guilty to an outstanding charge for a sentence of time served would be derailed.
 Tyler Bradley then testified about his knowledge of Rico, whom he said was the appellant, and O. He had seen both during drug transactions at 175 Morton Way. The number of occasions varied widely as he tried to convey “that I do know the people”. The garage in which the drug transactions took place was small. He saw both Rico and O at close quarters and had also seen them several times on the street.
 According to Tyler Bradley, the appellant was a light-skinned Black man about 5’2” or 5’4” tall. He had a tattoo about four or five inches long on the left side of his neck. Tyler Bradley saw the tattoo when he spun around between the second and third shots. Confronted with a front-view photograph of the appellant, with the hood of his hoodie down, Tyler Bradley admitted that the appellant’s tattoo was not visible. Nonetheless, he insisted that he had seen the tattoo at the time of the shooting. He was “100 and fucking 50 percent” sure that the appellant was the shooter.
Grounds of Appeal
 The appellant says that the trial judge erred:
i. by failing to adequately instruct the jury on the reliability of the evidence of Shane and Tyler Bradley; ...
iii. by failing to instruct the jury in express terms that a single difference between the described and known features of an alleged perpetrator undermines the identification of that person as perpetrator and exonerates or raises a reasonable doubt about his participation;
Ground #1: Jury Instructions on the Reliability of the Identification
The Governing Principles
 The parties in a criminal jury trial are entitled to a properly instructed jury. Their due is not a perfectly instructed jury: R. v. Jacquard, 1997 CanLII 374 (SCC),  1 S.C.R. 314, at paras. 2, 32; R. v. Daley, 2007 SCC 53,  3 S.C.R. 523, at para. 31. The function of jury instructions is to equip the jury as decision-maker to make an informed decision on the evidence adduced at trial. And so it is that, as a reviewing court, we test the adequacy of jury instructions according to their ability to achieve their purpose: Jacquard, at para. 32.
 Nor is it non-direction, much less non-direction amounting to misdirection, for the judge to fail to tell the jury everything that could be said about a particular subject. But this general rule is not inviolable. It gives way in at least two instances.
 Non-direction on the evidence adduced at trial will amount to misdirection where the item of evidence omitted constitutes the sole basis for a defence, justification or excuse advanced at trial: Demeter, at p. 437.
 Non-direction may also amount to misdirection when the omission leaves the jury inadequately equipped to evaluate important evidence essential to determination of the issues raised at trial. Omissions of this kind cannot be overcome by the singular failure of counsel to object to the non-direction: R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at paras. 56-57.
Jury Instructions on Eyewitness Identification Evidence
 Where the case for the Crown consists entirely or substantially of the evidence of eyewitnesses who purport to identify the accused as the perpetrator of the offence charged, the trial judge is required to caution the jury about the well-recognized frailties of eyewitness identification evidence. The instructions should explain the reasons underlying the caution and make it clear that the caution applies to all eyewitnesses who give this evidence, even those whose honesty and integrity is not challenged: R. v. Hay, 2013 SCC 61,  3 S.C.R. 694, at para. 40; R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 79.
 The specific weaknesses or problems associated with eyewitness identification evidence varies. In each case, the jury instructions should forge a link between the general instructions on the frailties of eyewitness identification evidence and the specific frailties of the evidence adduced at trial: R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 (Ont. C.A.), at p. 271, aff’d 1985 CanLII 17 (SCC),  2 S.C.R. 485; R. v. Brown, 2007 ONCA 71, 216 C.C.C. (3d) 299, at para. 18; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 188; R. v. Lewis, 2018 ONCA 351, at para. 18.
 In general terms, the problem in eyewitness identification cases is an honest but inaccurate identification by a credible and confident witness. In other words, the problem usually resides in the reliability of the witness’s evidence, not their credibility. Hence, the need to instruct the jury that the confidence of the witness in the correctness of their identification is no measure of its accuracy: Hibbert, at para. 52; R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 14; McFarlane, at para. 79.
 The principles that apply to eyewitness identification evidence also apply to a subset of eyewitness identification evidence, recognition evidence: R. v. Chafe, 2019 ONCA 113, 371 C.C.C. (3d) 91, at para. 30; R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39.
 In some cases, as for example where an eyewitness fails to identify a distinctive feature of an alleged perpetrator, or where there is a significant discrepancy between the description provided and the actual features, a trial judge may be required to instruct the jury about the importance of those omissions: R. v. Huerta, 2020 ONCA 59, 385 C.C.C. (3d) 481, at paras. 35, 37; Jack, at paras. 16, 27; R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para 14.
 It is often necessary for the police in their search for the person responsible for a crime to display photographs to those who may be able to pick out the person responsible. But care must be taken in the manner in which any photographs are displayed. There is always the risk, especially with a single photograph, that the witness who has seen the photograph will have impressed upon their memory the face they saw in the photograph, rather than the face they saw when the offence was committed. This may impair the utility of that person as a witness. Equally, it would be improper to inform an identification witness beforehand of the features of an accused by showing that witness a photograph of the accused: R. v. Goldhar (1941), 1941 CanLII 311 (ON CA), 76 C.C.C. 270 (Ont. C.A.), at p. 271; R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.), at pp. 178-179.
The Principles Applied
 As I will explain, I would give effect to this ground of appeal. In my respectful view, the charge to the jury, taken as a whole, failed to adequately equip the jury to deal with the inherent and specific frailties of the identification evidence adduced at trial.
 ... The trial Crown conceded that if the jury was not satisfied beyond a reasonable doubt on the basis of the evidence of the Bradley brothers that the appellant was the shooter, the balance of the evidence was insufficient to support a conviction. Thus, it became critical that the jury be fully equipped to deal with the inherent frailties and specific weaknesses of this evidence.
 For the most part, in eyewitness identification cases, the problem is an honest but allegedly inaccurate identification by a credible and confident witness. Said in different words, the problem with identification evidence is its reliability, not the credibility of the eyewitness who gives that evidence. Thus, the need for instructions about the inherent weaknesses in eyewitness identification evidence lest the jury overvalue its reliability because of the honesty and integrity of the witnesses giving it.
 In this case, the sources of the eyewitness testimony were not honest witnesses doing their best to provide reliable testimony about what they saw. Their evidence of claimed recognition was not only subject to the frailties associated with eyewitness testimony, but it was also testimony from witnesses whose credibility attracted a Vetrovec caution. They were dishonest, manipulative witnesses with a purpose of their own to serve and a disturbing undercurrent of racism. One of them, Tyler Bradley, admitted having committed perjury in his initial testimony before the jury.
 To borrow the language of Miller J.A. in McFarlane at para. 80, this atypical eyewitness identification case required a bespoke instruction on the specific frailties of the eyewitness evidence. There were several badges of unreliability of the witnesses’ identification of the appellant as the shooter. It was incumbent upon the trial judge to identify these issues and link them to the reliability assessment the jury was required to undertake.
 Shane Bradley first told the police that he didn’t even know “these fucking punks”. But then he proposed a quid pro quo: their identity for his release from custody on a promise to appear. His claimed resemblance to the appellant of photos of others that “could be” Rico. ...
 In a narrative of the evidence, the trial judge did review some aspects of the identification process in connection with Shane Bradley. But the narrative lacked specific instructions on problematic aspects of the process. The inherent danger of Cst. Lovell showing a single photograph of a suspect to an identification witness who claimed he couldn’t identify the shooter. The inherent danger created by the absence of any record of the discussions leading to the display of photographs, the single photograph, and Shane Bradley’s identification of the appellant as theshooter. The reliability of the photo identification irrespective of the application of the governing police protocol.
 A similar narrative was provided in connection with Tyler Bradley who did not identify the appellant as Rico until he saw the appellant and Grant, the only two persons “in the penalty box”, at the preliminary inquiry. The initial reliability concerns were exacerbated by the inconsistent and admittedly perjured testimony at trial.
 The trial judge characterized the evidence adduced at trial as being either “inculpatory evidence” or “exculpatory evidence”. He explained what he meant by each term. As it seems to me, such a distinction is at once unhelpful and apt to mislead jurors in their deliberative process.
 The distinction is unhelpful because individual items of evidence are unlikely to be exclusively inculpatory or exculpatory, and are more likely to be an amalgam of both. The distinction is apt to mislead because it tends to advocate an item by item evaluation of the evidence rather than an evaluation of the evidence as a whole and an assessment of whether it sustains or falls short of the standard of proof required. In this respect it comes uncomfortably close to violating the injunctions of R. v. Morin, 1988 CanLII 8 (SCC),  2 S.C.R. 345 and R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.).
 I would give effect to this ground of appeal.
Ground #3: The Exculpatory Evidence Instruction
 This ground of appeal has its origins in the decision of the Supreme Court of Canada in Chartier v. A.G. Québec, 1979 CanLII 17 (SCC),  2 S.C.R. 474.
 Chartier was not a criminal case, much less an appellate review of the adequacy of jury instructions on eyewitness identification evidence. In particular, it did not decide what if anything should be said to a jury about the effect of discrepancies between an eyewitness’s description of a suspect’s features and the actual features of the suspect.
 Chartier involved a petition of right against the respondent claiming damages for the injuries resulting from a false arrest and wrongful charge. On appeal, it was alleged that the judge at first instance had misapprehended the evidence of a witness. The judge had mischaracterized the evidence as a positive recognition when in fact the witness had pointed out a feature – hair colour – that differed. Thus, the witness’s testimony was of a resemblance, not an identification. In that context, the majority said:
Regardless of the number of similar characteristics, if there is one dissimilar feature there is no identification.
See, Chartier at page 494.
 In R. v. Boucher (2000), 2000 CanLII 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.), the appellant challenged the decision of a judge of the superior court of criminal jurisdiction. The judge refused to quash a committal for trial on counts charging robbery and other offences. The charges arose out of a bank robbery. As against one of the alleged robbers, the case for the Crown depended upon the nexus provided by a pair of tear-away pants worn by one of the robbers and the clothing worn by a person said to be that robber as he ran into a hotel shortly after the robbery. The descriptions of the pants did not match.
 This court applied the principles in Chartier to hold that the discrepancy meant that there was no evidence of an identification, only evidence of a resemblance. In the absence of some other inculpatory evidence, a resemblance is no evidence: Boucher, at para. 19. If there was other inculpatory evidence, a trier of fact may have had a good reason for finding the testimony about the robber’s pants unreliable. But, in the absence of other inculpatory evidence, the dissimilarity at worst rendered the resemblance of no probative value and possibly stood as an exculpatory feature: Boucher, at para. 19. See also, Jack, at para. 16.
The Principles Applied
 In this case, there were significant differences between the height estimates provided by Tyler Bradley and Brian Larman about the shooter – Rico – and the person alleged to be Rico – the appellant. Defence counsel sought an instruction that linked this dissimilarity to the reliability of the identification evidence. No instruction was given. This was an error. This evidence, if accepted, generated a clear dissimilarity in the identification evidence, impacting, in turn, its reliability. And the omission was exacerbated by an instruction that permitted the jury to use Larman’s evidence to confirm the identification evidence of Tyler Bradley, a Vetrovecwitness. This was a further error. While Larman’s evidence corroborated Tyler’s evidence that the shooter was someone named Rico, it undermined Tyler’s evidence that the appellant was Rico insofar as Tyler described Rico as being substantially shorter than the appellant’s height. However, unlike in some cases such as Bennett, there was other evidence, albeit subject to a Vetrovec warning, that the appellant was the shooter. That said, the dissimilarity between the estimated height of the shooter and the actual height of the appellant was of sufficient significance to warrant an instruction to the jury.
 For these reasons, I am not satisfied that the instructions to the jury, taken as a whole, properly equipped them to engage in an informed assessment of the reliability of the identification evidence adduced at trial. This is not a case for the application of the proviso. The evidence is not overwhelming. Nor are the errors harmless. I would allow the appeal, set aside the convictions, and order a new trial on the indictment.
[November 12, 2021] The Second Prong of W(D) and Circumstantial Evidence [Justice Jill R. Presser]
AUTHOR’S NOTE: The second prong of W(D) (ie. the evidence of the accused or others that is not believed raising a reasonable doubt) is particularly difficult to grasp in the abstract. Here, Justice Presser's summary of how it applies to circumstantial evidence is particularly good. A different person testified to the possession of drugs in a home belonging to the accused. Although the evidence was not believed the court still had to ask itself: given this evidence, was the only reasonable inference the guilt of the accused? The answer was an acquittal.
 A mixture of fentanyl and carfentanil totaling 106.05 grams (3.74 ounces) were hidden in a locked safe in the walk-in closet in a bedroom at 168 Frederick Tisdale Drive in Toronto. The drugs were found and seized by police in execution of a search warrant on November 6, 2018. Michael Godelia was charged with possession of a controlled substance for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
 The Crown case consists entirely of circumstantial evidence. The Crown position is that it can be inferred from this evidence that the safe and the room in which it was located belonged to Michael Godelia, and that Mr. Godelia had knowledge of, and control over, the drugs found in the safe. For these reasons, the Crown alleges that Mr. Godelia is guilty of possessing the fentanyl/carfentanil mixture for the purpose of trafficking.
 Defence witness Shane Benjamin testified that he shared the room the drugs were found in with Mr. Godelia; that he had exclusive access to the safe; and that the drugs were his alone. His evidence was that Mr. Godelia did not know about the drugs, have control over them, or consent to their presence.
 In light of the circumstantial Crown case and the exculpatory defence evidence, the issues I must determine are whether Mr. Benjamin’s evidence is believed or raises a reasonable doubt and, if not, whether Mr. Godelia’s guilt is the only reasonable inference to be drawn from the evidence I do accept.
Circumstantial Evidence of Possession – Legal Principles
 In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada gave guidance as to the approach to be taken in cases that rely heavily on circumstantial evidence. The Court directed that juries should be cautioned against too readily drawing inferences of guilt from such evidence. Juries should be instructed that before they decide to convict on the basis of it, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits” because such an instruction helps to guard “against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences”: Villaroman, at para 30.
 Villaroman went on to hold that reasonable alternative inferences to guilt need not be based on proven facts. They need only be plausible based on logic and experience as applied to the evidence (at paras. 35 – 37):
In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. . . . Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
. . .
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies] and “other reasonable possibilities” which are inconsistent with guilt. . . . I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. . . . “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation [internal citations omitted].
 Schreck J. noted that in considering whether circumstantial evidence supports inferences other than guilt, alternative inferences must only be reasonable. They:
. . . need not be as strong or as compelling as the inference of guilt. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference: R. v. Knight, 2019 ONSC 2443, at para. 20
 ... I do not accept Mr. Benjamin’s evidence but am left in a state of reasonable doubt by it ...
 Mr. Benjamin was a difficult witness whose evidence challenged credulity in several ways, but he was able to accurately and specifically identify where the safe was located, and to describe most of the features of the safe’s appearance. He accurately identified that the key to the safe was hidden in the bedroom. He testified to the correct weight of the drugs. Mr. Benjamin may have been coached on these points by Mr. Godelia in the 11 months post-charge that the two men were still in contact with each other. Or he may have been assisted by his counsel who had access to the disclosure. But it is also reasonably possible that he knew these details because he was the person who bought the drugs, stored them in the safe, and hid the key.
 For all of the above reasons, overall, I do not believe Mr. Benjamin’s evidence, but I am left in a state of reasonable doubt by it. His story was quite possibly untrue, but it was not, to use the language of Villaroman, “irrational or fanciful.” It was reasonably possible. The Crown has therefore not proven beyond a reasonable doubt that Mr. Godelia had knowledge and control of the fentanyl/carfentanil mixture in this case.
The Crown’s Circumstantial Evidence
 I note, for completeness, that I am left in a state of reasonable doubt after careful consideration of all the evidence in this case,
- Mr. Godelia lived at 168 Frederick Tisdale Drive as of, at latest, September 27, 2018 when he registered that as his address with MTO. He was living there when the search warrant was executed on November 6, 2018;
- He occupied the bedroom in which the drugs were found, although I am left in reasonable doubt based on the evidence of Mr. Benjamin that he may have been one of two people who occupied that room;
- There were several documents with Mr. Godelia’s name on them that were found in the red folder in the bedroom closet. They were all dated. The most recent of them was from June 2017, approximately a year and five months before the drugs were found. ... There was no evidence of whether there were documents in that room with anyone else’s name on them;
- Mr. Godelia was not the registered owner of the Mercedes Benz licence plate BYHA 273, but he was observed driving it, riding in it as a passenger, and placing a duffle bag in and out of it in the days leading up to the police search on November 6, 2021; ...
- A parking ticket for the Mercedes dated July 28, 2017 was found in the plastic three-drawer container in the closet of the bedroom, in the same drawer as the keys that opened the safe where the drugs were found. There was no name on the ticket. I cannot determine who was driving the car when it was ticketed. Nor can I determine when the ticket, that was three and a half months old at the time of the search, was placed into the drawer. Or by whom. It also cannot be known when the ticket was placed in the drawer relative to when the safe keys were placed in the drawer;
- The closet where the drugs were found contained men’s clothing. The one pair of pants and one shoe box whose sizes were in evidence were not the sizes Mr. Benjamin testified he wore. There was a lot of other men’s clothing in that closet. There was no evidence of sizes of other clothes or shoes in the closet;
- The drugs were locked in the safe and were not visible;
- The key to the safe was in a drawer in the closet and was not visible;
- The drugs were of considerable value;
- There was no evidence that Mr. Godelia’s, or Mr. Benjamin’s, fingerprints were found on the drug packaging;
- There were two digital scales found in plain view, in the same closet as the drugs. The Crown submitted that digital scales are commonly used as tools of the drug trade. There was no evidence of whether the digital scales were working. There was no evidence that Mr. Godelia’s, or Mr. Benjamin’s, fingerprints were found on the scales. There was also no evidence that the scales were tested for or contained drug residue; and
- Mr. Benjamin was at 168 Frederick Tisdale on the evenings of November 4 and 5, 2018.
 It is well-established that “tenancy or occupancy of a place where an object is found does not create a presumption of possession”: R. v. Choudhury, 2021 ONCA 560 at para. 19. In this case, however, the Crown’s circumstantial case evidences more than mere tenancy or occupancy. There were two digital scales in plain view. There were some personal papers of Mr. Godelia’s in the same closet as the drugs, as well as a parking ticket for a car that he used in the same drawer as the keys to the safe where the drugs were being stored. In R v. Emes (2001), 2001 CanLII 3973 (ON CA), 157 C.C.C. (3d) 124 (Ont. C.A.) at para. 8, the Court of Appeal for Ontario upheld the trial judge’s finding that “[p]ersonal papers are, as a general rule, maintained in a location to which a person has access and control.”
 Overall, the circumstantial evidence in this case makes available the inference that Mr. Godelia had knowledge and control of the drugs hidden in the safe, whether on his own, jointly, or constructively. But I must consider whether this is the only reasonable inference available on all of the evidence in this case.
 There are a number of shortcomings in the Crown’s circumstantial evidence: how dated the documents with Mr. Godelia’s name on them were; the inability to conclude that Mr. Godelia was the person operating the Mercedes when it was ticketed or that the same person put the ticket and the safe keys in the drawer; the absence of evidence that the scales were used for drugs or by whom; and so on. In Emes at para. 8, the Court of Appeal quoted the trial judge’s holding that “the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned” and upheld his finding that “such explanations do not . . . accord with the factual probabilities of the circumstances” in that case. As a result, in Emes, the defendant’s knowledge and control were the only reasonable inference available on the circumstantial evidence. I conclude that the same cannot be said in this case. Here it is possible that Mr. Godelia’s old papers were simply stored in a shared closet. It is possible that he, or someone else, threw the parking ticket in the drawer when they got it, months before the safe keys were stored in the same drawer by Mr. Benjamin. It is a reasonable possibility that the closet was used by Mr. Benjamin for purposes of which Mr. Godelia was not aware.
 Considering all of the evidence here - all of the circumstantial evidence considered cumulatively, including its shortcomings, alongside the evidence of Mr. Benjamin - I am unable to say that the only reasonable inference is that Mr. Godelia had knowledge and control over the fentanyl/carfentanil mixture. The defence position that Mr. Benjamin had exclusive possession of the drugs is, to use the language of Villaroman, a ‘plausible theory.’ After considering all of the evidence, I am left with a reasonable doubt.
 For the foregoing reasons, I find that the Crown has not proven guilt beyond a reasonable doubt. Mr. Godelia is found not guilty.