The Defence Toolkit – January 15, 2022

This week's top three summaries: R v Panovski, 2021 ONCA 905: W(D) on all #exonerating ev, R v Furey, 2021 NLCA 59: #principled exc'pn necessity, and R v Davis, 2021 ONSC 8163: poss'n #knowledge.

R v Panovski, 2021 ONCA 905

[December 17, 2021] W(D) instruction applies to all exonerating evidence, Identification: Obligation to Summarize Inconsistent Descriptors [Reasons by David M. Paciocco J.A. with I.V.B. Nordheimer and J.A. Thorburn JJ.A. concurring]

AUTHOR’S NOTE: The principle that a W(D) instruction must be given with respect to all exonerating evidence (not just the testimony of the accused) is not new, but this case is an excellent example of what that means practically. Here, the trial judge's failure to instruct the jury on discrepancies in the descriptors of the assailant and his vehicle caused an unbalanced charge and breached the principles in W(D) as those details, some of which came from the main Crown witness, were not presented within the W(D) instruction to the jury.

The case has also an unusual attempt to use a prior non-recognition of the accused by the Crown. The prosecution tried to suggest that other people that know the accused might not recognize the accused by evidence of a prior failure to identify a photograph. The Court rejected this evidence as being inadmissible because it's probative value was non-existent. For this argument to have a chance of success, the exact circumstances of the purported photo identification would have to be replicated for the second person.

Overview

[1] Don Frigo and Eva Willer-Frigo (“Ms. Frigo”) were ambushed and shot by a gunman at a “bird-dogging event”. Uncontested evidence supports the conclusion that Mr. Frigo, who tragically died, was effectively executed. Ms. Frigo escaped on horseback after being struck in the face with shot-gun pellets. The gunman, who Ms. Frigo observed but did not recognize, made his get-away in a motor vehicle. Shortly after the shooting, she provided a detailed description of the gunman and of the motor vehicle.

[2] Within days of the shooting, the appellant, Boris Panovski, was arrested and charged as the gunman. He was ultimately tried before a jury. Despite strong circumstantial evidence implicating Mr. Panovski as the gunman, the Crown case was not without its challenges. Most notably, in material respects, Ms. Frigo’s description of the gunman was inconsistent with Mr. Panovski’s appearance at thetime. Moreover, Ms. Frigo had not recognised Mr. Panovski as the gunman, despite having known Mr. Panovski for many years, including a six-week period when he lived on the Frigo farm property. The jury nonetheless convicted Mr. Panovski of first-degree murder in the death of Mr. Frigo, and aggravated assault in the shooting of Ms. Frigo.

[3] ... He challenges the adequacy and fairness of the jury charge, its compliance with the rule in R. v. W.(D.), [1991], 1 S.C.R. 742, and the trial judge’s decision to admit testimony from Mr. Panovski’s girlfriend, Jessica Garcia, that on one occasion she herself had failed to recognize a photo of Mr. Panovski that had been taken during the time that Ms. Frigo and Mr. Panovski shared the same social circle.

Material Facts

[5] ... He had met Mr. Frigo in 1988. Ms. Frigo did not remember when she met Mr. Panovski. Until 2002, Ms. Frigo encountered Mr. Panovski periodically, but regularly, at bird-dogging events. Mr. Panovski trained dogs for the Frigos, and for a six-week period in 1996, lived on the Frigos’ farm property.

[6] Mr. Panovski stopped participating in bird-dogging after a 2005 incident in which he allegedly solicited a woman and indecently exposed himself in her presence in Georgia, while he was there for a bird-dogging event. Mr. Panovski, who denies this allegation, claims that he simply retired from competition because his main patron, Mr. Magnotta, had become ill. However, the Crown presented evidence that attributed the end of Mr. Panovski’s bird-dogging career to the Georgia incident. Whichever version is true, after 2005 Ms. Frigo no longer had occasion to encounter Mr. Panovski. The last time she had seen him was at her father’s funeral in 2006.

[7] The Crown theory is that, on September 13, 2014, Mr. Panovski shot the Frigos after nursing a festering grievance against Mr. Frigo arising from the Georgia incident more than nine years earlier.... Mr. Harper testified that in those conversations Mr. Panovski blamed Mr. Frigo and another dog trainer, Mike Hester, for “setting him up” and ruining his bird-dogging career. Mr. Harper also testified that Mr. Panovski said that he “will not forget”, that he “do[es] not forget things” and “there will come a day”.

[9] ... Mr. Panovski asked Michael if he could get him a gun “[t]o kill someone”. Mr. Panovski was yelling about being God’s son and asking why he was being punished. The Crown theory was that Mr. Panovski had asked Michael to get him a gun so that he could kill Mr. Frigo.

Crown Evidence of Preparation

[10] ... Mr. Panovski replaced the “2 NAT CH” vanity licence plates ... with standard issue licence plates that were in good condition.... he also had the windows of the car tinted. On July 26, 2014, Mr. Panovski had his shotgun repaired and, on September 11, 2014, he purchased a government-issued migratory game bird hunting permit.

[11] Cellphone triangulation evidence solidly supported the conclusion that on September 7th, 8th, and 12th, 2014, Mr. Panovski’s cellphone was in the immediate vicinity of the Frigos’ farm in the Caledon area.

[12] A forensic analysis of Mr. Panovski’s computer showed that on September 1st, 3rd, 6th, and 12th, 2014, he accessed the Region 13 Field Trials website ...

Crown Evidence of Opportunity

[13] Jessica Garcia, who was Mr. Panovski’s girlfriend ... 12:30 p.m. .... She also testified that when they left Mr. Panovski’s apartment, he told her he had his 20-gauge double-barrel shotgun in the car. It was later determined that Mr. Frigo had been shot with a 20-gauge shotgun shell, which would typically be fired from a 20-gauge shotgun.

[14] ... He acknowledged that he travelled near Clinton, Ontario, which is proximate to where the Hullett Field Trials were being held and the shooting occurred.

The Shooting Evidence

[15] ... The Frigos, who had participated in the event, remained in order to conduct training runs with their dogs.

[16] ... When they rode through parking lot 40589, Ms. Frigo noticed a motor vehicle. Suddenly, she heard a gun shot and heard Mr. Frigo say, “my head, my head”.

[17] Ms. Frigo saw that Mr. Frigo had fallen from his horse but was on his feet. He began to walk towards her when she heard another gun shot. Pellets, likely from that second shot, struck Ms. Frigo’s face. She then escaped on her horse. As she began to ride away, Ms. Frigo saw a man running towards the parking lot through the bush. She saw his profile, his dress, and his ambulation. She noted that he carried a beige gun.

[18] Ms. Frigo rode her horse to the protection of a knoll on the north side of Conservation Road. ... he observed the motor vehicle, that she had seen in parking lot 40589, move to where Mr. Frigo was laying and then stop. She watched as a shotgun – a different gun than she had observed the gunman carry, brown barrelled and not beige – protruded from the passenger-side window and was then discharged in the direction of Mr. Frigo’s head. It would later be determined that Mr. Frigo died from a shotgun blast to the back of his head.

[19] Ms. Frigo rode on her horse in the direction of the motor vehicle in effort to get the motor vehicle licence number, without success. Injured, she returned to the staging area to seek help.

Ms. Frigo’s Description of the Gunman

[20] ... white, not olive skinned, handsome, in his early to mid-40s, clean-cut and clean shaven, with short brown and grey hair, including grey hair in his sideburns. He was athletic, “[s]ure-footed” and fit, running like a “jack rabbit”, causing her to think the gunman was “young”, but given the grey hair she noticed, “not young, young”.

[21] She said the gunman was carrying a “single-barrel” shotgun with a beige stock and barrel. He was wearing light beige camouflage pants, and a matching beige fitted tunic-type top that may have had an “M” patch on it. He had a beige or camouflage ball cap on his head....

[22] Ms. Frigo said she had never seen this man before....

[23] It is not contested that the day of the shooting Mr. Panovski was 70 years of age, not in his mid-40s as Ms. Frigo had described the suspect. However, there was evidence that Mr. Panovski looked young for his age. Although Mr. Panovski had grey hair at the time when he associated with Ms. Frigo, at the time of the shooting he had been wearing his hair dyed black, showing no grey around the sideburns. He was not clean shaven but wore a goatee. He was around 5 foot 6 inches tall, with a “belly”, and a short goatee.

[24] Evidence was received that the day of the shooting Mr. Panovski was not wearing camouflage pants or a beige top, but jeans, black pants to put on top of the jeans if he was going to be hunting in a blind spot, and a blue sweater. He had a camouflage jacket with him.

[25] ... Without intending to suggest that it is impossible that some might conclude that the composite photo is suggestive of Mr. Panovski’s appearance, there are objective differences between the person depicted in the composite drawing and the photographic image of Mr. Panovski taken at the time of his arrest, approximately a week after the shooting. These differences include apparent age (with the composite subject appearing to be much younger than Mr. Panovski appears in the photo), the facial hair (the subject in the composite drawing is clean shaven and Mr. Panovski has a goatee in the photo and, according to the evidence, wore a goatee on the day of the shooting), and the neck (the composite subject has a slighter, tight neck while Mr. Panovski has a looser, larger and apparently more squat neck).

[26] In an apparent effort to assist in explaining why Ms. Frigo may not have recognized Mr. Panovski, and over trial counsel’s objection, the Crown obtained testimony from Ms. Garcia that she had once failed to recognize Mr. Panovski from a photograph that was taken of him around the time he and Ms. Frigo would have known one another, a period prior to Ms. Garcia having met Mr. Panovski. [Emphasis by PM]

Ms. Frigo’s Description of the Motor Vehicle

[27] Ms. Frigo was unsuccessful in obtaining the vehicle licence plate number. She said that she did not succeed because the blue and white licence plate was faded, and “probably” old.

[29] Mr. Panovski’s Corolla motor vehicle was seized after the shooting. Unlike the vehicle that Ms. Frigo described, it had an Ontario licence plate in good condition. Its taillights were not square, its windshield was not tinted, and the emblem on the trunk was a standard Toyota logo, not the emblem that Ms. Frigo had detailed....

Michael’s Description of a Suspect Vehicle

[30] Like the Frigos, Michael, who had attended the Hullett Field Trials, remained in the area late in the afternoon. ... he observed what he identified to be an older “baby blue” Corolla motor vehicle driving east. ... At some point after the Frigos left the staging area, Michael saw the same baby blue motor vehicle that he had observed earlier drive west towards the intersection of Wildlife Line and Conservation Road. A short time later, Ms. Frigo arrived injured at the staging area with Mr. Frigo’s horse and dog.

Forensic Evidence Consistent with Guilt

Shotgun Shell Components

[32] Ms. Plath was able to determine that Mr. Frigo was struck by size 4 steel shot. Wadding from a shotgun shell was found embedded in his brain, and a similar wadding was found at the scene of the shooting....

[33] A 20-gauge 3-inch Winchester brand shotgun shell loaded with size 4 steel shot was found in the pocket of the jacket Mr. Panovski was known to have in his possession on the day of the shooting. The wadding found in shotgun shells varies in shape, size and construction. The characteristics of the wadding in the shotgun shell found in Mr. Panovski’s coat pocket was “in agreement” with the wadding linked to the crime scene, including having four petals, and a circular indentation on its base. ... Ms. Plath agreed in her testimony that she could not say only one manufacturer uses this kind of wadding.

The Gunshot Residue Evidence

[36] Five particles of GSR were detected on the passenger seat of Mr. Panovski’s Toyota Corolla. No particles were detected on the roof liner where it is quite common to find a large number of particles after a firearm has been discharged in a vehicle. .... There were alternative explanations, including transference from persons or articles that have been in the proximity of discharged firearms.

[37] Perhaps not surprisingly, GSR was also found on the camouflage hunting jacket that Mr. Panovski had possessed, as well as a camouflage toque and gloves found in the jacket.

Tire Tread Impression Evidence

[38] Mr. Panovski’s motor vehicle was found to be equipped with MotoMaster tires, a common brand of tires available, for example, at Canadian Tire stores. Subsequent forensic examination would determine that these tires were similar in shape, design and physical size to tire impressions recovered from the scene of the shooting, although no distinguishing characteristics were identified that could link the tire impressions and the tires on Mr. Panovski’s vehicle.

After the Fact Conduct

[39] ... The next day he went to the bank and withdrew CAD $5,000 and EUR 5,000 in traveller’s cheques and purchased an air ticket with cash for departure to Macedonia that night, with a flexible return date for within six months from departure. He cancelled his gym membership and the insurance on his vehicles and gave Ms. Garcia a cheque for one month’s rent on his apartment and instructed her to give it to his landlord. He delivered his 20-gauge shotgun and ammunition box to his friend, Dale Reesor to hold until his return and arranged to park his vehicles at Mr. Reesor’s place. He signed the vehicles, including the Toyota, over to Mr. Reesor’s son Thomas, and asked Thomas to give the licence plate on the Toyota to his grandson Michael. He then left the country and went to Macedonia.

[40] Mr. Panovski returned to Canada on September 21, 2014, after he received a call accusing him of killing Mr. Frigo. He was aware, when he returned, that Macedonia does not have an extradition treaty with Canada. He was arrested on his return.

Panovski's Defence Evidence

[43] ... He described the sport of bird-dogging and his connection to it, outlined his relationship with Mr. Frigo and denied having animus against him, who he claimed to be friendly with. He denied leaving the sport because of the Georgia incident, explaining that he left because he could not expect to replicate the success and support he had from his sponsor, Mr. Magnotta, who had fallen ill. ... Mr. Panovski testified that, on the day of the shooting, he travelled from Toronto to within a 10-minute drive of where the Hullett Field Trials were being held. He said that he parked in a farmer’s field to look for goose hunting spots. He denied being present at the Hullett Field Trials or shooting Mr. Frigo and Ms. Frigo.

The Jury Charge

[47]  I will describe the content of the charge that is relevant to this appeal.

[50] Subsequently, closer to the end of his charge, the trial judge returned to the issues in the trial:

The real issue in this case that overrides or stands at the top for your consideration, is whether the events alleged to form the basis of the crimes charged ever took place. ... If you have a reasonable doubt whether the events alleged ever took place you must find Mr. Panovski not guilty.... You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that formed the basis of the crimes charged, in fact, took place and that Mr. Panovski was the culprit.

[52]  He continued:

To determine whether Crown counsel has proven beyond a reasonable doubt that Mr. Panovski meant to kill Ms. Willer-Frigo when she was riding her horse at Hullett, you must consider all the evidence. You should consider what Mr. Panovski did or did not do, how he did or did not do it, and what he said or did not say. Consider what Mr. Panovski said and did before, at the time and after he fired the shotgun at her head. All these things and the circumstances in which they occurred may shed some light on Mr. Panovski’s state of mind at the time. They may help you decide what Mr. Panovski meant or didn’t mean to do.

...

To help you determine whether Crown counsel has proven beyond a reasonable doubt that Mr. Panovski meant to kill her when he discharged the firearm towards her head, you may conclude as a matter of common sense that a person usually knows what the predictable consequences of his or her conduct are and means to bring them about.

[53]  The trial judge also elaborated on what he identified as the second essential element of the attempted murder charge:

Did Mr. Panovski discharge his shotgun towards the head of Ms. Willer-Frigo? This has to do with Mr. Panovski’s conduct. Mr. Panovski is alleged to have fired toward her and struck her head. If you are satisfied beyond a reasonable doubt that he did do that this conduct amounts to an attempt to kill Ms. Willer-Frigo.

Ms. Frigo's Identification Evidence

[54] ... Rather, he described her evidence as “an attempt in all the circumstances which prevailed to describe the shooter”, “in effect, a description given by a victim of a shooting”.

[55] The trial judge then instructed the jury that “[s]he has stated her opinion, that she had never seen the shooter before” and he alerted the jury that if this evidence raises a reasonable doubt, “considering that in fact, she had had contact with Boris Panovski previously in the field dog context”, they must acquit Mr. Panovski of all of the charges....

[56] He then continued:

In deciding whether her inability to recognize the shooter raises a reasonable doubt you should consider the following factors. Her opportunity for observation was sudden, brief and unexpected. She had been shot at and wounded. Her focus was on escape. She was traumatized by seeing her husband killed.

Further factors. You have the evidence that she had limited contact with Boris Panovski in the immediately preceding years. You have the photographic evidence of Boris Panovski’s changes in appearance in the preceding years, with respect to hair colour and physic [sic]. You have the evidence that the shooter was wearing a hat. You will consider the passage of time and emotional upheaval which elapsed between the shooting and her attempts to describe the shooter. Ms. Willer-Frigo has described, not identified the shooter.... If her failure to recognise the shooter in all the circumstances of the rest of the evidence which you do accept leaves you with a reasonable doubt you must give the benefit of that doubt to the accused and acquit him of all counts. [Emphasis added.]

Circumstantial Evidence Review

[58] ... the trial judge “itemize[d]” the circumstantial evidence that comprises “[t]he case against Mr. Panovski”1:

You have heard evidence that, Mr. Panovski requested his grandson to get him a gun to kill someone (“gun request”).

Mr. Panovski had his 20 gauge shotgun repaired (“shotgun repair”).

Mr. Panovski, in the period before the murder, accessed field trial websites (“website visitation #1”).

Mr. Panovski, on September 7th, 8th and 12th, drove by Mr. Frigo’s residence in the Caledon area (“presence near the Frigo residence”).

Mr. Panovski, eight days before the shootings, exchanged his personalized boastful plates from his Toyota Corolla (“exchanged vehicle plates”).

Mr. Panovski, in days before the shootings, tinted the windows of his 16-year-old car (“tinted windows”).

Mr. Panovski, on the night before the shootings posted a photo of his 2 NAT CH plates on Facebook (“boastful vehicle plates”).

Mr. Panovski had Moto Master on his car which were capable of leaving tire impressions similar in nature to those left at the shooting scene. The similarities were in shape, design and size (“tire impressions”).

Mr. Panovski, in his car, along with his shotgun on the day of the shooting was in the geographical area which includes the Hullett Conservation Area within it (“possession of shotgun and proximity”).

Mr. Panovski visited a website less than 24 hours before the shooting. Mr. Frigo was killed at an event which was advertised on the website which Mr. Panovski visited (“website visitation #2”).

Mr. Panovski was very familiar with the Hullett Wildlife area and the patterns of participants at the annual September meet. This area was a remote rural one. Mr. Panovski had a 20-gauge shotgun and number four shot. Mr. Frigo was killed by a 20-gauge shotgun using number four shot (“possession of similar shotgun and similar shot”).

Mr. Panovski’s car was found to have shotgun residue on the front passenger seat. The shot which killed Mr. Frigo came from the front passenger side of the shooter’s car (“gun shot residue”).

Mr. Panovski had shotgun ammunition of size five and six shot (“similar shot”).

Ms. Willer-Frigo was hit in the face by a size five or six shot (“similar shot”)

Mr. Panovski’s camouflaged coat pocket was found to contain a shotgun shell with wadding sharing the same class characteristics of size, colour, four petal construction, base indent as the 20 gauge wadding found at the scene and the 20 gauge wadding found at autopsy in Mr. Frigo’s brain (“similar wadding”).

Mr. Panovski’s appearance in September of 2014, as distinct from his appearance at other times, was generally consistent with the description given my Ms. Willer-Frigo. The composite drawing which she assisted in preparing was also generally consistent with Mr. Panovski’s appearance in September of 2014 (“similar appearance”).

Mr. Panovski’s phone as recorded by cell towers showed movement from west to east within hours of the shootings (“cellphone tower evidence”).

Mr. Panovski on arrival at his girlfriend’s told her to note the time, “if anyone asks”. He then checked American Field online and Facebook (“Garcia request”).

Mr. Panovski paid for a car wash late on the date of the shooting. And on that date Mr. Panovski purchased gas for the second time. The shooting location is 223 kilometres from his apartment (“car wash and gas”).

Mr. Panovski on the second day after the shooting made rapid arrangements to and did depart for Macedonia. His arrangements included cancelling car and apartment insurance and his gym membership. An attempt to cancel life insurance, storage of his gun and signing of ownership of his two vehicles (“sudden departure”).

Defence Evidence Review

[59] .... He began with Mr. Panovski’s evidence, which he described in six lines of his charge:

He made a categorical denial of involvement in these shootings in his testimony. He denied that he had the personal features or the clothing described by Ms. Willer-Frigo. He denied having a car with the features described by various witnesses.

[60] “Michael Panovski says he saw a car on Conservation Road which he said was not Boris Panovski’s car.” The trial judge gave no more detail about Michael Panovski’s evidence relating to the car.

[63] When the trial judge recounted the circumstantial evidence against Mr. Panovski, recounted in para. 58 above, he did not reference explanations that Mr.Panovski provided in his testimony that, if true, would neutralize the incriminating circumstantial inferences the Crown asked the jury to draw.

Did the Judge Commit a W(D) Error in his Recharge?

[80] I would find that the trial judge committed a W.(D.) error in his recharge relating to the testimony of Ms. Frigo. Given that there were aspects of Ms. Frigo’s testimony that, if accurate, would exclude the possibility that Mr. Panovski was the gunman, the trial judge’s initial direction to the jury to consider whether Ms. Frigo’s evidence left them in a reasonable doubt was correct. But in his recharge, he erred by retracting this direction and by instructing jurors “not [to] apply the reasonable doubt standard to [Ms. Frigo’s] evidence alone”.

[81] I have already described the general rule in R. v. W.(D.), in para. 66 above. The decision of this court in R. v. T.L., 2008 ONCA 763, confirms that this rule applies to the exculpatory features of eyewitness testimony. This court recognized in R. v. T.L. that eyewitness descriptions of a robber that contained significant and discernibly different features than those of the appellant were exculpatory evidence requiring a W.(D.) direction. That evidence was exculpatory because, if accurate, those features excluded the possibility that the appellant was the robber. This court therefore held that the trial judge erred by failing to make clear to jurors that they were required to acquit even if they did not believe this evidence, as long as it left them with a reasonable doubt.

[82] As R. v. T.L. illustrates, the rule in W.(D.) applies to exculpatory evidence even if that evidence is embedded in testimony that includes inculpatory content. The decision in R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, provides further support for this proposition. In Rowe the testimony of an unsavoury Crown witness included both inculpatory and exculpatory evidence.

[83] In my view, a similar error occurred in this case. Ms. Frigo’s testimony relevant to the identity of the gunman, although including some inculpatory information, contained features that were significant and discernably different than Mr. Panovski. Specifically, Ms. Frigo’s description of the suspect included that he was fit and “young”, in his early to mid-40s, clean shaven with short brown and grey hair, including grey hair in his sideburn, which she could see in the profile she viewed. In contrast, Mr. Panovski was, at the time of the shootings, 70 years old with a belly, sporting a short goatee and black hair, with no grey in his sideburn.

[84] In addition, Ms. Frigo testified that the motor vehicle used by the gunman had a faded, “probably old” licence plate, square taillights, a heavily tinted windshield, a large emblem on the middle of the trunk of the vehicle that included a stylized “S” that may have said “Senza”, and five chrome lines spaced about 3 inches apart along the back, below that emblem. The motor vehicle that Mr. Panovski was known to have driven on the day of the shooting had a licence plate in good condition, and did not have square taillights, a tinted windshield, a large emblem on the trunk of the vehicle that said “Senza”, or chrome lines beneath the emblem.

[85] Moreover, Ms. Frigo, who knew Mr. Panovski and had been in his company on numerous occasions, said that she did not recognize the gunman.

[86] I appreciate that it was open to jurors to conclude that in the circumstances Ms. Frigo’s description of the gunman and of his motor vehicle were unreliable, and that Ms. Frigo simply failed to recognize Mr. Panovski. But this is not the standard to apply in deciding whether to provide a W.(D.) direction. The question is whether, if accurate, the evidence would exclude the possibility of guilt. This approach respects the relative functions of the trial judge as the trier of law, and the jury as the trier of fact. Quite simply, it was open to jurors to accept Ms. Frigo’s description and/or to find based on her inability to recognize the gunman that the gunman was not Mr. Panovski. And it was open to jurors to be left in a reasonable doubt by Ms. Frigo’s evidence. The trial judge was therefore required to equip jurors with proper instructions, but he did not do so. Instead, he misdirected jurors during the recharge by effectively telling jurors not to apply the W.(D.) principles to Ms. Frigo’s evidence. [Emphasis by PM]

[89]  I would therefore give effect to this ground of appeal.

Was the Charge Unbalanced?

[92] ... A failure to explain the positions of the parties and identify the substantial evidence requiring consideration will render a trial unfair, except in simple or short trials where it is unnecessary to give such assistance to jurors: Newton, at paras. 13, 19; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44; R. v. Daley, at para. 54.

[95] In my view, even allowing for appropriate deference and respecting the admonition that a charge must decant and simplify, the trial judge did not succeed in reviewing the substantial features of the evidence or in relating it to the critical issues in the case. Two shortcomings in particular drive me to this conclusion.

[96] First, the theory of the defence included heavy reliance on the distinctions between Ms. Frigo’s description of the gunman, and Mr. Panovski’s physical appearance, as well as the discrepancies between Ms. Frigo’s description of the gunman’s motor vehicle, and the motor vehicle that Mr. Panovski was known to have been driving that day. Yet the trial judge did not direct the jury to consider these features of the defence case. Instead he spoke only of the case against Mr. Panovski depending “to some extent” on Ms. Frigo’s testimony. Nor did he recount the descriptions of the gunman and the motor vehicle that Ms. Frigo had provided.

[97] In my view, these were substantial features of the defence case that related to critical issues in the case that should have been reviewed. Without question, where a witness identifies the accused as the person who committed the offence a trial judge is required in their charge to draw to the attention of jurors any specific features of that witness’s description that do not match the appearance of the accused: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 88; R. v. Mariani¸ 2007 ONCA 329, 220 C.C.C. (3d) 74, at para. 14; R. v. Brown, 2007 ONCA 71, at paras. 17-19. I reject any suggestion in that this same obligation did not apply in this case because Ms. Frigo had not identified Mr. Panovski as the gunman. Put simply, it is a non sequitur to suggest that since discrepancies can weaken an identification, discrepancies between the suspect and the accused will not be substantial when there has been no identification. Ms. Frigo testified that the gunman had features that Mr. Panovski did not have. Ms. Frigo also testified that the gunman’s motor vehicle had features that Mr. Panovski’s motor vehicle did not have. If her evidence was accurate, then Mr. Panovski was not the gunman, and the motor vehicle evidence she provided would assist the defence. Yet the trial judge failed to assist jurors in appreciating the value and effect of this evidence by omitting from his charge a recital of these critical issues, and by failing to recount substantial evidence relating to these issues.

[98] Second, the trial judge’s treatment in his charge of the testimony of Mr. Panovski was thoroughly inadequate. Mr. Panovski testified for approximately two and one-half days, yet the trial judge’s recitation of his testimony was cursory and conclusory, consisting of only six lines of a jury charge that took more than 80 pages to transcribe. The trial judge alerted the jury to Mr. Panovski’s “categorical denial of involvement in these shootings” and his denial of “having a car with the features described by various witnesses”, but Mr. Panovski’s testimony went far beyond this.

[99] Of note, Mr. Panovski provided extensive testimony to counter the Crown’s motive theory. Motive was undoubtedly a critical issue for the Crown, who presented a significant body of evidence of simmering animosity on Mr. Panovski’s part against Mr. Frigo, including a triggering event that allegedly produced devastating consequences for Mr. Panovski – the loss of his bird-dogging career – as well as testimony that Mr. Panovski blamed Mr. Frigo for this and threatened revenge. When directing jurors on the concept of motive, the trial judge did say that in his testimony Mr. Panovski rejected the motive for the offences provided by Mr. Harper, but the trial judge gave no details in his charge about Mr. Panovski’s extensive testimony denying the triggering event, disclaiming animosity towards Mr. Frigo, and repudiating the Crown’s evidence that he had threatened revenge.

[103] In addition to setting out the relative positions of the parties relating to the essential issues and the substantial parts of the evidence supporting each of their positions, “a jury charge must… be even-handed, the instructions fair and balanced”: R. v. Huard, at para. 69. A trial judge will err where the charge as a whole steers the jury in the Crown’s direction: R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para 41. Put simply, a charge that has “unduly promoted the case for the Crown and effectively ignored or denigrated the case for the defence” will have been unbalanced, and will have undermined the fairness of the trial: R. v. Baltovich, at para. 113; R. v. Li (2005), 2004 CanLII 18634 (ON CA), 183 C.C.C. (3d) 48 (Ont. C.A.), at para. 42.

[105] However, if a trial judge chooses “to review the Crown’s evidence in substantial detail, the trial judge [is] obliged to provide a similar review of the defence evidence in order to maintain an appropriate balance”: R. v. Li, at para. 42.

[106] I am persuaded, when bearing in mind the caveats that I have just expressed, that the jury charge provided in this case was not balanced. Instead, it unduly promoted the case for the Crown and effectively ignored or denigrated the case for the defence. The trial judge chose to review the Crown case in substantial detail but failed to provide a similar review of the defence evidence. There were sundry other less significant areas of the charge that arguably indicate imbalance, but my conclusions on this issue are based primarily on the cumulative effect of the following considerations:

•  The circumstantial case – Based on the Crown submissions, the trial judge provided a detailed summary of the incriminating circumstantial evidence. As indicated, he did so without mention of the extensive testimony Mr. Panovski offered that, if accurate, may have neutralized many of the inculpatory inferences the Crown was inviting (see para. 63 above)....
• The treatment of Ms. Frigo’s identification evidence – There were three features of Ms. Frigo’s eyewitness testimony that may have assisted the defence: (1) the descriptive discrepancies relating to Mr. Panovski; (2) the descriptive discrepancies relating to Mr. Panovski’s vehicle; and (3) the failure to recognize. In my view the trial judge’s treatment of each of these issues was unbalanced: ...
• Dismissive messaging relating to the issue of identity – After initially and correctly identifying “the identity of the shooter” as a real issue in the case, the trial judge described the issues on the attempted murder charge as if there was no issue that Mr. Panovski was the gunman (see para. 49 above). ...
• The treatment of the defence evidence – As indicated, the trial judge gave only a curt and cursory summary of Mr. Panovski’s evidence, making no mention of the specific evidence he gave relating to motive, or his efforts to explain the circumstantial evidence against him. ...

Error in the Admission of Ms. Garcia's Non-Recognition Evidence

[108] I would find that the trial judge erred in admitting testimony of Ms. Garcia that she had once failed to recognize Mr. Panovski from a photograph that was taken at the time that he and Ms. Frigo would have known each other. The trial judge accepted the Crown’s submission that Ms. Garcia’s failure to recognize Mr. Panovski from a photograph was relevant in explaining why Ms. Frigo may not have recognized Mr. Panovski during the shooting. I see no probative value in this evidence, only the risk of prejudice. It should not have been admitted.

[109] It is important to appreciate that recognition evidence is non-expert lay opinion evidence: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 13. ...

[111] ... The instant point is that Ms. Garcia’s non-recognition opinion, formed under markedly different circumstances, could tell jurors nothing useful about the accuracy of Ms. Frigo’s non-recognition opinion and should not have been admitted.

Conclusion

[117] I would therefore allow the appeal, set aside the convictions, and order a new trial.

R v Furey, 2021 NLCA 59

[December 23, 2021] Principled Exception to Hearsay: Necessity Requirement Does Not Bend the Reliability Factor [Reasons by Welsh J.A., with C.W. White J.A. concurring and F.J. Knickle J.A. dissenting]

AUTHOR’S NOTE: In the principled exception to hearsay, the where evidence is particularly reliable, the necessity requirement sometimes is relaxed in favour of admission of the evidence. A text written in part by Paciacco J.A. (of the Ontario Court of Appeal) suggested that the reliability requirement is sometimes relaxed where necessity is really high (ie. Crown really, really needs the evidence to prove the issue). Herein, the majority says this proposition is wrong, not supported by any law, and should not be followed. The reliability criterion can never be relaxed for hearsay admissibility under the principled exception.

Introduction and Background

[2] Mr. Furey’s convictions resulted from events that took place when, on two different occasions on the evening of January 7, 2020, he entered uninvited into the residence of Paul and Chris Worrall. Paul Worrall was home and confronted Mr. Furey on the first occasion. On the second occasion both Worralls were home when a further confrontation occurred.

[3] Paul Worrall gave a statement to the police later that night. However, he died from unrelated causes prior to the trial. At the trial, the judge heard testimony from Chris Worrall, police officers and neighbours. A voir dire was held to determine the admissibility of Paul Worrall’s statement. The trial judge concluded that the audio and video recorded statement was admissible for the truth of its contents.

Analysis

[5] The analysis to determine the admissibility of an out-of-court statement where the declarant is unavailable to testify at the trial begins with a consideration of necessity and reliability.  In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, Karakatsanis J., for the majority, discussed relevant considerations:

[1]        Hearsay is an out-of-court statement tendered for the truth of its contents.  It is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess the truth.  Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness.  However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.

[26]      To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s thresholdreliability.  Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon [2006 SCC 57, [2006] 2 S.C.R. 787], at para. 49).  These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras 35 and 48).  In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49);  ...

(Italics in the original.)

[7] In assessing the reliability of the statement, Karakatsanis J. addressed both procedural and substantive reliability:

[28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). ...

(Italics in the original.)

[8] Relevant considerations may include whether there is a video recording of the statement, and whether the statement was given under oath or a warning was given about the consequences of lying.

[30]      A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah [2013 SCC 41], at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 (S.C.C.). at p. 929).  To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 (S.C.C.), at para. 55).

[31]      ...  Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a skeptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40). ...

[32] ... That said, the threshold reliability standard always remains high – the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents ...

(Italics in the original, emphasis added.)

[72]      ... And it is important to remember that the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed: ...

[11] At issue in this appeal is the obverse of the above principle; that is, whether reliability may be relaxed where necessity is high.

Application of the Law

[12] ... On this basis, counsel submits that the trial judge erred by relying on the following statement in Paciocco and Stuesser, The Law of Evidence, 7th edition, (Toronto: Irwin Law Inc., 2015), at paragraph 1.2(b) (the “Paciocco text”): ...

... If an item of evidence exhibits high reliability then necessity can be relaxed and, similarly, if necessity is high then less reliability may be required.... What this means is the greater the necessity, the less the reliability.

[13] I accept the submission of counsel for Mr. Furey. The case law does not support the above statement in the Paciocco text that, where there is greater necessity, less reliability is acceptable. In fact, increased necessity does not have the effect of reducing the threshold of reliability that is required in order to render an out-of-court statement admissible. Reliability is a key component when assessing whether an out-of-court statement by a deceased person is admissible for the truth of its contents. It follows that the trial judge erred insofar as she relied on and applied the erroneous statement of the law.

[Appeal allowed]

R v Davis, 2021 ONSC 8163

[December 13, 2021] Possession: the element of knowledge - After the Fact Conduct: Black Males Running from Police [Justice V. Christie]

AUTHOR’S NOTE: This case provides an excellent summary of the knowledge element of possession which leads to an acquittal in a firearm possession case. The principles are concisely summarized and easy to follow particularly as it relates to knowledge of the contents of a car. Further, the proposition that an inference of guilt flows from the fact that a black man runs from tactical police for some time is roundly rejected. The existence of systemic racism against black males in our society is a consideration on any circumstantial evidence such as flight from police. Unless there is more, this evidence cannot lead to a finding of guilt. 

Overview

[1]  On July 3, 2019, a prohibited firearm – a .40 caliber Smith & Wesson pistol – was found tucked under the passenger seat of a car driven by the accused, Eysayah Davis. There had also been a passenger in that car, Lamar Cyrus. As a result of the discovery of this firearm by police, Mr. Davis was charged with four criminal offences, including, possession of a firearm for a dangerous purpose (s. 88(2)), possession of a firearm without being the holder of a licence permitting such possession (s. 91(3)), occupying a motor vehicle knowing that there was a firearm in the vehicle (s. 94(2)), and possession of a loaded prohibited firearm without being the holder of a licence permitting such possession (s. 95(1)).

[2]  The real issue in this case is whether the Crown has proven knowledge and control over the firearm.

Facts

[4]  On July 3, 2019, police were intending to arrest Lamar Cyrus for murder when he attended for an appointment at 1:00 p.m. at Etobicoke North Probation and Parole Office at 25 Woodbine Downs Blvd, Etobicoke, located at the northwest corner of Finch and Highway 27. Police officers planned to conduct surveillance on Mr. Cyrus from his residence in Toronto to this probation office.

[6]  At 12:38 p.m., Mr. Davis picked up Lamar Cyrus at his residence on Warrender Avenue in a Nissan Altima that Mr. Davis was driving. The car was registered to Lorraine Morrison, Mr. Davis’ mother. Mr. Cyrus got into the front passenger’s seat. Mr. Davis drove Mr. Cyrus to the probation office on Woodbine Downs. No one else was in the vehicle. There was no evidence as to what the two were doing in the vehicle during this drive to probation. The only observation inside the vehicle was that D/C Michael Rapson noted that the driver, Mr. Davis, was wearing something black on his head with a white tag noticeably on it. D/C Rapson was conducting surveillance on the vehicle and its occupants throughout the drive, which was approximately 14 minutes – 12:38 p.m. to 12:52 p.m. He testified that he had his eyes on the vehicle the entire time, either in front of him or by using his rear-view mirror when behind him. D/C Rapson agreed that he was driving and observing the rules of the road, and that he could not see what was going on in the car at any time during the drive.

[9]  Once the vehicle parked, the occupants sat there for a few minutes. No one could see what if anything was happening inside the vehicle. Police were observing but nothing was of note. Mr. Cyrus then got out and walked northwest to the area of the Honest Restaurant pin on Exhibit 2. ERU Officer Reichert heard over the air that Mr. Cyrus had exited the Nissan Altima and was given a description of Mr. Cyrus. As Mr. Cyrus approached the probation office, he approached the driver’s side of the F-150 that the police officers were located in.

[10]  At 1:00 p.m., Mr. Cyrus was beside the rear driver’s side door of the pickup. Officer Reichert opened the rear driver’s side door and effected the arrest. Mr. Cyrus turned at which point it was believed he was going to run. Officer Reichert grabbed his sweater. Mr. Cyrus then appeared to be reaching into his right pocket or waist band area. Officer Reichert was concerned about a firearm, took Mr. Cyrus to the ground, and secured his arms behind his back. Mr. Cyrus was searched. No weapons were found on his person. Custody of Mr. Cyrus was turned over to another officer at 1:06 p.m.

[11]  As the arrest of Mr. Cyrus was taking place, D/C Rapson was to assist with additional ERU officers to detain the car that Mr. Cyrus had gotten out of, to ensure that the driver of the car did not obstruct the arrest in any way. Police did not know who was driving the car.

[12]  D/C Rapson saw Mr. Davis get out of the driver’s side of the Nissan Altima. D/C Rapson did not know Mr. Davis and had never seen him before. Mr. Davis started walking away from the vehicle as the ERU unmarked vehicles were coming toward the car and ERU officers, in their tactical gear, were exiting the vehicles. Mr. Davis appeared to be “taking note” of the ERU officers as he was walking away from the car, travelling east on the north edge of the Burger King. Mr. Davis kept walking east but looking back at the ERU tactical officers who were outside their vehicle. There were more than two ERU officers and D/C Rapson agreed it would be an “intimidating sight”. D/C Rapson attempted to describe how Mr. Davis was looking at the ERU officers, in that his movements appeared calculated, as he was slowly walking away looking back out of the corner of his eye. D/C Rapson agreed that he did not know Mr. Davis and could not read his mind.

[13]  D/C Rapson brought his truck closer to the car and was located northeast of the Finchwood Plaza pin on Exhibit 2. He got out wearing shorts, a t-shirt and a black tactical vest with “police” written on it. As Mr. Davis was on the north side of the Burger King, closer to the west edge, having been walking away for about 10-20 seconds, D/C Rapson yelled, “Hey”, at which point Mr. Davis “took off” and ran east across the lot. D/C Rapson stated that he wanted Mr. Davis to stop as he was concerned as to the manner in which he was walking away from ERU officers. As Mr. Davis ran, he dropped the t-shirt he had on his head in front of Burger King. D/C Rapson ran after Mr. Davis. They traversed a deep ditch, approximately 20-25 feet deep, then crossed Highway 27 which was busy with traffic. They continued to behind a Harvey’s restaurant. Behind the building next to Harvey’s, in that rear laneway, Mr. Davis stopped on his own.

[14]  Even though other officers, including Officer Eugene Yeung, were also in pursuit, D/C Rapson was the first to catch up to Mr. Davis. As D/C Rapson reached him, Mr. Davis had his hand in his pocket, which caused the officer to have concern for the presence of a firearm. D/C Rapson then drew his firearm and pointed it at the torso of Mr. Davis. At this point, Mr. Davis was cooperative and put his hands up. D/C Rapson pushed Mr. Davis to the ground with his foot as he was not getting down as quickly as D/C Rapson would have preferred. In interacting with Mr. Davis, D/C Rapson acknowledged that he swore at Mr. Davis. After he had control of Mr. Davis, he re-holstered his firearm. D/C Rapson took custody of Mr. Davis and handcuffed him. Officer Yeung performed a pat down search on Mr. Davis to check for weapons. No weapons were found, in fact, nothing notable was found. Mr.Davisthenaskedforhismother,whichmadeD/CRapsonquestion how old Mr. Davis was and asked for his age. D/C Rapson explained to Mr. Davis the reason he was detained, that he was worried about weapons, and told him not to talk. Mr. Davis was then left with Officer Yeung. Other officers were also present.

[16]  In the meantime, PC Matt Ready went toward the Nissan Altima. At the time he went to the vehicle, all doors and windows were closed, it was parked in the parking lot with no oneinside. PCReadylookedinsidethevehicle,towardthefloor,andsawwhathebelieved to be the butt end of a pistol magazine on the front passenger’s side floor under the seat. At that time, he was standing at the front passenger’s side door, looking in the passenger’s side window. He did not try to open or enter the vehicle. PC Ready was shown photograph 5 of Exhibit 3 which showed the magazine under the seat near a pair of sunglasses. He stated that this was a different angle than his view, but stated that the items looked to be in the exact same location where he observed them. In cross-examination, he stated that he did not think it moved much if any when the vehicle was moved from the scene. PC Ready agreed that the magazine was closer to the center console than to the door. He never sat in the driver’s seat to see what could be seen on the passenger’s side floor, although he assumed that this item would not be able to be seen from the driver’s seat. He stated that it was sticking out from under the seat approximately 1-2 inches. He also stated that from his angle, he could not see bullets, but only the coil spring.

[18]  Sgt. Kelly Rogers executed a search warrant on the Nissan Altima and took a number of photographs, which included photographs of the firearm under the passenger’s seat, as it was located when the vehicle was parked in the bay in the forensic unit. There were also photographs of the firearm and magazine after it was removed from the vehicle. Finally, there was a photo of the console between the front seats which had an iPhone box, with components described by her as “firearm related”, and which Sgt. Rogers testified she believed were laser sights, as one of the items had “laser sight” printed on it.

[20]  The firearm was found to be a Polymer 80 Model PF940C (frame) / Rock Slide USA (slide and Barrel) .40 S&W caliber pistol with high capacity magazine and .40 S&W ammunition. It was agreed that these items met the definition of a prohibited firearm, a prohibited device, and the ammunition was live and functional. Mr. Davis was not authorized in law to possess any firearm.

Arguments

[22] The Crown submitted that all of the charges against Mr. Davis rise and fall on the issue of knowledge. As for control, the Crown submitted that if Mr. Davis had knowledge, his control over the firearm flows easily from the evidence presented. ...

[24]  The defence submitted that Mr. Davis should be found not guilty of all charges, focusing mostly on the fact that knowledge had not been proven beyond a reasonable doubt. ...

a. The firearm was proximate to Mr. Cyrus in the passenger’s seat as opposed to Mr. Davis in the driver’s seat.

b. The firearm would not have been visible to Mr. Davis as supported by the photographs. ...

d. The firearm was not found near any other property belonging to Mr. Davis.

e. Mr. Davis was focused on his driving, allowing opportunity for Mr. Cyrus to covertly tuck the firearm under the seat.

f. Mr. Cyrus was the target of the investigation that day, in that he was to be arrested for murder. The defence suggested that it was more likely that Mr. Cyrus would be the individual carrying a firearm and that he would not want to take it into his probation appointment.

h. The fact that Mr. Davis walked away and ran away from police has competing explanations.

Analysis

[26] A person may have a thing in his or her possession in a number of different ways pursuant to s. 4(3) of the Criminal Code. It does not matter how long a person has an item in his or her possession, as long as there is proof beyond a reasonable doubt that the requirements of possession have been met. Proof of any one of these ways beyond a reasonable doubt is enough to establish this essential element:

1.  Personal / actual possession - A person who has actual physical control of something, as for example, by holding it in his or her hand, or keeping it in his or her pocket, has that item in his or her possession.  This type of possession has two elements of knowledge:

•         That the accused be aware that he or she has physical custody of the thing in question; and

•         That the person is aware of what that thing is.

                        These elements of knowledge must be present at the same time as there is control.

            R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531;  R. v. Morelli, 2010 SCC 8 at para. 16.

There must be control over the item itself, not just some general responsibility for places in the vicinity.  R. v. Bertucci, (2002), 2002 CanLII 41779 (ON CA), 169 C.C.C. (3d) 453, at para. 20

2.  Constructive Possession -   A person who knowingly has something in the actual possession or custody of somebody else, or in some place for the use or benefit of him or herself or somebody else, has that thing in his or her possession, provided he or she has some element of control over that thing. “Knowingly” means that the person is aware of the possession or custody of the thing by another, or in another place, and does not act through ignorance, mistake or accident.   Constructive possession requires the following:

•         Knowledge of the item;

•         Intent / consent to possess the item;

•         Control over the location of the item

R. v. Terrence (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.); R. v. Morelli, at para. 17

The Crown must prove knowledge extending beyond “quiescent knowledge” that discloses some degree of control over the item.  R. v. Pham, (2005) 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 at para. 15, affirmed by the Supreme Court of Canada, 2006 SCC 26.  Constructive possession does not require proof of “manual handling” at any time.  R. v. Fisher, 2005 BCCA 444 at para. 24

3.  Joint Possession -  Several persons may have possession of a thing at the same time. Where any one of two or more persons, with the knowledge and agreement of the others, has a thing in his or her possession or custody, all of them are in possession of that thing, provided he or she has some control over that thing. To establish joint possession, there must be:

•         Knowledge of the object;

•         Consent of the accused; and

•         A degree of control over it

            Knowledge and agreement by the others who are not in actual possession of the substance is essential. It is necessary that there be some evidence of active concurrence by the accused to possession by another person.  “Passive acquiescence” is not enough.  R. v. Piaskoski, (1979) 1979 CanLII 2920 (ON CA), 52 C.C.C. (2d) 316.  As with constructive possession, joint possession does not require proof of “manual handling” at any time.  R. v. Fisher, at para. 24

[28] Control can be established by the fact that the accused had the ability to grant or withhold access to a place.  See R. v. Fisher, 2005 BCCA 444, para. 41.  However, there is no rebuttable presumption of possession because of tenancy or occupancy.  R v Watson, 2011 ONCA 437 at paras. 11 to 13.  Similarly, as for items found in a vehicle owned and operated by the accused, there is no prima facie proof of possession by the accused.  R v Lincoln, 2012 ONCA 542 at para. 3.  However, being a driver in close proximity to an item in plain view may, but not must, allow the inference of knowledge and control.

[32] Knowledge can be established by direct evidence, circumstantial evidence, or a combination of both.  With respect to circumstantial evidence, the analysis as established by the Supreme Court of Canada in R v Villaroman, 2016 SCC 33, and the Court of Appeal for Ontario in R v Darnley, 2020 ONCA 179 and R. v. Ali, 2021 ONCA 362, must be followed when considering the evidence.

[34] Moreover, an inference need not arise from “proven facts”, which is a “standard that is never applicable to an accused”: R. v. Roberts (200), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

[35] It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

[36] It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20.

[35] In R. v. Ali, at paras. 97-8, the court stated as follows:

[97]  An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

[37] One specific type of circumstantial evidence in this case is the after the fact conduct of Mr. Davis leaving his car, walking away as the ERU team was approaching the vehicle, and then running across Highway 27 with officers in pursuit.

[106] After-the-fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed. It covers a large range of possible circumstances, and its content and contours are confined only by the limits of human experience. After-the-fact conduct may also arise in respect of all types of criminal offences and in different legal settings: for example, in cases in which the accused pleads not guilty, admits all or part of an offence, admits some of the offences charged, and/or asserts a defence, excuse, or justification. It is this potential breadth, variety, and mix of considerations that lies at the heart of the much repeated observation that the proper legal treatment of after-the-fact conduct is highly context and fact specific.

a.      It is relevant to a live, material issue in the case;

b.      Its admission does not offend any other exclusionary rule of evidence; and

c.      Its probative value exceeds its prejudicial effect.

[41]  There may be more than one explanation for after the fact conduct. This does not make the evidence irrelevant. Calnen, para. 124. As stated in Calnen at para. 145, “As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine, what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.”

[43]  This court does not really know anything about Mr. Davis, other than the fact that he is a young black man. This court questioned whether an alternative explanation for Mr. Davis running may be that he was, as a young black man, fearful of police. As previously stated, the Crown acknowledged that this court could take judicial notice of the existence of anti- Black racism in Canadian society, but stated that this court could not consider this alternative explanation in the absence of evidence, and to do so would amount to impermissible speculation. The Crown referred to a number of cases in an attempt to support its position.

[53]  This court does not agree that it would amount to impermissible speculation to consider an alternative explanation for Mr. Davis walking away and running away from the police, specifically, that he may have done so because of a fear of police created by the known existence of systemic anti-Black racism. In fact, this court finds that it would be an error not to consider this reasonable alternative explanation in the context of the evidence as a whole. Everyone agrees that this court can take judicial notice of the existence of systemic anti-Black racism in Canadian society. The case law has been very clear about this fact. This case is not in the context of sentencing, where the court must be satisfied on a balance of probabilities of the existence of a disputed fact before relying on it (or, in the case of an aggravating fact relied on by the Crown, beyond a reasonable doubt) This case is not in the context of a Charter argument, where the accused may also hold the burden of proof on a balance of probabilities.

[54]  In the present context, the evidence that Mr. Davis walked away and ran away from the police is clearly after the fact conduct, a form of circumstantial evidence. The Crown in this criminal trial carries the burden of proof beyond a reasonable doubt on all essential elements of the offence. One of those essential elements, and the critical element in this case, is knowledge. The Crown argued that this court use this after the fact conduct, this circumstantial evidence, as proof that Mr. Davis had knowledge of this firearm. The case law is clear that “an inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence”. The case law is also clear that when the trier of fact “is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct.” Mr. Davis is not required to prove that his reason for fleeing from police was because of his knowledge of or experience with anti-Black racism, and that therefore he was afraid or intimidated by the police and what they might do to him. It is the Crown who must prove that Mr. Davis’ flight could only be as a result of his knowledge of this firearm and his desire to avoid responsibility.

[56]  Exculpatory inferences or alternative explanations for circumstantial after the fact conduct must only be reasonable. Direct evidence is certainly not required. Reasonable doubt is not an inference or a finding of fact that requires evidentiary support. The possible inferences must be considered in the context of the entirety of the evidence, or lack thereof, and assessed sensibly.

[57]  This court does not accept the “floodgate” argument advanced by the Crown in this case, in that anytime a young black man runs from police it will necessarily carry with it the alternative explanation that he may have been afraid due to the realities of racism. Each court will need to consider the facts of the case before it and consider the facts in the entire context of the evidence, not in isolation. Having said that, the existence of anti-Black racism is a fact that courts must keep in mind, and this court rejects any notion that it would be dangerous or unreasonable to do so. It is necessary to do so. It would be dangerous and wrong to ignore.

[58]  In this case, Mr. Davis, a young black male, was facing an unknown number (at least two) of ERU officers in tactical gear approaching his car. D/C Rapson agreed that this would be an intimidating scene. It is accepted by this court that such scenes are meant to be intimidating. While Mr. Davis did run, he, for some unknown reason, stopped running, and cooperated with police. At this point, he asked to speak to his mother. In the context of the evidence as a whole in this case, it is not more reasonable to suggest that Mr. Davis ran because of his knowledge of the gun as opposed to his perceived fear of police. It certainly is not the case that the only reasonable inference to be drawn is that Mr. Davis was aware of the firearm.

[63]  It is the opinion of this court that the more important circumstances in this case relating to the proof of knowledge element are the following:

1. While the firearm was in fairly close proximity to where Mr. Davis would have been in the driver’s seat, it was certainly in closer proximity to Mr. Cyrus who was seated in the passenger’s seat.
2. The gun was substantially hidden. PC Ready testified that it is unlikely that the gun could be seen from the driver’s seat. This court is not prepared to give this opinion any weight given that PC Ready did not do any type of test to see what could be seen from this location – a test that would have to replicate the height of Mr. Davis and the precise position of the seats. However, the photographs support the conclusion that the firearm would not have been visible from the driver’s seat.
3. Mr. Davis was driving the vehicle while Mr. Cyrus was in the passenger’s seat, where the firearm was found. Certainly, Mr. Cyrus would have had an opportunity to put this firearm under the seat without Mr. Davis noticing. While this is not a “tiny” gun, it is also not an AK47 or shotgun that would be impossible to conceal without the driver knowing.
4. There was no evidence of suspicious movements in the car while Mr. Davis and Mr. Cyrus were both present, or once Mr. Cyrus exited. Frankly, there was no evidence of what was occurring in the car during this 14-minute drive or once it parked.
5. There was no DNA on the firearm to assist in any way.
6. Mr. Davis was driving a car registered to his mother. Except for one occasion, after these events, when he was observed driving the vehicle, there was no evidence as to how often he drove this vehicle at the time of these events in 2019 or who else drove or had access to this vehicle at that time.
7. The “laser sight” and other items located in the iPhone box in the centre console are not capable of assisting with an inference of knowledge. There is no evidence as to how these sights were found at the scene. There is no evidence as to whether these sights were related in any way with the firearm found. This court is unable to conclude any similarity between the objects found in the iPhone box and any objects attached to the firearm found on this evidentiary record. The evidence with respect to the nature of these items was far from clear.
8. The fact that Mr. Davis walked away and then ran from the police does not only suggest the guilty mind that the Crown suggested. An alternative explanation for Mr. Davis reacting in this way is that he was fearful or intimidated by the presence of tactical officers. As the court stated in Morris at para. 106, “Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust”. Such an acknowledgement is not restricted to the sentencing process, but should be and must be recognized in all aspects of the criminal justice system.

Conclusion

[64]  On the totality of the evidence, this court is unable to conclude that Mr. Davis knew of, or was willfully blind to, the presence of the firearm in the vehicle.

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