R. v. Shaw, 2024 ONCA 119

WARNING The President of the panel hearing this appeal directs that the following should be attached to this file: The publication ban and sealing order issued on June 4, 2019 by Justice Robert Clark, pursuant to s. 631(6) of the Criminal Code shall continue. The order prohibits the publication of any information that might tend to identify Juror #14 and seals the Notice of Application dated June 3, 2019, and the appended material. A redacted copy of the Notice of Application is publicly available in the Respondent’s Appeal Book and Compendium. COURT OF APPEAL FOR ONTARIO CITATION: R. v.

Shaw, 2024 ONCA 119 DATE: 20240216 DOCKET: C68060, C68128 & C68233 Harvison Young, Sossin and Copeland JJ.A.

DOCKET: C68060 BETWEEN His Majesty the King Respondent and Shakiyl Shaw Appellant DOCKET: C68128 AND BETWEEN His Majesty the King Respondent and Mohamed Ali-Nur Appellant DOCKET: C68233 AND BETWEEN His Majesty the King Respondent and Lenneil Shaw Appellant Dirk Derstine and Geoff Haskell, for the appellant Shakiyl Shaw Danielle Robitaille and Brandon Chung, for the appellant Mohamed Ali-Nur Frank Addario and Samara Secter, for the appellant Lenneil Shaw Matthew Asma and Molly Flanagan, for the respondent Heard: June 19 and 20, 2023 On appeal from the convictions entered on May 23, 2019 by Justice Robert A.

Clark of the Superior Court of Justice, sitting with a jury.

Table of Contents A. INTRODUCTION . 4 B. FACTUAL BACKGROUND . 8 C. ERRORS WHICH REQUIRE A NEW TRIAL . 24

(1) Inadequate answer to the jury’s question about the absence of evidence . 25

(2) The failure to provide a jury instruction on inappropriate comments in the Crown’s closing address . 35

(3) Error in refusing to admit hearsay statement of Mr. Poyser to his lawyer 50

(4) Conclusion on cumulative impact of these errors . 63 D. THE VERDICT AGAINST MR. ALI-NUR IS UNREASONABLE . 63 (

a) Law in relation to unreasonable verdict 65 (

b) Circumstances of Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog . 67 (

c) The verdict against Mr. Ali-Nur is unreasonable . 73 (

i) The unreliable identification evidence of Mr. Poyser 75 (ii) The 226 phone subscriber information . 81 (iii) The scene videos and comparison of clothing worn by Mr. Ali-Nur in youth booking photo . 84 (iv) Conclusion on unreasonable verdict in relation to Mr. Ali-Nur 89 E. REMAINING GROUNDS OF APPEAL . 91

(1) The trial judge did not err in failing to grant a mistrial or conduct jury inquiries 91

(2) The trial judge did not err in refusing to order the Crown to produce the submissions made to the Attorney General regarding the direct indictment 101

(3) The trial judge did not err in finding that threshold reliability was met with respect to the subscriber information for the 226 phone . 104

(4) The trial judge did not err in dismissing the application to redact the “Dozey contact” information from the extraction report regarding Mr. Poyser’s phone 110

(5) Error in instruction to the jury regarding evidence lost due to police negligence 117

(6) The trial judge did not err in refusing to grant a directed verdict of acquittal on murder in relation to Shakiyl Shaw . 123 F. DISPOSITION . 128 Copeland J.A.: A. INTRODUCTION [ 1 ] The appellants were each convicted of first-degree murder in the shooting death of Jarryl Hagley. They appeal their convictions. [ 2 ] Mr. Hagley was shot in the early morning hours of October 16, 2016, in a Pizza Pizza restaurant on Weston Road in Toronto.

In light of the trial evidence and how the case was presented to the jury, the jury must have found that Lenneil Shaw was one of two shooters, Shakiyl Shaw was the getaway driver, and Mohamed Ali-Nur was the second shooter. [ 3 ] The convictions of all three appellants rested on the identification evidence of Winston Poyser. Mr. Poyser was present in the car with the driver and the two shooters. His car was used to drive to and from the Pizza Pizza. He went to the Pizza Pizza with the shooters, standing outside by the door. He ran from the scene with the shooters.

His car was visible on surveillance video, and he was the only person whose face was sufficiently visible to be identifiable from the video from outside the Pizza Pizza. He became the centrepiece of the Crown’s case against the appellants. [ 4 ] Mr. Poyser had known the Shaw brothers for a significant period of time prior to the night of the shooting. He had dated their sister. Because Mr. Poyser knew the Shaw brothers, and was not purporting to make a stranger identification, the challenge to his evidence raised on their behalf at trial focused on his credibility.

[ 5 ] By contrast, Mr. Poyser was not previously acquainted with the second shooter, who he met the day of the shooting and was introduced to by the name of Cron Dog. Mr. Poyser identified Mr. Ali-Nur as Cron Dog. As I will explain in the analysis below, there were significant frailties to Mr. Poyser’s identification evidence as it related to Mr. Ali-Nur. Most notably, he was unable to provide a description of Cron Dog with any degree of detail and he was never asked to select Cron Dog from a line-up. Although it is agreed that the police had a photo line-up prepared and available when they interviewed Mr.

Poyser, they instead showed him a single photo of Mr. Ali-Nur and asked if he was Cron Dog. A similar one-photo identification process was repeated when Mr. Poyser pled guilty to accessory after the fact to murder, and again at trial, followed by an in-dock identification. Not surprisingly, the challenge to Mr. Poyser’s evidence at trial as it related to Mr. Ali-Nur focused on the reliability of his identification evidence, in addition to challenging his credibility. [ 6 ] The appellants raise numerous grounds of appeal, most of which are shared.

The common grounds raised are the following: 1. the trial judge provided an inadequate answer to the jury’s question about the absence of evidence; 2. the trial judge erred in failing to provide a jury instruction on inappropriate comments in the Crown’s closing address; 3. the trial judge erred in refusing to admit for the truth of its contents a statement made by Mr. Poyser to his lawyer; 4. the trial judge erred in failing to conduct a jury inquiry or grant a mistrial in relation to an altercation between the Shaw brothers’ mother and Mr.

Hagley’s mother in the hall, which was witnessed by the jury; 5. the trial judge erred in failing to conduct a jury inquiry in relation to information that Juror #14 attended at the scene of the murder during the trial; 6. the trial judge erred in refusing to order the Crown to produce the submissions made to the Attorney General regarding the direct indictment; 7. the trial judge erred in finding that threshold reliability was met regarding the subscriber information for the 226 phone; 8. the trial judge erred in dismissing the application to redact the “Dozey contact” information from the extraction report regarding Mr.

Poyser’s phone; and, 9. the trial judge erred in his instruction to the jury regarding evidence lost due to police negligence. [ 7 ] In addition, there are four individual grounds of appeal: 10. Mr. Ali-Nur argues that the trial judge erred in admitting Mr. Poyser’s evidence identifying him as Cron Dog, and in particular the in-dock identification; 11. Mr. Ali-Nur argues that the jury instruction on Mr. Poyser’s identification of him as Cron Dog was inadequate; 12. Mr. Ali-Nur argues that the verdict against him is unreasonable; and, 13.

Shakiyl Shaw argues that the trial judge erred in dismissing his motion for a directed verdict on murder. [ 8 ] I would allow the appeals of all three appellants. The trial judge erred in his response to the jury’s question about the absence of corroborative evidence, in failing to give a corrective instruction to the Crown’s inappropriate closing address, and in failing to allow the jury to use the hearsay statement by Mr.

Poyser to his own lawyer that he knew the perpetrators of the shooting to carry guns in the past for the truth of its contents. [ 9 ] This trial turned on the credibility and reliability of Mr. Poyser’s identification of the appellants as the perpetrators of the murder. Because of significant challenges to the credibility of Mr. Poyser’s evidence – and the reliability as it related to Mr. Ali-Nur – both the Crown and defence argued the case to the jury by focusing on whether or not there was evidence corroborating Mr. Poyser’s account.

The three errors that I identify all bear directly either on the credibility of Mr. Poyser or the extent to which his evidence may have been corroborated by other evidence. In my view, taken cumulatively, these errors had an impact on the tools given to the jury to address the credibility issues they were tasked to decide, and rendered the appellants’ trial unfair. [ 10 ] I would order new trials for Lenneil and Shakiyl Shaw. In relation to Mr. Ali-Nur, in addition to the errors that would warrant a new trial, in my view, the verdict against him is unreasonable. As a result, I would enter an acquittal for Mr.

Ali-Nur. [ 11 ] These reasons are structured as follows. First, I summarize the central evidence at trial as context for the issues raised on appeal. Second, I address the grounds of appeal that cumulatively rendered the trial unfair and require a new trial. Third, I address Mr. Ali-Nur’s argument that the verdict against him is unreasonable and that an acquittal should be entered for him rather than a new trial ordered. Finally, I address the remaining grounds of appeal where I would not find error. B.

FACTUAL BACKGROUND The shooting [ 12 ] At approximately 1:40 a.m. on October 16, 2016, Jarryl Hagley was shot and killed inside a Pizza Pizza restaurant on Weston Road in Toronto. [ 13 ] Video surveillance captured a group of men arriving in the area of Pizza Pizza in a Toyota RAV4 at around 1:30 a.m. The driver

stayed in the vehicle as three men exited and approached the Pizza Pizza on foot. Two of the men entered the restaurant. One man – Winston Poyser – waited outside. Shots were fired from two weapons, one of which – a shotgun blast – hit Mr. Hagley. After fewer than five seconds, the two men ran out of the restaurant, and all three men returned to the vehicle parked nearby and drove away. Two of the three men were not identifiable based on the video evidence from the Pizza Pizza scene. The face of the third man – Winston Poyser – was clearly visible at one point on the videos.

The police later traced the RAV4 back to Mr. Poyser’s mother. [ 14 ] Forensic evidence from the Pizza Pizza scene and Mr. Hagley’s autopsy confirmed that Mr. Hagley was shot in the chest with a shotgun at close range. Shots were also fired from a semi-automatic handgun, but did not hit anyone. Mr. Hagley retreated to the restaurant washroom, but collapsed on the way there. He was without vital signs at the scene and was pronounced dead in hospital that night. Mr. Poyser’s destruction of evidence and internet searches after the shooting [ 15 ] Over the next few days, Mr. Poyser destroyed and disposed of evidence.

He wiped the memory of the memory card from the RAV4’s dashboard camera, reformatted the memory card, and then threw it down a sewer. He opened the windows and sunroof of the RAV4 when it was raining, allowing the rain to get inside. He disposed of the clothes he had worn the night of the shooting, dumping them in a donation box. He deleted the phone records, call logs, and text messages on his cell phone, and then gave the phone to his girlfriend. [ 16 ] Mr. Poyser began conducting internet searches about murder cases the night of the murder.

He checked whether or not the shooting was on the news at around 3:00 a.m. on the morning of October 16. He googled conviction rates in Toronto homicides. He agreed in his trial evidence that he wanted to know the outcomes in those cases in order to decide what to do. He searched “find cameras in area” and “Toronto shooting caught on camera.” He looked at a site called “How to get away with murder”. He searched for the Windsor-Detroit border. Identification of Mr. Poyser as a suspect and his surrender [ 17 ] Police released surveillance video from the Pizza Pizza scene on October 21, 2016. At that point, Mr.

Poyser knew he had been captured on video from the crime scene. He watched the surveillance video four to five times and reviewed the Wikipedia page for Murder (Canadian Law). He also started searching for information about witness protection. [ 18 ] One week after the shooting, Mr. Poyser met with a lawyer, Brian Ross. During that meeting, he authorized Mr. Ross to communicate information to the police to negotiate a deal. The information communicated to police by Mr.

Ross included that his client was the person suspected of being the lookout for the Pizza Pizza murder; that his client was in the vehicle before and after the shooting with three other people; that his client heard someone in the vehicle say, “that’s the guy” when Mr. Hagley and his friends were walking along the street, but no-one used names; that his client was scared of the other people involved in the incident; and that his client knew the perpetrators to carry guns in the past. In exchange for his cooperation, Mr. Poyser wanted to receive consideration and witness protection. [ 19 ] Mr.

Ross met with officers investigating the Hagley murder regarding Mr. Poyser’s possible surrender and assistance to police on November 14, 29, and 30, 2016. At those times, Mr. Ross did not disclose Mr. Poyser’s identity. [ 20 ] Independent of Mr. Poyser’s efforts to obtain consideration in return for cooperation and arrange his surrender, by November 16, 2016, police had identified the vehicle used to transport the shooters to and from the scene as a RAV4 belonging to Mr. Poyser’s mother. On December 20, 2016, police executed a search warrant at Mr. Poyser’s residence. Mr.

Poyser was not home at the time the search warrant was executed. [ 21 ] Mr. Poyser turned himself in to police on December 28, 2016. He had been drinking the entire night before and was too drunk to give a statement at the time he turned himself in. He provided a statement to police the next day. The police told Mr. Poyser, before he gave his statement, that he was not being given any promises about witness protection. In a written agreement signed before Mr.

Poyser provided his statement to police, he confirmed that he was making the statement because he wanted to obtain favourable treatment in the first-degree murder charge against him, but that no promises or assurances had been made to him in that regard. The agreement also provided that the statement and any evidence derived from it would not be used against Mr. Poyser in proceedings relating to the shooting of Mr. Hagley. [ 22 ] In his police statement, Mr. Poyser identified Lenneil Shaw and a black male he had been introduced to as “Cron Dog” as the shooters, and Shakiyl Shaw as the driver.

As for his own role, Mr. Poyser said that he did not know that the men intended to shoot anyone (despite claiming to have seen Lenneil Shaw and Cron Dog handling firearms shortly before). Mr. Poyser claimed that he was with the Shaw brothers and Cron Dog on the night of the shooting. While he previously knew the Shaw brothers, Mr. Poyser said he had never met Cron Dog before the afternoon leading up to the shooting. Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog [ 23 ] I review in more detail below the circumstances of Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog.

However, by way of context, I note the following at this stage. Mr. Poyser was never asked to pick Cron Dog out of a photo line-up. Rather, during his interview with police on December 29, 2016, in a leading process, the police directed Mr. Poyser to the issue of Cron Dog’s identity, and then showed him a single photo of Mr. Ali-Nur, and asked him if he recognized the person in the photo. It was agreed by all parties that, at the time the officers showed Mr. Poyser the single photo, they had an envelope containing a photo line-up in relation to Mr. Ali-Nur in the interview room.

Why they chose not to follow proper photo line-up procedure is not explained in the trial record. Mr. Poyser was unable to provide a description of Cron Dog with any level of detail. The most information he provided to police prior to being shown the single photo was that Cron Dog was a Somali male. Mr. Poyser’s plea deal and the direct indictment

[ 24 ] The appellants and Mr. Poyser were charged with first-degree murder. A preliminary inquiry for all four men was scheduled for April 2018. On February 14, 2018, with the consent of the Attorney General, the Crown preferred a direct indictment, pursuant to s. 577 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 . As a result, the appellants’ preliminary inquiry was cancelled. [ 25 ] On June 27, 2018, Mr. Poyser resolved his first-degree murder charge by pleading guilty, with the Crown’s consent, to the reduced charge of accessory after the fact to murder. Mr.

Poyser was placed under oath during the guilty plea proceedings. He identified Lenneil Shaw as one of the shooters and Shakiyl Shaw as the driver. During the guilty plea proceedings, Mr. Poyser was once again shown a single photograph of Mr. Ali-Nur and identified him as Cron Dog. The murder charge against Mr. Poyser was withdrawn following his guilty plea to accessory after the fact. [ 26 ] Mr. Poyser was sentenced to one day in jail, on top of credit for the equivalent of 27 months of pre-trial custody (18 months actual pre-trial custody), followed by two years probation. Mr.

Poyser’s evidence at trial [ 27 ] Mr. Poyser was the only witness to testify to the events leading up to the shooting and the only direct evidence of the appellants’ involvement. [ 28 ] Mr. Poyser testified that, on the afternoon of October 15, 2016, he was looking for Lenneil and Shakiyl Shaw to try to get back his cousin’s phone, which she had told him someone associated with the Shaw brothers had taken. Mr. Poyser purchased a bottle of vodka [1] at the LCBO and went to the Scarlettwood Crescent complex (“Scarlettwood”), where the Shaw brothers lived, to try to find them.

Security video later obtained by police from Scarlettwood shows Mr. Poyser meeting with a male, who Mr. Poyser testified he was introduced to as “Cron Dog” (and who he identified as Mr. Ali-Nur), and a second male, who Mr. Poyser said he did not know. The video does not show Cron Dog’s face, as he was wearing a baseball cap and a hoodie with the hood up much of the time. [ 29 ] Mr. Poyser testified that Cron Dog offered to show him where the Shaw brothers were by having him follow a pick-up truck driven by the second male referred to above, in which Cron Dog was a passenger.

By the time they left Scarlettwood, Mr. Poyser had consumed most of his bottle of vodka. Mr. Poyser was inconsistent about how early he started consuming the vodka, which I address further below. Mr. Poyser followed the pick-up truck to the Shendale complex (“Shendale”), where the Shaw brothers were in the basement of a townhouse. [ 30 ] Mr. Poyser testified that he spent the evening in the basement of the Shendale townhouse with the Shaw brothers, Cron Dog, and several other people (women and men). At Shendale, Mr. Poyser, the Shaw brothers, and Cron Dog finished Mr.

Poyser’s bottle of vodka and smoked marijuana. [ 31 ] Mr. Poyser testified that he took three trips from Shendale during the course of the evening to buy more alcohol, marijuana, and “Molly” (ecstasy/MDMA). He said that, on each trip, Shakiyl Shaw drove (because Mr. Poyser was drunk) and a woman accompanied them. In his trial evidence Mr. Poyser said that the first trip out was to the LCBO to buy alcohol, the second to buy marijuana, and the third to buy MDMA. Mr.

Poyser was inconsistent between his police statement and guilty plea, where he said he made two trips out from Shendale to buy alcohol and drugs, and his trial evidence, where he said he made three trips out. [ 32 ] Mr. Poyser testified that, on the way back to Shendale from the third trip out to buy drugs, they passed the Scarlettwood complex. There they saw a heavy police presence and ambulances. Mr. Poyser testified that, when they got back to Shendale, he, Lenneil and Shakiyl Shaw, and Cron Dog were “kinda” talking about it. He described them as “kinda troubled about it.” [ 33 ] Mr.

Poyser testified that, at some point in the basement at Shendale, Lenneil Shaw took a firearm out of a dark backpack and handed it to Cron Dog. At the same time, Mr. Poyser saw Lenneil partially remove another firearm from the same bag. Mr. Poyser was inconsistent in his description of the firearms and when he saw them. [ 34 ] Mr. Poyser had consumed several substances that night, including alcohol, marijuana, and MDMA. He testified that he was “really drunk and really high.” I review Mr. Poyser’s consumption of drugs and alcohol in more detail below in relation to the reasonableness of the verdict against Mr.

Ali-Nur. [ 35 ] Mr. Poyser testified that, shortly after he saw the two firearms in the basement at Shendale, he, the Shaw brothers, and Cron Dog left Shendale in the RAV4 belonging to Mr. Poyser’s mother. Mr. Poyser testified that he had offered to drive the Shaw brothers to the Scarlettwood complex, where they lived. Mr. Poyser testified that Shakiyl Shaw was driving because he was too drunk to drive. Mr. Poyser testified that, rather than drive to Scarlettwood, Shakiyl turned onto Weston Road. [ 36 ] According to Mr. Poyser, they drove past the Pizza Pizza on Weston Road and Cron Dog said, “There’s Jarryl”.

However, Mr. Poyser could not recall any other details of conversation in the vehicle because everyone was “high” and talking loudly and he was “really high”. [ 37 ] Mr. Poyser testified that Shakiyl Shaw stopped the car. Lenneil Shaw told him to get out of the car and he, Lenneil, and Cron Dog started walking towards the Pizza Pizza. Mr. Poyser did not know why the men were interested in Mr. Hagley, but said he assumed that because everyone was “high” that nothing “too stupid” was going to happen. Mr.

Poyser testified that he did not know that Lenneil Shaw and Cron Dog were carrying firearms – despite his evidence that he had shortly before seen them with firearms in the basement at Shendale. As they reached the Pizza Pizza, Lenneil Shaw and Cron Dog entered the restaurant. Mr. Poyser heard a gunshot. He looked up and saw Lenneil Shaw and Cron Dog running past him, back to the car. Mr. Poyser followed, and the men drove off in the RAV4. [ 38 ] Mr. Poyser testified that Shakiyl drove the car back to Shendale and then he (Mr. Poyser) drove himself home, drunk. [ 39 ] At trial, Mr.

Poyser made in-dock identifications of the three appellants. For the identification of Mr. Ali-Nur at trial, Mr. Poyser was again shown a single photo of Mr. Ali-Nur and identified him as Cron Dog, following which he made the in-dock identification.

[ 40 ] Significant issues were raised regarding Mr. Poyser’s credibility and reliability at trial. There were inconsistencies between his trial evidence and his evidence under oath when he pleaded guilty to accessory after the fact to murder, as well as inconsistencies between his trial evidence and the objective evidence. He had a criminal record for break and enter. He admitted that he had previously lied in a different murder trial as a witness (where he denied his involvement in a break and enter that he had, in fact, committed).

Some examples of inconsistency in his accounts at different times and inconsistency with objective evidence include the following: • Cell phone records confirm that Mr. Poyser’s phone began pinging off the cell tower across from Shendale at 7:17 p.m. on October 15. Mr. Poyser testified that he was greeted by the Shaw brothers within moments of arriving at Shendale. Yet Mr. Poyser’s cell phone records show him texting his cousin (whose cell phone he was trying to retrieve), to tell her “Yo I’m over here in the hood and there [sic] not here” at 7:36 p.m.

This text pinged off the same cell tower across from Shendale. Thus, Mr. Poyser sent a text to his cousin 20 minutes after arriving at Shendale saying he was not with the Shaw brothers. • Mr. Poyser was drunk and high on the night of October 15. He agreed that, by the time he arrived at Shendale, he had consumed large amounts of vodka. He also took MDMA and smoked marijuana. He agreed in his evidence that the alcohol and drugs affected his perception and recollection.

His evidence is replete with statements about his poor memory and attributing it to the amount of alcohol and drugs he consumed that afternoon and evening. • When Mr. Poyser pled guilty to accessory after the fact to murder, he testified under oath that, when he destroyed evidence the day after the shooting, he knew someone had been killed in the course of the shooting at Pizza Pizza. However, in his trial evidence, he tried to back away from his admission under oath at the guilty plea, repeatedly saying that he did not know anyone was shot or that anyone had been killed when he destroyed evidence. • Mr.

Poyser testified at trial that he made three trips out from Shendale to buy alcohol and drugs. However, in his December 29, 2016, statement to police and in his guilty plea, he said he only left Shendale twice. When confronted with the difference, he could only say, “that was the truth [he] knew in the moment.” • At trial, Mr. Poyser testified that, on the way back from the third trip out from Shendale to get drugs, he noticed a police presence at Scarlettwood. Officer Pak testified and confirmed a police presence at Scarlettwood from 11:30 p.m. on October 15 into the next morning. However, Mr.

Poyser’s phone records were inconsistent with him being near Scarlettwood when he said he left Shendale on the third trip. From 11:10 p.m. (October 15) to 12:36 a.m. (October 16), cell tower records show Mr. Poyser’s phone in the vicinity of Shendale, pinging off the tower across the street. All of the calls between 12:37 a.m. and 12:51 a.m. pinged off the cell tower at Weston and Oak (with the 12:51 call finishing at the cell tower across from Shendale). None of the calls was handled by cell towers near Scarlettwood. A Rogers employee (Rogers was Mr.

Poyser’s service provider) testified that if a cell signal was handled by the Weston and Oak Street tower, the person making the call was not in the Scarlettwood area. • At trial, Mr. Poyser testified that, after the third trip out from Shendale, he saw Lenneil Shaw handle two guns from a backpack and hand one to Cron Dog. He first described the guns as a “rifle” and a “smaller rifle”, but then said that the gun that Lenneil handed to Cron Dog was a handgun. This evidence was inconsistent with Mr. Poyser’s evidence at his guilty plea.

At the guilty plea, he testified that he saw Lenneil Shaw remove a shotgun from his bag an hour before he left to go to the LCBO (Mr. Poyser’s first trip out from Shendale). • In his trial evidence, Mr. Poyser said that in the RAV4, near the Pizza Pizza, Cron Dog said, “there’s Jarryl”. However, he told his lawyer (according to the agreed statement of facts) that one of the other men in the car said “that’s the guy” and specified that no name was used to refer to the victim or any of his friends. • In his trial evidence, Mr.

Poyser said he had never seen the Shaw brothers with firearms and could not think of any reason why they would have a connection to guns. However, he told his lawyer (according to the agreed statement of facts) that he knew the perpetrators of the shooting to have caried guns in the past. • Mr. Poyser minimized his knowledge of and role in the shooting. He claimed not to know that Lenneil Shaw and Cron Dog were carrying firearms in the RAV4, despite his evidence that he had seen them with firearms in the basement at Shendale shortly before the group left.

He testified that he was in the middle of the street at the time of the shooting and did not approach the Pizza Pizza. This was consistent with video footage the police released publicly, which Mr. Poyser admitted he had watched in news stories. However, video evidence obtained by police which was not released to the public showed Mr. Poyser cross the street towards Pizza Pizza and stand right near the door at the time of the shooting. It was suggested to Mr. Poyser that the video did not show him jump (in surprise) or run immediately on hearing the shotgun blast. Mr.

Poyser explained this by saying that he was on drugs. Mr. Poyser denied the suggestion put to him in cross-examination that he was acting as the lookout. Other evidence at trial [ 41 ] There was no physical evidence connecting any of the appellants to the shooting. Police searched the basement at the Shendale townhouse. They found nothing to connect the appellants to the basement. While searching, they found a plastic bag that contained gun parts. The gun parts were sent for forensic testing.

No forensic evidence linked to any of the appellants was found on the gun parts. [ 42 ] Police eventually found the two firearms used in the shooting. The firearms were located at a place and time not connected to any of the appellants. No forensic evidence was obtained from either firearm. [ 43 ] Police obtained video evidence from at and near the Pizza Pizza scene and the Scarlettwood complex. The video from near the Pizza Pizza showed the movements of the perpetrators and the RAV4 before and after the shooting.

The Crown argued at trial that the movements of the RAV4 showed it to be driving like it was “looking for a target” just prior to the shooting and that, after the three men got out, the driver turned it around in a manner that the jury should find was putting it in position to get away quickly. The videos from the Pizza Pizza scene show Mr. Poyser’s face, but the faces of the shooters and driver are not visible. Cron Dog’s face is not visible on the videos police obtained from the Scarlettwood complex (I discuss the video in more detail in the analysis below).

[ 44 ] As noted above, because of the issues with Mr. Poyser’s credibility, the Crown argued to the jury that they should find his evidence credible because of evidence which the Crown argued provided corroboration. [ 45 ] The central evidence which the Crown relied on as corroboration for Mr. Poyser’s testimony was three pieces of phone-related evidence. First, the extraction report of Mr. Poyser’s phone showed that there were three calls to his phone by a 226 number [2] the night of the shooting.

There was a missed called at 9:42 p.m. on the night of October 15 and two incoming calls at 12:38 and 12:50 a.m. on October 16th. The two incoming calls were 13 seconds and 27 seconds long, respectively. Officer Manual Flores of the Technical Crimes Unit, who performed the data extraction on Mr. Poyser’s phone, was unable to say whether the two incoming calls were answered or went to voicemail. [ 46 ] I pause to note that in his trial evidence, Mr.

Poyser said he did not recall receiving any phone calls from either the Shaw brothers or Cron Dog the night of the shooting, nor did he see any of them with a cell phone. I note as well that the extraction report from Mr. Poyser’s phone showed that between 7:30 p.m. on October 15, 2016 and 3:30 a.m. on October 16, Mr.

Poyser’s phone made and received 22 calls, associated with 9 different numbers. [3] The 226 phone number was three of those 22 calls. [ 47 ] Second, subscriber information obtained from Freedom Mobile showed that the information provided at the time the 226 phone account was opened was the name “Mohamed Alinur”, with an address matching the address of Mr. Ali-Nur, but without the unit number, and a date of birth that matched Mr. Ali-Nur’s. [ 48 ] Third, a contact was extracted from Mr. Poyser’s phone that linked the name “Dozey” to two numbers, one of which was the 226 number. Mr.

Poyser testified that Dozey was a nickname for Lenneil Shaw. He also testified that he had several numbers for Lenneil Shaw stored in his phone under “Dozey”, but could not recall the numbers. [ 49 ] The Crown argued at trial that, taking the subscriber information for the 226 phone together with the calls made to Mr. Poyser the night of the murder was corroborative of a link between Mr. Ali-Nur and Mr. Poyser the night of the murder, and, together with the Dozey contact, was also a link to Lenneil Shaw. [ 50 ] I discuss the phone evidence further in the analysis below, both in relation to whether Mr.

Ali-Nur’s verdict was unreasonable and the grounds of appeal related to the phone evidence. However, I flag at this stage that there was evidence from representatives of telecommunications companies casting significant doubt on the reliability of subscriber information provided for prepaid phone contracts.

Further, because the billing records for the 226 phone were lost due to what the trial judge found was police “negligence” in preserving and obtaining them in a timely way, there was no other information which could cast light on the identity of its user/owner, such as the original contract signed by the subscriber, records of numbers the phone communicated with, or records of cell towers used when it made calls or texts (as evidence of approximate location). Crown and defence theories at trial [ 51 ] The Crown theory at trial was that Lenneil Shaw and Mr.

Ali-Nur were the shooters and Shakiyl Shaw drove to and from the Pizza Pizza. Although the Crown could not firmly point to a motive for the shooting, it suggested that it was related to the police presence at Scarlettwood that Mr. Poyser said he and Shakiyl had seen on the way back from one of his trips to buy alcohol and drugs. The Crown acknowledged some difficulties with Mr. Poyser’s evidence, but argued in its closing address to the jury that they could rely on Mr. Poyser’s evidence to prove the case because it was corroborated by other evidence. [ 52 ] The defence theory at trial was that Mr.

Poyser lied to police and pointed the finger at the wrong people to protect the real perpetrators, who he feared. In addition, Mr. Ali-Nur argued that Mr. Poyser’s identification of him as Cron Dog was unreliable. As the Crown’s case rested on the testimony of Mr. Poyser, which, as noted above, had a variety of frailties, the defence pointed to an absence of corroborative evidence as raising a reasonable doubt. C.

ERRORS WHICH REQUIRE A NEW TRIAL [ 53 ] I address first the three errors which I conclude, cumulatively, rendered the trial unfair: the trial judge’s inadequate response to the question from the jury about the absence of corroborative evidence; the failure to give a corrective instruction to the Crown’s inappropriate closing address; and the failure to allow the jury to use for the truth of its contents the hearsay statement by Mr. Poyser to his own lawyer that he knew the perpetrators of the shooting to carry guns in the past.

(1) Inadequate answer to the jury’s question about the absence of evidence [ 54 ] During deliberations, the jury asked a question about the absence of corroborative evidence. In my view, in the context of the evidence and arguments in this trial, the trial judge’s response was inadequate in its failure to reiterate to the jury that a reasonable doubt may arise from the absence of evidence. Both the Crown and the defence argued their case to the jury focusing on whether there was corroboration for Mr. Poyser’s evidence. All parties were alive to the frailties of Mr. Poyser’s evidence.

As a result, the presence or absence of corroborative evidence was a central issue put before the jury. A significant plank of the defence, in addition to the challenge to Mr. Poyser’s credibility, was the frailty of the evidence available to corroborate his evidence and the absence of other evidence to implicate the appellants in the murder. This was a case where the principle that a reasonable doubt may arise from the absence of evidence was important.

Further, not only did the trial judge fail to reiterate that a reasonable doubt may arise from the absence of evidence, to the extent that his answer made reference to gaps in the evidence and the principle of reasonable doubt, it did so in a manner favourable to the Crown, only telling the jury that the evidence did not have to answer all the questions. The jury’s question, submissions of counsel, and the trial judge’s response [ 55 ] The jury retired to deliberate at the end of the final instructions at 5:30 p.m. on May 21, 2019. After deliberating for

approximately one hour, the jury asked the following question: In what scenario/s would the Crown elect not to call witnesses that may corroborate key evidence? [Emphasis in original.] [56] The Crown submitted that the jury should be reminded of the instruction not to speculate and to decide the case on the evidence. [57] Counsel for the appellants agreed that the jury should be told not to speculate about why evidence was not called, but also askedthe trial judge to remind the jury that they are entitled to consider the absence of evidence in deciding whether the Crown has proven thecase beyond a reasonable doubt. [58] In response to the defence submission, the Crown argued that including something about reasonable doubt in the response would“tip the scales” and that it was not necessary to mention reasonable doubt in the response. [59] The trial judge provided the following instruction to the jury approximately 15 minutes after the question was asked, on theevening of May 21: As I have already indicated in paragraph 16 of my instructions, which instructions you will have very shortly,[4] the evidence need notanswer every question the case raises, and you must not speculate about what other evidence might have been called.

I would only add tothat that you must not speculate about why evidence was not called. [Emphasis added.] [60] The jury did not ask any other questions. They returned their verdicts a day-and-a-half later, on the morning of May 23, 2023. Positions of the parties [61] The appellants submit that the trial judge’s answer to the jury’s question was legally incorrect. The jury is entitled to consider theabsence of evidence when deciding whether the Crown has met its burden of proof, as per the Supreme Court’s decision in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320.

The Crown is not required to call certain witnesses, but the failure to do so may leave agap in the Crown’s case, leaving the burden of proof undischarged. [62] Here, the trial judge failed to provide a complete answer to the jury’s question by focusing only on avoiding speculation, insteadof turning to the jury’s apparent concern – gaps in the Crown’s case. Defence counsel’s suggested answer to the question would havecovered both the requirement not to speculate about evidence not called and the Lifchus instruction that the absence of evidence can raisea reasonable doubt.

The trial judge’s answer failed to provide the jury with guidance on the Lifchus absence of evidence point. [63] The Crown submits that the trial judge’s answer to the jury’s question was clear, correct, and comprehensive. It was responsiveto the jury’s question, which was about why the Crown would elect not to call witnesses. The trial judge correctly answered that questionin instructing the jury not to speculate. The jury did not ask about specific evidence that was not before them. The jury did not ask abouthow to assess the absence of evidence.

Analysis [64] The legal principles applicable to answering questions from a jury are not in dispute. A question from a jury indicates that thejury needs help. A question from a jury usually concerns an important point in the jury’s reasoning, identifying an issue on which theyrequire direction. It is an indication of a particular problem the jury is confronting – on which they are focused. Although juryinstructions must be read as a whole, courts have recognized that answers to jury questions will be given special emphasis by jurors.

As aresult, a trial judge has an obligation to fully and properly answer a question posed by the jury. A complete and careful response isnecessary even if the subject-matter of the question has been reviewed in the main charge: R. v. Grandine, 2017 ONCA 718, 355 C.C.C.(3d) 120, at para. 62; R. v. S.(W.D.), (SCC), [1994] 3 S.C.R. 521, at pp. 528-30; R. v. Stubbs, 2013 ONCA 514, 300C.C.C. (3d) 181, at para. 95; R. v.

J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 34. [65] The answer given to the jury’s question by the trial judge was correct as far as it went; however, in my view, given the manner inwhich this case was put to the jury by both the Crown and defence, it was clear that the jury’s question was raising a concern about gapsin the evidence – in particular, gaps arising from lack of corroboration.

In the circumstances, a full response required the trial judge toreiterate that a reasonable doubt may arise from an absence of evidence. [66] The jury’s question showed that it was concerned about why the Crown did not call witnesses “that may corroborate keyevidence” – in other words, a gap in the evidence. [67] As I have noted, at trial, both the Crown and the defence argued to the jury that they should assess the evidence by consideringwhether there was corroboration for Mr. Poyser’s evidence.

In terms of gaps in the evidence, the defence highlighted in closingsubmissions the paucity of evidence to link the appellants to the shooting (no forensics pointing to the appellants; no DNA or fingerprintsimplicating the appellants found in Mr. Poyser’s vehicle, at or near the Pizza Pizza scene, on the gun parts later recovered at Shendale,or on the guns later recovered). The defence highlighted potential witnesses referred to by Mr. Poyser, who may have been able tocorroborate parts of his account, who were not called by the Crown at trial. These included Farhana Shaw (the Shaw brothers’ sister),who Mr.

Poyser said he saw and spoke to at Scarlettwood; the individual who drove the truck that Mr. Poyser said led him to Shendale;and, Briana Newton, who Mr. Poyser identified as being in the basement at Shendale; or anyone else from the basement. [68] In the context of the evidence and arguments at trial in this case, the jury’s question could not be understood as mere curiosityabout why the Crown had not called certain witnesses. Rather, the question can only be understood as the jury expressing concern aboutthe absence of corroboration – that is, a gap in the evidence.

While telling them not to speculate about why witnesses were not called wasan appropriate part of the response to the question, it was an insufficient answer. [69] As I have noted above, Crown counsel at trial argued that including any instruction related to reasonable doubt in response to thequestion would “tip the scales” in favour of the defence. I disagree. The trial judge could have repeated a full Lifchus instruction, which

would have alleviated any concern about balance. The jury’s question showed that it had concerns about the absence of corroborating evidence. It was essential that, beyond just being told not to speculate about what other evidence might have been called or why it was not called, the jurors understand the relationship between gaps in the evidence and the Crown’s burden to prove the charge beyond a reasonable doubt. [ 70 ] Indeed, the answer the trial judge gave the jury implicitly recognized that the question was about gaps in the evidence, but gave an incomplete answer that was one-sided and favoured the Crown.

Although the trial judge failed to tell the jury that a reasonable doubt may arise from the absence of evidence, he told them that “the evidence need not answer every question the case raises”. In other words, he told them that some gaps in the evidence are not a concern.

While it is certainly true that a jury does not have to answer all questions arising out of the evidence – their task is to decide if the Crown has proven the elements of the offence beyond a reasonable doubt – the response to the jury’s question was incomplete and unbalanced in the context of how the issues in this trial were presented to the jury by counsel. [ 71 ] On appeal, the Crown relied on this court’s decision in R. v. MacKenzie , 2020 ONCA 646 , 395 C.C.C. (3d) 421, to argue that the answer provided was sufficient.

In my view, MacKenzie does not assist the Crown. [ 72 ] I summarize the decision in MacKenzie in some detail, given its centrality to the arguments on this ground. MacKenzie was a sexual assault trial. The central issue in dispute was proof of non-consent. [5] The complainant had consumed alcohol prior to the alleged assault. There was disputed evidence about her level of intoxication.

But it was common ground that the complainant’s level of intoxication was relevant to assessing the credibility and reliability of her account, as it was relevant to her memory and as context for assessing her actions during and after the sexual contact. The jury heard evidence that blood samples were taken from the complainant as part of her sexual assault examination. They also heard evidence that such samples are typically sent to the Centre for Forensic Science (“CFS”) to test for drugs and/or alcohol.

No evidence was led at trial about whether the samples taken from the complainant were actually sent to the CFS or tested for drugs or alcohol levels. In the main jury instruction, the trial judge included instructions on the absence of hospital records or testing to show her blood alcohol level at the time of the offence.

In giving this instruction, he underlined that the burden of proof is at all times on the Crown to prove the elements of the offence beyond a reasonable doubt and alerted the jury to the absence of evidence that could affect their assessment of the complainant’s state of intoxication at the time of the sexual contact. [ 73 ] In MacKenzie , during deliberations, the jury asked two questions together: “Was [the complainant’s] blood/alcohol ever tested/taken?

If so, why wasn’t it presented as evidence?” The trial judge’s answer, which this court found to be “responsive and correct”, answered the factual question that there was no evidence that the complainant’s blood alcohol level was tested, repeated his instruction that the absence of evidence could impact on whether the Crown had met its onus, and told the jury it must decide the case on the evidence presented, and not speculate about why evidence was not called: MacKenzie , at paras. 48-58 . [ 74 ] In this appeal, the Crown argues that the first question in MacKenzie was the “what” question and the second question was the “why”, and that the trial judge in MacKenzie repeating the instruction that an absence of evidence could impact on whether the Crown had met its onus was only in response to the first question – the “what” question.

The Crown argues that this case only has a “why” question, like the second question in MacKenzie – “why” wasn’t certain evidence led. Based on separating the two questions from MacKenzie , and isolating portions of the response, the Crown argues that it was not necessary in this case to reiterate to the jury that a reasonable doubt may arise from an absence of evidence. [ 75 ] I do not agree. In my view, the questions in MacKenzie cannot be viewed in isolation in the manner the Crown proposes.

As in this case, the questions posed by the jury in MacKenzie raised a concern about gaps in the evidence and why the Crown may not have called certain evidence. Indeed, repeating the instruction that reasonable doubt may arise from an absence of evidence was not responsive to either of the questions in MacKenzie as read literally . However, the trial judge in MacKenzie recognized, based on the evidence and issues at trial, that the jury questions raised a concern about a gap in the evidence. That is why a recharge on the relationship between a gap in the evidence and reasonable doubt was required.

In my view, MacKenzie supports the conclusion in this case that, where the jury asked a question about why corroborating evidence was not called, a full answer required not only instructing the jury not to speculate about why particular evidence was not called, but also a reiteration of the principle that reasonable doubt can arise from the absence of evidence. [ 76 ] In the circumstances of this trial, a full and correct response to the question posed by the jury required two elements: first, an instruction to the jury not to speculate about why a witness or witnesses were not called; and second, an instruction linking their concern about absence of corroborating evidence to the burden of proof and the principle that a reasonable doubt may arise from the absence of evidence.

In substance, this is the instruction the defence requested at trial, but for purposes of balance, with the full Lifchus instruction, rather than isolating the absence of evidence aspect of Lifchus . The trial judge gave the jury the first instruction, but failed to give the second. [ 77 ] The trial judge’s failure to fully and correctly answer the jury’s question was prejudicial to the appellants. The Crown’s case depended on the evidence of Mr. Poyser. There were serious challenges to Mr. Poyser’s credibility. The Crown sought to support Mr.

Poyser’s credibility by relying on other evidence that it argued provided corroboration. The defence challenged the reliability of the corroborative evidence and pointed to gaps in the evidence. The absence of evidence was a significant plank of the defence case for all of the appellants as argued to the jury. The jury’s question showed that they were concerned about gaps in the evidence. The failure to reiterate that reasonable doubt could be based on an absence of evidence was prejudicial in the circumstances.

(2) The failure to provide a jury instruction on inappropriate comments in the Crown’s closing address [ 78 ] In his closing address to the jury, Crown counsel (not counsel on appeal) made comments that I conclude were not supported by the evidence at trial and crossed the line from forceful advocacy into giving evidence and personal opinion to the jury. The core of the impugned comments, which I outline in more detail below, were that Mr. Poyser did not get a benefit for testifying for the Crown and that there was not evidence sufficient to support a case against him for murder.

[ 79 ] The inappropriate comments bore directly on the credibility of Mr. Poyser’s evidence and were used by the Crown to rebut a central thrust of the defence challenge to Mr. Poyser’s credibility – that he was an accomplice to the shooting of Mr. Hagley and became a Crown witness in order to get the benefit of avoiding a trial for first-degree murder. The unfairness in the Crown’s closing address and the failure of the trial judge to correct it in the jury instruction had the effect of leaving the issue of Mr.

Poyser’s credibility – the central issue in the trial – with the jury in a manner which undermined the fairness of the trial. In combination with the two errors I identify in these reasons, it requires a new trial. Impugned elements of the Crown’s closing [ 80 ] In his closing to the jury, Crown counsel outlined a case to the jury as to why Mr. Poyser’s testimony should be believed. As part of that argument, the Crown made repeated references to Mr.

Poyser’s guilty plea to accessory after the fact to murder and asserted that he had not received a benefit as a result of his guilty plea and testifying for the Crown. Crown counsel buttressed this argument by asserting that there was “no case against him for murder or manslaughter”: And no doubt counsel will raise this point with you in his submissions and suggest that because of this he got a great deal on his guilty plea as an accessory after the fact, suggesting that he got some benefit for his cooperation with authorities. . . . His plea to accessory after the fact was supported by the evidence against him.

He got the sentence that he deserved for what he did. There was no deal in place forcing him to testify in front of you here. He was given no special favours. This is important, as the defence will suggest that he is lying in order to get a deal. What would have happened to him if he had not given a statement to police? I suggest he would have seen the same outcome in his case. There’s no case against him for murder or manslaughter. Did not do anything to assist in these crimes. He was merely present. Remember that the Crown has to prove the case against him beyond a reasonable doubt as well.

His only fault lies in what he did after the murder. He got no favours from the Crown or the police. He simply came in and did the right thing, pointing out those responsible for this crime to the police and coming to court and telling the truth about a terrible situation that he got caught up in. [Emphasis added] [ 81 ] In addition, the Crown asked the jury to take into account, in assessing Mr. Poyser’s credibility, evidence that he had potentially developed PTSD as a result of seeing his friend shot to death years earlier: …please remember a few things about Winston Poyser and his evidence.

First, he did not finish high school. He has very little formal education and does temporary work as a general labourer. The reason for him not finishing high school was that his best friend was shot and killed in front of him. This emotionally scarred him, leading him to depression and anxiety issues. I suggest he probably has some form of PTSD from this event. [Emphasis added.] However, there was no evidence that Mr. Poyser had PTSD. [ 82 ] The Crown also asserted that Mr.

Poyser did not live a criminal lifestyle, deal drugs, or have any involvement with any gangs, and that these were factors that supported his credibility. His criminal record, apart from the involvement here, is very minor. He had one conviction previously for break-and-enter, committed when he was a young adult. He is not someone who lives a criminal lifestyle. He does not deal drugs. He’s not involved in guns and street gangs. [Emphasis added.] However, there was no evidence one way or the other on this issue.

Defence objection and failure of the trial judge to provide a corrective instruction [ 83 ] Following the Crown’s closing address to the jury, defence counsel objected to specific portions of the closing and requested that a corrective instruction be given to the jury. The defence objections at trial focused on Crown counsel’s assertion that there was “no case” for murder or manslaughter against Mr. Poyser. The defence argued that Crown counsel was inappropriately giving evidence and legal opinion evidence to the jury and that what mattered was not counsel’s legal opinion, but Mr.

Poyser’s perception of his jeopardy. Further, counsel objected to the assertion that Mr. Poyser did not receive a benefit from pleading guilty and becoming a Crown witness, noting that it was clear that he did, both from the chronology of events and from the transcript from his guilty plea. During the guilty plea sentencing proceedings, Crown counsel (the same trial counsel who made the closing submissions to the jury) made submissions to the judge sentencing Mr. Poyser that he was getting consideration in the form of a reduced Crown position on sentence for his cooperation with police, as did Mr.

Poyser’s counsel at the guilty plea. [ 84 ] Defence counsel also objected to the comment that Mr. Poyser probably had PTSD, as the Crown was “not in a position to diagnose Mr. Poyser”. However, it was conceded that was a more minor point. Lastly, counsel objected to the Crown comments about Mr. Poyser not living a criminal lifestyle, dealing in drugs, or being involved in gangs, on the basis that Mr.

Poyser was not asked about any of these things, so there was no evidence before the jury on this issue. [ 85 ] The trial judge declined to give an immediate corrective instruction, stating that his “present inclination [was] that it’s not as grievous – so grievous as to require immediate correction.” While he noted that he would consider the issue of whether a correction was warranted following all the closing submissions, ultimately, he decided not to give the jury a corrective instruction.

Positions of the parties [ 86 ] The appellants submit that the trial judge erred by not correcting misleading statements and comments that were not supported by the trial evidence made during the Crown’s closing address because they were sufficiently prejudicial to undermine trial fairness. The focus of the appellants’ arguments are the comments in the Crown closing that Mr. Poyser was not given any special favours by the

Crown – effectively telling the jury that Mr. Poyser received no benefit from cooperating and becoming a Crown witness – and therelated comment that there was “no case” for murder or manslaughter against Mr. Poyser. The appellants argue that these commentswere misleading and contrary to the trial evidence. The appellants also object to the comments in the Crown closing in relation toMr. Poyser suffering from PTSD and about his character – not living a criminal lifestyle.

The appellants argue that these statements arenot based on the trial evidence. [87] The appellants argue that, because these comments by Crown counsel in his closing address were not based in the trial evidence,and in some cases were actively misleading, they required correction by the trial judge. They represented an unfair attempt by the Crownto bolster the credibility of their main witness in a manner not based in the evidence and inconsistent with the Crown’s duty to present theevidence fairly and dispassionately. The credibility of Mr.

Poyser was central to the Crown’s case, not only regarding the identity of theperpetrators, but with respect to the elements of first-degree murder. Aside from the video surveillance, Mr. Poyser’s evidence wasessential to a finding that the murder was planned and deliberate. Given the importance of Mr. Poyser’s evidence, it cannot be said that afailure to correct the Crown’s closing was insignificant. [88] In addition to the challenge raised by all of the appellants to the Crown’s closing and the trial judge’s failure to give a correctiveinstruction, Shakiyl Shaw raises an issue particular to him.

He argues that the comments in the Crown’s closing address about there notbeing a case for murder against Mr. Poyser are objectionable because the same evidence that purportedly showed that Mr. Poyser couldnot possibly be guilty of murder was simultaneously being presented as evidence of Shakiyl’s guilt. [89] The Crown argues that the Crown’s closing submissions at trial were within the bounds of fair advocacy and did not impair thefairness of the trial. Both defence and Crown advocates are permitted rhetorical latitude in their closing arguments, provided theirrhetoric does not distort the fact-finding process.

Counsel may, and indeed are expected to, advocate for inferences that are available onthe evidence. No correction by the trial judge was required. The Crown argues that the submission about Mr. Poyser receiving no specialfavours for his cooperation was supported by the evidence, as was the statement that there was “no case against him for murder ormanslaughter”. Other

interpretations of the evidence were available; the defence appropriately advocated as much. However, all of theimpugned Crown submissions were fair advocacy. [90] The isolated “PTSD” comment was made in passing while summarizing Mr. Poyser’s traumatic past. While there was nomedical evidence of a diagnosis of PTSD, there was evidence of Mr. Poyser’s anxiety, depression, and alcohol abuse. Further, theCrown’s submission that Mr. Poyser lacked a “criminal lifestyle” was supported by the evidence. Analysis [91] A trial is an adversarial process.

Like defence counsel, Crown counsel are permitted to advance their positions forcefully to ajury: R. v. Daly (1992), 57 O.A.C. 70, at p. 76. However, there are limits to proper advocacy. A closing address by Crown counsel mustbe neither inflammatory nor unfair. Counsel must base their submissions on the evidence at trial. This means that counsel cannotsupplement the trial evidence by effectively giving evidence in their closing submissions. Nor are counsel permitted to misstate the trialevidence.

Further, counsel are not permitted to put before the jury in closing submissions matters which are based on counsel’s personalexperience or observations, rather than the evidence at trial: R. v. Rose, (SCC), [1998] 3 S.C.R. 262, at para. 107; R. v.Pisani, (SCC), [1971] S.C.R. 738, at p. 740; R. v. B.E.M., 2023 SCC 32. [92] Not every improper address to a jury will require a corrective instruction. Not every improper address where no correctiveinstruction is given will render a trial unfair such that a retrial is required.

Some deference is accorded to the assessment by a trial judgeas to whether a corrective instruction is required. However, a trial judge has a duty to present the case fully and fairly to the jury. Wherean improper address by Crown counsel bears directly on the central issue in a trial and no corrective instruction is given by the trialjudge, it may render the trial unfair and require a new trial: Rose, at paras. 124-27; Pisani, at pp. 740-41. [93] In my view, the Crown’s closing address in this case crossed the line from forceful advocacy into giving evidence and personalopinion.

The improper comments in Crown counsel’s closing submissions were particularly problematic because, not only were they notbased on the trial evidence, but on the issue of the Crown stating that Mr. Poyser received no benefit from becoming a Crown witnessand that there was “no case against him for murder or manslaughter”, the Crown’s closing was contrary to the trial evidence. [94] First, the Crown’s comments to the jury that Mr. Poyser did not receive a benefit from becoming a Crown witness were contraryto the evidence and involved the Crown offering his personal opinion in closing submissions.

Indeed, the trial judge agreed that Mr.Poyser received a benefit from becoming a Crown witness. During the defence objections to the Crown’s closing, the trial judge stated: I don’t disagree that he got a benefit [from cooperating and the guilty plea to accessory after the fact]. You don’t have to persuade me ofthat. I think he got a very handsome benefit. [95] While it is true that Mr. Poyser was never promised any particular consideration before agreeing to cooperate with police andprovide a statement, the suggestion that he received no benefit whatsoever was misleading to the jury.

The chronology of events involvedin Mr. Poyser becoming a Crown witness and the evidence potentially available in a prosecution against Mr. Poyser make clear that heobtained a benefit. [96] As noted above, Mr. Poyser was the only person identifiably visible in the videos from the Pizza Pizza scene when the shootingtook place. His initial actions after the shooting were to destroy evidence. He only came forward when he saw television news storiesabout the shooting which made clear that he was identifiable by both his face and his car.

He contacted counsel and tried to obtainimmunity from prosecution. [97] It is true that the police did not make any promises to him at the time he gave his statement. When he surrendered to police, hewas charged with first-degree murder. He then signed a detailed agreement with police before giving a statement. The agreement statedthat he desired favourable treatment, but was receiving no concessions, promises, or guarantees in return for his statement to police. Hewould be immune from having his statement used against him, but not immune from prosecution.

He acknowledged that he would betried separately and could be compelled to testify at the trial of anyone else charged.

[ 98 ] However, the subsequent events are clear that Mr. Poyser did obtain a benefit. He was charged initially with first-degree murder, but ultimately pled guilty, with the Crown’s consent, to accessory after the fact to murder, and the first-degree murder charge was withdrawn. There is no question that he received a benefit in his sentencing for accessory after the fact to murder. As noted above, the transcript of Mr. Poyser’s guilty plea was clear that, when he pleaded guilty, his counsel asked for credit for cooperation.

Crown counsel agreed he should have a sentencing credit for cooperation and the sentencing judge agreed. [6] It was misleading for Crown counsel to make the submission to the jury that Mr. Poyser “received no special favours” and to suggest that he obtained no benefit from cooperating with the police and becoming a Crown witness when the transcript of his guilty plea establishes that he was given sentencing credit for his cooperation. [ 99 ] Crown counsel on appeal sought to justify the statement that Mr.

Poyser “received no special favours” by arguing, in effect, that he received appropriate consideration for his cooperation; thus it was accurate to say he received no “special” favours. With respect, this is parsing and would not have been understood this way by the jury. Crown counsel’s submission before the jury was designed to leave them with the impression that Mr. Poyser received no benefit from cooperating with the police and becoming a Crown witness.

That was not the case. [ 100 ] Second, on the objective evidence available from the trial record in this case, it would be difficult to conclude that there was not a triable case against Mr. Poyser for murder or manslaughter. In other words, he also received the benefit of not being tried for murder. Although that issue was for the jury to weigh, in my view, the statement in the Crown’s closing that there was “no case” against Mr. Poyser for murder or manslaughter is contrary to the evidence. The objective evidence was further bolstered by Mr. Poyser’s own admissions.

Whether or not such a prosecution would ultimately succeed is not the issue. The issue is whether it was incorrect on the record before the jury to assert that there was “no case” against Mr. Poyser for murder or manslaughter. [ 101 ] Mr. Poyser admitted to seeing firearms in the basement at Shendale shortly before the group got into his car and drove to Pizza Pizza. His car was used to travel to and from the scene. His car was identifiably caught on video near and at the Pizza Pizza scene.

He testified to hearing someone in the car say, “There’s Jarryl.” He got out of the vehicle with the shooters and attended the Pizza Pizza, just outside the door. He was identifiably caught on video outside the Pizza Pizza with the shooters at the time of the shooting. When he heard the shots, he did not distance himself from the event, but rather fled with the shooters in the car – and his flight was captured on video. Mr.

Poyser destroyed evidence after the shooting, including wiping the memory card from his car’s dash camera and throwing it down a sewer, discarding the clothes he had been wearing, and wiping the contents of his cell phone and giving the phone to his girlfriend. [ 102 ] It was misleading to assert that there was “no case” for murder or manslaughter against Mr. Poyser. The only way one could reach that conclusion was by accepting the credibility of his account of the events leading up to the shooting – the issue the jury had to decide.

Yet Crown counsel asserted that there was “no case” for murder or manslaughter against Mr. Poyser as if it was objective legal fact. [ 103 ] As noted above, Shakiyl Shaw also argues that the Crown’s statement about there being “no case” for murder against Mr. Poyser is inconsistent with the evidence it relied on to argue that he was guilty of first-degree murder. In my view, it is not the inconsistency that makes the Crown’s closing improper. However, the inconsistency underlines that the argument made by the Crown in its closing that there was “no case” against Mr.

Poyser for murder depended on accepting the credibility of Mr. Poyser’s evidence that he was not aware of a plan to shoot anyone when he allowed his car to be used to drive to Pizza Pizza and got out of the vehicle to stand outside the store as the shooting took place. The Crown’s case at trial against Shakiyl was based on Mr. Poyser’s evidence that Shakiyl was present in the basement at Shendale when Lenneil handled firearms (and the inference that Shakiyl saw them), that Shakiyl drove Mr. Poyser’s vehicle to and from Pizza Pizza, and that someone in the car said, “there’s Jarryl”.

There was also the video evidence of the manner in which the vehicle was driven near the Pizza Pizza. Except that he was not the driver, substantially the same elements of proof were available against Mr. Poyser. But in addition, Mr. Poyser’s car was used to get to and flee the scene, Mr. Poyser got out of the vehicle at Pizza Pizza and was clearly identifiably visible on video, and Mr. Poyser destroyed evidence after the shooting. [ 104 ] In sum, the Crown’s comments in its closing address that Mr.

Poyser received “no special favours” for cooperating with police and testifying and that there was “no case against him for murder or manslaughter” were not based on the trial evidence and represented improper personal opinion by Crown counsel. [ 105 ] I address briefly the comments in Crown counsel’s closing address about Mr. Poyser having PTSD and saying that he did not deal drugs, live a criminal lifestyle, or have any gang affiliation. [ 106 ] There was no evidentiary support for the assertion that Mr. Poyser had PTSD. While Mr.

Poyser testified to experiencing depression, anxiety, and problems with his use of alcohol, he did not say he had PTSD. There was no medical evidence that he had PTSD. [ 107 ] There was no evidence about Mr. Poyser’s lifestyle. While it is true that there was no affirmative evidence that he dealt drugs, lived a criminal lifestyle, or had any gang affiliation, there was no evidence negating these propositions. Mr. Poyser was never asked about these things. While it would have been accurate to say that there was no evidence that Mr.

Poyser lived a criminal lifestyle, for the Crown to positively assert that he did not do so was making an assertion of good character for which there was no evidence. It was a rhetorical overstatement. [ 108 ] If they stood alone, the PTSD comment and the comments about Mr. Poyser not living a criminal lifestyle may not have required a corrective instruction. In the defence objections at trial to the Crown’s closing address, these issues were given less prominence. In submissions on appeal, Mr.

Derstine conceded that the PTSD comment was less consequential and that, if the Crown had said there was “no evidence” that Mr. Poyser lived a criminal lifestyle, that would have been unobjectionable. [ 109 ] But taken together with the comments about Mr. Poyser not receiving a benefit from becoming a Crown witness and there being “no case against him for murder or manslaughter”, these issues are part of a pattern of the Crown overreaching in its closing address and making comments not supported by the trial evidence in a bid to unfairly bolster the credibility of Mr. Poyser.

[110] In my view, the comments in Crown counsel’s closing that Mr. Poyser received no benefit for his cooperation and becoming aCrown witness and that there was “no case for murder or manslaughter” against him were prejudicial and required a correctiveinstruction. The trial judge gave none – despite accepting that Mr. Poyser received “a handsome benefit” for his cooperation with policeand becoming a Crown witness. [111] It was, of course, open to the Crown to argue that, despite Mr.

Poyser receiving the benefit of a reduced sentence for hiscooperation and not facing the jeopardy of a prosecution for murder or manslaughter (which may or may not have been successful), hisevidence should be accepted as truthful. But it was not open to the Crown to argue that Mr. Poyser received no benefit for hiscooperation or that there was “no case” against him for murder or manslaughter.

(3) Error in refusing to admit hearsay statement of Mr. Poyser to his lawyer [112] I would accept the appellants’ submission that the trial judge erred in refusing to allow Mr. Poyser’s statement to his lawyer thathe knew the perpetrators of the shooting to carry guns in the past to be used for the truth of its contents. In my view, the trial judge failedto consider all of the circumstances bearing on threshold reliability. In particular, he limited his consideration of substantive guaranteesof reliability to whether Mr. Poyser was disinterested at the time he made the statement.

He failed to consider as a procedural guaranteeof reliability the fact that Mr. Poyser testified at trial and, thus, was available for cross-examination. A proper analysis leads to theconclusion that threshold reliability was sufficiently established and that the jury should have been allowed to consider the statement forthe truth of its contents. The trial judge’s ruling [113] At trial, an agreed statement of facts was filed regarding events leading up to Mr. Poyser turning himself in to police andcooperating by providing a statement. The agreed statement of facts included facts about statements Mr.

Poyser had made to his lawyer,Mr. Ross, in a meeting one week after the shooting.[7] The agreed statement of fact specified that the statements or utterances describedin it were “not intended to be exact quotations; however, it is agreed that either these exact words or words substantially similar to thosebelow were in fact used.” During the meeting, Mr. Poyser authorized his lawyer to communicate information to the police to negotiate adeal. The information that Mr.

Poyser provided to his lawyer and authorized him to communicate to police included that he was scaredof the shooters and that he knew they carried guns in the past (Mr. Poyser did not identify the shooters in the information in the agreedstatement of facts). Mr. Poyser’s statement to Mr. Ross that he knew the shooters to carry guns contradicted his trial evidence. At trial,he agreed that he had never seen the Shaw brothers with firearms “ever in [his] life” and could not think of any reason why they wouldhave a connection to guns. Mr.

Poyser was cross-examined on this contradiction and said that he did not recall making this statement tohis lawyer, but did not deny that he made it. [114] The appellants were permitted to use Mr. Poyser’s statement to his lawyer for its inconsistency with his trial evidence. However,prior to the final instructions being given to the jury, they applied to the trial judge to admit the statement for the truth of its contents,pursuant to the principled exception to the hearsay rule, or in the alternative, on the basis of principles allowing a relaxed application ofthe hearsay rule to defence evidence.

I pause to note that, although the application was styled as being about “admissibility” of thestatement for the truth of its contents, it was really about use, since the statement was already before the jury, but for a more limitedpurpose. [115] The appellants argued that Mr. Poyser’s statement to his lawyer was exculpatory in that it supported that other people – peoplewho were known to carry guns – committed the shooting. They argued that necessity was established because of Mr. Poyser’s evidencethat he did not recall making the statement to his lawyer about knowing the perpetrators to carry guns in the past.

They argued thatthreshold reliability was also established. The fact that the statement was made to Mr. Ross was not in dispute, as it was agreed to by theCrown in the agreed statement of facts. The appellants argued that there was no realistic possibility that Mr. Poyser misperceived thatthe people who he said were with him at the time of the shooting had carried guns in the past, and that there was no realistic possibilitythat he lied to his own lawyer. [116] The trial judge gave brief oral reasons dismissing the application.

He ruled that threshold reliability – either procedural orsubstantive – was not established, and that Mr. Poyser’s statement to his lawyer about the perpetrators being known to carry guns couldonly be used as a prior inconsistent statement. At the time the trial judge gave the oral reasons, he indicated that he may provide morecomplete reasons later, but no other reasons were subsequently provided. Given the brevity of the oral reasons, it is difficult to sayprecisely why the trial judge found that threshold reliability was not met. However, based on a passage he cited from R. v.

Finta, (SCC), [1994] 1 S.C.R. 701, referring to reliability being proven where the person making the statement is “disinterested”and comments made by the trial judge during submissions, it appears the trial judge found that Mr. Poyser was not disinterested when hemade the statements to Mr. Ross about knowing the perpetrators to carry guns in the past because he did so in the context of seekingwitness protection. It also appears that the trial judge had concerns about whether procedural reliability was established.

Positions of the parties [117] The appellants argue that the trial judge made three errors in his analysis of the use of Mr. Poyser’s statement to his lawyer forthe truth of its contents. First, he unduly narrowed his analysis of threshold reliability by only considering whether Mr. Poyser wasdisinterested at the time he made the statement. Second, even if there was a realistic possibility that Mr. Poyser had an interest in makingthe statement, that did not end the threshold reliability analysis. The trial judge was required to assess all of the circumstances indeciding whether threshold reliability was met.

The appellants submit that Mr. Poyser’s statement to his lawyer displayed sufficientindicators of reliability that it ought to have been admitted. Third, the trial judge erred in the circumstances of this case in not exercisinghis discretion to admit the statement for the truth of its contents by relaxing the rules for defence-led evidence, relying on Finta and R. v.Williams (1985), 18 C.C.C. (3d) 56 (Ont. C.A.).

The appellants submit that fairness demands that the statement be admitted as itsadmission was necessary to prevent a miscarriage of justice. [118] The Crown argues that the trial judge did not err in ruling that Mr. Poyser’s out-of-court statement was inadmissible for the truthof its contents and that it could only be used as a prior inconsistent statement to challenge Mr. Poyser’s credibility. That decision is owed

deference. [ 119 ] The Crown does not take issue that necessity is established by Mr. Poyser’s lack of memory of telling Mr. Ross that the perpetrators were known to him to carry guns in the past, but argues that threshold reliability was not established. The Crown argues that Mr. Poyser was motivated to tell his lawyer that the perpetrators were dangerous because Mr. Poyser was seeking witness protection at the time he made the statement. He was not disinterested. Further, while there is no question about what Mr.

Ross told the police, this does not provide any comfort with regards to threshold reliability about what Mr. Poyser told Mr. Ross. The statement by Mr. Poyser to Mr. Ross was not made u

[…]