Décision

1.                The Appellant appeals against a verdict of acquittal entered by a jury on June 11, 2023, on one count of first-degree murder, following a trial before the Superior Court presided over by the Honourable Pierre Labrie.[1]
2.                The only question at trial was the identity of the murderer, and more precisely whether the proof established beyond reasonable doubt that it was the Respondent.
3.                The Appellant raises three grounds of appeal, first that the trial judge erred in law in his instructions to the jury, and further, that he committed two other errors in law by excluding evidence that the Appellant sought to adduce.
4.                For the reasons that follow, the Court finds that the judge made a material error in the jury instructions and that a new trial must be ordered. It is neither necessary to decide the issue of admissibility of the proposed evidence, nor prudent to do so, since the Court will order a retrial where these questions of admissibility will remain to be litigated and decided.[2]

***

5.                The evidence against the Respondent was entirely circumstantial and can be briefly summarised for the purposes of this appeal.
6.                On May 10, 2019, Éric Francis de Souza (“the victim”), was having dinner with eleven other individuals at the Sofia restaurant located in the Quartier Dix30, in Brossard.  
7.                At 8:54 p.m., security footage shows a white Ford Focus, dating from between 2008 and 2011, entering Quartier Dix30, passing in front of the Sofia restaurant and then disappearing from view in the parking lot near another restaurant, Les Trois Brasseurs.  About three minutes later, a black Infiniti G37, dating from between 2010 and 2013, follows the same path. 
8.                At 10:21 p.m., surveillance cameras outside and inside the Sofia restaurant show an individual whose face is concealed by what appears to be a balaclava and whose right hand is covered by a plastic bag, entering the restaurant. He walks directly to the victim's table, places his right hand, covered by the bag, behind the victim's neck, and the victim collapses on the floor. Chaos ensues in the restaurant as the assailant flees, disappearing from the camera’s view, near Les Trois Brasseurs. The victim died of a cervical trauma caused by a gunshot.
9.                Four eyewitnesses who were at the restaurant describe the shooter as a white male, between 5'5 and 6', weighing between 150 and 200 pounds.  Three of the four eyewitnesses describe the shooter’s hair.
10.            Kenneth Drummond, a friend of the victim, seated at the table with him, testified that the shooter had slicked (perhaps tied back) darker hair. Martin Plante, who was sitting at the bar facing the entrance of the restaurant, testified that the shooter wore his blond hair in a thin braid. Lastly, Julie Montplaisir, who was also sitting at the bar facing the entrance of the restaurant, testified that the shooter’s hair appeared to be blond and curly (loose curls) and that he wore a ponytail, sticking out of the hole in his cap.
11.            Shortly after the shooting, the police found a perforated green plastic bag and a loaded revolver on the terrace of Les Trois Brasseurs, not far from the Sofia restaurant.  The Respondent’s DNA and one of his fingerprints were found on the plastic bag.  Five other unidentified fingerprints were found on the bag.  The plastic bag matched pieces of polymer recovered at the crime scene and the revolver matched the murder weapon. 
12.            The police also found a burnt white Ford Focus, on a residential dead-end street, 2 km from the crime scene. The car had been stolen a few months earlier and bore a stolen licence plate. A residential surveillance camera captured images of an individual fleeing from the scene of the burning car and being picked up by a dark sedan.  According to the testimony of an expert specialized in motor vehicle recognition who had previously worked at Infiniti, the getaway dark sedan seen on the video is an Infiniti G35 or G37, dating from between 2009 and 2013.
13.            Near the burnt Ford Focus, the police found a parking ticket indicating that the day before the murder, on May 9, 2019, the Ford Focus, bearing the same stolen licence plate, was parked illegally in front of 716 Mitchell Avenue, in Town of Mount Royal.  This address is located across a green space adjacent to 5077 Paré Street, a residential address frequented by the Respondent in the weeks and months after the murder.  It takes approximately 15 minutes to walk from one address to the other.
14.            In June 2019, roughly six weeks after the shooting, and in September 2019, the Respondent was seen driving a 2010 black Infiniti G37 belonging to his father.  He also had an accident while driving this vehicle on September 19, 2020. The car was seized during the investigation.  The mag wheels on this car were black, while those on the black Infiniti G37 filmed in Quartier Dix30 the night of the murder were silver.  According to the investigator, Mathieu Lavigne, the mags of the seized car had been painted, but he could not say when.
15.            In the Respondent’s August 2018 driver’s licence photo, issued nine months before the shooting, he has short, brown curly hair.  Photos and videos taken on June 24, 26 and 28, 2019, roughly six weeks after the shooting, show him with brown, curly, medium-length hair, tied at the back of his head.
16.            The Respondent presented no evidence at trial.

***

17.            The Appellant submits that the judge erred in law in instructing the jury to acquit the Respondent if they believed, or had a reasonable doubt, that the shooter had blond hair.
18.            In his final written instructions to the jury, the judge explained:

4.5. EYEWITNESS IDENTIFICATION EVIDENCE

[105] Identification is an important issue in this case. The case against Mr. Sarroino depends on the question of identification.

[106]  You must be very careful about relying on eyewitness testimony to find Mr. Sarroino guilty of any criminal offence. Innocent people have been wrongly convicted because reliance was placed on mistaken eyewitness identification. Even a number of witnesses can be honestly mistaken about identification. Eyewitness identification may seem more reliable than it actually is because it comes from a credible and convincing witness who honestly but mistakenly describes the person that he or she saw committing the offence.

[107]  There is little connection between great confidence of the witness and the accuracy of the identification. Even a very confident witness may be honestly mistaken. A very confident witness may be entirely wrong with respect to his or her identification evidence.

[108] Eyewitness identification is a conclusion based on the witness’s observations. The reliability of the identification depends on the basis for the witness’s conclusion.

[109]  Consider the various factors that relate specifically to each eyewitness and his or her identification of the person who committed the offence. […]

[110]  In this case, both Mr. Martin Plante and Ms. Julie Montplaisir testified that the person who shot Mr. De Souza had blond hair.

[111]  If, after considering the whole of the evidence, you believe one or both witnesses that the shooter had blond hair, you must find Mr. Sarroino not guilty of the offence.

[112]  Even if you do not believe the evidence that the shooter had blond hair, if it leaves you with a reasonable doubt about Mr. Sarroino being the person who shot Mr. De Souza, you must find Mr. Sarroino not guilty of the offence.

[113]  Even if the evidence that the shooter had blond hair does not leave you with a reasonable doubt about Mr. Sarroino being the person who shot Mr. De Souza, you only may find Mr. Sarroino guilty if, after considering all of the evidence, you are satisfied beyond a reasonable doubt of his guilt.[3]

[Emphasis added]

19.            The Appellant had asked the judge to remove paragraphs 110 to 113 arguing that “it should be up to the jury to determine both reliability of the testimonies of the eyewitnesses and whether or not these descriptions are compatible with the appearance of the accused at the time of the murder.” The judge refused, writing the following email to the parties:

Concernant les paragraphes 110 à 113, je vous rappelle qu’à la première étape de W.D. le jury doit décider à la lumière de l’ensemble de la preuve. Pour plus de clarté, Je propose donc d’ajouter au début du paragraphe 111 ce qui suit : If, after considering the whole of the evidence, you believe .... Cela étant dit il revient au jury de décider et la directive W.D. n’usurpe pas le rôle du jury.[4]

20.            As explained below, the Court agrees with the Appellant that this part of the instruction contains an error of law which the judge did not correct by adding only: “If, after considering the whole of the evidence, you believe…” to the faulty charge.
21.            The judge was correct to warn the jury of the inherent frailties of eyewitness identification. It was also appropriate for him to point out that, according to two witnesses, the shooter had blond hair, whereas some evidence indicated that the Respondent had brown hair (as evidenced by the photo appearing on his driver’s licence issued in 2018, and in several photos taken during police surveillance in June 2019).
22.            However, it was an error for the judge to give a W.(D.) type instruction regarding the Respondent’s hair colour where that element on its own was not automatically exculpatory.  As Paciocco J.A. explained in R. v. Panovski, when deciding whether a W.(D). instruction should be given, trial judges must ask themselves if the evidence, assuming it is accurate, would exclude the possibility of guilt.[5]  If so, the trial judge should explain to the jurors that if they believe the exculpatory evidence or if it leaves them with a reasonable doubt, they must acquit.[6] However, such an instruction must be limited to cases where the exculpatory evidence in question excludes the possibility of a guilty verdict.
23.            The Respondent refers to the case of R. v. T.L., as support for requiring such an instruction where the eyewitness’ description of the culprit is discernibly different from the characteristics of the accused.[7]  In that case, four independent witnesses identified the robber as a black man, while the appellant was white. The Ontario Court of Appeal concluded that this identification evidence was exculpatory and that a complete W.(D.) instruction or equivalent was necessary:[8]

[6]    […] The discrepancies between the description of the robber and the appellant’s actual appearance were not only significant, they related to obvious and readily discernable characteristics, especially skin colour.  It is hard to see how the evidence of four independent witnesses identifying the robber as black could not create a doubt where the accused was white.  We also note that roughly the same descriptions were given by four different people who were involved in two different events.  This fact also suggests to us that the potential for reasonable doubt based on the exculpatory identification evidence was high in this case.[9] 

[Emphasis added]

24.            In T.L., had the jury found (or had a reasonable doubt) that the robber was a black man, they could not convict a white man of the charges. This must be contrasted with the present case, where a conclusion that the shooter was blond – which the jury was free to draw – is not necessarily exculpatory evidence. It does not lead inexorably to the conclusion that a brown-haired person could not be the shooter, despite his having been identified as having blond hair at the crime scene.
25.            Unlike skin colour, identifiers such as hair colour and length can be easily changed or hidden. As Thorburn J. (as she then was) wrote in R. v. Alexandre, “[a] feature that is dissimilar to the person sought to be identified can be more revealing than a similarity.  However, this is true only if the dissimilarity is not one that is easily modified such as a change of clothes or a different way of wearing one’s hair.”[10] This observation is particularly relevant in a case where the culprit clearly took steps to conceal his or her identity.
26.            By providing a W.(D.) instruction  directing the jury to acquit if they believed, or had a reasonable doubt, that the shooter had blond hair, the judge singled out one piece of evidence that did not exclude the possibility that the Respondent was the shooter, and as such, he erred in law by instructing the jury to apply the burden of proof beyond a reasonable doubt to one individual piece of evidence, rather than to the whole of the evidence.[11]
27.            As the Supreme Court of Canada explained in R. v. Morin, “[t]he jury should be told that the facts are not to be examined separately and in isolation with reference to the criminal standard”.[12] In a later case of R. v. Morin, the Supreme Court reiterated this rule, stating:  

In R. v. Morin, [1988] 2 S.C.R. 345, we decided that the trial judge erred in instructing the jury that they should examine individual pieces of evidence and subject them piecemeal to the criminal standard.  We held that the criminal standard was to be applied to the ultimate issue and not in the weighing of individual pieces of evidence.  With respect to the weighing of evidence, the manner in which the jury assessed individual pieces of evidence was not a question of law in respect of which the trial judge was required to instruct the jury.  The basic requirement was that the jury was to be instructed that they must consider the whole of the evidence and determine on that basis whether the guilt of the accused had been established beyond a reasonable doubt.[13]

***

28.            Because this is a Crown appeal, it is not sufficient for the Appellant to establish an error of law. It must also convince the Court “to a reasonable degree of certainty” and “in the concrete reality of the case at hand”, that the impugned error might have had a material bearing on the acquittal.[14] This very heavy burden does not, however, go so far as to require the Crown to show that the result would necessarily have been different.[15]
29.            The faulty instruction here imposed a duty on the jury to acquit if they found that the shooter was blond (or had a reasonable doubt that such was the case). It is not unreasonable to surmise that the jury did have a reasonable doubt that the shooter was blond, given the testimony of two eyewitnesses to that effect. There is thus a distinct possibility that this misdirection led the jury to ignore the evidence as a whole – namely the rest of the incriminating circumstantial evidence – and that it had a material impact on the verdict.

FOR THESE REASONS, THE COURT:

30.            GRANTS the appeal;
31.            ANNULS the verdict of acquittal;
32.            ORDERS a new trial.

[1]  R. v. Sarroino, C.S. Montreal, no 500-01-227081-210, June 11, 2023, jury’s verdict of acquittal, Appellant’s Brief (“A.B.”), vol. 1, p. 21-24.

[2]  R. v. W.V., 2007 ONCA 546, para. 43; R. v. Thomas, [1998] 3 R.C.S. 535, paras. 22 and 28; R. v. Cowan, 2021 CSC 45, para. 70.

[3]  Final instructions, A.B., vol. 1, pp. 76-77.

[4]  F1-1A : Emails dated June 8, 2023, between the parties and the trial judge, A.B., vol. 2, p. 396.

[5]  R. v. Panovski, 2021 ONCA 905, para.  86.

[6]  See David Watt, Manual of Criminal Jury Instructions, Toronto, Thomson Reuters, 2023, pp. 285-286.

[7]  R. v. T.L., 2008 ONCA 763, para. 1.

[8]  Id., para. 7.

[9]  Id., para. 6.

[10]  R. v. Alexander, 2012 ONSC 6002, para. 25.

[11]   It may be noted that the judge’s instruction would have been correct if, as in T.L., the eyewitnesses’ testimonies conclusively excluded the possibility that the Respondent was the shooter, see: R. v. Panovski, 2021 ONCA 905, paras. 80-81.

[12]  R. v. Morin, [1988] 2 S.C.R. 345, para. 41.

[13]  R. v. Morin, [1992] 3 S.C.R. 286, p. 295-296.

[14]  R. v. Hodgson, 2024 SCC 25, para. 36; R. c. Cowan, 2021 CSC 45, para. 46; R. v. Graveline, 2006 SCC 16, paras. 14-15; R. v. Sutton, 2000 SCC 50, para. 2.

[15]  R. v. Hodgson, op. cit., para. 36.