First degree murder trial. Main issue at trial was the identity of the person who shot the deceased. The accused did not testify, but denied being the shooter in a series of text messages to a friend. Crown’s case on identity was based largely on eyewitness evidence.
Following BD, 2011 ONCA 51, the W(D) analysis was engaged by the accused’s exculpatory text messages, even though he did not testify. While the trial judge did not believe the accused’s denial in the messages, nor did it raise a reasonable doubt, the Court was ultimately not satisfied on the issue of ID. “ There is a strong case that he [Accused] was involved in the altercation that culminated in the shooting, but it is clear that others were involved as well. The two witnesses who had the best view of the shooter gave descriptions that were not consistent with each other and not consistent with the evidence about the Accused’s appearance that night… In the end, based on the evidence presented at trial, I am simply not sure that the Accused was the shooter.”
B. Beresh – Defence Counsel