“It was incredibly fast,” Cst Mike Laporte told jurors at the trial of Shawn Vassel for gunning down Husam Degheim in a movie theatre parking lot in Mississauga, Ontario. Cst Laporte was describing Vassel’s attempt to elude the police by scaling down eleven floors of a North York apartment building. “He was dropping and then grabbing onto the next balcony,” Cst Laporte said. “I’ve never seen anything like it.”

Vassel ducked into the seventh floor and ran from a side entrance into rush hour traffic. Cst Laporte thought he was reaching for a weapon and drew his firearm. “Police! Stop!” he yelled. Vassel disappeared into the Jane Finch Mall where he was arrested at gun point hiding in a computer store. Cst Laporte found a .22 calibre hand gun near the front of the apartment building. But the murder weapon, a Glock .40, was never found. Nor was Peter Parker.

On March 13, 2011, the jury convicted Vassel of second degree murder after forty hours of deliberation over five days. Justice Michael Tulloch of the Ontario Superior Court of Justice sentenced him to life imprisonment without eligibility for parole for sixteen years. He appealed. (See: Bob Mitchell. Wanted for murder, Shawn Vassell scaled down high-rise like ‘Spiderman’. The Toronto Star. February 11, 2011)

On September 4, 2018, a three member panel of the Ontario Court of Appeal set aside the conviction and ordered a new trial. Writing for the unanimous court, Justice David Watt held, at para 193, that a new trial was required because errors in the admissibility of expert evidence and the charge to the jury were not harmless. The core issue in the trial was the identity of the shooter. Vassel’s main defence was alibi.

Vassel lived with his girlfriend, Sabrina Sconci, in unit 79 of a Mississauga townhouse development that everyone called the Ridgeway Complex. Drugs and guns were commonplace. The unit next door was known as the “trap house” where residents and others hung out, listened to music and smoked marihuana. Tristan Palmer brought Michael Agba into a plan to rip Degheim, a drug dealer, using Sconci’s vehicle. The bogus deal was to take place in the movie theatre parking lot, a short drive from the complex. Everyone involved was engaged in the drug trade.

Agba was originally charged jointly with Vassel but flipped after the preliminary inquiry. He pleaded guilty to manslaughter and agreed to testify against Vassel. At the proceedings where he pleaded guilty, Agba admitted that he “bent the truth” by minimizing his involvement in the robbery of Degheim. He denied knowing that a gun would be used until arriving at the parking lot. At Vassel’s trial, he conceded that he was trying to get a lesser sentence by denying knowledge of the gun. He testified that he drove to the parking lot with Palmer and Vassel in Sconci’s vehicle. Vassel testified that he stayed at the trap house. He said David Grant went with Palmer and Agba. Grant testified he never left the Sconci townhouse.

Vassel said he had his 833 cell phone with him at the trap house where he made calls to Matthew Miller and his grandmother. It was his only cell phone. The defence called Kristi Jackson of Rogers Wireless. She was qualified as an expert in interpreting records kept by Rogers and in the interaction between cell phone towers when calls are made. Her uncontested triangulation evidence was that Vassel’s phone was in the vicinity of the Ridgeway Complex at the time of the calls to Miller and Vassel’s grandmother and not in the area where the shooting happened. If Vassel and his phone were together – he could not have killed Degheim.

To counter the alibi, Crown counsel cross-examined Jackson about the cell phone practices of drug dealers, the distinction between “drug” phones and “family and friends” phones, and whether the usage patterns on the 833 phone showed which type of phone it was. Vassel’s counsel objected but the trial judge made no formal ruling only suggesting that “some more foundation” be established. Justice Watt summarized Jackson’s evidence, at paras 62-3, that included the following:

• drug dealers have many phones and rarely register their “drug” phones in their own name;
• drug dealers typically use “family and friends” phones for “clean conversations”;
• records for “drug” phones show brief calls with few repeat contacts; and,
• Vassel’s 833 phone was a “family and friends” phone.

But, Jackson was simply not qualified to give those opinions. The opinion that drug dealers have many phones was particularly important. Justice Watt said this, at para 100: “If the testimony the Crown adduced from Kristi Jackson in cross-examination consisted in whole or in part of expert opinion on a subject matter beyond the qualification defence counsel had already established, it was incumbent on the Crown to qualify her as an expert on that subject matter.” The opinion evidence thus failed to meet the fourth Mohan criterion for admissibility – a properly qualified expert. (See: R v Mohan, [1994] 2 SCR 9 per Sopinka J, at para 17; and, R v Bingley, [2017] 1 SCR 170 per McLachlin CJ, at paras 14-5)

The inadmissibility of the opinion testimony gains significance in light of the trial judge’s charge to the jury about the manner in which they were to assess a portion of Vassel’s testimony. Justice Watt reproduced this passage of the charge, at para 136:

“Mr Vassel has given evidence that may tend to show that either Mr David Grant or Mr Agba was the shooter as he was not at the scene of the crime on the night in question. You should consider that testimony of Mr Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr Vassel told you about Mr Grant’s involvement in deciding this case.”

Justice Watt reaffirmed, at para 139, that “it is impermissible to assume that an accused will lie to secure an acquittal. Such an assumption flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for an accused […] Any instruction that directly or indirectly invites the trier of fact to consider such interest is prejudicial […].” The rule, however, is not absolute. As Justice Watt stated, at para 159: “[W]hether it is appropriate for […] a jury to be instructed that it is entitled to consider that an accused may have a motive to lie because of his or her interest in the trial will depend on the evidence adduced and the issues raised at trial.”

The real problem with this passage of the charge was its impact on the alibi and the jury’s consideration of Vassel’s testimony in support of it. Justice Tulloch had clarified for the jury that they need not believe the alibi evidence in order to acquit. Yet, they were also told to treat “with particular care” the critical part of the alibi that Grant and Agba left in Sconci’s car. “In these circumstances,” Justice Watt wrote at para 169, “the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.”

Justice Watt concluded that the case against Vassel was not overwhelming. No one picked him out of a photograph line-up and there was no forensic evidence linking him to the shooting. The jury twice reported a deadlock during deliberations. The state’s case really hinged on Michael Agba, a self-described accomplice. Although the judge at the new trial will caution the jury about accepting Agba’s testimony without finding confirmation elsewhere in the evidence – best to remember Aunt May’s advice: “You’re not Superman you know.”