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| John L. Hill |
The Crown’s case in convicting Harris Nnane of the double murder outside a Toronto LCBO relied upon two video surveillance recordings that overlooked the liquor store parking lot from a considerable distance. The images captured were of poor quality. A second video recorded events inside the LCBO store. The quality of that footage is excellent, but because of the viewing angles, it does not show everything.
Justice Jonathan Dawe would have allowed the fresh evidence in his dissenting judgment and ordered a new trial. It is not the appeal court’s duty to determine the ultimate credibility of the evidence. Is the evidence sufficiently cogent to warrant admission on appeal (R. v. Dudar, 2019 ONCA 115; R. v. Smithen-Davis, 2022 ONCA 832; R. v. Allen, 2018 ONCA 498).
The parking lot video shows Nnane arriving at the liquor store two minutes after the eventual victims’ car had been parked. Joseph Anzolona had driven that car. He exited the vehicle with his girlfriend, Raveena Kancherla, to enter the store. His other passengers, Cynthia Mullapudi and Chad Pillay, remained in the car.
The video depicts Nnane arriving with his friend Alexander Fountain and parking their car three car lengths away from the Anzolona vehicle. There was no evidence at trial that Nnane and Fountain had been following Anzolona’s car or expected to find him at the LCBO.
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Shortly after that, Nnane exits on the driver’s side, and it could be argued that the rear passenger door on the driver’s side also opened. The Crown’s theory is that Nnane and the backseat passenger switched positions. The video is not clear enough to raise that from speculation to fact.
As Anzolona exited the store carrying his liquor purchase towards his car, the parking lot video shows the rear passenger side of the Nnane car opening and someone running toward the Anzolona vehicle. There are gunshots. Anzolona was gunned down, and flying bullets hit Mullapudi.
It is common ground that the video circumstantially establishes that there must have been at least three people in the Nnane car.
Defence counsel’s motion to admit fresh evidence on appeal consists of an affidavit of Fountain naming the unknown and now deceased third party as the shooter and an affidavit in support of Nnane, who had not testified at trial. Fountain had been illegally at large and unavailable to give evidence at trial.
Justice Dawe disagreed with the majority in that he was unconvinced that the evidence supporting Nnane as the shooter was overwhelming. The quality of the video was too poor to establish this conclusively. Eyewitness identifications of the shooter were inconsistent, except that the shooter was identified as being a Black man.
The issue that prompted Justice Dawe’s dissent is his disagreement with the third criterion set out in R. v. Palmer, [1980] 1 S.C.R. 759, when the majority found that Fountain’s evidence was not remotely credible and was the product of collusion between Nnane and Fountain who are housed close to one another in the same penitentiary and interact with one another daily.
Fountain swore there was a third man in the Nnane car and identified Jaiden Jackson as the shooter. Both these statements could be true or false. However, it is accepted that a third man was in the car. Jackson’s death by homicide in 2018 makes it impossible for him to object to being named as the shooter.
Justice Dawe summarizes: “On balance and bearing in mind that it is not our task to decide whether Mr. Fountain’s evidence is true, I am satisfied that his identification of a third man as Mr. Jackson meets the Palmer criterion of being reasonably capable of belief.”
Justice Dawe also discounts the majority view that Fountain and Nnane colluded because they lived close to one another at Collins Bay Institution. Justice Dawe points out that Fountain swore his affidavit on September 20, 2022, and Nnane and Fountain only became incarcerated together on Nov. 8, 2022. There is no evidence the two had any opportunity to communicate with one another.
It is a fact that by the time Nnane swore his affidavit in support, he had the opportunity to discuss details with Fountain. This should not affect Fountain's credibility. Justice Dawe also discounts the majority’s rejection of Fountain and Nnane’s evidence since both have been convicted of crimes of dishonesty. That is not determinative of credibility (R. v. Smithen-Davis, 2022 ONCA 832). It is entirely possible that Jackson saw the man who was shot from the car in which Jackson was a passenger as Anzolona exited the store and used that opportunity to attack the victim.
The majority assumed Fountain’s evidence about Nname leaving the store was contradicted by the video. Yet the angles do not positively reject the statements. Justice Dawe’s dissent rested on his view that the evidence that Jackson was the shooter could not be dismissed as not reasonably capable of belief. He would have admitted the Fountain evidence, allowed the appeal and ordered a new trial.
This is the second half of a two-part series. Part one: Nnane murder appeal decision, part one.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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