A man found guilty of shooting a father and son at their Surrey home in 2021 has lost an appeal of his conviction, according to a recent decision from B.C.’s highest court.
Travis Wayne Bowcock was found guilty of attempted murder, aggravated assault, and using a firearm to commit an indictable offence after a trial by jury, and was sentenced to 15 years in prison.
Justice Joyce DeWitt-Van Oosten, writing for the three-judge panel of the B.C. Court of Appeal, briefly described the shooting that left the two men seriously injured in the dark, early hours of the morning on Sept. 23, 2021.
“The father opened the door and saw a man wearing a police-style vest and a hat marked ‘POLICE.’ The man said he was there to conduct a curfew check on the son, who was subject to a bail order. The son came to the door and the man drew a handgun and opened fire,” the decision said.
“There were multiple shots and the bullets struck both the father and son. The shooter immediately left the scene.”
Bowcock’s appeal argued that there were errors in the trial judge’s instructions to the jury at trial about how to weigh the evidence of the father, Jiwan Garcha, who was the Crown’s only eyewitness. The son did not testify because he was killed before the case went to trial, according to the lower court’s decision on sentencing.
Eyewitness evidence
The father described the shooter as a Black man, approximately 6’ tall and weighing roughly 200 pounds, with no facial markings or tattoos. Bowcock is white, stands 6’4” tall, weighs 250 pounds with tattoos “all over his face,” his defence counsel noted.
“The main issue at trial was the identity of the shooter. In finding the appellant guilty, the jury must have concluded beyond a reasonable doubt that he was the person at the front door. The father testified but was not asked to identify the shooter in the courtroom,” the judge wrote.
“Parts of the father’s description of the shooter did not match the appellant.”
Crown did not rely on the eyewitness evidence to definitively establish identity, according to the decision, Instead, it was introduced to establish “an additional link between the shooter and the circumstantial evidence pointing to Mr. Bowcock.”
The circumstantial evidence included CCTV video showing the shooter, additional CCTV video showing a truck connected to Bowcock arriving at the scene and evidence of the truck being abandoned soon after the shooting. In addition, the court heard someone called a taxi from Bowcock’s phone number requesting pickup near where the truck was found. A hat with “POLICE” on it and a glove with Bowcock’s DNA were also found near the truck, according to the decision.
The Crown argued that parts of Garcha’s testimony were “inaccurate” but that the whole of the evidence established Bowcock’s guilt beyond a reasonable doubt.
Decision on appeal
The judge’s decision on appeal set out the central question for the court to consider.
“Did the instruction on eyewitness identification evidence erroneously leave the jury with the impression that it could not find a reasonable doubt based on Mr. Garcha’s testimony?” DeWitt-Van Oosten wrote.
In cases where Crown introduces eyewitness evidence to prove the identity of the accused, the law generally requires a judge to warn the jury about the “frailties” of this type of testimony, the decision said.
The appeal decision reproduced the judge’s warning in this case.
“You must be cautious about relying on eyewitness evidence to find for or against an accused of criminal offences. In the past there have been wrongful convictions because of mistakes by eyewitnesses,” the warning said.
“When you consider the eyewitnesses’ evidence, you must bear in mind that observations and memory are often unreliable when it comes to the identification or observation of others. This is an area where people make honest mistakes. An eyewitness who honestly believes that the accused person is the one they saw committing the offence or the description of such a person may be convincing but might be wrong.”
The defence argued the reference to wrongful convictions should not have been included in this case because the Crown had argued parts of the evidence were “inaccurate” and was not relying on the eyewitness’ testimony to secure a conviction. In cases where eyewitness evidence is mainly “exculpatory” – meaning it has the potential to clear the accused – the courts have found that referring to the potential for wrongful conviction can “undermine its capacity to raise a reasonable doubt,” the decision said.
Even if the inclusion of the reference to wrongful convictions was not a legal error, Bowcock’s defence argued the jury was not sufficiently instructed on the “exculpatory capacity” of Garcha’s evidence.
The appeal court found that, in this case, the reference to wrongful convictions could have been excluded – but that leaving it in was not an error because the jury was adequately instructed on how to weigh the whole of evidence.
“The evidentiary frailties inherent to eyewitness identification evidence do not disappear simply
“The jury charge was not perfect, but it adequately equipped the jury on how to assess identification evidence with exculpatory aspects,” the decision said. “The jury would have understood from the instruction that differences between the eyewitness description and the appellant’s physical appearance could form the basis for reasonable doubt, even if it did not accept the description as true.”
