



COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. Scott, 2021 ONCA 625

DATE: 20210917

DOCKET: C68108

Tulloch, Roberts and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Gary Scott

Respondent

Frank Au and Scott Patterson, for the appellant

Nader R. Hasan, Dragana Rakic and Karen
    Bernofsky, for the respondent

Heard: May 11, 2021 by video conference

On appeal from the acquittal entered on January
    30, 2020, by Justice Kelly P. Byrne of the Superior Court of Justice, sitting
    without a jury.

Trotter J.A.:

A.

Introduction

[1]

Henryk Dabrowski was murdered in his apartment
    on October 28, 2017. He was stabbed 23 times, and his face, hair, and hands
    were covered with a brown substance that appeared to be chocolate sauce. Months
    later, the respondent was charged with second degree murder. After a judge
    alone trial, the respondent was found not guilty. The Crown appeals his
    acquittal.

[2]

The trial judge provided thorough reasons for
    judgment in which she carefully evaluated all of the evidence. The Crown
    isolates three aspects of the trial judges reasons and contends they reflect errors
    of law that were instrumental in her decision to acquit the respondent.

[3]

I would dismiss the appeal. The trial judge made no legal errors in her analysis. The Crown disputes the weight the trial judge assigned to certain pieces of evidence and attacks the reasonableness of the acquittal, both of which are beyond the scope of proper appellate review on a Crown  appeal.

B.

factual background

(1)

Introduction

[4]

The bulk of the trial judges findings are uncontested.
    Consequently, the following general overview relies heavily on her reasons. I
    will review the contested portions of the evidence in greater detail when
    addressing the grounds of appeal.

[5]

The trial was brief, lasting only a week. The
    respondent made many admissions. The Crowns case was entirely circumstantial.
    The only issue was identity.

[6]

The precise time of Mr. Dabrowskis death was never
    established. After he was killed, however, witnesses observed the respondent moving
    around the building, going between floors, and changing his appearance. His
    comings and goings were captured by security video cameras, which turned out to
    be a significant feature of this case. At one point, the respondent was seen
    leaving the building with his hand wrapped in a white towel, returning just a
    few minutes later. A contentious issue at trial was whether anything was
    concealed under the towel. The Crown contended the respondent disposed of the
    murder weapon, a knife. The trial judge disagreed and found that there was
    nothing concealed in the towel.

[7]

The Crown relied on forensic evidence concerning
    an apparent trail of what appeared to be chocolate sauce, leading from the
    deceaseds apartment to the respondents. The trial judge rejected the
    proposition that the deposits or stains that the Crown pointed to were
    sufficient to establish a trail.
This conclusion is linked to the Crowns complaint, discussed below, that
    the trial judge improperly rejected an admission made by the respondent
    concerning the apparent presence of a sticky substance on a stairwell door
    handle close to Mr. Dabrowskis apartment.


[8]

It was admitted at trial that the respondent had
    been in Mr. Dabrowskis apartment on the day that he was killed. The police
    seized shoes from the respondents apartment. The shoes could not be excluded
    as having made the impressions in Mr. Dabrowskis apartment. The footwear
    impressions expert, Detective Johnston, however, could not say when the
    impressions were made. The police also seized a jacket, seen in some of the
    video clips, that contained a small stain of Mr. Dabrowskis blood. The trial
    judge found that the respondent was inside Mr. Dabrowskis apartment after he
    had been killed.

[9]

The respondent called no evidence in his
    defence.

[10]

Twice in its factum, the Crown makes mention
    that this trial was meant to be a bifurcated procedure. That is, it was expected
    that the respondent would be found to have killed Mr. Dabrowski and the
    proceedings would then shift to address a potential defence of not criminally
    responsible on account of mental disorder (NCRMD):
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 16.

[11]

The Crown leaves the impression that the trial
    of the question of the respondents guilt in killing Mr. Dabrowski was a mere
    formality along the road to a NCRMD hearing. The respondent rejects this
    proposition and contends that the Crowns case was seriously challenged through
    cross-examination, especially that of William Cameron, whose evidence the trial
    judge largely rejected.

[12]

Whatever may have transpired behind the scenes
    before trial, it is not in issue on this appeal, nor does it form a backdrop for
    our consideration. At trial, the respondent enjoyed the full protection of the
    presumption of innocence. The trial judge was tasked with determining whether
    the evidence proved beyond a reasonable doubt that the respondent killed Mr.
    Dabrowski. She did just that, making the following thoughtful observations, at
    para. 102:

In a case like this where an individual has
    been brutally murdered, I am mindful that the desire to want to identify the
    offender is strong. Human nature wants to blame and hold someone accountable.
    As I navigate my way through the evidence, I remind myself that suspicion and
    probable guilt are not a basis for conviction. Our law requires certainty and
    nothing less than proof beyond a reasonable doubt will suffice. When I consider
    the evidence against Mr. Scott, I am unable to say with a level of certainty
    that he stabbed Mr. Dabrowski. I find myself left in a state of reasonable
    doubt. Our law requires that Mr. Scott be given the benefit of that doubt.

[13]

As discussed below, the trial judge was entitled
    the make the findings that she did based on the evidence and lack of evidence
    before her.

(2)

Mr. Dabrowski and The Apartment Building

[14]

Mr. Dabrowski and the respondent lived in the
    same building at 5 Wakunda Place. Mr. Dabrowski lived in apartment 213; the
    respondent lived in apartment 502. 5 Wakunda Place is connected to an adjacent
    building, 7 Wakunda Place, via an enclosed walkway that extends from a lobby on
    the second floor. As discussed below, a good deal of evidence focused on the
    respondents movements that night within 5 Wakunda and back and forth between 5
    and 7 Wakunda.

[15]

The apartment buildings, and one other, are part
    of a Toronto Community Housing Complex. The trial judge observed that many
    residents deal with addictions and have other challenges. It was common for the
    police, the fire department, and ambulances to be at the complex on a daily
    basis.

[16]

Mr. Dabrowski sold beer out of his apartment for
    double the price he paid for it. He accepted cash or, if someone was low on cash
    near the end of the month, he took collateral, such as personal items. As
    discussed below, the respondent may have left electronics at Mr. Dabrowskis
    apartment.

[17]

Mr. Dabrowski was last seen alive at 5:32 p.m.
    on the night he was murdered. Mr. Dabrowskis neighbours found his body at approximately
    8:50 p.m. At least five people entered Mr. Dabrowskis apartment after he was
    found dead, one of whom helped himself to a beer.

[18]

When the police arrived, Mr. Dabrowski was lying
    in a pool of blood. He had been stabbed 23 times in his torso, and he suffered
    other defensive wounds. Mr. Dabrowskis hair, face, and hands were covered in a
    brown substance that appeared to be chocolate sauce. The apartment otherwise seemed
    to be in order: a significant amount of money, electronics, and other valuables
    were left undisturbed. The police did not find the murder weapon.

(3)

The Respondents Movements That Night

[19]

The respondent was on the move around the
    Wakunda buildings around the time Mr. Dabrowski was killed. Of importance to
    the appeal is the evidence of William Cameron, who claimed to see the
    respondent three times that night, and the evidence of Arthur Ramsay, who spoke
    with the respondent while in an elevator. Their evidence is better understood
    against the backdrop of the security video footage, which establishes the
    following timeline on the evening of the murder:
[1]



6:22:16 p.m.

The
          respondent stands outside the elevator on the fifth floor. He is wearing a
          blue shirt and green Adidas shoes but does not get on the elevator.



6:37:20 p.m.

As Mr.
          Cameron enters 5 Wakunda Place via the second-floor walkway, a man runs past
          him, moving north away from the direction of Mr. Dabrowskis apartment and
          toward the north stairwell.



6:40:03 p.m.

The
          respondent enters the elevator on the fifth floor. His appearance has
          changed. He is wearing a green jacket with the hood up, a blue shirt, black
          pants, a black mask, and green Adidas shoes. He is carrying a black gym bag,
          and there is a white cloth on his right hand.



6:40:30 p.m.

The
          respondent exits the elevator on the first floor and walks across the lobby
          and into the north stairwell.



6:40:35 p.m.

The
          respondent enters the north stairwell on the first floor and heads up the
          stairs.



6:40:45 p.m.

Mr.
          Cameron enters the second-floor walkway from outside, and a man runs past
          him, heading south from the north stairwell, toward Mr. Dabrowskis
          apartment. The trial judge accepted that the respondent is the man in the
          footage.



6:43:15 p.m.

The
          respondent walks from the second-floor lobby to the walkway and drops an
          envelope addressed to Mr. Dabrowski.



6:43:18
          p.m. to 6:45:48 p.m.

The
          respondent walks along the second-floor walkway, leaves 5 Wakunda Place, and
          walks southbound on the sidewalk. He then returns to 5 Wakunda Place from the
          same direction in which he left.



6:46:25 p.m.

The
          respondent stands outside the main entrance to 5 Wakunda Place. He is talking
          to two people and hands them a CD out of his bag.



7:53:18 p.m.

The
          respondent boards the elevator on the fifth floor. Mr. Ramsay is in the
          elevator. The respondent has changed his clothes again and is wearing white
          shoes and a multi-coloured shirt. He is carrying a beer in his left hand and his
          right hand is wrapped in an unknown item.



(a)

William Cameron

[20]

William Cameron lived at 7 Wakunda Place. He was
    an important but contentious witness. He testified to seeing the respondent
    three times that night. The trial judge concluded Mr. Cameron only saw the
    respondent twice.

[21]

First, at 6:37 p.m. (approximately one hour
    after Mr. Dabrowski was last seen alive), Mr. Cameron said he saw the
    respondent running from the direction of Mr. Dabrowskis apartment on the second
    floor toward the north stairwell and up the stairs. He was wearing a varsity
    style jacket with mixed colours.
[2]


[22]

The trial judge viewed the corresponding video
    clip (6:37:20 p.m.) numerous times, noting that it was blurry and fleeting.
    She was unable to conclude that the male who was running away was the
    respondent. The trial judge rejected Mr. Camerons evidence that it was the
    respondent.

[23]

Second, at 6:40 p.m., Mr. Cameron passed the
    respondent on the first floor, as the respondent was getting off the elevator
    and Mr. Cameron was getting on. The respondent had changed his clothes and was
    now wearing a green jacket over a blue shirt. He had the hood of the jacket up
    over his head and wore a black mask. Mr. Cameron testified that the respondent
    was holding an object in his right hand, wrapped in a white cloth. I will
    address this evidence in more detail below.

[24]

A few seconds later, as Mr. Cameron got off the
    elevator on the second floor, he saw the respondent for the third time. The
    respondent was walking southbound down the second-floor hallway, away from the
    north stairwell and in the direction of Mr. Dabrowskis apartment. Upon
    reviewing the video surveillance, the trial judge concluded that it was the
    respondent in this sequence.

(b)

Arthur Ramsay

[25]

Mr. Ramsay lived on the 10
th
floor at
    5 Wakunda Place. He knew Mr. Dabrowski and the respondent. On October 28, 2017,
    he and his friend were on an elevator with the respondent at 7:53:18 p.m. The
    respondent told Mr. Ramsay that he was depressed, out of sorts, and needed
    someone to talk to. He asked Mr. Ramsay to go to Mr. Dabrowskis apartment to retrieve
    a piece of electronic equipment for him, telling Mr. Ramsay to go down and if
    the door is open get it for him. Mr. Ramsay declined to do so, but suggested
    he would tell Mr. Dabrowski to go see the respondent, to which the respondent
    replied, I can do it myself.

[26]

When the three men got off the elevator, they
    ran into a fourth resident who asked the respondent why his hand was wrapped. There
    was no response.

(4)

Items Seized from the Respondent

[27]

The police searched the respondents apartment
    on November 1, 2017, four days after the murder. The police seized a green
    jacket and a pair of green Adidas shoes. The shoes were found in the
    respondents bathtub. There was a small bloodstain inside the right sleeve of
    the jacket, and the respondent conceded it was Mr. Dabrowskis blood. There was
    no evidence, however, as to how much blood was inside the sleeve where the
    bloodstain was located. No blood was found on the exterior of the jacket.

[28]

The shoes tested positive for the presence of
    blood, but the sample was too small to be tested for DNA. The respondent did
    not dispute that his shoes left footwear impressions in the blood inside Mr.
    Dabrowskis apartment; however, there was no evidence as to when the
    impressions were made.

(5)

Substance Trail and Formal Admission

[29]

The Centre of Forensic Science (CFS) tested
    the brown substance that covered Mr. Dabrowskis hair, face, and hands. It was
    never formally identified as chocolate sauce, though the parties agreed the
    substance looked like chocolate sauce, and the CFS determined that it contained
    carbohydrates and starches.

[30]

The Crown introduced a series of photographs of dark
    stains, alleging they formed a trail running from Mr. Dabrowskis second floor apartment
    up to the respondents apartment on the fifth floor:

(1)

The first stain was in the hallway outside Mr. Dabrowskis
    apartment;

(2)

The second stain was in the north stairwell, on the third-floor
    landing;

(3)

The third stain was in the north stairwell, on the fourth-floor landing,
    near the door;

(4)

The fourth stain was on the inside door handle in fifth-floor
    stairwell; and

(5)

The fifth stain was on the hallway floor just outside the
    respondents apartment.

[31]

Both the fourth and fifth stains shared some
    similar features and properties with the brown substance found in Mr. Dabrowskis
    apartment. The CFS confirmed that the fourth and fifth stains contained
    carbohydrates and possibly proteins, but no starches. There was no evidence that
    the carbohydrates in either sample matched the other, nor that they matched the
    substance covering Mr. Dabrowski.

[32]

As already mentioned, the respondent admitted that
    Mr. Cameron noted a sticky, brown, molasses-type substance on the second-floor
    door handle leading to the north stairwell immediately after a male ran past
    him and into the stairwell.

C.

the trial judges essential findings

Time
    of Death

[33]

The trial judge found that Mr. Dabrowski was
    killed between 5:32 p.m. and 6:43 p.m. She narrowed this time frame futher, based
    on video footage showing the respondent wearing the jacket on which the blood
    stain was found. At 6:40:45, he was seen walking in the direction of Mr.
    Dabrowskis apartment. At 6:43:40, he is seen leaving the complex on the
    second-floor walkway when he drops a letter addressed to Mr. Dabrowski. Both
    times he is wearing the green jacket. This led the trial judge to conclude, at
    para. 86:

I am satisfied, based on this evidence, that
    Mr. Scott had been inside and was coming directly from Mr. Dabrowskis
    apartment when he dropped the envelope at 6:43:45. I am further satisfied that
    it was during his attendance inside Mr. Dabrowskis apartment that Mr. Scott
    left the foot impression and got the stain on his jacket.
Based on these
    findings, the only logical conclusion is that Mr. Dabrowski had been stabbed
    certainly by the time Mr. Scott left his apartment just prior to 6:43:45 p.m.
[Emphasis added.]

Opportunity

[34]

The trial judge found that the respondent did
    not have the exclusive opportunity to commit the murder. She found that,
    although he may have had a two to three-minute opportunity to kill Mr.
    Dabrowski when he was inside the apartment, I am unable to exclude the
    possibility that others may also have had opportunity prior to Mr. Scotts
    attendance. The trial judge pointed to the 48 minutes prior to Mr. Scotts attendance
    that she said were completely unaccounted for.

The Respondents Movements

[35]

The trial judge found the respondents movements
    and interactions in the aftermath of the killing to be somewhat curious and
    unusual; however, they were not necessarily indicative of guilt. Although his
    face was covered at times, the respondent traveled in public areas and had seemingly
    uneventful interactions with others. At other times, his face was not covered.

The White Cloth

[36]

The trial judge declined to find that the
    respondent was concealing a weapon under the white cloth that was captured on
    video. She further rejected the Crowns submission that the respondent had a
    cloth in his hand because he had injured himself while stabbing Mr. Dabrowski.
    As the trial judge observed, at para. 96, Mr. Scott is seen repeatedly on the
    video with the white cloth wrapped around his right hand, both before and after
    entering Mr. Dabrowskis apartment. There is no evidence on the video footage
    that the cloth is stained.

Blood on the Respondents Jacket

[37]

The trial judge found that the minimal amount of
    blood found on the respondents jacket was not indicative of the respondent
    killing Mr. Dabrowski as opposed to merely being inside his apartment. As this
    forms the basis for one of the grounds of appeal, I address this evidence in
    more detail below.

The Trail of Brown Substance and
    Stains

[38]

At trial and on appeal, the Crown contends that
    there was an identifiable trail of the brown substance, thought to be
    chocolate sauce, from Mr. Dabrowskis apartment to the respondents apartment.
    The trial judge dealt with this evidence in great detail. She found the
    photographs of the location of the stains to be problematic and not adequately
    explained. Ultimately, she was unable to find the trail the Crown attempted
    to demonstrate. The trial judge, however, did find that the respondent did
    transfer two of the stains, which is consistent with Mr. Scotts position that
    he was present inside the apartment at some time contemporaneous to the stabbing.
    The finding, however, does not assist me in finding that Mr. Scott was the
    stabber. The trial judges finding in relation to what Mr. Cameron noted
    about the substance on the second floor door handle is discussed below.

Motive

[39]

Based on the respondents conversation with Mr.
    Ramsay in the elevator, the Crown suggested that the retention of electronics by
    Mr. Dabrowski may have been a motive for the killing. The trial judge rejected
    this theory as speculative, noting that there is absolutely no evidence of
    motive.

Conclusion

[40]

Based on the above, the trial judge concluded
    that she was not satisfied beyond a reasonable doubt that the respondent was
    responsible for the stabbing of Mr. Dabrowski. Accordingly, she acquitted the
    respondent.

D.

analysis

[41]

The Crown advances three grounds of appeal:

1.
The trial judge misapprehended the
    evidence of Mr. Cameron, causing her to fail to consider the totality of
    evidence on the ultimate issue;

2.
The trial judge erred in how she
    approached a formal admission that Mr. Cameron observed a sticky substance on a
    second floor door handle after a man ran past him and went through the door;
    and

3.
The trial judge erred in speculating about
    the amount of blood that would have been on the killer as a result of the
    stabbing.

[42]

The Crown submits that the trial judge committed
    legal errors in her analysis of the evidence that undermined a legally
    appropriate approach to the evidence and resulted in an unlawful acquittal. The
    respondent claims that the Crowns attempts to undermine the trial judges
    factual findings, including her credibility assessment of the Crowns main
    witness, Mr. Cameron, are nothing more than thinly veiled attempts to contrive
    questions of law. In effect, the Crown attacks the reasonableness of the
    acquittal.

[43]

Section 676(1)(a) of
Criminal Code
limits
    an appellate courts ability to set aside an acquittal. The Crown must
    establish an error based on a question of law alone; errors of fact or mixed
    errors of fact and law are not sufficient:
R. v. Rudge
, 2011 ONCA 791,
    108 O.R. (3d) 161, at para. 35;
R. v. Palmer
, 2021 ONCA 348, at para.
    60;
R. v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.

[44]

Short of a legally flawed approach to the
    evidence, the Crown is precluded from arguing that an acquittal is
    unreasonable. Section 686(1)(a)(i) furnishes appellate courts with the power to
    set aside a conviction when it is determined that it is unreasonable or cannot
    be supported by the evidence; there is no corresponding power to set aside an acquittal
    on this basis. This is not simply a matter of textual asymmetry. There is a
    more fundamental principle at stake. In
R. v. Biniaris
, 2000 SCC 15,
    [2000] 1 S.C.R. 381, at para. 33, Arbour J. said, as a matter of law, the
    concept of unreasonable acquittal is incompatible with the presumption of
    innocence and the burden which rests on the prosecution to prove its case
    beyond a reasonable doubt. See also
J.M.H.
, at para. 27.

[45]

Further, identifying an error of law is only the
    first step in the analysis. In order to succeed in overturning an acquittal,
    the Crown must also establish, with a reasonable degree of certainty, that the
    error of law might reasonably be thought, in the concrete reality of the case
    at hand, to have had a material bearing on the acquittal:
R. v. Graveline
,
    2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16;
R. v. Goldfinch
, 2019
    SCC 38, 89 Alta. L.R. (6th) 1, at para. 135;
R. v. Barton
, 2019 SCC 33,
    [2019] 2 S.C.R. 579, at para. 160;
R. v. Button
, 2019 ONCA 1024, at
    para. 15;
Palmer
, at para. 62.

[46]

The Crown has not identified any legal errors in
    the trial judges reasons. The Crown essentially challenges the reasonableness
    of the acquittal and asks us to engage in our own weighing of the evidence and
    to reach our own conclusion on the ultimate issue of guilt. The contested
    findings were open to the trial judge to make on the record before her.

(1)

Misapprehension of Evidence

(a)

Introduction

[47]

The core of the Crowns submission is that the
    trial judge failed to consider all of the evidence in relation to the issue of
    guilt and innocence, a recognized error of law:
J.M.H.
, at para. 31.
    This error is most typically seen when a trial judge subjects individual pieces
    of evidence to the standard of proof beyond a reasonable doubt, failing to the
    evaluate the cumulative effect of all of the evidence:
R. v. B.(G.)
,
    [1990] 2 S.C.R. 57.

[48]

This case rests on a different footing. The
    Crown submits that the trial judge misapprehended the evidence of the main
    Crown witness, Mr. Cameron, concerning what the respondent was carrying in his
    hand. This mistake, in turn, was instrumental in the trial judges negative
    assessment of Mr. Camerons credibility. It prevented the trial judge from
    considering the whole of the evidence. I disagree.

(b)

The Disputed Evidence

[49]

This ground of appeal focuses on a narrow issue
    concerning the interpretation of Mr. Camerons evidence. Specifically, at issue
    is his description of what the respondent may have been carrying when Mr.
    Cameron saw him for the second time that evening, at 6:40 p.m.

[50]

The respondent was carrying something in his
    hand that was longer than his hand and was wrapped in a white cloth. He said
    that the respondent had something in [his] hand wrapped up in either a towel,
    or like a bag, that was sticking out, like, straight, like as if youre holding
    like a pipe or, like, a bat or somethingor a knife. The import of his
    evidence was that whatever protruded from his hand was covered by the towel 
    whatever part of it he was holding in his hand, and the part that wasnt in his
    hand was wrapped in something white.

[51]

The dispute that arose at trial, and on appeal,
    was whether Mr. Cameron was describing something protruding from the
    respondents hand that was covered by the towel, or something protruding from
    the towel.

(c)

The Trial Judges reasons

[52]

During Mr. Camerons cross-examination, it is
    clear that the trial judge believed Mr. Cameron said that the object in the
    respondents hand was not completely covered by the towel. The trial judge was
    corrected on this point by the Crown. It is clear from the various exchanges
    with counsel throughout the rest of the trial that the trial judge understood
    the main import of Mr. Camerons evidence (i.e., that there was an object that
    was completely covered by the towel). Moreover, the trial judge advised counsel
    that she had ordered a transcript of Mr. Camerons evidence and that she would
    re-read it.

[53]

The trial judge addressed this evidence in her
    reasons for judgment on more than one occasion. On the first occasion, at para.
    66, she said the following:

Mr. Cameron said he saw this individual again
    two or three minutes later when he got on the elevator on the first floor. He
    said this individual was getting off the elevator. He said the only difference
    was his face was covered and
he had something in his hand that was wrapped
    up in a white towel or a bag. He said something was sticking straight out like
    a pipe or bat or something. Later, Mr. Cameron said the object was sticking
    straight out and it could have been a bat, a pipe, a knife or a chair leg.
[Emphasis added.]

[54]

The Crown submits that this passage demonstrates
    that the trial judge persisted in her belief that Mr. Cameron said the object
    was not completely covered by the towel. I disagree. This passage reveals an
    accurate understanding of Mr. Camerons evidence on this point. This becomes
    clear when other passages from the trial judges reasons are considered.

[55]

To frame the first passage relied upon by the
    Crown, it is necessary to take a step back to consider Mr. Camerons evidence
    more generally. Mr. Cameron purported to identify the respondent on three
    occasions that night. He volunteered information about how good he is at eyewitness
    identification. In cross-examination, when he was confronted with the fact that
    the respondent was wearing a mask, he changed his testimony and acknowledged
    the respondents face was covered on one occasion. However, the evidence
    demonstrated that the respondent was masked on two occasions. This led the
    trial judge to make the following findings and credibility assessment, at paras.
    72-74:

In cross-examination, Mr. Cameron was
    questioned about his evidence that the male had something wrapped in his hand
. Mr. Cameron would not even entertain the possibility that he was
    wrong on this point. He said he was certain that the male was not holding a gun
    because he had fired firearms before.
He later added that the object
    protruded about five inches out from his wrapped hand and guessed that the
    object was close to 10 inches long including the handle
.

Later, he testified it could have been four
    different things and without any prompt said, if you really want to know what
    I think, it was probably a knife. He said he knows this because he was going
    to go into the knife business at point in his life and gave some details about
    that. He was adamant on this point.

I do not accept Mr. Camerons evidence that he
    saw
something protruding from the white cloth that was wrapped around Mr.
    Scotts hand.
I have viewed the compilation video contained in Exhibit 4
    multiple times. It provides a clear view of Mr. Scotts wrapped hand from a
    variety of angles and
I am unable to see anything protruding from that hand
.
    [Emphasis added.]

[56]

In my view the trial judge did not misapprehend
    the evidence. Taken together, the trial judge understood that Mr. Cameron said
    that whatever the respondent had in his hand was covered by a white cloth.
    During the course of his testimony, the object grew in size, as did Mr.
    Camerons apparent clarity.

[57]

Ultimately, having reviewed the videotape
    evidence, the trial judge was unable to see anything protruding from the
    respondents wrapped hand, whether wrapped or not. It was open to her to make
    this finding.

[58]

For the sake of completeness, I will address the
    Crowns further arguments on this issue. The Crown submits that the trial
    judges misapprehension of the hand/towel evidence caused her to unfairly
    assess Mr. Camerons evidence, resulting in a skewed assessment of the case as
    a whole, and a failure to consider the totality of the evidence bearing on the
    ultimate issue. In making this submission, the Crown relies on
R. v. Curry
,
    2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No.
    185, in which Tulloch J.A. held that the trial judge was blinded by what he
    mistakenly believed to be the evidence of a Crown witness, causing him to
    ignore other important evidence: at para. 51.

[59]

This case is different from
Curry
. In
    that case, the trial judge misunderstood the evidence of a key witness on the
    identification of the driver in a fatal driving case, resulting in an
    acquittal. It distorted his assessment of other evidence led by the Crown that
    was indicative of guilt. Here, the evidence of Mr. Cameron on the hand/towel
    issue was far from central to the Crowns case. The trial judges rejection of
    the hand/towel evidence did not lead her to ignore or devalue other evidence
    supporting the Crowns theory.

[60]

Moreover, the trial judges finding on this
    aspect of the evidence did not overwhelm her assessment of Mr. Camerons
    credibility. There were many reasons to reject Mr. Camerons evidence, separate
    and apart from the hand/towel evidence. In her submissions, the trial Crown
    acknowledged that Mr. Cameron became frustrated and combative during his
    cross-examination. On appeal, the Crown asserts in its factum, Mr. Cameron is
    not the kind of witness who is likely to endear himself to a trial judge. The
    trial judge made the following observations of Mr. Cameron, at paras. 75-77:

Mr. Cameron was
prone to exaggeration and
    eager to share details that had no relevance to this case
. His testimony
had
    a stream of consciousness quality to it
. Layered on top of all of this was
a
    tendency towards theatrics on his behalf.
More than once he stood up or
    came out of the witness box to demonstrate things without being asked to do so.
    If Mr. Cameron interpreted a question as being confrontational,
he had a
    tendency to dig in and overstate
.

Overall, Mr. Cameron was
argumentative and
    combative
.
His answers were often non-responsive. He did not seem to
    appreciate the difference between an actual observation and speculation, and he
    was quick to exaggerate whenever the opportunity presented itself.
For
    these reasons, I am cautious about relying on the testimony of Mr. Cameron
    unless corroborated by other evidence.

To that end, I am prepared to accept the
    portions of his evidence that are consistent with the video surveillance
    evidence. [Emphasis added.]

[61]

I do not accept the Crowns submission that the
    trial judge was led to these conclusions because she failed to appreciate Mr.
    Camerons evidence on the hand/towel issue. The trial judges assessment of his
    credibility is broad and wide-ranging, transcending the hand/towel evidence. Even
    if she did err in her interpretation of this evidence, which she did not, it
    was only part of her analysis. It did not drive a skewed approach to Mr.
    Camerons evidence, the assessment of which is a question of fact:
R. v.
    R.P.
, 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10.

[62]

Moreover, the trial judge had the videotape
    evidence to assist her. While it did confirm that one of the respondents hands
    was covered with a towel, it did not reveal anything protruding  neither from
    his hand nor from under the towel.

[63]

In essence, the Crown asks us to dissect and
    microscopically examine single passages from the trial judges reasons in
    isolation and out of context and to improperly substitute [our] own
    credibility assessments for those made by the trial judge:
R. v. Harris
,
    2014 ONCA 746, at para. 16. See also
R. v. Stirling
, 2008 SCC 10, [2008]
    1 S.C.R. 272, at para. 13. I would decline to do so and dismiss this ground of
    appeal.

(2)

Improper Use of Admissions

[64]

As discussed at the outset, the trial was an
    efficient one. A number of admissions were made under s. 655 of the
Criminal
    Code
, which provides:

s. 655
Where an
    accused is on trial for an indictable offence, he or his counsel may admit any
    fact alleged against him for the purpose of dispensing with proof thereof.

[65]

The admission at issue was one of six admissions
    in Exhibit #7 
Admissions Re Scene
. Admissions #2 to #6 purport to
    state objective facts about what the police did and what the CFS found, mostly
    in relation to the presence, location, and properties of the brown substance.
    The contentious admission, #1, is different. It reads as follows:

While taking out his garbage William
    Cameron noted a sticky brown molasses type substance on the door handle leading
    to the North Exit stairwell
. This happened when Mr.
    Cameron followed the person that had ran past him into the north exit
    stairwell. The person went up the stairs and Mr. Cameron went down the stairs
    to take out his garbage. [Emphasis added.]

[66]

This admission does not purport to state an
    objective fact: rather, it records the observations Mr. Cameron said that he
    made. It was an admission that, if asked about the matter during his testimony,
    Mr. Cameron would have provided that information. Exhibit #8 contained further
    admissions along these same lines.

[67]

This type of admission has been called an informal
    admission: see
R. v. Stennett
, 2021 ONCA 258, at para. 57;
R. v.
    Korski
, 2009 MBCA 37, 236 Man. R. (2d) 259, at paras. 114-128, 137;
R.
    v. Falconer
, 2016 NSCA 22, 372 N.S.R. (2d) 186, at para. 49. Discussing the
    difference between admissions as to objective facts (formal admissions) and
    admissions as to the anticipated evidence of a witness (informal admissions),
    Watt J.A. said in
Stennett
, at para. 58, An agreement about what a
    witness could say or would have said is not an agreement that what they say is
    true:
Korski
, at para. 125.

[68]

When Exhibit #7 was entered, Mr. Cameron had
    already testified. It is not apparent from the record why he was not asked
    about this issue when he gave evidence. Moreover, a police officer also
    testified about the brown substance and stains but said nothing about the door
    handle on the second floor.

[69]

The trial judge inquired of counsel whether the
    admission in question was a formal admission. The parties agreed that it was.
    It would appear that they were mistaken. As Watt J.A. said in
Stennett
,
    at para. 58, Those that recite what a witness would say retain their true
    character, however they may be styled.

[70]

The trial judge discussed this evidence at para.
    36 of her reasons:

The final stain for consideration comes in the
    form of an admitted fact pursuant to s. 655 of the
Criminal Code
.
It
    is an admitted fact that Mr. Cameron noted a sticky brown molasses type
    substance on the second-floor door handle leading to the north stairwell.
The evidence is that Mr. Cameron felt the sticky substance on the door handle
    immediately after a male had run into the stairwell. There is no evidence that
    the substance was tested or photographed by the police.
There is no evidence
    that this door handle formed part of the police investigation regarding the
    substance trail from Mr. Dabrowskis apartment to Mr. Scotts apartment. Surely
    if the handle had been covered in a brown sticky substance, the police would
    have noted it. They did not. Accordingly, I am cautious about the weight I am
    prepared to attach to this evidence
. [Emphasis added.]

[71]

The Crown submits that, notwithstanding how the admission
    is characterized, the trial judge committed an error of law by failing to act
    on the admission because her rejection was based on speculation about the
    police investigation. The Crown contends that this admission was critical
    because, according to the combined force of Mr. Camerons evidence and the
    admission, the brown substance was deposited onto the door handle at 6:37:20 p.m.
    by the respondent. The Crown submits that this moves the time of the murder
    forward by three minutes, contrary to the trial judges findings on this issue.
    I have a number of problems with the Crowns submissions on this issue.

[72]

First, the trial judge did not fail to give
    effect to the admission. This assertion is simply incorrect. She merely
    expressed caution about how much weight she was prepared to attach to it. The
    trial judge was entitlted to take this approach. The Crown offers no authority
    to support its position that a trial judge is required to assign any particular
    weight to admitted facts simply because they are admitted, or to find they
    assist the Crown in discharging its burden. Essentially, the Crown submits that
    the trial judge should have regarded this admission as more significant than
    she did. For the same reasons given in relation to the first ground of appeal,
    this court is not empowered to engage in this fact-finding exercise.

[73]

Second, while it might be said that there is a
    degree of speculation involved in the trial judges treatment of this evidence,
    it may also be viewed as a valid observation about a lack of evidence on this
    point. Moreover, it must be considered in conjuction with the trial judges
    more general findings about the evidence concerning the brown substance.

[74]

Third, it is difficult to accept the submission
    that this evidence was crucial, let alone important, to the Crowns case. After
    all, police witnesses were not asked about this evidence, nor was Mr. Cameron
    when he testified.

[75]

Fourth, the Crowns submission on appeal ignores
    the trial judges rejection of Mr. Camerons evidence that it was the
    respondent who ran past him to enter the north stairwell at 6:37 p.m. She did
    so because Mr. Cameron was unreliable, and the video footage was fleeting and
    blurry. This critical finding rendered the informal admission about the door
    handle insignificant.

[76]

Lastly, it is unclear how the Crowns case would
    have been strengthened by moving the time of death forward to 6:37 p.m. Mr. Dabrowski
    was last seen alive at 5:32 p.m., leaving a lengthy period of time unaccounted.

[77]

I would dismiss this ground of appeal.

(3)

Improper Speculation

[78]

This ground of appeal relates to the testing of
    items seized from the respondents apartment four days after Mr. Dabrowski was
    killed. The green jacket worn by the respondent had a blood stain inside the
    right sleeve that was admitted to be Mr. Dabrowskis blood.

[79]

The Crown submits that the trial judge erred in
    finding that these items were seized the day after the murder. This error is
    insignificant. The trial judge was aware of the possibility that the items
    could have been washed by the respondent following the murder.

[80]

The Crown submits that the trial judge
    improperly speculated about the blood staining evidence on the inner sleeve of
    the jacket. She addressed this aspect of the evidence at paras. 98 and 100 of
    her reasons:

I turn now to the blood on Mr. Scotts jacket.
    The evidence before me is that blood, identified as coming from Mr. Dabrowski,
    was found on the inside sleeve of Mr. Scotts jacket. There is no evidence as
    to the exact location of the stain or the quantity of blood on the jacket. I do
    know that Mr. Dabrowski was stabbed 23 times and the amount of blood in and
    around his body in the photographs is significant.
Common sense would
    suggest the killer would have been covered in blood. There is no evidence,
    aside from the stain on the jacket and the footwear impression, that Mr. Scott
    was covered in blood. The amount of blood depicted in the photographic evidence
    suggests that it would have been unavoidlable for anyone who attended inside
    that apartment to not have gotten some blood on their person.



Given the substantial amount of blood and
    brown substance at the crime scene, one would expect anyone who went inside to
    have some blood transferred onto their person.
To that end, one would expect
    the stabber, after 23 stabs, to be covered in blood. There is no evidence that
    Mr. Scott was covered in blood. Quite the opposite, my impression was that the amount
    of blood and brown substance attached to Mr. Scott was minimal.
[Emphasis
    added.]

[81]

The Crown took a different view of the blood on
    the respondents items found in the bathtub. It was her theory that the
    respondent washed these items. She further took the view that the presence of
    blood on his clothing explained why he changed his appearance later in the
    evening. As she submitted during her closing argument:

Hes completely, one hour and ten minutes
    after hes seen leaving the building with his hand covered, hes completely
    changed his appearance, and in my respectful submission
thats because his
    clothing was covered in the victims blood.
And we know from the forensic
    evidence that the victims DNA and his blood was found on the jacket Mr. Scott
    had been wearing. [Emphasis added.]

[82]

The trial Crown asked the trial judge to find
    that the respondents clothing would have been covered in the victims blood.
    The Crown can hardly complain now, on appeal, that the trial judge erred in
    following the trial Crowns sensible lead. Moreover, the trial judges reasons
    demonstrate that she was aware that the respondent had changed his clothes on
    the night of the murder, and the possibility that the respondent had washed the
    items found in his bathtub.

[83]

I would dismiss this ground of appeal.

E.

Disposition

[84]

I would dismiss the Crowns appeal from
    acquittal.

Released: MT September 17, 2021

Gary Trotter J.A.

I agree. M. Tulloch J.A.

I agree. L.B. Roberts J.A.





[1]

This summary is taken largely from para. 39 of the reasons
    for judgment.



[2]

After
    Mr. Cameron testified, the respondent made a number of admissions, one of which
    was that Mr. Cameron noted a sticky brown substance on the door handle. I will
    return to this issue below when considering how the trial judge dealt with this
    admission in her reasons.


