



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tyrell, 2021 ONCA 15

DATE: 20210111

DOCKET: C67939

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Levar Tyrell

Appellant

Matthew Gourlay, for the appellant

Benita Wassenaar, for the respondent

Heard: December 8, 2020 by
    videoconference

On appeal from
    the conviction entered by Justice David L. Corbett of the Superior Court of
    Justice on March 6, 2018, and from the sentence imposed on April 25, 2018.

Juriansz J.A.:


[1]

The appellant appeals his convictions by a judge
    sitting alone on charges of attempted murder and assault of a police officer
    with intent to resist arrest.
For the reasons that
follow,
    I would allow the appeal from both convictions. The appellant also appeals his convictions
    for firearm offences arising out of the same incident as the attempted murder
    charge. As I explain below, I would dismiss the appeals from those convictions.

A.

the attempted murder charge

(1)

The relevant facts

[2]

Early in the morning of May 1, 2016, the victim was
    shot in the abdomen while at an after-hours club. A single bullet shattered his
    pelvis as it passed through his body. He was in a coma for 16 days, underwent
    several surgeries, and remained in the hospital for a month. A photo array was
    presented to the victim soon after he emerged from the coma and while still
    under medication. He picked the appellants photo but said he was not sure. He
    did not mention having seen a gun. When a second photo array was presented
some
days later the victim positively identified the
    appellant, said he had not seen a gun, but added the appellant
was known to carry
a gun.

[3]

At trial the
victim testified he was at the after-hours club in the early morning
    when he saw the beginnings of a physical altercation between two men. Acting as
    a good Samaritan he physically intervened by pushing one man aside. Then,
    while inquiring what was going on, he was shot. He testified that after being
    shot he saw the appellant holding a gun. The victim had seen the appellant a
    few times before and knew him by a nickname. Nothing negative had ever passed
    between them and he did not know of any reason the appellant might have to harm
    him.

[4]

A few weeks after the shooting the police spotted
    the appellants car while he was driving and boxed it into a parking space.
    When they approached his car, he tried to flee and collided with
one of the officers
. The police recovered a loaded
    handgun from the car that matched the spent bullet and casing found at the club
    after the shooting.

[5]

The appellant
testified
    at trial
. He acknowledged being at the after-hours club at the time of
    the shooting and standing in the room where the victim placed him at the time
    of the shooting. However, he denied being the shooter. He claimed that about a
    week after the shooting the owner of the club offered to sell him a gun at an
extremely
low price. He bought the gun intending to
    sell it for a sizable profit. It never occurred to him the gun might be hot.

[6]

The appellant testified he did not know the
    victim, did not recognize him from seeing him at the club before, and had no
    reason to hurt him.

(2)

The trial judges reasons for finding the
    appellant guilty of attempted murder

[7]

The trial judge found the appellants testimony utterly
    unbelievable and found it did not raise a reasonable doubt of his guilt.

[8]

The trial judge accepted the victims testimony
at trial
identifying the appellant and placing a gun
    in his hands. The trial judge said there was no reason to believe the victim
    was deliberately trying to set up the appellant to take the fall for the
    shooting. The victim had identified the appellant after regaining consciousness
    from a coma, and it would be a remarkable coincidence
that
he just
happened to point
the finger at
    the person
who was
found in possession of the
    gun
that had been
used. The victims testimony
    and the ballistics evidence were independent of each other, and both pointed to
    the appellants guilt.

[9]

The trial judge found additional support in the
    appellants conduct after the shooting. First, he had driven a friend to her
    place and then had spent the night there. The trial judge observed he had no
    good explanation for not going home. He accepted the Crowns submission that
    he did not go home because he was afraid that police would be looking for him
    and the first place they would look was his house. Second, after the
    appellants illegally parked car had been towed away during the night, the
    appellant did not retrieve his car himself but sent a friend. The trial judge did
    not believe he had another family obligation and accepted the Crown theory
    that [the appellant] knew he had hidden the gun in the car and he was afraid
    that he would be arrested if he went to pick up the car himself.

[10]

The trial judge rejected the defences argument
at trial
that the position of the victim, the
    apparent trajectory of the bullet, and the position of the bullet and shell
    casing after the shooting supported an inference that the shot came from a
    place in the room other than from where the appellant was standing. The trial
    judge found the bullet and shell casing may have been kicked as people fled the
    room and the argument was not supported by expert testimony.

[11]

The trial judge said the eyewitness identification
    of the shooter combined with the police locating the gun in the car trunk of
    the person whom the eyewitness had identified as the perpetrator made this an
    overwhelming crown case.

[12]

The trial judge instructed himself as to the specific
    intent required for attempted murder, saying:

Attempted murder is a specific intent offence.
    The crown must establish beyond a reasonable doubt that [the appellant]
    intended to kill [the victim]. Not just that he intended to shoot into a crowd
    of people or intended to fire the shot that ultimately hit [the victim]. The crown
    must establish beyond a reasonable doubt that [the appellant] had the specific
    intention to kill [the victim].

[13]

Though there was no evidence of the motive for
    the shooting, the trial judge observed that [t]he crown need not prove motive
    and intent may be inferred from the circumstances of the acts that took place.
    The trial judge then inferred the appellant had the specific intent to kill the
    victim, saying:

Here, I find [the appellant] intentionally
    fired his handgun across about 20 feet of distance, about 6 metres, striking [the
    victim] in the abdomen. There is no evidence of accident. There is no evidence
    of mistaken identity. There is no evidence that [the appellant] was aiming for
    someone else. In
all of
these circumstances I
    am prepared to infer that [the appellant] intended the natural and probable
    consequences of his act, given his relative proximity to [the victim] and the
    absence of any evidence
that
he intended
    something other than the natural consequences of shooting [the victim].
In my view, that is sufficient to make
out the
    specific intent requirements for attempted murder.

(3)

The appellants argument

[14]

The appellant stressed that the Crown had to
    prove not only that the appellant discharged the firearm, but that he
    discharged it with the specific intent to kill:
R. v. Boone
, 2019 ONCA
    652, 56 C.R. (7th) 432, at para. 51;
The Queen v. Ancio
, [1984] 1
    S.C.R. 225, at pp. 248-49. As the doctrine of transferred intent does not apply,
    the Crown had to prove the appellant intended to kill the person he shot:
R.
    v Gordon
, 2009 ONCA 170, 94 O.R. (3d) 1, at para. 69, leave to appeal
    refused, [2009] S.C.C.A. No. 177. The recklessness arm for intent to murder
    does not apply:
Ancio
, at pp. 250-51.

[15]

The appellant submits that while the trial judge
    accurately stated the legal standard for the intent required, he erred in how
    he applied that legal standard to the
facts of this
    case
.

[16]

The appellant does not
take
    issue with
the trial judges finding of fact that the appellant
    intentionally fired his handgun across about 20 feet of distance, about 6
    metres, striking [the victim] in the abdomen. Rather, he argues the finding of
    intent was with respect to his physical act of firing the handgun, not with
    respect to the consequence of striking the victim in the abdomen. The trial
    judges conclusion he had the specific intent to kill was an inference. The
    appellant accepts that where the evidence proves beyond a reasonable doubt the
    accused has committed a particular act, the common-sense inference may bridge
    the inferential gap allowing the trier of fact to make a finding of specific
    intent. As Cory J.A. (as he then was) observed in
R. v. Bains
,

[1985]
    O.J. No. 41 (C.A.), at para. 27, leave to appeal refused, [1985] S.C.C.A. No.
    158:

All firearms
are
    designed to kill
. A handgun is a
particularly
insidious
    and lethal weapon. It is easy to carry and conceal, yet at close range, it is
    every bit as deadly as a .50 calibre machine gun.
It
    follows that when
,
at close range
, a handgun is pointed at a
    vital portion of the body of the victim and fired, then
in the absence of
any explanation the only rational inference
    that can be drawn is that the gun was fired
with the
    intention of killing
the victim. [Emphasis added]

[17]

However, the appellant argues the application
    of the common-sense inference was manifestly inappropriate here. He proffers as
    an example an accused who, wildly brandishing a handgun, pulls the trigger and
happens to hit
the head of a bystander 100 yards
    away. While it could be said that the accused shot the victim in the head, one
    could not make a common-sense inference that the accused had the specific
    intent to kill the victim. The appellant submits that in the circumstances of this
    case the trial judge misapplied the common-sense inference that sane and sober people
    intend the natural and predictable consequences of their acts and reversed the
    burden of proof.

[18]

Here, there was no hint of a motive. Both men testified
    there was no animus between them. During argument the trial judge had
    recognized that the gap between the proven act of shooting and proof of the
    required intent was wide. He had observed I dont have any evidence of what [the
    appellants] intent was other than the fact that he fired at these men.So, I
    mean, I dont think thats enough to get me beyond a reasonable doubt that he
    intended to hit [the victim].

[19]

The appellant submits the trial judge erred by
    abandoning his initial instinct.

He resorted to
    the common-sense inference and found the inference should be drawn because the
    appellant
had not led any evidence of accident
or
    mistake. This resulted in the reversal of the burden of proof. The appellant
    submits the resort to the common-sense inference was unreasonable in
the circumstances of
this case.

(4)

The Crowns argument

[20]

The Crown
took the
    position
that the trial judge made a factual error in stating that the
    appellant fired his handgun from a distance of 20 feet. The Crown points out
    that the victim had testified the appellant was 10 feet away when the victim saw
    him holding the gun. No other witness had testified about the distance between the
    appellant and the victim. The Crown submits the distance of 20 feet in the trial
    judges reasons is without evidentiary support.

[21]

Had the trial judge considered the distance from
    which the appellant fired the handgun to be 10 feet from the victim, as the
    victim testified, the Crown submits, the common-sense inference that the
    appellant intended to kill the victim would have been very strong. The Crown
    submits that the common-sense inference is still available if the distance is considered
to be
20 feet but recognizes the inference would
    be less
compelling in that case
.

(5)

Discussion

[22]

I am not persuaded
that
there is no evidentiary support for the trial judges finding that the
    distance between the appellant and the victim was about 20 feet. The location
    of the appellant and the victim at the time of the shooting were each clearly
    marked on photographs in the record. The photographs
make
    clear that
they were each standing in diagonally opposite corners of the
    room. A police witness who had measured the room had testified it was 4.05
    metres wide and 6.87 metres long, or 13 ¼ feet wide and 22 ½ feet long. Therefore,
    the distance between the diagonally opposite corners would
necessarily
be appreciably greater than the 6.87
    metres or 22 ½ feet measured length of the room.

[23]

The better view is that the trial judge did not
    make a mistake but that he based his finding of the distance between the
    appellant and the victim on their positions in the room and the dimensions of
    the room. It is worth noting that in his reasons for sentence the trial judge said
    the distance between the appellant and the victim at the time of the shooting was
    six to seven metres. The trial judges finding was not clearly wrong,
    unsupported by the evidence, or otherwise unreasonable, and should not be interfered
    with:
R. v. Clark
, 2005 SCC 2, [2005] S.C.R. 6, at para. 9.

[24]

When the distance between the shooter and the
    victim is taken to be about 20 feet or six metres as found by the trial judge, I
    am satisfied the circumstances cannot support the inference beyond a reasonable
    doubt that the appellant had the specific intent to kill the victim.

[25]

The trial judge had accepted the evidence of the
    appellant
that
he had no reason to hurt the
    victim. This was corroborated by the evidence of the victim. The victim offered
    an account of having intervened in an altercation between two men, neither of
    whom bore any known connection to the appellant. The appellant had fired a
    handgun from a distance of about 20 feet across a dimly lit, crowded room
in the direction of
the victim with the men
who were
involved in an altercation standing near
    him. As the trial judge had commented during argument, there was no evidence of
    what the shooters intent was other than that he had fired at these men. The
    trial judge noted there was no evidence of accident or mistaken identity. He
    might have noted there was no evidence that the victim was the intended target.
    That the shooter might have intended to shoot a different person, perhaps
one of the men
involved in the altercation, is not
    an irrational or fanciful conjecture. The trial judge should have considered this
    reasonable possibility:
R. v. Villaroman
,
2016 SCC 33, [2016] 1
    S.C.R. 1000, at para. 37.



[26]

I would allow the appeal of the conviction for
    attempted murder.

(6)

Other issues

[27]

It is unnecessary to deal with the appellants
    other
arguments in detail
. First, the
    appellant argues that the trial judges assessment of his post-incident conduct
    was based on misapprehensions of the evidence and these affected his assessment
    of the appellants credibility. Second, the appellant argues that the trial
    judge erred in summarily dismissing his application to admit video statements
    from two witnesses
who were
at the club but
    did not witness the shooting. The appellant submits the admission of this
    evidence would have undermined the victims credibility.

[28]

I am not persuaded the post-incident conduct was
    of much
, if any,
importance in undermining the
    appellants credibility. Before referring to post-incident conduct the trial
    judge had
already
found the coincidence of the
    victim identifying the appellant and the appellants possession of the gun was
    way too remarkable for [him] to be able to accept [the appellants] story. The
    trial judge
made no mention of
the post-incident
    conduct in describing this as an overwhelming crown case.
As well
, the trial judge used the appellants post-incident
    conduct as additional evidence to support his finding that the appellant was
    the shooter, a finding
that was
not attacked in
    the argument on appeal.

[29]

Nor am I persuaded that the video statements,
    had they been admitted, would have had any material effect on the trial judges
    assessment of the victims credibility. That the statements should have been
    admitted was pressed far more vigorously on appeal than it seems to have
been at trial
.

[30]

These two grounds of appeal,
    which apply to all the appellants convictions arising from the shooting
    incident, fail. Neither of these grounds has any bearing on
the appellants conviction for assaulting a police officer with
    intent to resist lawful arrest.

B.

the Assault Police charge

(1)

The trial judges reasons for finding the
    appellant guilty of assaulting a police officer with intent to resist lawful
    arrest

[31]

Count 11 of the indictment charged the appellant
    with assaulting a police officer with intent to resist lawful arrest contrary
    to s. 270(1)(b) of the
Criminal Code
.

[32]

The trial judge summarized the evidence of how
    the police arrested the appellant. They spotted his car when he was driving and
    boxed it into a parking space. As the police approached the car, they ordered the
    appellant to stay inside the vehicle and told him there was an arrest warrant
    for him. The appellant disobeyed their direction and attempted to run away,
    colliding with
one of the officers
. The
    appellant testified he was seeking to avoid contact with the officer as he was trying
    to get away.

[33]

The trial judge accepted the appellants
    motivation and intention was to escape from the police and found him guilty of
    assaulting police with intent to resist arrest contrary to s. 270(1)(b) of the
Criminal
    Code
. Speaking of the appellants collision with the officer, the trial
    judge said:

This is a natural consequence of the attempt
    by [the appellant] to resist arrest, this physical contact between the
two of them
, and is a natural consequence of his
    intent to run headlong as fast as he could to
try to
get
    around the officer.
In my view, in
those
    circumstances, the physical contact that took place
was
    a result of
reckless disregard as to whether there would be physical
    contact between the two
of them
and his
    conduct for which [the appellant] is liable under this charge to a finding of
    guilt.
There was not a specific intent to assault
. There was an intent
    to run headlong towards an officer whose duty and obvious intention was to stop
    [the appellant]
in order
to effect a lawful
    arrest. [Emphasis added.]

(2)

The appellants position

[34]

The appellant submits he was found guilty of
    this charge
on the basis of
recklessness. He
    points out that the offence of assaulting police with intent to resist arrest in
    s. 270(1)(b) of the
Criminal Code
combines the basic intent to assault
    with the additional intent to resist a lawful arrest. He quoted this passage from
    Morris Manning and Peter Sankoff,
Manning, Mewett & Sankoff  Criminal
    Law
, 5th ed. (Toronto: LexisNexis Canada, 2015), at p. 975: applications
    of force that are careless or negligent do not constitute assault, and the fact
    that an injury resulted from the force does not alter the need for the
    offenders intention to be proven beyond a reasonable doubt.

[35]

The appellant also relied on the decision
of this court
in
R. v. Palombi
, 2007 ONCA
    486, 225 O.A.C. 264, at para 35, stating: [t]here is, of course, also a
mens
    rea
or fault element for the simple (common) assault offence. The force
    must have been applied intentionally.

[36]

The appellant submits that while the trial
    judge found
that
he intended to resist arrest,
    the trial judge also
expressly
found he lacked
    the specific intent to assault the officer. Given these findings, the trial
    judge erred by convicting him on this charge.

(3)

The Crowns argument

[37]

The Crown accepted the appellants exposition of
    the law and reviewed the testimony of the two police
officers
    in detail
. The appellant had dipped his shoulder, buckled up like a
    hockey or football player, and had charged at the officer. The Crown pointed out
    that the appellant, himself, had said he tried to run through the officer. This
    evidence, the
Crown submitted
,
made clear
beyond a reasonable doubt that the
    appellant had the intention to assault  not just an intention to resist
    arrest.

(4)

Discussion

[38]

I agree with the Crown that the testimony of the
    officers and of the appellant himself could well support a finding that the
    appellant intentionally collided with the officer while attempting to get away.
    However, the trial judge accepted the appellants testimony that he tried to
    avoid contact with the officer. He convicted the appellant
on the basis of
his reckless disregard as to
    whether he would
make contact with
the officer.
    The trial judges express finding that the appellant did not have the specific
    intent to assault is a finding of fact. Given this finding of fact, the
    conviction on this charge cannot stand and must be set aside. As the trial
    judges finding
is determinative of
this
    charge on its merits, an acquittal must be entered.

C.

Conclusion

[39]

I would allow the appeals from conviction, and
    set aside the appellants convictions for attempted murder and assaulting a
    police officer with intent to resist lawful arrest and enter acquittals on those
    charges. I would dismiss the appeals from the other convictions appealed from.

[40]

Count 2 of the indictment charged the appellant
    with committing an aggravated assault on the victim contrary to s. 268(2) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. At the conclusion of
    sentencing, the trial judge conditionally stayed this count
pursuant to
Kienapple v. The Queen
, [1975]
    1 S.C.R. 729 as the appellant was convicted of attempted murder on count 1. At
    the end of oral argument, the appellant acknowledged that, if his conviction on
    count 1 were to be set aside, the proper result would be a conviction for
    aggravated assault. Proceeding in accordance with the Supreme Courts decision
    in
R. v. Provo
,
[1989] 2 S.C.R. 3, at p. 22, I would remit the
    matter to the trial judge to register a conviction on the aggravated assault
    charge and sentence the appellant for that offence.

[41]

I would set aside the conditional stay on the
    aggravated assault charge and remit the matter back to the trial judge to enter
    a conviction and sentence the appellant on that charge. In light of this
    disposition I would dismiss the appellants request for leave to appeal the
    sentence as moot.

Released: January 11, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Jamal J.A.

I agree. S. Coroza J.A.


