



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2020 ONCA 507

DATE: 20200812

DOCKET: C67855

Strathy C.J.O., Tulloch and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damian Hudson

Appellant

Dirk Derstine, for the appellant

Grace Choi, for the
    respondent

Heard: May 12, 2020 by video
    conference

On appeal from the convictions entered on June 18, 2019,
    by Justice Lawrence T. Feldman of the Ontario Court of Justice.

Tulloch J.A.:

I.

overview

[1]

On April 30, 2018, a young man was stabbed during an altercation in
    Scarborough.

[2]

A few days later, the appellant, Damian Hudson, was arrested and charged
    in connection with the stabbing. He was subsequently convicted of aggravated
    assault and carrying a weapon for the purpose of committing an offence.

[3]

Mr. Hudson now appeals his convictions. For the reasons that follow, I
    would dismiss the appeal.

II.

FACTS AND PROCEDURAL HISTORY

[4]

At approximately 3:34 p.m. on April 30, 2018, Nirushan Jude was stabbed
    in the chest during an altercation with another man on Kennedy Road in
    Scarborough. The injury caused a rupture to his right ventricle, leading to full
    cardiac arrest and an anoxic brain injury, leaving Mr. Jude with cognitive and
    functional impairments.

[5]

After stabbing Mr. Jude, the perpetrator fled the scene, running through
    a parking lot and neighbouring streets.

[6]

A few days later, on May 2, 2018 the appellant was arrested and charged
    with attempted murder, aggravated assault, and carrying a weapon for the
    purpose of committing an offence, contrary to ss. 239(1), 268(2), and 88(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. Based on a review of his intake
    photographs taken at the time of his arrest, his physical appearance was as
    follows: he was approximately 6 feet tall (185 centimetres), with a slim build
    (163 pounds), and a medium complexion; he had a nearly-shaved head, with a
    clean hairline running across his forehead and extending down into a thin
    beard; the hair on his chin was thicker and protruded down slightly; he had
    tattoos on his right forearm, his left wrist, his left hand (near the thumb),
    and his left forearm (along the backside). He was living at 30 Eppleworth Road,
    an apartment complex located in close proximity to where the stabbing occurred.

[7]

At trial, the sole issue was identification. In support of its case, the
    Crown adduced three forms of evidence: eyewitness evidence, video surveillance
    evidence, and recognition evidence.

Eyewitness evidence

[8]

There were three eyewitnesses who testified to the altercation or the
    events immediately following.

[9]

The first eyewitness, a young person, M.H., testified that she had been
    walking from school with her sister when she heard two men arguing. She claimed
    that one of the men fell to the ground. The man who was still standing was tall,
    light skinned, and wearing jeans and a blue windbreaker with the hood on. He
    was holding something long and black in his hand. She claimed it looked like a
    belt.

[10]

The
    second eyewitness, Chelsea Haywood-Alexander, was in a romantic relationship
    with Mr. Jude at the time of the incident. She testified that she arrived at
    Eglinton and Kennedy a few minutes before the altercation. She was across the
    street from Mr. Jude and the perpetrator when she heard yelling. She approached
    them and attempted to break up the fight. While she was in between the two men,
    facing Mr. Jude, the perpetrator stepped forward, reached around her, and hit
    Mr. Jude in the chest. Mr. Jude fell to the ground and the perpetrator
    ran. She called 911 at approximately 3:35 p.m.

[11]

With
    regards to the perpetrators appearance, Ms. Haywood-Alexander testified that
    he was tall (over 6 feet), very skinny, and was wearing a blue windbreaker,
    like navy blue, and he had the hood over his head and was wearing jeans, like a
    washed-out blue jeans. In examination-in-chief, she testified that she had
    seen his face pretty clearly and could remember certain of his features,
    including his dark skin, wide eyes, small nose, and chiseled cheeks. However,
    as this evidence was inconsistent with her police statement  in which she
    stated that she had not seen his face  the Crown was permitted to
    cross-examine her pursuant to s. 9(2) of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5. On cross-examination, she claimed that she had not told police
    the details of his face because she didnt have enough information to provide
    an accurate description for the purpose of identification. She claimed that her
    memory was still fresh and she was not as emotional as she had been at the time
    of her original statement.

[12]

Upon
    returning to examination-in-chief, Ms. Haywood-Alexander testified that the
    appellant [did not] look like the guy. She claimed that his skin colour was
    different, his nose did not match, and he did not have a distinctive jawline.
    She also noted that he appeared to be shorter and not lanky.

[13]

The
    final eyewitness to testify was Jakov Papadopoulos. Mr. Papadopoulos testified
    that at around 3:35 p.m. or 3:40 p.m. on April 30, 2018, he had been in his
    basement when he saw a figure walk past a window, potentially trespassing on
    his property. He went upstairs and into his driveway where he saw a tall
    skinny guy walking away with a hoodie, hoodie over, over his head. He said
    that, at some point, the hood was down and he saw the back of the persons
    head. He said it looked like a black man with short hair. During
    cross-examination, Mr. Papadopoulos testified that the appellant looked
    [d]ifferent altogether from the skinnier dude he had seen. He claimed that
    this guys  hes like Frankenstein there, you know, hes huge.

Video surveillance evidence

[14]

The
    Crown adduced video surveillance evidence from various cameras in the area
    immediate to where Mr. Jude was stabbed. The videos establish the following
    timeline.

[15]

At
    approximately 1:15 p.m., surveillance footage of the courtyard at 30 Eppleworth
    Road shows a black man leaving the building. He has a nearly-shaved head and is
    wearing blue jeans and a dark blue sweater or jacket with a hood.

[16]

At
    approximately 3:35 p.m., surveillance footage from cameras at 711 Kennedy
    Road show an altercation between two people. One person is seen dropping to the
    ground, while the other runs away in a southbound direction before heading
    east. The person running appears to be wearing a hoodie with the hood up.

[17]

At
    approximately 3:38 p.m., surveillance footage from 27 Merrian Road, which is
    located southeast of where Mr. Jude was stabbed, appears to show a young, black
    male with a shaved head and facial hair walking south in a laneway toward the
    30 Eppleworth Road apartment complex. He appears to be wearing dark jeans and a
    black t-shirt with a colour logo on the front. He is carrying a piece of dark
    clothing in his right hand.

[18]

Approximately
    30 seconds later, surveillance footage from an entrance at 30 Eppleworth Road
    shows a black man, with a nearly-shaved head entering the building. He is
    wearing blue jeans and a black t-shirt.

[19]

At
    approximately the same time, surveillance footage from the front lobby at 30
    Eppleworth Road shows a black man, with a nearly-shaved head and facial hair (a
    thin moustache and a goatee extending from his chin) entering the building. He
    is wearing blue jeans and a black t-shirt, with blue lettering on the front. He
    is carrying a dark blue sweater or jacket, and there appears to be some
    discolouration on his right forearm and left wrist.

Recognition evidence

[20]

At
    trial, the Crown brought an application to adduce evidence from two police
    officers, Detective Glen Cecile and Detective Constable Michael Reeves, in an
    effort to assist the trial judge in identifying the appellant as the person in
    the surveillance footage. Both officers testified as to their relationship with
    the appellant.

[21]

Detective
    Constable Reeves was involved in the investigation of the stabbing of Mr. Jude.
    He was informed by another officer that video surveillance appeared to show
    someone entering 30 Eppleworth Road and going to the second floor. He began
    checking information on the residents and recognized the name of Damian Hudson.
    He claimed that he was aware of the appellant through general bulletins at the
    police station, as well as through personal interactions. He testified that
    sometime between April 2015 and June 2015, he reviewed pictures of him before
    heading out on patrol, where he briefly saw and chased a man, who he believed
    to be the appellant, in a stairwell of a building. He also stated that he
    believed he saw him [m]aybe three times in the community over a number of
    years. He testified that he recognized the appellant as the person in the
    videos taken on the afternoon of April 30, 2018 based on the descriptions
    provided by civilian witnesses, an examination of the appellants images in IntelliBook
    (the program used by police to record photographs and fingerprints of persons
    charged with an offence), and his previous dealings with him. He acknowledged
    in cross-examination that, after he reached his conclusion, he informed his fellow
    officers, including Detective Cecile, that he believed the person was Damian
    Hudson.

[22]

Detective
    Cecile was also involved in the investigation. He testified that he knew the
    appellant through a number of previous interactions: in May 2014, as part of a
    criminal harassment investigation, he reviewed several video images and stills
    of the appellant and compared them to his images in IntelliBook; in August
    2014, at a one day trial related to the criminal harassment investigation,
    Detective Cecile saw the appellant for most of the day; and Detective Cecile
    had reviewed video images of the appellant in an investigation of a potential
    assault on a court officer.

[23]

At
    trial, Detective Cecile testified that he recognized the appellant as the
    person in the videos from the afternoon of April 30, 2018 based on his
    knowledge of the appellants slender build, shaved head, and distinctive
    facial hair (a thin goatee with a tuft of hair on his chin). His belief was
    strengthened by the fact that the appellant lived at 30 Eppleworth Road and has
    tattoos which appear to match the discolourations seen on the person in the
    video. In his testimony, he acknowledged that Detective Constable Reeves
    mention of the appellant planted [the] seed in his mind that the person was,
    in fact, Damian Hudson. He explained that he was aware of the dangers of
    confirmation bias but claimed that his conclusion was based on an objective
    assessment of the evidence and on his prior dealings with the appellant.

Trial judges decision

[24]

After
    the six days of trial, the trial judge found that, based on the surveillance
    videos and still photographs of the appellant, there was no doubt that he had
    committed the offences in question. The appellant and the person captured on
    the video shared common tattoos and facial features, including a similarly
    shaped face, a near-shaved head, a moustache, a chin-strap goatee, and a
    similar nose and ears. He found that the discolourations seen on the left wrist
    and right arm of the person in the video matched the placement of tattoos on
    the appellant. The clothing of the man also matched the description provided by
    the various witnesses. The trial judge further noted that [o]f particular
    significance was the recognition evidence of the two police officers, who had
    a prior acquaintance with the appellant. He placed little weight on the
    exculpatory evidence of Ms. Haywood-Alexander and Mr. Papadopoulos, as Ms.
    Haywood-Alexanders description was unreliable and imprecise, and Mr.
    Papadopoulos had not seen the persons face.

[25]

The
    trial judge concluded that the route taken by the appellant, the common
    physical descriptors, and the identification by both the court and police
    officers suggested that the only reasonable inference was that the appellant
    had committed the offences. Beyond speculation, there was no basis to infer
    that the appellant had merely been in the wrong place at the wrong time. The
    trial judge convicted the appellant of aggravated assault and carrying a weapon
    for the purpose of committing an offence.

[26]

On
    the charge of attempted murder, however, the trial judge found that, in light
    of evidence that the altercation had escalated quickly, there was a reasonable
    doubt as to whether the appellant had the specific intent to kill Mr. Jude. He
    acquitted the appellant of attempted murder.

III.

Issues on appeal

[27]

The
    appellant appeals his convictions on three grounds:

1)

did the
    trial judge err by improperly admitting the recognition evidence of the two
    police officers?

2)

did the
    trial judge err by improperly relying on the recognition evidence in reaching
    his conclusion on identification?

3)

was the
    trial judges verdict unreasonable?

IV.

Analysis

(1)

Did the trial judge
    err by improperly admitting the recognition evidence of the two police
    officers?

Governing principles

[28]

Where
    there is video or photographic evidence capturing the commission of an offence
    and the identity of the perpetrator is at issue, one way in which the Crown may
    seek to prove that the accused is, in fact, the perpetrator is by adducing
    evidence from a witness who is sufficiently familiar with the accused to
    recognize them and assist the trier of fact in determining whether the accused
    is the person seen:
R. v. Leaney
, [1989] 2 S.C.R. 393.

[29]

In
    order for such recognition evidence to be relied upon by the trier of fact, two
    distinct inquiries must first be undertaken. To begin, the trial judge must
    determine whether the evidence meets the threshold requirements for
    admissibility. If this test is met, the trier of fact must then assess the
    evidence to determine its ultimate reliability and the appropriate weight, if
    any, that can be properly attributed to it.

[30]

In
R. v. Berhe
, 2012 ONCA 716, 113 O.R. (3d) 137, this court outlined the
    test for threshold admissibility of recognition evidence. Blair J.A. labelled
    the test as the prior acquaintance/better position test. The court set out
    two steps that must first be met before threshold admissibility can be
    established. The trial judge must determine whether: 1) the witness is
    sufficiently familiar with the accused to have some basis for their
    identification opinion; and 2) the witness, as a result of their prior acquaintance
    with the accused, must be in a better position than the trier of fact to
    identify the perpetrator, in the sense that they have some advantage that can
    shed light on the evidence in question: at paras. 14, 21.

[31]

The
    thrust of this inquiry is aimed at determining the level of familiarity of the
    potential witness with the accused. In assessing this level of familiarity, the
    trial judge should focus on the nature of the relationship between the potential
    witness and the accused, including the frequency and intensity of past contact.
    The fundamental question for the trial judge, is whether the potential witness
    is sufficiently familiar with the accused such that the witness may be able to
    provide valuable identifying information about the accused that a trier of
    fact, with access to only the accused, the video, and photographic evidence
    during trial, will not be able to or unlikely to ascertain for him or herself.
    In answering this question, the trial judge should base his or her
    determination primarily on the evidence of the nature of the relationship,
    including the nature of past contact, as opposed to a potential witness
    anticipated testimony. While a potential witness anticipated testimony may be
    of assistance in borderline cases, trial judges should be wary of the allure of
    potential witnesses who, despite having only a general level of familiarity
    with the accused, purport to be able to offer descriptions capable of
    identifying them. In other words, a trial judge should generally only permit a
    potential recognition witness to testify where the judge is satisfied, on a
    balance of probabilities, that the witness relationship with the accused
    affords him or her a level of familiarity that will enable the witness to
    provide valuable and otherwise unavailable identifying information.

[32]

The
    trial judge is in the best position to determine the "prior
    acquaintance/better position" test. That determination on the
    admissibility of recognition evidence is entitled to deference, absent an error
    in principle or an unreasonable ruling.


[33]

Where
    a trial judge finds that the requirements for threshold admissibility have been
    met, the recognition witness will be permitted to testify. It will then be the
    role of the trier of fact to assess the witness testimony to determine its
    ultimate reliability and the weight that can be properly attributed to it, if
    any. In doing so, the trier of fact should consider the following,
    non-exhaustive list of factors as indicia of reliability: 1) the circumstances
    of the identification, including whether it was independent or suggested; and 2)
    the level of detail provided in the description, including the ability of the
    witness to point to some unique identifiable feature or idiosyncrasy of the
    person to be identified:
Berhe
, at para. 22. However, the importance
    of unique identifiable features varies with how well the witness knows the
    person he or she identifies (the better a person knows the accused, the less
    important the articulation of identifiable features becomes):
R. v. M.B.
,
    2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 46; 3) the quality of the video or
    photographic evidence upon which the witness is making their identification (the
    witness testimony will be more reliable as the quality increases); and 4) the
    circumstantial or direct evidence available that can corroborate or undermine
    the reliability of the witness description.

[34]

In
    determining the ultimate reliability of the evidence, the trier of fact must
    also be cognizant of the fact that, as recognition evidence is a form of
    identification evidence, the same concerns apply and the same caution must be
    taken in considering its reliability as in dealing with any other
    identification evidence:
M.B.
, at para. 34, quoting
R. v. Olliffe
,
    2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39;
R. v. Chafe
, 2019
    ONCA 113, 145 O.R. (3d) 783, at paras. 29-32;
R. v. McCracken
, 2016 ONCA
    228, 348 O.A.C. 267, at para. 25.

[35]

The
    frailties of identification evidence have been well documented:
M.B.
, at
    paras. 29-31;
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 52;
R. v.
    Miaponoose
(1996), 30 O.R. (3d) 419 (C.A.). While seemingly reliable,
    particularly where witnesses are credible and convincing in their testimony,
    eyewitness identification is inherently unreliable:
M.B.
, at para. 29;
McCracken
,
    at para. 25. Although witnesses may honestly believe their account reflects the
    reality of their observations, they are often completely unaware of the
    interpretive process whereby they fill in the necessary but missing data and
    arrive at a distorted recreation of the events they actually witnessed:
Miaponoose
,
    at p. 422, quoting the Law Reform Commission of Canada Study Paper on
Pretrial
    Eyewitness Identification Procedures
(1983), at p. 10. Where proper
    precautions are not taken in assessing identification evidence, the likelihood
    of wrongful conviction increases. The trier of fact, therefore, must be
    satisfied of both the honesty of the witness and the correctness of the
    identification:
R. v. Reitsma
(1997), 125 C.C.C. (3d) 1 (B.C. C.A.), at
    para. 41,
per

Rowles J.A. (dissenting), revd [1998] 1 S.C.R. 769
    (adopting the dissenting reasons of Rowles J.A.);
R. v. Cole
, [2006]
    O.J. No. 1654 (S.C.), at para. 20.

Arguments on appeal

[36]

The
    appellant argues that the trial judge erred in admitting the recognition
    evidence of Detective Constable Reeves and Detective Cecile. He submits that while
    both officers had prior interactions with the appellant, these interactions
    were brief and fleeting. Neither was in a better position to identify the
    appellant than the trial judge, who had the opportunity to observe the
    appellant for six days during trial.

[37]

In
    response, the Crown argues that the evidence of prior interactions between the
    officers and the appellant was sufficient to permit the trial judge to admit
    the evidence. Both officers were clearly familiar with the appellant and both
    had observed him outside of the courtroom context, thereby enabling them to
    provide information not available to the trial judge.

Analysis

[38]

As
    noted above, a trial judges determination on the admissibility of recognition
    evidence is to be afforded deference, absent an error in principle or an
    unreasonable ruling. In this case, the trial judge did not commit an error in
    principle. He outlined the correct legal principles governing threshold
    admissibility and conducted the appropriate legal test. The only question,
    therefore, is whether he reached an unreasonable conclusion in admitting the
    evidence of either Detective Cecile or Detective Constable Reeves.

[39]

In
    my view, the trial judges decision to admit the recognition evidence of
    Detective Cecile was not unreasonable. Detective Cecile had been a part of two
    prior investigations of the appellant, including one in which he was able to
    observe the appellant in court for the most part of a day. He had thus been
    able to study confirmed photographs and video of the appellant, as well as
    interact with him in person. While certainly a borderline case, given the
    absence of a prolonged relationship or any particularly intense or meaningful
    interactions (e.g., a police interview), it was not unreasonable to find that
    Detective Ceciles relationship with the appellant would afford him a level of
    familiarity sufficient to enable him to provide valuable and otherwise
    unavailable identifying information.

[40]

With
    respect to Detective Constable Reeves evidence, however, the trial judges
    ruling was unreasonable. While Detective Constable Reeves was clearly generally
    acquainted with the appellant, as he was able to recognize his name when
    checking information on the residents of 30 Eppleworth Road, he had no confirmed
    history of prior interactions with him. The man seen in the stairwell in 2015
    was never confirmed to be the appellant. There was also no evidence confirming
    that Detective Constable Reeves had ever actually seen the appellant in the
    community. The only times that Detective Constable Reeves can be said, with any
    certainty, to have interacted with the appellant is when he saw his name on
    general bulletins at the police station or reviewed his images in IntelliBook.
    This level of interaction is insufficient to establish a level of familiarity
    that would enable Detective Constable Reeves to provide valuable and otherwise
    unavailable information to the trier of fact. The fact that Detective Constable
    Reeves purported to recognize the appellant does not strengthen the case for
    admission. Rather, it is precisely this type of assertive recognition evidence in
    the absence of a high level of familiarity that is to be avoided, as it offers
    the allure of reliability despite being based on a superficial level of
    familiarity. There was no basis to admit the evidence and the trial judge erred
    in doing so. The impact of this error will be addressed in the next section.

(2)

Did the trial judge
    err by improperly relying on the recognition evidence in reaching his
    conclusion on identification?

[41]

As
    explained above, where a trial judge has found that the requirements for
    threshold admissibility have been met, the trier of fact must then assess the
    ultimate reliability of the evidence.

[42]

In
    this case, the appellant argues that, even if the trial judge was correct to
    admit the officers recognition evidence, he erred in his assessment of its
    ultimate reliability. The evidence was unreliable as neither officer made their
    identification of the appellant solely on the basis of the surveillance
    footage. Rather, both came to the footage with the appellant in mind as the
    perpetrator: Detective Constable Reeves watched the footage after recognizing
    the appellants name in his search of residents at 30 Eppleworth Road; and
    Detective Cecile watched the footage after Detective Constable Reeves had
    planted [the] seed in his mind that the appellant was the person captured on the
    video. The recognition evidence was thus tainted by confirmation bias. The
    trial judge should not have placed any weight on it, let alone identify it as
    evidence of particular significance. In light of this error, the trial
    judges ultimate conclusion that the appellant was the person in the
    surveillance footage should be overturned.

[43]

The
    Crown submits in response that, although the trial judge clearly put some
    weight on the recognition evidence, his identification of the appellant as the
    perpetrator was made independently. The trial judge arrived at his
    identification decision on the basis of the video and photographic evidence,
    which was of high quality and permitted such an identification without reliance
    on additional evidence. There was no error.

[44]

Given
    my earlier finding that the evidence of Detective Constable Reeves should not
    have been admitted, I agree with the appellant that the trial judge erred in
    placing any weight on this evidence.

[45]

However,
    I do not accept the appellants argument as it pertains to the evidence of
    Detective Cecile. The trial judge engaged in a proper assessment of the
    reliability of this evidence. He acknowledged that Detective Constable Reeves
    suggestion to Detective Cecile was troubling and noted that he would weigh
    his evidence and opinion cautiously: at paras. 45-46. He considered the level
    of detail provided by Detective Cecile, including his description of the
    appellants tattoos and their placement: at para. 47. He also gave
    consideration to the quality of the video evidence, as well as the available
    corroborative evidence, such as the fact that the appellant was a resident at
    30 Eppleworth Road: at paras. 47, 52. Having assessed the relevant factors, the
    trial judge was entitled to afford meaningful weight to Detective Ceciles
    evidence. There is no basis to interfere.

[46]

I
    turn now to the effect of the trial judges error in relying on Detective
    Constable Reeves evidence. In my view, the error was not significant. While
    the evidence should not have been admitted and, consequently, should not have
    been relied upon, the impact of the error was minor, as the trial judge arrived
    at his conclusion as to the identity of the perpetrator independently. In his
    reasons, at para. 55, the trial judge concluded that, after reviewing the
    surveillance footage and intake photographs of the appellant, he was not left
    in reasonable doubt that the defendant and suspect are one and the same. He
    proceeded to explain the reasons underlying his conclusion, including the common
    articles of clothing worn by the perpetrator and the man on the video, the similar
    facial features between the appellant and the man, and the discolouration on
    the mans arms that match the appellants tattoos.

[47]

It
    is only after reaching this conclusion that, at para. 57, the trial judge noted
    that he was assisted by the recognition evidence of the two police officers.
    While the trial judges comment that the evidence was [o]f particular
    significance is problematic in light of the error in admitting Detective
    Constable Reeves evidence, it is clear that the trial judge would have reached
    the same conclusion on the identity of the suspect even without reliance on this
    evidence. There are distinct similarities between the man pictured in the surveillance
    footage and the appellant in his intake photographs, including similar physical
    builds, haircuts, facial hair, and tattoos (discolourations). The video and
    photographic evidence was of high quality. In light of the frailties of
    eyewitness evidence, which have been observed in countless cases, and the
    necessary cautions that a trier of fact must take when assessing such evidence,
    whenever there is reliable and continuous video surveillance evidence, it may
    be powerful and probative evidence for the trier of fact:
R. v. Nikolovski
,
    [1996] 3 S.C.R. 1197, at paras. 22-23.

[48]

Pursuant
    to s. 686(1)(b)(iii) of the
Criminal Code
, where an appellate court
    finds that the trial judge has committed a legal error, it may nevertheless
    dismiss the appeal if it is of the opinion that no substantial wrong or miscarriage
    of justice has occurred. The burden rests with the Crown to demonstrate that
    the curative proviso is applicable and that the conviction should be upheld
    despite the legal error:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at
    para. 34.

[49]

In
    this case, while the Crown did not explicitly invoke the curative proviso in
    either its factum or in oral argument, the substance of the Crowns position is
    that, even if there was an error, no substantial wrong or miscarriage of
    justice occurred, as the trial judge reached his ultimate conclusion
    independently and without reliance on Detective Constable Reeves evidence. Wary
    that it is not the role of an appellate court to raise the curative proviso on
    its own motion, I am satisfied that the Crowns argument amounts to an implicit
    invocation of the proviso:
R. v. P.G.
, 2017 ONCA 351, 138 O.R. (3d) 343,
    at paras. 13-15;
R. v. Ajise
, 2018 ONCA 494, 361 C.C.C. (3d) 384, at
    para. 32, affd 2018 SCC 51, [2018] 3 S.C.R. 301. As such, I am satisfied that
    it is appropriate to rely on the powers outlined in s. 686(1)(b)(iii) of
    the
Criminal Code
to cure the error of the trial judge. In light of the
    trial judges independent conclusion regarding the identity of the perpetrator,
    the error in admitting and relying on Detective Constable Reeves evidence was
    harmless. No substantial wrong or miscarriage of justice has occurred.

(3)

Was the trial judges
    verdict unreasonable?

[50]

An
    appellate court may set aside a trial verdict if the verdict is either
    unreasonable, unsupported by the evidence, or both:
Criminal Code
,

s. 686(1)(a)(i);
R. v. Lights
, 2020 ONCA 128, 149 O.R. 273, at para. 29. In cases such as
    this one, where the verdict rests wholly or substantially on circumstantial
    evidence, the question on appeal is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the guilt of the accused was the
    only reasonable conclusion available on the evidence taken as a whole:
Lights
,
    at para. 39, citing
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000,
    at para. 55. It is the role of the trier of fact to assess whether any proposed
    alternative way of viewing the case as a whole is reasonable enough to raise a
    doubt as to the guilt of the accused:
Lights
, at para. 39, citing
Villaroman
,
    at para. 56.

[51]

In
    this case, the trial judge found the appellant guilty on the basis that: 1) the
    person seen in the surveillance footage was the person described by eyewitnesses
    as having stabbed Mr. Jude; and 2) the appellant was the person seen in the
    surveillance footage. Beyond speculation, there was no basis to infer that the
    appellant had merely been in the wrong place at the wrong time.

[52]

The
    appellant submits that this conclusion is unreasonable for two reasons. First,
    he argues that the trial judge erred by failing to give any meaningful weight
    to the exculpatory evidence of the witnesses, particularly the evidence of Ms. Haywood-Alexander
    and Mr. Papadopoulos. As both witnesses claimed that the appellant did not look
    like the person they had seen on April 30, 2018, the trial judge should have
    given greater consideration to whether their testimony raised a reasonable doubt
    as to whether the appellant was, in fact, the person who had stabbed Mr. Jude.

[53]

Second,
    the appellant argues that the trial judge failed to consider the reasonable
    possibility that the person shown in the video surveillance footage was not the
    appellant, but someone else who resembled him. This was a reasonable inference
    consistent with innocence and the trial judge erred in dismissing it as
    speculative.

[54]

I
    would not give effect to these arguments. The trial judge considered the
    evidence of all the eyewitnesses, including Ms. Haywood-Alexander and Mr. Papadopoulos.
    With respect to Ms. Haywood-Alexander, he found that, in light of her fleeting
    view of the suspects face and the imprecision of her original description, her
    testimony did not raise a reasonable doubt as to the guilt of the appellant.
    Similarly, with Mr. Papadopoulos, the trial judge determined that his evidence
    did not raise a reasonable doubt, as he had but a momentary view of the
    person and had not seen the suspects face. These findings are reasonable and
    within the purview of the trier of fact. Nor, do I agree that the trial judge
    undermined the defence position or reversed the burden of proof by improperly
    approaching that evidence with care and caution. The trial judge noted at para.
    62 of his reasons that he need not accept the defence of other exculpatory
    evidence, but that it was sufficient for acquittal if the evidence leaves the
    trier with a reasonable doubt: R. v. Vassel [2018] O.J. No. 4512 (Ont. C.A.).
    There is no basis to interfere.

[55]

The
    trial judge was also entitled to find that there was no reasonable possibility
    that the perpetrator was someone who simply resembled the appellant. As he
    explained, the circumstantial evidence, including the description of the
    perpetrator by the eyewitnesses, the timeline established by the surveillance
    cameras and witnesses, the similarities between the man seen on the
    surveillance footage and the appellants intake photos, and the appellants
    residence at the building, strongly suggested against the reasonableness of
    such a possibility. I see no reason to interfere with his conclusion.

[56]

The
    verdict was not unreasonable.

V.

DISPOSITION

[57]

In
    all the circumstances, I would dismiss the appeal.

Released: G.R.S. August 12, 2020

M. Tulloch J.A.

I agree. G.R. Strathy
    C.J.O.

I agree. S. Coroza
    J.A.


