



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Belcher, 2021 ONCA 652

DATE: 20210922

DOCKET: C67008

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty
    the Queen

Respondent

and

Brandon
    Belcher

Appellant

Julie Santarossa, for the appellant

Nicholas Hay, for the respondent

Heard and released orally: September 20, 2021 by video
    conference

On appeal from the convictions
    entered by Justice Gregory A. Campbell of the Ontario Court of Justice on April
    8, 2019.

REASONS FOR DECISION

[1]

After a joint trial before a judge of the Ontario Court of Justice, the
    appellant was convicted of aggravated assault and assault with a weapon. He
    appeals his convictions.

[2]

The appellant was alleged to have been one of two assailants who, each
    armed with a weapon, attacked another man in a public area of an apartment
    building. The area in which the attack occurred was under video surveillance.

[3]

The trial was brief. The single issue to be determined was whether the
    appellant was the person who wielded a baseball bat during the attack on the
    victim.

[4]

The victim professed no memory of the attack, likewise of the identity
    of his attackers.

[5]

In substance, the case for the Crown consisted of video surveillance of
    the assault and of the area in which the assault occurred. The assault began in
    the hallway on one of the floors of an apartment building and continued into
    the stairwell. The assailant said to be the appellant had a bandana covering
    his face. Later in the attack, the bandana fell off, but the assailants face
    was hidden from the surveillance cameras view by the nature of the safety
    glass in the door to the stairwell.

[6]

Both assailants left the stairwell. They entered an apartment unit on
    the floor on which the attack occurred. It was the same apartment unit they had
    left to begin the armed attack on the victim.

[7]

In addition to the surveillance video, the Crown called a police officer
    who was familiar with both participants who appeared in the video. The officer
    was satisfied that given the assailants stature, the concave portion of his
    face, and his facial hair, the characteristics matched those of the appellant.
    However, in cross-examination, the officer agreed that he could not say for
    certain that the appellant was the assailant.

[8]

The trial judge watched the video filed as an exhibit. He was not
    satisfied on the basis of the video and the police officers recognition
    evidence that the appellant was the second assailant who wielded the baseball
    bat.

[9]

The critical evidence for the trial judge was that the assailants
    entered the apartment from which they had left to commence their attack
    immediately after its conclusion. The video surveillance, which the trial judge
    believed was uninterrupted, showed no one leaving the apartment until police
    arrived at which time the apartment remained under constant police observation.
    It followed, the trial judge concluded, that the appellant, the second male to
    leave the apartment about six and one-half hours after the assault, must have
    been the second assailant. This, even though the appellant was not dressed in
    the same clothing as the second assailant shown in the video.

[10]

Critical
    to the trial judges conclusion that the appellant was the second assailant was
    his finding that the video was uninterrupted from the time of the assault until
    the police arrived. But this was not in fact so. There were four interruptions
    in the video, of almost seven minutes duration.

[11]

The
    parties occupy common ground that the trial judge misapprehended the video
    surveillance evidence. Perhaps he conflated admissibility with completeness. In
    any event, he misapprehended the nature of this evidence. His reliance on the
    completeness of the video to identify the appellant as the second assailant was
    central to his reasoning that the appellants guilt had been established beyond
    a reasonable doubt.

[12]

It
    follows, in our view, that the convictions entered at trial cannot stand. We
    recognize, as Crown counsel concedes in this court, that for a misapprehension
    of evidence to warrant setting aside a conviction on the basis of a miscarriage
    of justice, the misapprehension must meet a stringent standard. The
    misapprehension must have to do with the substance of the evidence, not merely
    a matter of detail. The misapprehension must be material, not peripheral to the
    reasoning of the trial judge. And the error must play an essential part in the
    judges reasoning process resulting in a conviction, not simply in the
    narrative of the judgment:
R. v. Lohrer
,
[2004] 3 S.C.R. 732,
    at para. 3.

[13]

In
    the usual course, the appropriate remedy in these circumstances would be to
    allow the appeal, set aside the convictions, and order a new trial. However,
    the appellant also challenges the verdict rendered at trial as unreasonable and
    seeks entry of a verdict of acquittal rather than an order for a new trial.

[14]

We
    accept, as the decision in
R. v. Sinclair
, [2011] 3 S.C.R. 3, at
    paras. 12 and 13 teaches, that an erroneous understanding of the evidence on a
    material issue may render a verdict unreasonable within s. 686(1)(a)(i) of the
Criminal
    Code
. Although the case for the Crown was not overwhelming, we are unable
    to say that the verdict is one that a properly instructed trier of fact acting
    judicially could not reasonably have rendered. We have in mind that the
    appellant was found in the same apartment as the first assailant, the apartment
    from which the assailants left to commence the attack and to which they
    returned at its conclusion. The second assailant was similar in appearance to
    the appellant. It is also not without significance that the appellant, who now
    alleges that the Crown has failed to negative various possibilities other than
    the appellants participation as the second assailant, did not testify at
    trial.

[15]

In
    the result, we are not satisfied that the verdict rendered at trial was
    unreasonable within s. 686(1)(a)(i) of the
Criminal Code
.

[16]

The
    appeal is allowed, the convictions set aside and a new trial ordered on the
    counts of aggravated assault and assault with a weapon, a baseball bat.

David Watt J.A.

M.L. Benotto
    J.A.

Gary Trotter
    J.A.


