



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer, 2021 ONCA 348

DATE: 20210521

DOCKET: C67263

Tulloch, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Tristan Palmer

Respondent

Sean Horgan, for the appellant

Janani Shanmuganathan and Owen Goddard, for the
    respondent

Heard: November 19, 2020 by video conference

On appeal from the acquittals entered on July 4, 2019 by
    Justice Suhail A.Q. Akhtar of the Ontario Superior Court of Justice.

Tulloch J.A.:

A.

Overview

[1]

In the early morning hours of January 11, 2018, two groups of young men
    were involved in an altercation outside a nightclub in downtown Toronto. When
    the nightclubs security guards broke up the fight, the men moved their dispute
    into a nearby underground parking lot. According to the Crown, the respondent,
    Tristan Palmer, was one of the men involved in the altercation. The Crown
    alleged that he shot David Abraham during the second encounter in the parking
    lot before fleeing the scene.

[2]

The respondent was charged with aggravated assault and several firearms offences.
    Aside from a grainy surveillance video from the parking lot that captured the
    alleged incident from a distance, the Crowns case was entirely circumstantial.
    In his testimony, Mr. Abraham denied ever being in the parking lot, let alone
    being shot.

[3]

Following a three-day trial in the Superior Court of Justice, the trial
    judge acquitted the respondent of all charges.

[4]

The Crown appeals the acquittals on three grounds.

[5]

First, it argues that the trial judge misapprehended two aspects of the
    parking lot surveillance video:

(i) there actually was one, if not two, muzzle flashes coming
    from the respondents gun at the time of the alleged shooting, and

(ii) the sudden reactions of the alleged victim and others
    immediately after the flash indicated that there had been at least one gunshot.

[6]

This misapprehension, according to the Crown, prevented a holistic
    consideration of the cumulative impact of the Crowns case.

[7]

Second, the Crown submits that the trial judge failed to assess
    individual items of evidence in the context of the case as a whole. Third, it contends
    that the trial judge failed to provide reasons demonstrating that he considered
    the totality of the evidence.

[8]

At the conclusion of the oral hearing, we dismissed this appeal with
    reasons to follow. These are the reasons.

B.

Background

[9]

At trial, the Crown called several witnesses, including: the head of security
    at the nightclub; three civilian witnesses who observed part of the events from
    their apartment buildings; and Mr. Abraham, the alleged victim. The Crown also
    adduced: surveillance footage; vehicle registration information for a car in
    the surveillance footage; an agreed statement of fact; photographs of evidence found
    in the parking lot and evidence seized from Mr. Abraham; and cell phone tower
    data.

[10]

The
    defence called no evidence.

[11]

In
    the sections that follow, I summarize each evidentiary component, in turn.

(1)

The Testimony of the Head of Security

[12]

Barry
    Donaldson, the head of security at the nightclub, testified that his security team
    broke up a physical altercation between two groups of males outside the club around
    2:50 a.m. on January 11, 2018. One group primarily consisted of Black males;
    the other group was Caucasian.

[13]

Mr.
    Donaldson testified that a Black individual threatened to come back and shoot
    him. This individual proceeded to walk across the street, and turn into a
    nearby alleyway. Some of the Caucasian males followed. Within one or two minutes,
    Mr. Donaldson heard gunshots come from that alleyway.

[14]

Mr.
    Donaldson could not positively identify the person who threatened him. However,
    he described the individual as being a darker-skinned Black male, in his late
    twenties, standing at approximately 510 and 180 pounds. The male had cornrows
    and wore a thin, dark bomber jacket. The Crown alleged that this description was
    consistent with the respondents physical appearance.

[15]

Mr.
    Donaldson also took a video of some of the participants in the altercation,
    which the Crown tendered at trial. One individual in the video was Caucasian
    and wore a hooded puffy black jacket, a white t-shirt, and distressed jeans. He
    wore his hair in a bun at the back. It was undisputed by the parties that this
    individual was Mr. Abraham, the alleged victim of the shooting.

(2)

The Testimony of the Civilian Witnesses

[16]

Three
    civilian witnesses testified at trial. All of them lived in condos located either
    adjacent to the nightclub or by the parking lot. Around 3:00 a.m. on January
    11, 2018, the sounds of a commotion outside caused each of them to look down to
    the streets below.

[17]

The
    first civilian had a view of the parking lot from his window. He observed a
    dark car exit the parking lot at around 3:00 a.m. He thought the car might be a
    Dodge Charger. He did not hear any gunshots.

[18]

The
    second civilian lived in a condo just to the left of the nightclub. From his
    window, he saw two groups of men fighting in the street  one group was Black,
    and the other, Caucasian. He heard the men yell some racist remarks. He
    filmed this altercation for about ninety seconds. The men walked into an
    alleyway, where he could no longer see them. He heard about three to five
    gunshots shortly after and called 911.

[19]

The
    third civilian could see the parking lot entrance from his balcony. He saw two
    groups of men arguing.  A group of Black males went into the parking lot and
    the Caucasian males followed. Shortly after, he heard three gunshots that
    seemed to come from the parking lot. He then saw a dark Dodge Charger exit
    the parking lot, pick up a passenger in the alleyway, and speed off.

(3)

The Testimony of David Abraham

[20]

Mr.
    Abraham, the alleged gunshot victim, testified at trial. He was the only witness
    called by the Crown who was in the parking lot at the material time.

[21]

Mr.
    Abraham was an uncooperative witness. He denied having any knowledge of an
    altercation on the morning of January 11, 2018. He also denied ever being shot.
    He claimed that he could not remember where he was that night, nor who he was
    with.

[22]

The
    Crown presented him with the video filmed by Mr. Donaldson, the security guard
    at the night club. Mr. Abraham denied being the individual wearing the hooded
    puffy jacket, white t-shirt, and distressed jeans in the video. He admitted
    that he wore his hair in a bun at the back but falsely claimed the individual
    in the video had a buzz cut (as noted above, it is clear that the individual in
    the video wore his hair in a bun, like Mr. Abraham).

[23]

Similarly,
    Mr. Abraham denied being one of the individuals captured by the surveillance
    footage. His presence in the surveillance footage was undisputed by the
    defence.

[24]

As
    well, the Crown presented Mr. Abraham with hospital records from the night in
    question, which contained his name and date of birth. The hospital record
    indicated that a David Abraham arrived by taxi at 3:25 a.m. Notes taken at
    the hospital indicated that he had suffered a minor gunshot wound and had a
    scratch on his left hip, which was closed with a staple. Mr. Abraham insisted
    that he could not recall attending the hospital that night.

[25]

Finally,
    the Crown presented him with images of bloody clothing  a hooded puffy jacket,
    white t-shirt and distressed jeans  which the police seized from Mr. Abraham
    at the hospital. This clothing matched the apparel worn by the individual
    alleged to be Mr. Abraham in Mr. Donaldsons video. The t-shirt and jeans had
    small holes in them, consistent with the location of Mr. Abrahams injury on
    his left hip. Mr. Abraham testified that he did not recognize any of the
    clothing.

(4)

Surveillance Footage

[26]

The
    Crown tendered video surveillance evidence that P.C. Yekaterina Galamiyeva
    seized from three different camera locations at the parking garage. P.C. John Antonaros
    also seized surveillance footage from two locations in the alleyway where the
    parking lot entrance was located. The officers testified to assist the court in
    understanding the chronology of events, as depicted in the surveillance videos.

[27]

Notably,
    there was an issue with the timestamps on the surveillance videos. According to
    the officers, the cameras in the alleyway had accurate timestamps; whereas, all
    the cameras from the parking lot were one hour behind, aside from one, which
    was ten minutes behind. At trial, defence counsel argued that the
    inconsistencies in the timestamps were vague and inconclusive, putting video
    continuity into question. The trial judge addressed these submissions at the
    hearing, noting that:

Well, who cares whether theyre a minute or three minutes off?
    I mean lets just assume that you know theyre in the general vicinity. What
    the Crown is saying is look all of these events are happening and its similar
    looking people. Theyre all going in the same direction and theyre all coming
    out from the same direction. They match with the witnesses. So, you dont need
    to know the exact times. You just have to be certain that this is what the
    incident that theyre referring to.

[28]

I
    agree with the trial judges assessment of this issue, and the parties do not
    seem to take issue with it on appeal. It is clear that the events depicted in
    the videos correlate with the timestamps when they are adjusted by an hour or
    ten minutes, depending on the camera.  Accordingly, I proceed on the same basis
    as the trial judge.

[29]

In
    these reasons, for the sake of simplicity, I have corrected the timestamps from
    the parking lot surveillance footage either by ten minutes or an hour depending
    on the camera, to account for the above-noted delay in the parking lot
    surveillance videos. Therefore, the timestamps referred to below are
    necessarily approximate. With that said, the chronology can be summarized as
    follows.

[30]

At
    around 2:51 a.m., footage from the parking lot shows a man entering the garage
    through a stairway door. The same man ran to a black car that was parked in the
    lot. Soon after, the car proceeded up the ramp and exited the parking lot.  The
    alleyway surveillance videos show the car exiting the parking lot, before it is
    parked in the alleyway at 2:52 a.m. It appears that the driver then exited the car,
    left the alleyway, and turned onto the street outside the nightclub. The Crown
    alleged that the man who moved the car was the respondent.

[31]

At
    2:55 a.m., the alleyway surveillance videos capture the altercation as it moves
    from the street into the alleyway. The Black individuals walk backwards towards
    the parking lot ramp, facing the Caucasian individuals. The Black individuals
    seem to gesture towards the parking lot. One of the Black individuals appears
    to have his right hand in his jacket pocket. The Crown alleged that this
    individual was the respondent and that he was holding a gun in his pocket.

[32]

One
    of the Caucasian individuals seems to pull something from his waistband and extend
    his arm towards one of the Black individuals, as he followed him into the parking
    lot at a quick pace. Defence counsel at trial argued that this footage showed
    Mr. Abraham brandishing a firearm at the scene. On appeal, the respondent
    similarly notes that this footage provides evidence that other people in the
    parking lot, aside from the alleged shooter, may have had guns with them that
    night.

[33]

At
    2:59 a.m., a parking lot video depicts two Black individuals engaging with four
    Caucasian individuals as they walk down the ramp and enter the parking lot. A
    fifth man, who was Caucasian, comes down the ramp. The men are clearly arguing
    and appear to be circling each other in an aggressive manner in the parking
    lot.

[34]

At
    3:00 a.m., the parking lot footage shows a Black individual, alleged to be the respondent,
    extending his right arm while facing in the direction of a Caucasian male,
    alleged to be Mr. Abraham. There was a flash in the surveillance footage. The
    man alleged to be Mr. Abraham reacts suddenly and runs in the opposite
    direction; others appear to react with similar haste, though some Caucasian
    individuals stay behind. This is the only footage that captures the alleged
    shooting. It is very grainy and taken from a considerable distance. The Crown
    alleged that the flash was a muzzle flash; that is, a light from a
    discharging firearm.

[35]

The
    parking lot footage then shows the man alleged to be Mr. Abraham going up the
    ramp, with an apparent limp. The alleyway videos capture him as he exits the
    parking lot and walks away from the scene. The man alleged to be the respondent
    leaves the parking lot through the stairway exit.

[36]

About
    40 seconds after the apparent gunshot, the parking lot footage shows one of the
    Caucasian individuals and a Black individual struggling with one another. It is
    the same camera that captured the alleged shooting. During this struggle, there
    is a second flash in the surveillance footage. As the two men come closer to
    the surveillance camera, still struggling, it becomes clear that the cause of
    this second flash was the glare of the Caucasian individuals cell phone.

[37]

Shortly
    after, at 3:02 a.m., the alleyway surveillance video shows a person retrieving the
    black car from the alleyway. The car then goes back down the parking lot ramp. Once
    inside the parking lot, surveillance footage shows two individuals entering the
    vehicle. The car then exits the parking lot. The alleyway surveillance footage
    shows a third individual entering the car in the alleyway. The car then speeds
    away.

(5)

The Vehicle Registration for the Dodge Challenger in the Surveillance
    Footage

[38]

Police
    reviewed the surveillance videos and concluded that the dark vehicle was a
    Dodge Challenger.
[1]
They were able to identify the last three numbers of the licence plate. They
    consulted the Ministry of Transportation, which identified eight registered
    owners of black Dodge Challengers bearing consistent licence plates.

[39]

P.C.
    Galamiyeva determined that one of those owners was a Black male with similar
    facial features and height to the man depicted in the surveillance videos  he
    had a high forehead, round eyes, and stood at a height of 510. That male was
    the respondent.

(6)

The Agreed Statement of Fact

[40]

An Agreed Statement of Fact attested to the
    following:

(i)

Toronto police first located blood, casings, and
    an undischarged round in the underground parking lot at 3:18 a.m. on January
    11, 2018. Police then secured the scene.

(ii)

An officer arrived at 4:50 a.m. and took photos
    of bullet strike marks and potential bullet strike marks.

(iii)

The officer could not determine whether any of
    the bullet strike marks/possible bullet strike marks were made by the same caliber
    or same firearm.

(iv)

The bullet strike marks and possible bullet
    strike marks were located in the same general area of the garage as the bullet
    casings that were located.

(v)

Police could not determine the age of the bullet
    strike marks or possible bullet strike marks.

(7)

Photographs of Evidence Obtained at the Scene and Evidence Seized from
    Mr. Abraham at the Hospital

[41]

The Crown adduced the photographs taken at the crime scene, which
    showed the following pieces of evidence: three undischarged bullet casings; an
    undischarged bullet; what appeared to be two bullet strike marks; and a fresh
    blood trail, which led up the vehicle ramp to the exit.
The
    Crown did not call any forensic experts at trial to testify about these items.

[42]

The
    Crown also tendered photographs of the bloody clothing police seized from Mr.
    Abraham at the hospital.

(8)

Cell Phone Records

[43]

The
    respondents mother provided police with a phone number associated with the
    respondent. On the day in question, phone records indicated that at 12:55 a.m.,
    and again at 1:14 a.m., the respondents phone sent signals to the cell tower
    that was closest to the area of the altercation. The Crown argued that the
    records placed the respondent in the vicinity of the parking lot at the
    material time.

C.

Decision below

[44]

In
    essence, there were two questions before the trial judge: (1) whether the respondent
    was the man in the parking lot, as depicted in the surveillance videos; and (2)
    if so, whether the respondent shot at Mr. Abraham.

[45]

The
    trial judge answered the first question in the affirmative: the evidence, when
    viewed cumulatively, demonstrated that the man in the parking lot and alleyway surveillance
    videos was the respondent. In coming to that conclusion, the trial judge relied
    on the mobile phone evidence, which situated the respondent in the vicinity of
    the parking garage at the material time. He also concluded that the
    respondents vehicle was the Dodge Challenger captured in the surveillance
    videos, based on the information from the Ministry of Transportation. Lastly,
    he relied on the surveillance footage from the parking lot, finding that the person
    who initially moved the respondents car wore very similar clothing to that of
    the alleged shooter. According to the trial judge, the value of the evidence
    is cumulative and sufficiently proved that the man in the parking lot who
    extended his arm in the direction of Mr. Abraham was indeed the respondent.

[46]

However,
    with respect to the second question  whether the respondent shot at Mr.
    Abraham  the trial judge harboured a reasonable doubt. He reasoned that the
    respondents mere presence at the scene could not suffice. The trial judge
    found that Mr. Abraham was without question lying when he testified and
    denied involvement in the events in question. In the absence of any credible
    testimony from the alleged victim, the trial judge observed that the Crown was left
    with the video evidence and the discovery of shell casings at the scene. In his
    view, this evidence was insufficient to discharge the heavy burden necessary to
    prove guilt. As he put it:

However, the act captured on the video is not as clear.
I agree that Mr. Palmer raises his arm - an action consistent
    with firing a gun - but, unlike the Crown and officer Galimiyeva, I did not see
    a muzzle flash when he does so.
Although I accept that casings are found
    in the area in which Mr. Palmer is alleged to have fired the shots, the amount
    of activity and people in the area raise concerns about whether the casings are
    in their original position rather than being disturbed by the other people
    present.

Whilst I might strongly suspect that Mr. Palmer may well have
    fired and shot Mr. Abraham.
Mr. Abrahams evidence - or
    his failure to testify truthfully - leaves a hole in this case which is
    sufficiently large to raise a reasonable doubt.
[Emphasis added].

[47]

On
    balance, although the trial judge strongly suspect[ed] that Mr. Palmer may
    well have fired and shot at Mr. Abraham, he was unable to find that the Crown
    proved its case beyond a reasonable doubt. Accordingly, he acquitted the
    respondent.

D.

iSSUES

[48]

As
    noted above, the appellant makes three arguments on appeal:

(i) the trial judge misapprehended the
    muzzle flashes and the reactions of the Caucasian individuals in the
    surveillance video, preventing an assessment of the cumulative impact of the
    Crowns case;

(ii) the trial judge failed to assess
    individual items of evidence in the context of the case as a whole; and

(iii) the trial judge failed to provide
    reasons demonstrating that he considered the totality of the evidence.

E.

pOSITIONS OF THE PARTIES

(1)

Position of the Appellant

[49]

The
    appellant argues that there were three errors of law in the trial judges
    approach to the evidence which had a material bearing on the acquittal, and the
    verdict would not necessarily have been the same had the errors not occurred.

[50]

According
    to the appellant, the first error of law rested on the trial judges inability
    to see the muzzle flashes in the parking lot surveillance footage, as well as
    his failure to consider the reactions of the individuals who suddenly moved
    away after the alleged muzzle flash. The appellant submits that the trial judge
    misapprehended the surveillance footage, which comprised a key aspect of the
    evidence and therefore foreclosed a complete consideration of the Crowns case.

[51]

The
    second error of law is alleged to compound the trial judges misapprehension of
    evidence: the appellant argues that the trial judge erred by failing to
    contextualize several individual pieces of evidence within the broader context
    of the Crowns case. Specifically, the appellant points to the following
    evidence that was allegedly overlooked by the trial judge:

i)        at the time of the shooting, the respondent is
    standing just left of the bullet casings;

ii)       Mr. Abraham was supposedly shot near the area where
    the bullet strike marks were found;

iii)      the blood trail follows Mr. Abrahams exit out of the
    parking garage; and

iv)      the undischarged bullet was in the path of where the
    shooter ran in the aftermath of the muzzle flashes.

On this basis, the Crown submits that the trial judges
    assessment of these individual items in isolation, or his disregard for them
    altogether, undermined the cumulative strength of the circumstantial case against
    the respondent.

[52]

Lastly,
    the appellant argues that the trial judge made a third legal error by providing
    insufficient reasons. In particular, when assessing whether the respondent in
    fact shot at Mr. Abraham, the trial judge referred only to:

(i) Mr. Abrahams testimony denying his involvement in any
    altercation or his attendance at the hospital thereafter;

(ii) the surveillance footage; and

(iii) the discovery of shell cases at the scene.

[53]

The
    appellant submits that there is no indication in the trial judges reasons that
    he grappled with the other inculpatory evidence (i.e., the bullet strike marks,
    the blood trail, or the undischarged bullet), nor did he consider the evidence
    cumulatively.

[54]

In
    sum, the appellant submits that, when the persuasive power of all the evidence
    is properly considered in a cumulative fashion, there is only one possible
    conclusion: the respondent shot Mr. Abraham in the parking lot.

(2)

Position of the Respondent

[55]

As
    I will explain, the Crown is not permitted to appeal a verdict on the basis
    that it is unreasonable. The respondent submits that, in essence, the
    appellants arguments amount to an appeal of what the Crown believes to be an
    unreasonable acquittal. He contends that the trial judge did not commit the
    legal errors suggested by the appellant, foreclosing this court from
    intervening with the verdict.

[56]

First,
    the respondent argues that the trial judge did not misapprehend the flash.
    Rather, he submits that the record demonstrates that the trial judge saw a
    flash of some kind on the surveillance footage when the respondents arm was
    extended; the trial judge just couldnt conclude beyond a reasonable doubt that
    the light was a muzzle flash. As such, the respondent contends that the trial
    judges interpretation of what happened in the parking lot surveillance video
    amounted to a factual finding and did not disclose a legal error.

[57]

Second,
    the respondent argues that the trial judge did consider the cumulative power
    of the Crowns circumstantial case; it just wasnt as strong as the appellant
    contends.

[58]

Finally,
    with respect to the trial judges reasons, the respondent argues that the trial
    judges reasons were sufficient as he addressed the key pieces of
    circumstantial evidence that were material to the question of who shot Mr.
    Abraham.

[59]

In
    closing, the respondent submits that it is clear that the trial judge applied
    careful scrutiny to the totality of the evidence. The Crown simply did not meet
    its burden of proof. Accordingly, he argues that there is no basis upon which
    to disturb the verdict.

F.

aNALYSIS

(1)

Standard of Review

[60]

The
    circumstances under which this court can intervene to overturn an acquittal are
    narrow. Section 676(1)(a) of the
Criminal Code
restricts the Crowns
    right of appeal from an acquittal of an indictable offence to any ground of
    appeal that involves a question of law alone. So long as the trial judge took
    a legally correct approach to the evidence, the Crown cannot argue that the verdict
    is unreasonable:
R. v. Rudge
, 2011 ONCA 791,
108 O.R. (3d) 161
,
    at para.
35
, leave
    to appeal refused, [2012] S.C.C.A. No. 64;
R. v. Curry,
2014 ONCA 174,
    317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, at para. 37. As
    the Supreme Court of Canada observed in
R. v. Biniaris,
2000 SCC 15,
    [2000] 1 S.C.R. 381, at para. 33: [T]he 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.

[61]

The Crown resists the suggestion that it is effectively bringing
    an unreasonable verdict appeal, under the guise of appealing legal errors. The
    Crown contends that the trial judge did make errors of law, including by
    assessing the evidence in a piecemeal fashion and not in its totality: see
R. v. J.M.H.
,
2011 SCC 45
, [2011] 3 S.C.R. 197, at para. 31;
R. v. Button,
2019
    ONCA 1024, at para. 9
.
This court may set aside an
    acquittal where the trial judge considered each component of the case
    separately, such that the persuasive effect of the totality of the evidence 
    the strength of the Crowns case  was taken out of play:
Rudge
, at
    para. 66. As this court put it in
Rudge,
at para. 47:

[T]he prosecution is entitled to a legally correct approach to
    the evidence that bears upon the determination of whether the onus has been met
     a contextual approach based on a full evidentiary footing in which the proper
    standard of proof is applied.

A misapprehension of evidence may
    dovetail this legal error where it prevents a trial judge from considering the
    totality of the Crowns evidence:
Curry,
at
    para. 50.

[62]

In the event that the Crown is successful in showing an error of
    law, it does not necessarily follow that this court is obliged to set aside an
    acquittal. The onus on the Crown is a heavy one. To overturn an acquittal, the
    Crown must satisfy the court, with a reasonable degree of certainty, that the legal
    error 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, 435 D.L.R. (4th) 1, at para. 135;
Button,
at para. 15.

(2)

The Trial Judge Did Not Misapprehend the Evidence

[63]

As
    noted above, the Crown takes issue with the trial judges finding that he did
    not see a muzzle flash in the surveillance footage. According to the Crown,
    the trial judge misapprehended the evidence by failing to recognize at least
    one, if not two muzzle flashes on the surveillance footage when the respondent
    extended his arm in the direction of Mr. Abraham. It follows, the Crown
    submits, that this misapprehension prevented the trial judge from assessing the
    totality of the case against the respondent.

[64]

I
    cannot accept this submission. I am not persuaded that
the
    trial judge misapprehended the flash in the surveillance footage. During the
    course of the trial, the Crown took the trial judge to the footage containing
    the alleged muzzle flash on seven occasions. On one of those occasions, the
    trial judge instructed the Crown to pause the surveillance footage at the
    precise moment of the alleged muzzle flash. She did so and took note of the timestamp.
    In her closing submissions, she again returned to the moment of the flash. The
    following discussion then unfolded:

THE CROWN: So, hes about to make a left hand turn, 180 and he
    extends his hand at the right.

THE COURT: Okay.

THE CROWN: Extends his right hand. Now I - I was successful
    yesterday in pausing right on the muzzle flash. We could see the yellow flash
    that looks....

THE COURT: Okay. Okay, I see.

THE CROWN: A bit of lightning, but Ill try to do that again.

...VIDEO STARTED 10:58:00

...VIDEO STOPPED 10:58:07

THE COURT: So, its obviously happened right? Now, you....

THE CROWN: So, it obviously happened

[65]

In my view, a fair reading of the trial record reveals that
the
    trial judge was aware of the flash but was not convinced beyond a reasonable
    doubt that it emanated from a gun.

[66]

The
    defence argued the flash could have come from a phone or a reflection. In
    support of this submission, defence counsel played a subsequent part of the
    surveillance footage from the same camera that captured the alleged shooting.
    As noted above, the video shows two men struggling, and then a flash occurs. As
    the men come closer to the camera, it becomes apparent that the flash came from
    the glare of a phone. Defence counsel highlighted the similarities in the flash
    caused by the phone and the flash in the footage of the alleged shooting. The
    following colloquy between counsel and the trial judge then ensued:

THE COURT: Well, yes, all right. Well, I - I see what youre
    saying. I mean thats - so what the Crowns arguing is that the person holds
    out the...

DEFENCE COUNSEL: Fair enough.

THE COURT: ...the - extends the arm.

DEFENCE COUNSEL: Fair enough.

THE COURT: Now, youre right, I mean it could be that that
    persons pointing...

DEFENCE COUNSEL: Sure.

THE COURT: ...and holding a phone at the same time.

DEFENCE COUNSEL: Holding anything in his hand...

THE COURT: Yes.

DEFENCE COUNSEL: ...having a watch on his hand. It flashing, it
    being a reflection, anything. So, the people in this clip respond as if
    panicked. They back up from the flash. I pointed that out to Your Honour.

[67]

This
    discussion shows that the trial judge understood the positions of both counsel
    with respect to the flash. The Crown is correct that the trial judge ultimately
    concluded that he did not see a muzzle

flash at the moment in
    question. But this was not a misapprehension of evidence. Rather, it was a
    factual finding, which the trial judge was entitled to make, and is not subject
    to appeal.

[68]

It
    may have been preferable for the trial judge to explicitly state that he
    disagreed with the Crowns theory about the origin of the flash. However, the
    basis of his conclusion was apparent from the record, even without being
    articulated. I am satisfied that the trial judge was aware of the flash but
    ultimately found the defence theory more persuasive.

[69]

Turning
    to the reaction of the parties in the seconds after the gun was allegedly
    discharged, I am not persuaded that the trial judge misapprehended the
    surveillance video. The inference the Crown repeatedly asked the trial judge to
    draw from the parties reaction was patently obvious, and it was not lost on
    the trial judge. He understood the submission but clearly did not agree with
    the interpretation advanced by the Crown  again, a finding he was entitled to
    make.

[70]

Given
    my conclusion that the trial judge did not misapprehend the evidence, it
    follows that the trial judges findings with respect to the flash did not lead
    to a subsequent failure to consider the totality of the evidence before the
    court.

[71]

I
    would dismiss this ground of appeal.

(3)

The Trial Judge Assessed the Evidence in the Context of the Case as a
    Whole

[72]

The Crowns next ground of appeal alleges that the trial judge
    failed to
assess the individual items of evidence wholistically, which
    unfairly diluted the strength of the Crowns case against the respondent. In
    advancing this submission, the Crown contends that the trial judge failed to
    give appropriate weight to the combined effect of the following pieces of
    evidence: again, the supposed muzzle flash at the time of the alleged
    shooting; the reactions of those present directly after the flash, as depicted
    in the surveillance video; the bullet fragments, strike marks, and blood trail
    found at the scene; the bloody clothes seized from Mr. Abraham at the hospital;
    and the medical records indicating that Mr. Abraham suffered a minor gun wound
    that evening.

[73]

The
    Crowns submission on this ground seems to operate on the assumption that the evidence,
    when cumulatively considered, was overwhelming. As the Crown put it: When all
    of the evidence is considered in its totality, the combined effect of all
the evidence compels the conclusion that the Respondent shot
    Abraham
 (emphasis added). I do not see the evidence in this case in the
    same light.

[74]

A
    guilty verdict was by no means a foregone conclusion. The Crowns case was almost
    entirely circumstantial and the evidence suffered from the following frailties:
    (i) no one, including the alleged victim, identified the respondent as the
    shooter; (ii) the victim denied ever being shot; (iii) the only direct evidence
    that the respondent shot a gun was grainy and blurry surveillance footage; (iv)
    there was at least one other reasonable explanation for the impugned flash; (v)
    the Crown called no expert to testify about the forensic evidence found at the
    scene, and as such, the forensic evidence could not materially assist in
    identifying who discharged a gun; (vi) the fresh blood was not positively
    identified as being Mr. Abrahams; (vii) the bullet strike marks could not be
    dated; (viii) the firearm was never recovered, and the type of firearm that was
    used was unknown; and (ix) there were multiple people moving around the parking
    lot during and after the alleged shooting, potentially disturbing the crime
    scene.

[75]

The
    trial judge was aware of the burden on the Crown and his obligation to assess
    the cumulative impact of the evidence. In fact, in finding the respondent was
    in the parking lot that night, the trial judge expressly rejected defence
    counsels attempt to challenge the cumulative persuasive impact of the evidence
    by undermining each piece in isolation. Instead, he found this approach
    misconceived and then notes that the value of the evidence is cumulative. I
    am not persuaded that the trial judge was operating under any misconception
    about his duty to assess the evidence in a cumulative fashion.

[76]

I
    agree that the Crowns evidence is consistent with the respondent being the
    shooter. But that is not the standard in a criminal trial. There were frailties
    in the Crowns case and the trial judge was entitled to conclude that the Crown
    did not discharge its onus beyond a reasonable doubt.

[77]

I
    would dismiss this ground of appeal.

(4)

The Trial Judges Reasons Were Sufficient

[78]

The third and final ground of appeal raised by
    the appellant concerns the sufficiency of the trial judges reasons. The
    appellant contends that the reasons disclose no indication that the trial judge
    properly considered the Crowns case as a whole, since he only referred to Mr.
    Abrahams testimony, the video evidence, and the shell casings.

[79]

I
    agree that the trial judge did not address several pieces of evidence adduced
    at trial. However, failing to do so did not amount to an error in law.

[80]

The
    issue the trial judge needed to determine was whether the respondent shot Mr.
    Abraham. The presence of blood in the parking lot, in conjunction with the witnesses
    hearing gunshots, the bloody clothes seized from Mr. Abraham, and the medical
    evidence that Mr. Abraham had an injury, all support the conclusion that Mr.
    Abraham was shot in the parking lot that night. However, as alluded to above,
    absent testimony from an expert, this evidence did not assist in identifying
who
shot Mr. Abraham.

[81]

The
    same can be said about the location of the bullet strike marks and bullet
    fragments. The trial judge would have been engaging in speculation if he had
    determined who in the parking lot may have fired the shots, and from where the
    shots were fired. Those bullet strike marks also could not be dated, and it was
    unknown whether they were caused by the same firearm that injured Mr. Abraham. Likewise,
    the ages of the casings or the undischarged bullet were unknown.

[82]

I
    am satisfied the trial judges reasons responded to the cases live issues and
    the parties key arguments. Mr. Abrahams testimony, or lack thereof, the
    surveillance footage and the shell casings were key in determining whether the
    respondent was the one who

shot Mr. Abraham. The trial judge
    sufficiently addressed and considered all three evidentiary components.

[83]

While
    he may not have explicitly addressed every part of the Crowns case, the fact
    that a trial judge fails to deal with each piece of evidence or fails to record
    each piece of evidence and their assessment of it, does not amount to a legal
    error:
J.M.H.,
at para. 31. An appellate court does not hold the trial
    judge to some abstract standard of perfection, and in this case, the trial
    judges reasons were reasonably intelligible to the parties and provided the
    basis for meaningful appellate review.

[84]

I
    would dismiss this ground of appeal.

G.

Conclusion and disposition

[85]

Based
    on the foregoing, I am not satisfied that the trial judge committed the alleged
    errors of law. I would dismiss the appeal and uphold the acquittals.

Released: May 21, 2021 M.T.

M. Tulloch J.A.

I agree. B.W. Miller J.A.

I agree. David M. Paciocco
    J.A.





[1]

A police officer identified the vehicle as a Dodge Challenger,
    not a Dodge Charger as the civilian witnesses had indicated. The cars look
    similar. The police officers testified that the two cars can be distinguished
    on the basis of their shapes and the number of doors.


