



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



R. v. Hall,









2020 BCCA 9




Date: 20200110

Docket: CA45793

Between:

Regina

Respondent

And

Joshawa James Michael Hall

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Fitch




On appeal from:  An order of the Supreme Court of British Columbia,
dated
February 10, 2017 (conviction) (
R. v. Hall
,
2017 BCSC 246,
New Westminster Docket X079493).




Counsel for the Appellant:



M. Reinhart





Counsel for the Respondent:



J.A. Dyck





Place and Date of Hearing:



Vancouver, British Columbia

December 9, 2019





Place and Date of Judgment:



Vancouver, British Columbia

January 10, 2020









Written Reasons by:





The Honourable Mr. Justice Fitch





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Madam Justice Fenlon








Summary:

On
appeal from conviction, the appellant argues that the trial judge: (1) misapprehended
evidence; (2) committed a Beaudry error by unreasonably addressing a
conflict in the evidence; (3) failed to consider whether details
provided by a Vetrovec witness were fed to the witness by police; and (4) erred
in principle in her Vetrovec analysis. Held: Appeal dismissed.
First, the judge did not misapprehend the evidence, but concluded that
inconsistencies in the evidence of the Vetrovec witness did not fatally
undermine her assessment of the witnesss credibility or reliability. In any
event, the alleged errors did not play an essential role in the reasoning
process leading to the convictions. Second, the judges finding that the
appellant was the shooter does not betray a fundamental flaw in her reasoning
process as is required to make out a Beaudry error. The judge recognized
the conflict in the evidence but did not ascribe to it the significance the
appellant would have liked. Third, in the absence of an evidentiary
foundation it cannot be successfully argued for the first time on appeal that
the judge erred in failing to address a speculative theory that the witnesss
evidence was tainted by police procedures. Finally, there was a considerable
body of evidence the judge was entitled to regard as confirmatory of the
testimony of the Vetrovec witness that the appellant was the perpetrator
of the offences.

Reasons
for Judgment of the Honourable Mr. Justice Fitch:

I.   Introduction

[1]

In the early morning hours of
May 19, 2014, a residence on Alderson Avenue in Coquitlam,
British Columbia was targeted in a drive‑by shooting. At least six shots
were fired at the house. No one was injured. Between 6:30 and 7:30 a.m.
on the same day, the window of a ground floor apartment on Brunette Avenue
in Coquitlam was smashed. The resident of that apartment was roused by the
sound of breaking glass and discovered that a rifle had been thrown
through the window and onto her living room floor. The Crown alleged that
the appellant was responsible for offences arising out of these two incidents.

[2]

Identity was the central issue at
trial. Proof of identity turned largely on the judges assessment of the
credibility and reliability of the evidence of Samantha Fenton, an
unsavoury witness to whom the principles in
Vetrovec v. The Queen
,
[1982] 1 S.C.R. 811 applied.

[3]

Ms. Fenton was abusing drugs at
the time of the offences. She worked for the appellant in the drug trade.
She testified that she drove the appellant (and others) to the scene of
both offences in her silver PT Cruiser. Her evidence on this point was
inconsistent with an exculpatory statement she gave to the police that she was
not present when any of the offences were committed and that her vehicle had
been used by the appellant and others that evening without her permission. She
admitted lying to the police about not being present when the offences were
committed. She had an obvious motive to do so.

[4]

With respect to the Alderson Avenue
shooting, Ms. Fenton testified that she drove west on Alderson and
parked her PT Cruiser in front of a residence. It was common ground at
trial that the residence was located on the north side of Alderson Avenue.
On Ms. Fentons account, the passenger side of the vehicle faced the
residence. Ms. Fenton testified that, after she stopped her vehicle, the
appellant discharged a rifle at the residence through the open window of the
front passenger seat. Her account of the drive‑by shooting was
inconsistent with other evidence adduced at trial in two potentially
significant ways.

[5]

First, Ms. Fenton testified that
she drove
west
on Alderson away from the scene
after
the shooting stopped. Alain Boire, who also lived on the north side
of Alderson Avenue near the home targeted in the shooting, testified that
he heard gunshots in the early morning hours, looked out his window
and saw a vehicle resembling a PT Cruiser travelling
east
away
from the scene. If Ms. Fenton drove to and from the scene by travelling east along
Alderson Avenue, the appellant could not have discharged the rifle out of
the front passenger seat as he would have been facing the south side of
Alderson Avenue.

[6]

Second, Ms. Fentons evidence
that the appellant discharged the rifle after she stopped her vehicle was
inconsistent with the evidence of Sgt. Mackenzie, the forensic identification officer
who took photographs of the scene. Sgt. Mackenzie testified that the
bullet trajectories were such that, at some point, the shooter was moving.

[7]

On February 10, 2017, the
appellant was convicted by a judge of the Supreme Court of British
Columbia of four offences arising out of these two incidents:

·

two counts of committing mischief
by wilfully damaging the residences located on Alderson Avenue and
Brunette Avenue, contrary to s. 430 of the
Criminal Code
,
R.S.C. 1985, c. C‑46 [
Code
];

·

one count of intentionally
discharging a firearm into or at a place [the Alderson Avenue residence]
knowing or being reckless as to whether another person was present in that
place, contrary to s. 244.2(3)(b) of the
Code
; and

·

one count of careless use of a
firearm, contrary to s. 86(1) of the
Code
 a count that was
conditionally stayed by the trial judge.

[8]

The appellant appeals his convictions
on four grounds:

1.        That
the judge misapprehended the evidence of Sgt. Mackenzie that at some point
the Alderson Avenue shooter
was moving
. In summarizing Sgt. Mackenzies
evidence, the judge said he testified that the shooter 
might have been
moving
 (emphasis added);

2.        That
the judge committed the type of error identified in
R. v. Beaudry
,
2007 SCC 5, by addressing the conflict in the evidence between Ms. Fenton
and Mr. Boire in an unreasonable fashion;

3.        That
the judge erred by failing to consider whether certain details provided by Ms. Fenton
in her testimony which were relied on to confirm her account may have been fed
to her by the police; and

4.        That the judge erred in law in her
Vetrovec
analysis
by failing to confine her consideration of confirmatory evidence to evidence
that restored faith in the salient part of Ms. Fentons account  specifically,
that the appellant was the person who committed the offences. The fourth ground of appeal
was not pressed in oral argument, but neither was it abandoned.

[9]

The common thread linking all four grounds of appeal
is that the judge made errors in finding that the evidence of Ms. Fenton
was an independently confirmed and reliable account of the appellants
responsibility for the offences underlying the two incidents.

[10]

The appellant seeks an order allowing the appeal,
setting aside the conviction and directing a new trial.

[11]

For the reasons that follow, I am
unable to give effect to the appellants grounds of appeal. I would,
therefore, dismiss the appeal from conviction.

II.  Chronology of Events

[12]

I will review only so much of the
evidence as is necessary to address the grounds of appeal.

1.  Alderson Avenue

[13]

Isabella Franco lived with her
mother and other family members in the
upper level
of the Alderson Avenue residence.
She had purchased drugs from the appellant in the past. In a Facebook exchange
with the appellant that occurred in August 2013, the appellant demanded
payment from Ms. Franco for drugs supplied to her. When she said she would not
or could not pay, the appellant said, [I] always get paid. He also
said that if she did not pay, [t]hen ur [
sic
] mom will pay end of
story.

[14]

In the late evening hours of May 18, 2014,
the appellant attended at the apartment of Caleb Sorenson, who occupied
the
lower level
of the Alderson Avenue residence. Mr. Sorenson
knew and recognized the appellant from school. He testified that the
appellant opened his basement suite door and discharged a can of bear
spray in his face. He said the appellants visit was unexpected and that
he could offer no motive for the appellants assaultive conduct.

[15]

Ms. Fenton testified that just
before midnight on the evening of May 18, 2014, the appellant
asked her to give him a ride so he could confront someone who owed him money.
He directed her to a residence in a neighbourhood she was unfamiliar with. She
parked right in front of the house. Ms. Fenton
testified that the appellant and another person walked up the driveway to
a door on the right side of the house. She testified that she believed that
the side door was under a carport. In fact, the door to Mr. Sorensons suite
is located on the front of the right‑hand side of the house,
immediately adjacent to the carport. The door to Mr. Sorensons suite
is not under the carport. I would note, however, that anyone parking directly in front
of the house would likely have their view of the door to the basement
suite obstructed by a clump of bushes located at the front of the house on
the right‑hand side. In any event, Ms. Fenton testified she heard
a knock at the door, saw a light come on and heard the sound of the door being
kicked. The appellant and the other person then returned to the vehicle talking
about what they had just done. Ms. Fenton testified the appellant and the
other person were excited and talking about mace or bear spray.

[16]

The police and ambulance personnel were
dispatched to the scene. The discharge of bear spray affected not
just Mr. Sorenson but occupants of the upper level of the Alderson Avenue residence.

[17]

Before the commencement of the trial,
the appellant pleaded guilty to assault with a weapon arising out of this
incident. The trial judge recognized that the probative value of the
guilty plea was limited to the context it provided in understanding events
that followed. Specifically, this evidence linked the appellant to the Alderson Avenue residence
just hours before the drive‑by shooting occurred. It was capable of
establishing not only the appellants
animus
towards the occupants
of the residence, but that he had acted on that
animus
just a few hours
before the drive‑by shooting. The appellants counsel does not dispute
that the circumstances giving rise to the plea were also capable of being used
as evidence confirming Ms. Fentons implication of the appellant in
the drive‑by shooting committed in relation to the same residence a
few hours later.

[18]

Ms. Fenton testified that shortly
after the bear spray incident, the appellant asked her to drive him
and others back to the same residence on Alderson Avenue. She did so
and parked with the passenger side of the PT Cruiser closest to the house.
On Ms. Fentons evidence she would have parked on the north side
of Alderson Avenue facing west. She said a long gun was passed
by someone in the back of the vehicle to the appellant who was sitting in the
front passenger seat. She saw the appellant fire the gun at the residence.
She testified that she heard the gun being discharged once but believed it was
fired multiple times based on the length of time they sat in her vehicle in
front of the house. Ms. Fenton testified that she was in shock, her
adrenaline was flowing and that with what was going on I couldnt really -- I
was just focused on the area more than what was going on inside my vehicle.
She said she sped away from the scene
after
the shooting by travelling
west
on Alderson Avenue. She said she was sure about this. She said she turned
left at the appellants direction after leaving the scene and travelled
south down a hill and away from Alderson Avenue. That is
the extent of her evidence on the route she took from the scene.

[19]

As noted earlier, her testimony on this
issue was inconsistent with the observations of Mr. Boire. Mr. Boire
lived on the north side of Alderson Avenue about 66 feet east
of the residence targeted in the drive‑by shooting. He
testified that on May 19, 2014, at about 3:00 a.m., he was
awakened by a rapid succession of five or six bangs. Midway through the
succession of bangs he went to a window that looks out on Alderson Avenue.
He did not see anything immediately. He testified that a dormer on his house blocks
his view to the west. Shortly thereafter, he saw a vehicle that was shaped
like a PT Cruiser pass by his house heading east. The vehicle only
came into view when it was directly in front of his house. It stopped briefly
and then sped off.

[20]

Sgt. Mackenzie identified six bullet holes
on the exterior of the Alderson Avenue residence and on a vehicle parked in
the driveway. Although he had not been qualified to give expert opinion evidence,
Sgt. Mackenzie gave evidence in examination in chief and on
cross‑examination on the trajectory of the bullets. He surmised that, at
some point, either the shooter was moving or there was more than one shooter.

[21]

Ms. Fenton testified that the
appellant asked her to drive him back to the same residence on Alderson Avenue
about 30 minutes later to see if  there was any  action
going on. She testified that when they drove past the Alderson Avenue residence
for the third time, she saw ambulance and police vehicles outside.
It was common ground at trial that Ms. Fentons evidence on this
point could not be accurate. The ambulance and police vehicles that
attended the residence after the appellant discharged the bear spray had
cleared the scene by this time.

2.  Brunette Avenue

[22]

Ms. Fenton testified that at about
6:00 a.m. the same morning, she drove the appellant and another
person to an area off Brunette Avenue to buy cigarettes and have breakfast.
She testified the appellant got out of her vehicle, ran up to the lower left
side of an apartment building on Brunette Avenue and smashed a window.
She described the building as derelict and light grey in colour.
She did not see the appellant in possession of a rifle as he ran towards this
building.

[23]

Lyla Mervyn lived in an apartment
on Brunette Avenue in May 2014. She testified that the appellant left
her a drunken voicemail message on May 18, 2014, in which
he threatened to burn down her building. Subsequently, the
appellant and Ms. Mervyn engaged in an exchange of profane and mutually insulting
text messages.

[24]

Ms. Mervyn testified that a window
of her ground floor apartment was broken between 6:30 and 7:00 a.m.
on the morning of May 19, 2014. As noted earlier, when she got up to
investigate she found a rifle on her living room floor.

[25]

The appellants fingerprints were
found on the rifle thrown through the window of Ms. Mervyns apartment.
The appellant was further connected to the rifle by an exchange of text messages
he had with a friend on May 14, 2014. In that exchange, the appellant
complained that he was in possession of a gun with some kind of
brass circle that jammed the barrel. The rifle seized from Ms. Mervyns apartment
had a brass fitting in the barrel which prevented it from being fired.

[26]

The rifle seized from Ms. Mervyns residence
was not the rifle used in the drive‑by shooting on Alderson Avenue.

3.  The Appellants
Position at Trial

[27]

The appellant did not testify at trial.

[28]

It was put to Ms. Fenton in cross‑examination
that she was never at the scene of these offences and that the exculpatory version
of events she initially related to the police was true. It was suggested to her
that in implicating the appellant she was parroting back information about
the offences she learned from others.

[29]

In closing submissions made on his
behalf, the appellant suggested that Ms. Fenton was not present when the
offences were committed or, if she was, her evidence implicating the appellant
in the commission of the offences was unconfirmed and could not be relied on as
proof beyond a reasonable doubt that he was the perpetrator.

[30]

With respect to the Alderson Avenue
shooting, defending counsel emphasized Sgt. Mackenzies evidence
that, the shooter may have been moving. He invited the judge to contrast Sgt. Mackenzies evidence
with the evidence of Ms. Fenton that the vehicle was stationary when the
appellant shot at the residence. He also highlighted the discrepancy in the
evidence given by Ms. Fenton and Mr. Boire as to the direction the PT Cruiser
was travelling when it left the scene.

III. Reasons for Judgment

[31]

In oral reasons for judgment
indexed as 2017 BCSC 246, the judge concluded that Ms. Fentons
evidence was the only evidence capable of proving the identity of the accused
as the perpetrator and that her evidence must meet the standard of proof beyond a reasonable doubt.

[32]

In addressing the credibility of Ms. Fenton
and the reliability of her trial testimony, the judge cited
Vetrovec
and
R. v. Khela
, 2009 SCC 4, before coming to the
following conclusions:

[
78]

Ms. Fentons description of the house on Alderson Avenue,
while vague, was not generic. She was correct about the location of the
driveway at the right hand side of the house and the door to the basement suite
situated more or less under a carport.

[79]

Ms. Fentons
description of Ms. Mervyns apartment building was quite specific.
She said it was grey and derelict looking, which is accurate. She also
correctly identified the location of the window that she said she saw the
accused break.

[80]

I
am satisfied that those details and the details about Alderson Avenue were not
lucky guesses, nor were they the product of someone telling her what they had
done rather than her seeing it for herself. There was sufficient detail from
her about the appearance of the two residences to provide some confirmation of
her account.

[81]

I
acknowledge Ms. Fenton mixed up the second and third visits to the house,
as her evidence conflicts with the evidence of Cst. Chiu that when he
attended the house in response to the gunshot complaint he did not recall
ambulance or other emergency personnel.

[82]

Ms. Fentons
evidence of how she drove away from the house after the shooting also conflicts
with the evidence of Mr. Boire, who saw the PT Cruiser‑like vehicle
eastbound, not westbound. The witness said that after the first shot she was
not focussed on what was going on in the car; she was in shock.

[83]

I
am not satisfied these inconsistencies are fatal to reliance on her evidence or
leave me with reasonable doubt, in light of the other confirmatory evidence I
have accepted.

[84]

I
find further confirmation of Ms. Fentons evidence in the rifle seized
from Ms. Mervyns residence. Ms. Fenton did not see the accused
take a rifle out of her car, but she was aware he went up to a building and
smashed a window. I find the rifle that landed in Ms. Mervyns living room
was the same one the accused was lamenting about in his text exchange with [his
friend], the one with the brass circle showing and no hole. His fingerprints
were on it.

[85]

While
I agree with Mr. McMurray that it does not make much sense for the accused
to throw a rifle into Ms. Mervyns house when he knows it likely has
his fingerprints on it, I accept the rifle made its way into the house either
as a projectile to break the window or a blunt instrument to break the window,
following which it was launched into the house.

[86]

Finally,
Ms. Fenton testified that the accused told her he wanted to confront
someone who either owed him money or it had something to do with drugs, he was
referring to the dated drug debt owed him by Ms. Franco, or his
unsatisfactory communications with Ms. Mervyn, or both. I appreciate the
debt owed by Ms. Franco was dated but not, I find, forgotten.

[87]

The
question I must ask myself is whether, to paraphrase the words of Mr. Justice Fish
at para. 15 of
R. v. Khela
, I find the evidence elsewhere
in the dance to provide sufficient comfort that Ms. Fenton was telling the
truth about the accuseds involvement ...
I am satisfied there is
evidence to confirm materials [
sic
] parts of her account and her
evidence satisfies me beyond a reasonable doubt that the accused was the perpetrator of
the acts
...

[Emphasis added.]

IV. Analysis

1.  The
alleged misapprehension of the evidence of Sgt. Mackenzie

[33]

The appellant submits that the judge
misapprehended Sgt. Mackenzies evidence by saying he testified that the
shooter
might
have been moving. Sgt. Mackenzie testified the
Alderson Avenue shooter
would have been moving.
The appellant
argues that this alleged misapprehension is material because Sgt. Mackenzies opinion
contradicted Ms. Fentons testimony that the car was stationary when
the shooting occurred.

[34]

I am not persuaded by the appellants
position on this point.

[35]

The standard an appellant must meet to
obtain relief on misapprehension of evidence grounds is high:
R. v. Lohrer
,
2004 SCC 80 at para. 2;
R. v. Webber
, 2019 BCCA 208
at para. 27. The error must be plainly identified. It must also be
material in the sense that it formed a central element of the trial judges
reasoning process that led to a conviction. One way of determining whether the
misapprehension played an essential role in the reasoning process
resulting in a conviction is to consider whether striking it from the
judgment would leave the reasoning on which the conviction is based on
unsteady ground:
Lohrer
at paras. 69;
R. v. Sinclair
,
2011 SCC 40 at paras. 53, 56.

[36]

With these principles in mind, I begin
by noting that the judges summary of Sgt. Mackenzies evidence
mirrored the summary of that evidence given by defending counsel in his
closing submissions.

[37]

More importantly, I am not persuaded
that the reasons for judgment have been shown to reflect a
misapprehension of Sgt. Mackenzies evidence. After the impugned passage,
the judge turned to consider the reliability of Ms. Fentons account and
whether there existed independent evidence tending to confirm her
identification of the appellant as the Alderson Avenue shooter. In
doing so, she recognized the defence position that [t]he
shot pattern
is consistent with the shooter moving,
whereas Ms. Fenton said the car was stationary (emphasis added).
This passage demonstrates that the judge did not misapprehend the evidence
on this issue. Rather, she concluded that this and other inconsistencies were
not fatal to her reliance on Ms. Fentons evidence in light of the
other evidence that confirmed her account and implicated the appellant in
the commission of the offences. In my view, that is a factual finding
to which deference is owed.

[38]

Further, even assuming that the judge
misapprehended Sgt. Mackenzies evidence, I am not persuaded that the
alleged error has been shown to have played an essential role in the
reasoning process leading to the convictions.

[39]

There was a substantial body of independent evidence
relied on by the judge to confirm Ms. Fentons testimony that the
appellant was the perpetrator of the Alderson Avenue offences. That evidence included
the appellants attendance at the residence earlier in the evening when he
assaulted Mr. Sorenson. The appellants conduct on this occasion was not
only powerful evidence demonstrating his
animus
towards the
residents of the building, but evidence of his preparedness to
act on that
animus
a few hours before the drive‑by shooting.
In addition, the judge found that the drug debt owed by Ms. Franco,
who lived in the Alderson Avenue residence, had not been forgotten. This
evidence supplied the appellant with a motive for the commission of the offences.

[40]

As I would not give effect to this
ground of appeal for the reasons stated, I need not address the
Crowns position that Sgt. Mackenzies evidence respecting the
trajectory of the bullets fired at the residence was inadmissible because
he had not been qualified to give opinion evidence on this point.

[41]

The appellant also suggested in oral argument
that the judge misapprehended Ms. Fentons evidence as to the
location of the door leading to Mr. Sorensons basement suite.
As noted earlier, Ms. Fenton testified that the appellant went to a side door
at the front of the house on the right side. As to the precise
location of the door, she said, I believe [it] was under a
little carport. In fact, the door was adjacent to the carport on the
right side of the front of the house.

[42]

In dealing with this evidence, the
judge said Ms. Fenton was correct about the door to the basement suite
being situated more or less under a carport. I do not regard this as a
misapprehension of Ms. Fentons evidence, let alone a significant
one. Put simply, I do not consider it reasonable to suppose that this alleged
inconsistency had a material bearing on the trial judges reasoning process,
either standing alone or in combination with her alleged misapprehension
of the evidence of Sgt. Mackenzie.

2.  The alleged
Beaudry
error

[43]

With respect to the Alderson Avenue shooting,
the appellant submits that the

judge committed a
Beaudry
error
by failing to address in a reasonable way the contradictory evidence
given by Ms. Fenton and Mr. Boire about the direction the PT Cruiser
was travelling as it left the scene.

[44]

The appellants argument rests on the
judgment of Justice Fish in
Beaudry
at paras. 83 and 97.
Justice Fish concluded that an appellate court may find a verdict to
be unreasonable if the trial judge has made a finding of fact essential to
the verdict that is not logically supported by the evidence upon which it
purports to rest, or because the reasons given in support of a verdict are
fundamentally incompatible with evidence that has not been contradicted or
rejected. Justice Fish dissented in the result in
Beaudry
,
but any doubt that his judgment reflected the holding of the Court on this
point was dispelled in
R. v. Sinclair
, 2011 SCC 40.
Although Fish J. also dissented in the result in
Sinclair
,
his articulation in that case of the circumstances in which a
Beaudry
error
is committed is authoritative:

[19]      Illogical or irrational reasoning
can render verdicts unreasonable under s. 686(1)(
a
)(i) of the
Code
, in various ways.
Beaudry
identifies two. First, a verdict is unreasonable where the
judge draws an inference or makes a finding of fact essential to the verdict
that is plainly contradicted by the very evidence from which it was drawn or
upon which it has been made to rest (para. 105). In that case, the
essential finding is illogical or unreasonable in light of the evidence relied
upon in making the finding. Here, the rule of law speaks the language of logic:
From accepted evidence X, a court cannot lawfully infer not X.



[21]      A
verdict is likewise unreasonable where the judge draws an inference or makes a
finding of fact essential to the verdict if that inference or finding of fact
is demonstrably incompatible with evidence that is neither contradicted by
other evidence nor rejected by the trial judge (
Beaudry
, at para. 79,
per
Binnie J.).

(See also
R. v. R.P
., 2012 SCC 22
at para. 9.)

[45]

I understand the appellant to rely on
the second way in which a verdict may be unreasonable pursuant to
Beaudry
.
This route to an unreasonable verdict requires an appellant to demonstrate
that a finding of fact essential to the verdict was demonstrably incompatible
with evidence that was neither contradicted nor rejected by the trial judge.

To succeed on
Beaudry
grounds,
an appellant must do more than show that a particular factual finding or
inference is the product of a flaw in the trial judges reasoning process.
It must be shown that the flaw played a central role in the reasoning process
that led to a conviction:
R. v. Scuby
, 2015 BCCA 430
at para. 31;
R. v. Zadeh
, 2016 BCCA 474 at para. 27.

[46]

Appellate intervention on 
Beaudry
grounds will be
rare:
Sinclair
at para. 22;
Zadeh
at paras. 2527,
R. v. Ali
, 2013 BCCA 346 at para. 17. As Justice Bennett
noted in
Ali
, the decisions in
Sinclair
and
Beaudry
are not an invitation to appellate dissection of reasons for judgment.
A similar point was made in
R. v.
Thla
Ceu
,
2018 BCCA 480 at para. 43:

The
Beaudry
/
Sinclair
error is narrow; it captures only findings of fact or inferences essential
to the verdict that are plainly contradicted by the evidence relied on by the
trial judge or incompatible with evidence not otherwise contradicted or
rejected by the judge. ... Evidence is often contradictory, and it is
the trial judges job to make sense of the evidence and to make findings
despite contradictory evidence.

[47]

I am not persuaded that the verdict is
unreasonable in the
Beaudry
sense. While the judge did
not reject the evidence of either Mr. Boire or Sgt. Mackenzie, her
factual finding that the appellant was the shooter was not the product of
a fundamentally flawed reasoning process
that is demonstrably incompatible
with the evidence of these two witnesses.

[48]

The critical question the judge
had to decide was whether the evidence established beyond a reasonable doubt
that the appellant was the shooter. She was obliged to consider evidence
that confirmed and undermined Ms. Fentons testimony that he was,
including the evidence of Mr. Boire. The judge did so and concluded, in
light of the other confirmatory evidence she accepted, that the discrepancies
in Ms. Fentons account did not fatally undermine the
reliability of her evidence or give rise to a reasonable doubt about
whether the appellant committed the shooting.

[49]

In coming to this conclusion, the judge
did not make a finding of fact that Ms. Fenton drove west away
from the scene (contrary to Mr. Boires evidence) nor did she make a
finding of fact that all of the shots were fired from the front
passenger seat (contrary to Sgt. Mackenzies opinion). The judge
accepted that after the first shot was fired, Ms. Fenton was in a
state of shock and not focused on what was going on in the car.
I take from this that the judge accepted Ms. Fenton was in a panicked state
and may have been wrong about the particulars of the shooting,
including how she drove away from the scene.

[50]

In my view, the judges factual finding
that the appellant was the Alderson Avenue shooter does not betray a
fundamental flaw in her reasoning process of the narrow kind
contemplated by
Beaudry.
She was entitled to conclude that Ms. Fenton,
in her panicked state, may have been wrong about some of the events
surrounding the shooting, but accept her evidence that the appellant was the
person who discharged the weapon at the Alderson Avenue residence.

[51]

In sum, the judge did not ignore
the conflicts in the evidence between Ms. Fenton on the one hand and Mr. Boire
and Sgt. Mackenzie on the other. Neither did she make a specific factual finding
inconsistent with evidence she did not reject. She recognized the
discrepancies, but did not ascribe to them the significance the appellant would have liked.
That, in my view, is not a
Beaudry
error. Accordingly, I
would not give effect to this ground of appeal.

3.  The
alleged failure to consider whether Ms. Fenton had been supplied with
confirmatory evidence by the police

[52]

The appellant submits that the judge
erred by failing to consider whether Ms. Fentons generally accurate description
of the Alderson Avenue residence and Brunette Avenue apartment building
was the product of information that had been supplied to her by the police.
The appellant notes that Ms. Fenton acknowledged being shown a photograph
of Ms. Mervyns apartment on Brunette Avenue for the purposes of
identifying the window she said was broken by the appellant. He
submits that it is a reasonable inference Ms. Fenton may also have been
shown photographs of the Alderson Avenue residence that enabled
her to give a generally accurate description of that residence.

[53]

The appellant acknowledges that this evidence
was not developed nor was the point pursued at trial. Ms. Fenton
was never asked whether she had been shown a photograph of the Alderson Avenue residence.

[54]

Despite the gaps in the record
and the fact that the appellants trial counsel did not pursue this
line of inquiry, the appellant now submits that the judge had an independent obligation
to consider whether Ms. Fentons ability to describe the Alderson Avenue residence
targeted in the drive‑by shooting was tainted by police procedures.
The appellant goes further to suggest that the judges failure to consider
the point constitutes a misapprehension of evidence on a material issue.
I do not agree.

[55]

In my view, and in the absence of an evidentiary foundation
permitting assessment of this issue, it cannot successfully be argued that the
judge erred in failing to deal with what amounts to a speculative theory
advanced for the first time on appeal. I would not give effect to this ground
of appeal.

4.  The alleged error
in applying
Vetrovec
to the evidence of Ms. Fenton

[56]

The appellant argues that the evidence
relied upon by the judge to confirm Ms. Fentons account that the
appellant was the perpetrator of the offences was, at most, evidence capable
of confirming only that she was present at the time the offences were committed.
The appellant submits that this evidence was not confirmatory evidence
implicating him in the commission of the offences. In essence, the
appellant submits that the judge erred in her application of
Vetrovec
principles
to this case by failing to consider whether the confirmatory evidence
restored faith in Ms. Fentons testimony
that the appellant
was the perpetrator
.

[57]

The appellants submission on
this point focuses once again on the Alderson Avenue shooting. In my
view, it has little, if any application to the mischief committed in relation
to the apartment on Brunette Avenue. Ms. Fentons evidence
that the appellant committed the offence on Brunette Avenue was
powerfully confirmed by evidence linking him to the rifle thrown through Ms. Mervyns window.

[58]

I would not accede to this ground of appeal.

[59]

First, the appellant argued at trial
that Ms. Fenton lied under oath about being at the scene of
these offences. In this context, it was open to the judge to
consider evidence that confirmed Ms. Fentons testimony that she was
present at the relevant time.

[60]

Second, the judge did not simply focus on evidence
that confirmed aspects of Ms. Fentons testimony in ways unrelated to
the appellants responsibility for the offences. The judge considered a
significant body of evidence that she was entitled to regard as
confirmatory of Ms. Fentons testimony that the appellant was the
perpetrator of the offences committed in relation to the Alderson Avenue residence.
This is confirmed by the trial judges concluding remarks which I
will repeat for convenience:

[87]      The question I must ask
myself is whether, to paraphrase the words of Mr. Justice Fish at para. 15
of
R. v. Khela
, I find the evidence elsewhere in the dance to
provide sufficient comfort that
Ms. Fenton was telling the truth about
the accuseds involvement
I am satisfied there is evidence to
confirm materials [
sic
] parts of her account and
her evidence
satisfies me beyond a reasonable doubt that the accused was the perpetrator of
the acts


[Emphasis added.]

V.  Conclusion

[61]

For the foregoing reasons, and despite
the able advocacy of Ms. Reinhart, I would dismiss the appeal.

The
Honourable Mr. Justice Fitch

I AGREE:

The Honourable Chief Justice Bauman

I AGREE:

The
Honourable Madam Justice Fenlon


