



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aiken, 2021 ONCA 298

DATE: 20210507

DOCKET: C67471

Fairburn A.C.J.O., Watt and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Peter Aiken

Respondent

Catherine Weiler, for the appellant

Lindsay Daviau and Rameez Sewani, for
    the respondent

Heard: December 11, 2020 by video conference

On appeal from the acquittals entered by
    Justice Paul R. Currie of the Ontario Court of Justice on August 27, 2019.

Fairburn A.C.J.O.:

A.

Overview

[1]

At approximately 1:00 a.m. on June 8, 2016, two
    police officers responded to a 911 call involving a domestic assault taking
    place outside of a residential building. The individual who called 911 said
    that she had heard a loud bang that she thought could have been a possible
    gunshot or possible glass breaking. The caller gave a description of the
    male party involved in the domestic dispute, including that he was wearing a
    grey sweater and grey pants.

[2]

Constables Manikosh Pathak and Jason Beccario were
    dispatched to the residential building, arriving in close succession to one
    another. There is no dispute that the respondent was smoking outside of the
    residential building when the officers arrived or that he matched the 911
    callers description of the male party involved in the domestic dispute.

[3]

What followed was a serious altercation between
    the officers and the respondent, culminating in the respondent producing a
    restricted firearm  a semi-automatic Glock 22 pistol  and shooting at least
    five bullets from the handgun. The officers eventually returned fire, striking
    the respondent several times. The respondent was ultimately located in a
    neighbouring backyard, with his Glock close by. The respondent spent many
    months in the hospital and in rehabilitation.

[4]

The respondent faced a 13-count information.
[1]
The appellant proceeded by indictment on all electable offences, and the
    respondent elected to be tried in the Ontario Court of Justice. Following a trial,
    the respondent was found guilty on nine counts, six of which drew convictions
    and three of which resulted in conditional stays pursuant to the principles in
Kienapple
    v. R.
,
[1975] 1 S.C.R. 729.

The convictions were for: (1)
    possessing a restricted firearm without being the holder of a licence (count 1);
    (2) using a restricted firearm in a careless manner (count 2); (3) possessing a
    loaded restricted firearm (count 7); (4) discharging a firearm at Constable
    Beccario with the intent to wound the officer or prevent arrest (count 8); (5)
    possessing a restricted firearm while prohibited from doing so by reason of a
    court order (count 12); and (6) breaching a probation order (count 13). Counts 3,
    4, and 5 were conditionally stayed.

[5]

The respondent was acquitted on the remaining
    four counts. This is a Crown appeal from the following three acquittals:

(1) pointing a firearm at Constable Pathak, contrary to s. 87 of the
Criminal Code
, R.S.C. 1985, c.
    C-46
(count 6);

(2) discharging a semi-automatic firearm at Constable Pathak with
    the intent to wound the officer or prevent arrest, contrary to s. 244(1) of the
Criminal Code
(count 9); and

(3) attempted murder of Constable Beccario while using a restricted
    firearm, contrary to s. 239(1)(a) of the
Criminal Code
(count 10).

[6]

The appellant does not appeal from the fourth
    and final acquittal: the attempted murder of Constable Pathak while using a
    restricted firearm, contrary to s. 239(1)(a) of the
Criminal Code
(count
    11).

[7]

This Crown appeal is predicated on three alleged
    errors of law contained in the trial judges reasons for judgment:

(1)

the trial judge made key findings of fact for
    which there was no evidence;

(2)   the trial judge failed to consider the evidence as a whole in
    relation to the ultimate issue of guilt or innocence; and

(3)   the trial judge failed to provide adequate reasons for the
    acquittals.

[8]

For the reasons that follow, I would allow the
    appeal on the basis that the trial judges reasons for acquitting the
    respondent on the three counts appealed from (counts 6, 9, and 10) are inadequate.

B.

The Evidence at Trial

[9]

Given that a new trial must be ordered in this
    matter, I will keep the evidentiary review to a minimum, only addressing the
    evidence that is essential to explain why a new trial is required.

(1)

The Evidence of the Officers

[10]

The two officers and the respondent were the
    only witnesses to the shooting.

[11]

While there were minor differences in the
    officers
viva voce
testimony, they can be said to have given largely
    similar evidence about where, when, and how the shooting commenced and what was
    occurring while the respondent was firing his Glock.

[12]

In brief, both officers described how they saw
    the respondent when they first arrived on scene. They also described how Constable
    Beccario attempted to interact with the respondent, but that he failed to
    cooperate with Constable Beccarios commands. Accordingly, both officers described
    in a generally consistent manner how they took physical control of the
    respondent and removed him from the vestibule area of the residential building
    that he attempted to gain access to after the arrival of the officers on scene.

[13]

The officers testified about the serious physical
    struggle that ensued. This included Constable Pathaks acknowledgment that, at
    one point, he placed the respondent in a headlock after the respondent tried
    to escape into the residential building by pulling away from Constable
    Beccarios attempt to grab his arm.

[14]

Eventually, when the respondent was outside of
    the residential building, Constable Beccario testified that he kicked the
    respondents legs out from under him to get him to the ground. The respondent
    was then in what was described by Constable Beccario at trial as a prayer
    position: on his knees but with his head to the ground. He was pointing toward
    the roadway, with the building and the officers behind him.

[15]

The officers continued to attempt to gain
    control over the respondent. While Constable Beccario attempted to reach for
    his taser, owing to the struggle, he was unable to access it. The officers then
    described how they saw the respondents right hand reach toward the centre part
    of his body, after which he produced a gun. According to Constable Pathak, the respondent
    started saying, Oh, you got the taser. You got a taser. You got a taser,
    followed by, Ive got this. Constable Pathak testified that the respondent
    then turned around, pointed his gun at Constable Beccarios upper torso, and
    fired a shot. Constable Beccario testified that he saw something black pointed
    at his stomach area. By the time he realized that it was a firearm, he heard a
    loud gunshot and saw the spark of the gun. While Constable Beccario was not
    hit by that first shot (or the ones to come), he thought that he had been hit.

[16]

Both officers moved away quickly, with Constable
    Beccario pushing off of the respondent to get some distance and coming to rest against
    the exterior doorway to the residential building. At that point, Constable
    Beccario had his back up against the doorway, facing the respondent. He
    testified that he saw that the respondent was now up on his feet, pointing the
    gun at him. According to Constable Beccario, the respondent then fired his
    second shot. Constable Beccario testified that he immediately dropped down to
    his knee in an effort to get as small as possible to make himself less of a
    target. Again, he thought that he had been shot.

[17]

At this point, Constable Beccario retrieved his
    firearm and started firing back at the respondent. Constable Beccario then
    described the respondent as moving onto the roadway, a number of feet from the
    original shooting position. From the roadway near Constable Beccarios police
    cruiser, the respondent was said to again face the officer, point the gun at him,
    and take a third shot.

[18]

Constable Beccarios testimony respecting how
    the first three shots were taken was largely consistent with how Constable
    Pathak described the incident. As Constable Pathak put it, he knew that the respondent
    was shooting at Constable Beccario 
[b]
ecause he was pointing directly toward  the gun was pointing
    directly towards Constable Beccario. He was looking towards Constable Beccario
    at that time.

[19]

The forensic evidence also supported that
    version of events. That evidence included the location of two cartridge casings
    from the respondents Glock, both of which had come to rest in locations that
    coincided with where the officers said the second and third shots occurred. In
    addition, there were three bullet strikes found in the doorway of the
    residential building where Constable Beccario had found himself trapped while
    he said at least two of the shots were taken.

[20]

As for the two shots allegedly directed at Constable
    Pathak, the evidence of the officers slightly differed. Constable Pathak
    testified that, having finished shooting at Constable Beccario, the respondent
    crossed the street, looked in the direction of Constable Pathak, pointed the
    gun at him, and fired the fourth and fifth shots. There were two cartridge
    casings from the respondents Glock located in the general area where Constable
    Pathak said the fourth and fifth shots occurred. Constable Pathak also
    testified that when the respondent was running, the Glock was still pointed in
    the direction of the officers, but the respondent was not looking at the
    officers. However, Constable Beccario testified that he saw the respondent running
    away while taking the shots at Constable Pathak, all the while looking back
    toward Constable Pathak.

[21]

Both officers were convinced that they had been
    shot. Once Constable Pathak lost sight of the respondent, he patted himself
    down and felt blood coming down his arm. Believing he was shot, he called out
    for Constable Beccarios help. Constable Beccario brought Constable Pathak to a
    safe location behind Constable Beccarios police cruiser. They started checking
    themselves for injuries, while other officers arrived on scene. Neither officer
    was shot. It turned out that the blood on Constable Pathaks arm was caused by
    a pre-existing injury.

(2)

The Evidence of the Respondent

[22]

The respondent testified that he suffers from
    schizophrenia and psychosis. He said that he had found the Glock on the ground
    while out for a walk one night a couple of weeks before the shooting and had brought
    it home with him. The day of the shooting, the respondent heard a voice in his
    head telling him that he was going to get shot that same day, so he decided to
    place the gun into the front pouch of his hoodie sweatshirt.

[23]

According to the respondents testimony, he was
    attacked by the officers for no apparent reason. When he was placed in a
    headlock, he could barely breathe and he feared for his life. He thought that
    his premonition about getting shot was coming true. Believing that he was going
    to die, the respondent testified that he reached into the front pouch of his
    hoodie, pushed the gun out, pointed it away from the officers, and fired
    multiple bullets. He said that he took every shot from that position, where he
    was laying immobilized by police force, and only in an effort to escape from
    what he testified was a violent situation. The respondent indicated that he was
    not trying to harm the officers. In fact, he insisted that if he had wanted to
    shoot the officers, he could have done so: I couldve shot them in their leg,
    their balls, their chest, their head. The respondent maintained that the fact
    that the officers were not shot demonstrated that he was only shooting the gun
    to successfully escape.

[24]

After firing the bullets from his gun and
    securing his escape, the respondent said that he ran away from the officers, only
    then being shot by them. The respondent was located in a neighbouring backyard,
    badly injured from the shooting. While four of the cartridge casings from the
    respondents Glock were found at the scene of the shooting, in locations
    largely consistent with the officers evidence, a fifth cartridge casing was
    found in the pocket of the respondents pants.

C.

The Reasons for Judgment

(1)

Overview

[25]

The trial judge gave oral reasons for judgment.

[26]

The first 14 pages of the transcript involve a
    general review of the evidence at trial, followed by a brief summary of the
    parties positions and by four findings of fact. The findings of fact are as
    follows.

[27]

First, the trial judge found that the Glock had
    been fired five times in total. While he did not say how he reached this
    finding of fact, presumably it rested on the four cartridge casings found at
    the scene of the shooting and the one cartridge casing found in the pocket of
    the respondents pants.

[28]

Second, the trial judge found that the first
    shot fired by the respondent was fired from inside of
[
the
]
pocket of his
    kangaroo type sweater and that explains why the one cartridge was found in that
    clothing. It is difficult to know where this finding of fact originates from
    as no one testified, not even the respondent, that the first shot was fired
    from inside the pocket of his hoodie. Also, the cartridge casing was found in
    the pocket of the respondents pants, not his hoodie.

[29]

Third, the trial judge found that the respondent
    took the four subsequent shots 
while he was moving
from the sidewalk area in front of
[the residential
    building]
, across the roadway (emphasis added). The
    trial judge said that he made this finding of fact based primarily upon the
    evidence of where the four cartridge casings from the respondents Glock were
    found. It is unclear how the location of the cartridge casings from the Glock
    supported the finding that the shots were taken while [the respondent] was
    moving, as opposed to while the respondent was stationary but shooting from
    different locations, in accordance with the testimony of the officers.

[30]

Fourth, and finally, the trial judge found as a
    fact that at least two of the shots taken by the respondent were fired at or
    in the direction of Constable Beccario. This finding was said to be based upon
    the testimony of the officers, as well as the expert bullet trajectory
    analysis. Given that trajectory analysis, the trial judge went on to reinforce
    that he found these shots were fired 
as [the respondent]
    was running
across the street and across the front of the
[opposing]
building (emphasis added). It is
    unclear how the trajectory analysis relating to the bullet strikes found in the
    doorway of the residential building behind where Constable Beccario stood could
    have demonstrated that the respondent was running while taking those shots,
    as opposed to simply shooting from somewhere along that trajectory line.

[31]

Having made these four findings of fact, the
    trial judge then moved on to deliver the verdicts. I will focus on the trial
    judges analysis in relation to the acquittals that form the subject of this
    Crown appeal.

(2)

The Attempted Murder of Constable Beccario (Count 10)

[32]

Both counts of attempted murder were dealt with
    in two sentences: the first sentence referencing the
mens rea

for
    attempted murder being the specific intention to kill; and the second sentence referencing
    the trial judges reasonable doubt on that point. The second sentence reads as
    follows: On all of the evidence before me, I find I am left in a reasonable
    doubt about whether [the respondent], in all the circumstances of this case,
    had that requisite intention to kill. Therefore, the respondent was found not
    guilty on both attempted murder counts. As previously indicated, the appellant only
    appeals from the acquittal in relation to count 10, which is the count
    involving the alleged attempted murder of Constable Beccario.

(3)

Discharging a Firearm at Constable Pathak (Count 9)

[33]

In relation to the counts alleging that the respondent
    discharged his Glock at the officers with the intent to either wound them or
    prevent his arrest, the trial judge arrived at different conclusions for each
    officer. For Constable Beccario, the trial judge went back to his finding of
    fact that two shots had been fired in the direction of or at Constable Beccario.
    On that basis, a conviction was entered on count 8. Later on, during a
    back-and-forth exchange with the trial Crown, the trial judge clarified that
    this finding of guilt had been predicated on a finding that the respondent had
    not intended to wound Constable Beccario but had shot in his direction in an
    effort to prevent his arrest. No reasons were given for that finding.

[34]

As for Constable Pathak, the trial judges
    reasons are reflected in a single sentence, suggesting that the trial judge could
    not be satisfied on the evidence before him that the charge had been made out:
    I am left in a reasonable doubt on that. Therefore, the respondent was found
    not guilty on count 9.

(4)

Pointing a Firearm at Constable Pathak (Count 6)

[35]

As for count 6, involving the pointing of a
    firearm at Constable Pathak, the trial judges reasoning is again captured in a
    single sentence, referencing the fact that he had been left in a reasonable
    doubt on that charge.

D.

analysis

(1)

Overview

[36]

On appeal, the appellant argues that the trial
    judge erred by: (1) making findings of fact for which there was no evidence; (2)
    failing to consider the evidence as a whole in relation to the ultimate issue of
    guilt or innocence; and (3) providing inadequate reasons for the acquittals. The
    appellant contends that these errors of law should result in a new trial being
    ordered on the following counts: (1) the pointing of a firearm at Constable
    Pathak (count 6); (2) the discharging of a firearm at Constable Pathak with the
    intent to wound the officer or prevent arrest (count 9); and (3) the attempted
    murder of Constable Beccario (count 10).

[37]

The respondent maintains that the trial judges
    reasons are sound as they relate to both the convictions and acquittals. The
    trial judges findings are said to be rooted in fact. As the reasons relate to
    the charge of the attempted murder of Constable Beccario, the respondent
    emphasizes that this was a purely circumstantial case. In addition, regarding
    the charge of the discharging of a firearm at Constable Pathak, the respondent indicates
    that the forensic evidence was inconclusive in nature. As such, the reasons
    reflect that the entirety of the evidence simply left the trial judge with
    reasonable doubt. Ultimately, the respondent argues that the trial judge did
    not adopt the Crowns theory at trial. It was open for the trial judge to reject
    that theory and this does not amount to an error, let alone an error of law.

[38]

Despite the respondents capable argument, I
    find that this appeal is about much more than the appellant simply registering
    a complaint about the Crowns theory being rejected at trial. While it was open
    for the trial judge to arrive at acquittals in this case, like any decision, it
    was necessary for the trial judge to provide some insight into how those
    verdicts were determined. The reasons in this case do not perform that
    function.

(2)

The Inadequacy of Reasons as a Ground of Appeal from Acquittals

[39]

Section 676(1)(a) of the
Criminal Code
provides the Crown with a limited right to appeal from acquittals. Appeals
    pursuant to this provision are narrowly restricted to questions of law alone.
    Additionally, to obtain a new trial after an acquittal has been entered, the
    Crown must satisfy the appeal court that the error of law is such that it might
    reasonably be thought that, in the concrete reality of the case at hand, the
    error had a material bearing on the acquittal:
R. v. Graveline
, 2006
    SCC 16,
[2006] 1 S.C.R. 609,
at
    para. 14.

[40]

Trial judges are duty-bound to provide adequate reasons
    for their judgments:
R. v. Walker
, 2008 SCC 34,
[2008] 2 S.C.R. 245, at para. 19
. The
    failure to do so can constitute an error of law:
R. v. Trachy
, 2019
    ONCA 622, 379 C.C.C. (3d) 51,

at para. 68, leave to appeal discontinued,
[2019] S.C.C.A. No. 277
.

[41]

Reasons for judgment allow for a proper level
    of transparency and accountability
[that is]
essential to the maintenance of the integrity of the trial process
    and public confidence in that process:
R. v. Sliwka
, 2017 ONCA 426, 138 O.R. (3d) 473,
at
    para. 24. Without proper reasons, the parties are left wondering whether their
    claims have been heard, understood, and adjudicated upon in accordance with the
    legal principles applicable in the circumstances of the case:
Sliwka
,
    at para. 24;

R. v. Sheppard
, 2002 SCC 26,
[2002] 1 S.C.R. 869,
at paras. 15, 24.

[42]

To be sure, reasons for judgment do not need to
    be perfect. This ground of appeal does not provide an appellate court with the
    opportunity to intervene simply because it thinks the trial court did a poor
    job of expressing itself:
Sheppard
,

at para. 26. At the same
    time, the reasons for judgment must provide the parties and appellate courts
    with an opportunity for meaningful appellate review:
Sheppard
,
at paras. 25, 55;
R. v. Dinardo
,
    2008 SCC 24,
[2008] 1 S.C.R. 788, at para. 25
.

[43]

While the duty to give reasons applies generally
    to both reasons for convictions and reasons for acquittals, particular caution
    must be exercised in relation to this ground of appeal when it is raised in the
    context of an appeal from acquittals:
Walker
, at para. 2. As noted in
Walker
, at para. 2, the
content
of
    the reasons necessary to give full effect to the right of appeal is governed by
    the different issues to which the reasons are directed on an acquittal  and a
    conviction (emphasis in original).

[44]

The difference between these situations lies in
    the fact that while a conviction requires satisfaction of proof beyond a
    reasonable doubt of every element of the offence, an acquittal can simply rest
    on the absence of proof:
Walker
,

at para. 22. While this
    difference does not excuse a failure to provide intelligible reasons for an
    acquittal, it does inform an assessment of whether the reasons are so
    deficient as to preclude effective appellate review:
Walker
, at para.

22. The different approach to the adequacy of reasons for an acquittal
    guards against Crown appeals that are nothing more than claims of an unreasonable
    acquittal under the guise of claims of inadequacy of reasons:
Walker
,
    at paras. 2, 21.

[45]

In my view, it cannot be said that the appellant
    in this case is really complaining about an unreasonable acquittal or the
    simple rejection of a Crown theory that was advanced at trial. To the contrary,
    for the reasons that follow, I find that the appellant is really raising a
    concern over the fact that the reasons disclose no intelligible basis for the
    verdict[s] of acquittal:
R. v. R.E.M.
, 2008 SCC 51,
[2008] 3 S.C.R. 3, at para. 53;
Sheppard
, at para. 28;
R. v. D.E.S.
, 2018 ONCA 1046, at para. 13.

(3)

The Trial Judges Reasons are Inadequate

[46]

The appellant breaks the trial judges errors
    into a few separate issues, but this appeal really comes down to the adequacy
    of the reasons for judgment.

[47]

While the respondent was convicted of six counts
    on the information, the fact is that he conceded or did not dispute his guilt
    on four of those counts:

(1)   he did not dispute his guilt on count 1 involving the
    possession of a restricted firearm without being the holder of a licence;

(2)   he did not dispute his guilt on count 7 involving the possession
    of a loaded restricted firearm;

(3)   he conceded his guilt on count 12 involving the possession of
    a restricted firearm while prohibited from doing so by reason of a court order;
    and

(4)   he conceded his guilt on count 13 involving the breach of a
    probation order.

[48]

It is with little surprise that these four
    counts were not in dispute at trial. The fact is that, on his own evidence, the
    respondent had a loaded, restricted firearm in the front pouch of his hoodie
    when he was approached by the officers, he had no licence for that firearm, he was
    prohibited by a court order from being in possession of a firearm, and he was
    bound by a probation order at the time. The trial was not focussed on any of
    these issues.

[49]

Also, at the end of the day, after a long
    colloquy between counsel and the trial judge, defence counsel largely
    acknowledged that, based on the respondents own testimony, he was guilty of
    count 2, involving the careless use of a firearm. As defence counsel said to
    the trial judge: Well, you are the decision maker here.

[50]

Therefore, the trial was not focussed on whether
    the respondent was in possession of the loaded Glock or whether he fired that
    Glock five times. The central issues in dispute were whether the respondent pointed
    his Glock in the direction of the officers and shot at one or both of those officers
    and, if so, what his intention was at the time that he discharged those
    bullets. Those were the matters that most critically needed resolution at
    trial.

[51]

In order to address those issues, the trial
    judge had to consider the evidence of the three eyewitnesses to the shooting, the
    two officers and the respondent, and determine how their evidence, when viewed
    in totality with all of the other evidence, informed exactly what happened and
    what was in the respondents mind at the time that the shooting occurred. In my
    respectful view, the reasons for judgment are simply unresponsive to those central
    issues at trial and do not show how the trial judge came to the disputed
    acquittals that he reached.

[52]

Issues of credibility and reliability were
    inextricably linked to the resolution of the disputed counts at trial. The
    trial judge understood this when it came to the respondent. In this regard, the
    trial judge rejected the respondents suggestion that he had fired all shots
    while still in the physical grip of the officers: I do not believe
[the respondent]
in his testimony that he
    fired all of the shots while he was being held in a chokehold by the officers.

[53]

While the trial judge found that the respondent
    fired the first shot, presumably the hoodie shot, in an attempt to escape from
    the officers, he concluded that the four subsequent shots were all fired while
    the respondent was running away from the scene. The trial judge came to this
    conclusion without in any way addressing issues of credibility or reliability
    in relation to the officers evidence. Again, without addressing the veracity
    or accuracy of the testimony of the officers, the trial judge found that the
    respondent simply shot two times at Constable Beccario
while
    running away
so as to prevent arrest. While it was of course open to the
    trial judge to reject the officers evidence in this case, settling upon such a
    version of events required the trial judge to explain how this was his factual
    landing point.

[54]

Both officers painted a powerful picture of the
    respondent standing, facing them, raising his arm, pointing the Glock at them,
    and shooting. In the case of Constable Beccario, at least two of those shots
    were fired at very close range.  The officers evidence is riddled with
    references to the respondent standing, facing them, pointing the firearm
    directly at them, and shooting. That evidence necessarily informed not only
    the circumstances around the shooting but also what was in the mind of the
    respondent as he took those shots. None of that evidence can be easily
    reconciled with the trial judges suggestion that the respondent merely fired a
    few times as he ran away.

[55]

Again, this is not to suggest that the trial
    judge had to accept the officers evidence on these points. If he was going to
    reject that evidence, though, he needed to offer at least some explanation for
    doing so. This is particularly true given that the forensic evidence involving
    the location of the bullet strikes and cartridge casings, as well as the trajectory
    of the bullets, was entirely consistent with the officers testimony regarding
    the respondent standing, facing, pointing, aiming, and shooting.

[56]

As the trial Crown said in her closing
    submissions, the evidence of Constables Beccario and Pathak was determined to
    be entirely supported by the objective physical evidence. In the case of
    Constable Beccario, the trial Crown emphasized that the fact that the shots
    were taken at such a close range, combined with the fact that at least two of
    the bullet strikes found in the doorway of the residential building were at head
    and torso height, led to the inescapable inference of an intention to kill
    Constable Beccario. While I would not suggest that a finding of specific intent
    to kill had to be made in those circumstances, it was certainly a compelling
    inference that was open to the trier of fact, had the officers evidence been
    accepted.

[57]

Quite simply, the reasons for judgment do not
    explain how the trial judge arrived at the acquittals in this case. At a
    minimum, he had to engage with the officers evidence and explain why, despite
    that evidence, he had a reasonable doubt about whether the respondent intended
    to kill Constable Beccario and why he had a reasonable doubt about whether the
    respondent pointed his gun at Constable Pathak and discharged it with the
    intent to, at a minimum, prevent his arrest.

E.

Disposition

[58]

In light of the six convictions registered in
    this case, resulting in a global sentence of eight years less five years and
    six days of credit for pre-trial custody, some might wonder why the respondent
    should be the subject of another trial on these matters. That is not the
    question before this court. The question before this court is whether there
    were adequate reasons given for entering acquittals on three very serious
    counts involving attempted murder, shooting at a police officer, and pointing a
    firearm at a police officer. Whatever verdicts ultimately result in this case,
    the public and the officers involved in this matter are entitled to know the
    basis of those verdicts.

[59]

I would allow the appeal, set aside the
    acquittals on counts 6, 9, and 10, and order a new trial on those counts.

[60]

Pending the result of the new trial, I would
    conditionally stay the conviction on count 8 (discharging a firearm at Constable
    Beccario with the intent to wound the officer or prevent arrest) until a verdict
    is reached on count 10 (the alleged attempted murder of Constable Beccario).
    Should an acquittal be entered on count 10, then the conditional stay on count
    8 will be lifted.

Released: May 7, 2021 JMF

Fairburn A.C.J.O.

I agree David Watt J.A.

I agree B. Zarnett J.A.





[1]
While the information initially contained 15 counts, the Crown
    withdrew 2 counts in November 2018, long before the start of trial.


