



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Henry, 2021 ONCA 892

DATE: 20211213

DOCKET: C68830

MacPherson, Coroza and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Henry

Appellant

Tyler Henry, acting in person

Erin Dann, appearing as duty counsel

Philippe Cowle, for the respondent

Heard: December 8, 2021

On appeal from
    the convictions entered on April 30, 2020, with reasons at 2020 ONSC 1691,
    and the sentence imposed on September 16, 2020, by Justice Michael F. Brown
    of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of eighteen counts of various
    offences, including attempted murder, arising out of a violent altercation with
    firearms in a bar which involved injuries to an intended victim and a number of
    bystanders.

[2]

The trial judge imposed a global sentence of 17 years. The
    sentence was further reduced through credits for presentence custody, credit
    for harsh conditions according to
R v. Duncan
,
    2016 ONCA 754, and credit for the impact of COVID-19 conditions going forward.
    These credits resulted in a net sentence of 10 years and 5 months.

The Conviction Appeal

[3]

The appellants appeal of his convictions
    focuses on the identification evidence, including the recognition evidence of Mr.
    Reza, a security supervisor at the apartment building where the appellant
    lived, and the testimony of one of the intended victims, Mr. Powers, who testified
    that the appellant was not the primary shooter.

[4]

First, with respect to Mr. Reza, the appellant submits
    that the recognition evidence should be accorded no weight as Mr. Reza was initially
    unable to name the appellant from a photo shown to him by the police, and was only
    thereafter able to identify the appellant from a video taken nearby the
    location of the shooting. The appellant argues that the trial judge relied on
    this evidence to supplement his own conclusion that the appellant bore a strong
    resemblance to the primary shooter captured in a video from the bar where the
    incident occurred.

[5]

Second, according to the appellant, the trial
    judge failed to give a reason as to why he did not believe Mr. Powers
    exculpatory testimony.

[6]

The trial judges reasons provide a summary of
    the appellants position with respect to the identification evidence, including
    the need for caution with respect to Mr. Rezas recognition evidence and with
    respect to the exculpatory testimony of Mr. Powers. The trial judge also
    reviewed the standard arising from
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000, with respect to the inferences a trier of fact
    can draw from circumstantial evidence.

[7]

The trial judge concluded, at para. 117, that [o]n
    the totality of the evidence, the identification of the appellant as the
    primary shooter had been proven beyond a reasonable doubt. He specified that in
    reaching this conclusion, he relied on the video footage from surveillance
    cameras, the recognition evidence from Mr. Reza, and other evidence such as a
    distinctive pair of ripped jeans found in the appellants residence and
    depicted on the surveillance video of the primary shooter. The trial judge
    added, at para. 118, [i]n coming to the conclusion I have in regard to this
    essential element, as I indicated earlier in these reasons, I have cautioned
    myself with respect to the frailties of identification evidence in regard to my
    viewing of the videos as well as to the recognition evidence of Mr. Reza.

[8]

We see no error in principle in the trial
    judges reliance on the circumstantial evidence in the record to reach his
    conclusion.

[9]

The trial judge also explained his rejection of
    the testimony of Mr. Powers. The trial judge disbelieved that Mr. Powers did
    not recall what led to the altercation or his being shot, and that he did not
    recognize other individuals he is shown greeting in a surveillance video of the
    bar just before the shooting. As a result of these deliberate lies, the trial
    judge discounted the exculpatory evidence Mr. Powers provided as to the
    identification of the primary shooter: at para. 90, 109-110.

[10]

In our view, the trial judge explained, with
    sufficient detail and specific references to the record, why he did not accept
    Mr. Powers testimony that the appellant was not the one who shot him.

The Sentence Appeal

[11]

The appellants appeal of his sentence relates
    to the trial judges failure to sufficiently account for the time in custody
    awaiting trial during the COVID-19 restrictions.

[12]

We do not accept this submission. In his reasons
    for sentence, the trial judge specifically adverted to the difficulties of the
    appellants pretrial detention during COVID-19 restrictions, including
    lockdowns, the cancellation of programs and visitations, and social distancing
    requirements, which were reflected in the 10 months and 23 days credited
    for harsh conditions of detention pursuant to
Duncan
.

[13]

The trial judge explained that there is no
    mathematical equation to determine the amount of time to credit for harsh
    conditions. He accepted the justification for this credit but found the
    defences submission on the appropriate credit to be excessive. We find no
    basis to interfere with the trial judges discretion on the quantum of
Duncan
credit to be applied.

[14]

Similarly, the trial judge accepted the defences
    argument with respect to the need for further credit because of the COVID-19
    restrictions then in place and going forward. He provided an additional 12
    months of credit on this basis. It was well within the trial judges discretion
    to reach this conclusion and he did not err in doing so.

[15]

The appellant argued that the global sentence
    was too harsh. In all the circumstances, we find that the sentence was
    reasonable.

[16]

Accordingly, the appeal is dismissed.

J.C. MacPherson J.A.

S. Coroza J.A.

Sossin J.A.


