



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spencer, 2020 ONCA 838

DATE: 20201223

DOCKET: C68188

Hoy, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nickolous Spencer

Appellant

Nickolous Spencer, acting in person

Brian Snell, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: December 10, 2020 by video conference

On appeal from the convictions entered by
    Justice Michael Block of the Ontario Court of Justice on October 11, 2019, with
    reasons reported at 2019 ONCJ 746, and from the sentence imposed on February
    25, 2020.

Paciocco J.A.:


OVERVIEW

[1]

On October 14, 2017, shortly after closing time
    for the area bars, Cst. Breau witnessed someone fire a single shot into a
    crowded laneway. It appears that no-one was injured.

[2]

Cst. Breau gave chase as the shooter fled, but
    the shooter escaped. Shortly after, a nine-millimetre Luger semi-automatic handgun
    (the handgun), later linked circumstantially to the shooting, was found under
    a car along the shooters escape route. The DNA of four people was detected on
    the grip of the handgun. One of the DNA profiles was from the appellant, Nickolous
    Spencer. Mr. Spencer was subsequently arrested and charged with offences
    arising from the shooting.

[3]

At his trial, no-one provided direct evidence
    that Mr. Spencer was the shooter. However, based on circumstantial evidence,
    the trial judge convicted Mr. Spencer, finding that Mr. Spencers guilt was the
    only reasonable inference that could be drawn from the evidence.

[4]

In my view, that finding by the trial judge was
    unreasonable. For reasons that follow, I conclude that the circumstantial
    identification evidence presented at trial was too generic to establish Mr.
    Spencers identity beyond a reasonable doubt, and that the trial judge
    committed reasoning errors that led him to find otherwise. I would set aside
    Mr. Spencers conviction and order his acquittal.

[5]

Based on my conclusion that Mr. Spencers
    convictions must be set aside, his sentence appeal is moot.

MATERIAL FACTS

A.

THe Crime and the Investigation

[6]

There are many bars and restaurants around the
    intersection of Ossington Avenue and Dundas Street West in Toronto. On October
    14, 2017, at approximately 2:41 a.m., as many people were leaving local
    establishments, someone called the police to report that a man had pointed a
    handgun at him. The location of the call was possibly an address on Dundas
    close to Ossington, or a nightclub on Ossington close to the intersection (the
    nightclub). A general description of the suspect was provided.

[7]

Cst. Breau responded immediately. He and his
    partner arrived within a few minutes. They parked their police vehicle on
    Dundas, just outside a Green-P parking lot that abuts Dundas, to its north, and
    a laneway, to its west. The laneway runs parallel to Ossington and is where the
    entrance to the nightclub was located. From 20-25 feet away, while inside his
    police vehicle, Cst. Breau saw a male, wearing a dark hoodie, in the parking
    lot. Cst. Breau believes the man had his hood up. He watched the male point a
    handgun westward into the laneway before firing a single shot. Cst. Breau
    estimated that there were 100 plus people in the laneway at the time. A shell
    casing was later discovered in the parking lot.

[8]

The shooter then attempted to enter a taxicab on
    Dundas to the west of where Cst. Breaus vehicle was parked. He then tried
    another taxicab. Cst. Breau testified that as the shooter began to enter the second
    taxicab his head pops up. Cst. Breau is of the view that at that point the
    shooter saw Cst. Breau running right at him from a good 50, 30, 50 feet
    away.

[9]

The shooter fled on foot westbound on Dundas, and
    Cst. Breau gave chase. The shooter then turned southbound on Ossington. Cst.
    Breau, who was running on the road in the traffic, lost sight of the shooter
    after the shooter turned eastbound on Halton Street, which leads back to the
    laneway abutting the parking lot. Cst. Breau agreed that the distance he chased
    the shooter was about 150 metres.

[10]

A firearm was subsequently located on the north
    side of Halton St. It was a nine-millimetre Luger semi-automatic handgun.
    Forensic examination determined an agreement of class and individual
    characteristics between the shell casing found in the parking lot and a
    cartridge test-fired from this handgun.

[11]

The DNA of four people was extracted from the
    grip of the handgun. One of the DNA profiles was similar enough to Mr.
    Spencers DNA profile that it can safely be concluded that it was his DNA. Security
    footage was also obtained from the nightclub, taken over an hour before the
    shooting, showing Mr. Spencer inside the club. Additional surveillance footage,
    obtained from security cameras along the shooters escape route, shows someone
    running past, followed five or six seconds later by an individual known to be Cst.
    Breau. The Crowns position is that based on his size and appearance, it can be
    concluded that the suspect was Mr. Spencer.

[12]

On February 4, 2018, Mr. Spencer was charged
    with the following counts arising from this incident: (1) possession of a prohibited
    firearm contrary to s. 92(1) of the
Criminal

Code
; (2)
    intentionally discharging a firearm while being reckless as to the life or
    safety of another, contrary to s. 244.2(1)(b) of the
Criminal

Code
;
    (3) careless use of a firearm, contrary to s. 86(1) of the
Criminal

Code
; (4) possession of a loaded prohibited firearm without
    authorization, contrary to s. 95(1) of the
Criminal

Code
;
    (5) possession of a weapon for a purpose dangerous to the public peace,
    contrary to s. 88(1) of the
Criminal

Code
; (6)
    carrying a concealed weapon, contrary to s. 90(1) of the
Criminal

Code
;
    and (7) breach of a probation order not to possess weapons, contrary to s.
    733.1 of the
Criminal

Code
.

B.

THe Evidence AT TRIAL

[13]

It was not disputed during the trial that the handgun
    and the cartridge were used by the shooter, nor was it disputed that Mr.
    Spencer can be seen in the videos taken at the nightclub more than an hour prior
    to the shooting. It is also agreed that it is the shooter who is depicted in
    the surveillance video that was captured along the shooters escape route. Mr.
    Spencer acknowledges that he had no authority to possess firearms and, on
    October 14, 2017, was under a probationary order not to possess weapons. The
    sole issue at the trial was whether the Crown could prove beyond a reasonable
    doubt that Mr. Spencer was the shooter.

[14]

There was no direct evidence that he was. The circumstantial
    evidence that the Crown relied upon can be placed in three categories: (1) DNA
    evidence; (2) description evidence (provided by Cst. Breau); and (3) the
    surveillance videos. I will now describe each of these in more detail.

(1)

DNA Evidence

[15]

Dr. Claxton of the Centre for Forensic Science
    testified about the four DNA profiles extracted from the grip of the handgun. He
    explained that the DNA from each person could have been deposited by direct
    contact, or indirectly, such as by sneezing in proximity to the handgun. Dr.
    Claxton also testified that the sequence of contact could not be determined.

(2)

Description Evidence

[16]

At the trial, Cst. Breau said that he would not
    be able to recognize the shooter. There were limitations in his opportunity to
    observe, given distance, perspective (for most of the time he was looking at
    the shooters back), and the darkness, illuminated only by artificial light.

[17]

Cst. Breau gave relatively detailed evidence
    about the hoodie worn by the shooter: [I]t was a dark grey/white sort of
    hoodie/jacket with a hood. To me it looked almost like the snow on the old
    televisions but it was a darker colour than the white thats in that snow on
    the television. It was kind of speckled, or checked like the old checkered
    TV. He said if he had to pick a colour it would be dark grey, but he affirmed
    during cross-examination that it was definitely patterned, not a single
    colour. He could not describe anything about the style of the hoodie/jacket
    other than to suggest that its length was to the hip area, and he did not see
    any logos or patterns. He agreed during re-examination that he was not saying
    there were no logos or patterns, but that if there were, he did not see them.

[18]

Cst. Breau did offer some descriptive details of
    the shooter, but he testified that he had not seen the shooters facial
    features. He described the shooter as a male black, light skinned, dark afro
    hair, thinner build, skinnier build about five, five-ish, 54 in height I
    believe, and he described the shooters hair as shorter. When asked if he
    could give an approximate age he said, Only what was given in the text of the
    [police] call, which was approximately 24 years of age. He then said that from
    a distance he would put the shooter in his mid-20s.

[19]

When Mr. Spencer was arrested, his height was
    recorded as 57. At his trial, Mr. Spencer did not appear to have a thinner or
    skinnier build. Instead, he presented as muscular.

[20]

When asked how similar in appearance the shooter
    had been to the other individuals who were around him, Cst. Breau said: In
    terms of male blacks and clothing, ah, there were, well there were 100 plus
    people there in the laneway and a lot of people had some dark clothing on,
    hoodies and were male blacks.

(3)

Surveillance Videos

[21]

A security camera video in the nightclub
    captured coloured images of Mr. Spencer at approximately 12:30 a.m. He is
    wearing a dark, puffy jacket with a light-coloured patch on the left arm below
    the shoulder, as he climbs a staircase leading to the entrance of the club.

[22]

Black and white security video images of Mr.
    Spencer were captured inside the nightclub. As he is entering and being checked
    by the doorman, he appears to be wearing a dark puffy jacket. In some of the still
    images, extracted from the video and admitted into evidence, the jacket appears
    to be lighter in colour than the pants he is wearing. Subsequently, including
    when he can last be observed, shortly after 1:00 a.m., Mr. Spencer is wearing a
    t-shirt without a jacket. The images taken inside the nightclub also show that
    he is wearing light-coloured running shoes with dark markings. The trial judge
    described the images as grainy.

[23]

Coloured security video from 213 Ossington was
    also admitted into evidence, as Exhibit 13. A man wearing dark clothing and
    white shoes can be seen running swiftly past a small crowd of people.
    Approximately five or six seconds later, a police officer, known to be Cst.
    Breau, is seen running in the same direction down the middle of the road. A
    grainy still image extracted from this security video, used by the Crown during
    closing argument, shows the first man in motion as he runs past the people on
    the sidewalk. His left arm is largely obscured by another individual. The Crown
    contends that a light marking could nonetheless be observed on the mans left
    arm.

[24]

Black and white images of the street, taken from
    a security camera at 219 Ossington, show a male running southbound wearing dark
    clothing and light-coloured shoes. The video was entered into evidence as Exhibit
    15 A. The images are grainy and blurred. The Crown contends that the
    surveillance film shows a light-coloured patch on the upper left arm, and white
    shoes with dark markings.

[25]

Coloured images from 199 Ossington, captured by
    a security camera inside the store facing the store entrance, were admitted as Exhibit
    16. The Crown contends that, through the window adjacent to the door, a person
    can be seen approaching from the north, wearing dark clothing with a
    light-coloured patch on their left arm. The surveillance video then shows that
    person to be wearing white running shoes with what appears to be a blue,
    perhaps turquoise, pattern running along the side of the shoe. The Crown
    extracted a still photo from this video footage, isolating the image of one of the
    shoes, which it relied on during argument.

[26]

During his testimony, Cst. Breau was shown this
    video footage. When asked if he could recognize this person, Cst. Breau
    testified: Well that running by certainly matched the same male that I was
    chasing earlier. Uh, it went by very quick. When the video footage was slowed,
    Cst. Breau said: That looks like the same black jacket and short black hair.

[27]

Further security images were captured
    subsequently, from the alley camera at 199 Ossington. The Crown contends that
    they capture the shooter returning from his successful flight. The Crown also
    contends that the light-coloured patch can be seen.

[28]

None of the surveillance images from along the
    escape route capture the suspects face.

C.

The Trial Judges Decision

[29]

After a four-day trial, the trial judge found
    Mr. Spencer guilty of all charges, except count 6, the concealed weapon charge,
    which was withdrawn at the request of the Crown. I will describe the trial
    judges analysis of (1) the DNA evidence, (2) the description evidence, and (3)
    the surveillance video. I will then relay the listed reasons that the trial
    judge gave for his conclusion that the only reasonable inference is that Mr.
    Spencer was the shooter.

(1)

DNA Evidence

[30]

In describing the probative value of the DNA
    evidence, the trial judge said: The evidence confirms that the defendant at
    some point handled, or was in close proximity to, the handgun at the centre of this
    prosecution. The trial judge recognized that [t]he presence of Mr. Spencers
    DNA on the handgun is some circumstantial evidence of the identity of the
    shooter, but noted correctly, citing
R. v. Grayston
, 2016 ONCA
    784, at para. 14, that the connection of the accused with the crime will
    depend on the existence of other evidence capable of establishing that the
    accused was in contact with the object at the relevant time and place.

(2)

Description Evidence

[31]

The trial judge characterized Cst. Breaus description
    of the shooter as based on a fleeting glance, noting that Cst. Breau had
    minimal opportunity to make observations of the shooter, having had only a brief
    glimpse of the shooters face in artificial light 30-50 feet away. Because
    Cst. Breau had only a fleeting glance, the trial judge found little ultimate
    significance in the discrepancy between Cst. Breaus estimate of the shooters
    height, at 54, and Mr. Spencers measured height at the time of his arrest,
    at 57.

[32]

The trial judge then found that the video
    surveillance of Mr. Spencer attending the [nightclub] is consistent with
    Cst. Breaus description of the shooter. He noted that, in the nightclub video,
    Mr. Spencer appeared as a short, slight, light-skinned, short-haired
    African-Canadian male. He then relied on Mr. Spencers appearance in the nightclub
    video to discount the discrepancy between Mr. Spencers muscular build at trial
    and Cst. Breaus description of the shooter as having a thinner or skinnier
    build.

(3)

Surveillance Videos

[33]

The trial judge noted that the nightclub video
    recordings were black and white, and that [t]he resolution was often grainy
    and indistinct. He described the coat and shoes that Mr. Spencer was wearing
    as they appeared in those videos: He wore a puffy, hooded winter jacket. On
    the upper portion of the left sleeve a white or light patch or insignia was
    visible. He wore running shoes which appeared to be mainly white with a distinctive
    pattern on the lower portion.

[34]

In his reasons, the trial judge relied heavily
    on the surveillance video from 199 Ossington, which he described as not colour
    and of poor resolution. The images from the inside of the store are in fact
    in colour. He said:

When slowed to a frame-by-frame series of
    photographs, the video records both the footwear of the runner and a patch of
    white on the upper left shoulder area of his clothing. My assessment is that
    the footwear in this video is consistent in both general appearance and trim
    with the footwear worn in the [nightclub] earlier that morning by Mr. Spencer.

Both the image of the white patch captured in
    the 199 Ossington video and the upper left arm patch on the jacket worn by the
    defendant in the [nightclub] are indistinct. While it is not possible to
    discern the shape or detail of either the white arm patch on the upper left arm
    of the jacket of the shooter running southbound on Ossington or that seen on Mr.
    Spencer in the [nightclub], the white patch is a feature that distinguishes the
    jacket from similar garments worn in the [nightclub] and on the path of the
    shooters flight.

[35]

The only other surveillance video the trial
    judge expressly relied upon was the video from the alley camera at 199
    Ossington of a Black, youthful male walking northbound, in the direction of the
    scene of the shooting. The trial judge noted that [n]o facial features could reliably
    be discerned. However, he said:

The person was wearing a jacket consistent
    with that worn by the shooter fleeing southbound on Ossington a few moments
    before. On the upper left arm of this person was a flash of white. The Crowns
    position is that this person was the shooter, who had just discarded his weapon
    and outrun the police foot pursuit. I find that this submission is supported by
    the evidence.

(4)

The Reasons for Convicting

[36]

The trial judge then summarized, in para. 27 of
    his reasons, why he was satisfied beyond a reasonable doubt that Mr. Spencers
    identity as the shooter was the only reasonable conclusion that could be drawn from
    the Crowns circumstantial case:

The following evidence is available to link
    Mr. Spencers DNA, found on the handgun grip, to the relevant time, place and
    criminal act:

1.
The defendants admitted presence at a club located a few feet from
    the location of the shooting within several hours of the shooting.

2.
The fleeting glance by Constable Breau of the shooter, a man not
    inconsistent with Mr. Spencer, and the continuous visual contact the officer
    maintained as the two men passed the video surveillance at 199 Ossington Avenue
    until he lost sight of the shooter on Halton.

3.
The consistency between the images of the footwear and the jacket
    with the white patch worn by the fleeing shooter captured on the 199 Ossington
    surveillance video and that worn by Mr. Spencer in the [nightclub].

4.
The discovery of the firearm used in the shooting on the shooters
    escape route within a few minutes of the shooting.

5.
The discovery of the spent cartridge at the location of the
    shooting and the forensic evidence establishing its connection to the handgun.

6. The consistency between the image of the
    jacket with the white patch worn by the male captured in the lane surveillance
    camera, as he walked northbound within a few minutes of the shooting and that
    worn by Mr. Spencer in the club.

[37]

On this basis, the trial judge concluded that
    the totality of the evidence excluded the possibility of innocent coincidence
    and established Mr. Spencers identity as the shooter.

[38]

The trial judge subsequently sentenced Mr.
    Spencer to eight years of imprisonment on count 2, for intentionally
    discharging a firearm while being reckless to the life or safety of another.
    The trial judge also imposed a concurrent sentence of four years on count 1, possession
    of a restricted, unlicensed firearm, as well as one month of consecutive
    imprisonment on count 7, breach of probation. The other charges were stayed
    under the principles in
R. v. Kienapple
, [1975] 1 S.C.R. 279.

[39]

Mr. Spencer was given credit for presentence
    custody, as well as credit for the harsh conditions of his pretrial detention
    and for the punitive terms of release that applied during the period that he
    was released pending trial. In total, the eight-year, one-month sentence that
    was imposed was reduced by 518 days.

ISSUES

[40]

Mr. Spencer appeals his conviction and seeks
    leave to appeal his sentence. Since I would allow the conviction appeal, the
    sentence appeal is moot, and I will say no more about it. The sole issue that I
    will consider is: Did the trial judge err in finding that Mr. Spencers guilt
    is the only reasonable conclusion available on the circumstantial evidence?

DID THE TRIAL JUDGE ERR IN FINDING THAT MR.
    SPENCERS GUILT IS THE ONLY REASONABLE CONLUSION AVAILABLE ON THE CIRCUMSTANTIAL
    EVIDENCE?

[41]

I am mindful that substantial deference is owed
    to findings of fact and findings of mixed fact and law made by trial judges.
    However, it is an error to render an unreasonable decision, even where, as
    here, the trial judge understands and applies the correct legal test and
    accurately identifies relevant legal principles. Cromwell J. described the
    unreasonable verdict standard in circumstantial evidence cases in
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55:

Where the Crowns case depends on
    circumstantial evidence, the question becomes whether the trier of fact, acting
    judicially, could reasonably be satisfied that the accuseds guilt was the only
    reasonable conclusion available on the totality of the evidence. [Citations
    omitted.]

[42]

Appropriately, during argument, the Crown drew
    our attention to the admonition that an appeal court must recognize that [i]t
    is still fundamentally for the trier [of] fact to decide if any proposed
    alternative way of looking at the case is reasonable enough to raise a doubt:
Villaroman
,
    at para. 56, citing
R. v. Dipnarine
, 2014 ABCA 328, 584 A.R. 138, at
    para. 22. This does not mean that an appeal court must leave it to the trier of
    fact to determine whether it is reasonable to convict. Reading the admonition
    in this way would eliminate unreasonable verdict appeals in circumstantial
    evidence cases.

[43]

The essential point is the familiar one: that appeal
    courts should not overturn verdicts simply because they would have found to the
    contrary. A reviewing court must treat a verdict with great deference and pay due
    regard to the advantages the trier of fact had at the trial:
R. v. W.H
.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at paras 2, 27;
R. v. Biniaris
, 2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. A verdict should be found to be
    unreasonable only where the verdict is one that a properly instructed trier of
    fact could not reasonably have rendered on the totality of the evidence:
W.H
.
,
    at para. 26;
R. v. Yebes
, [1987] 2 S.C.R. 168, at para. 23; and see
Biniaris
,
    at para. 37.

[44]

As Cromwell J. makes clear, in a circumstantial
    evidence case such as this, the salient question is whether the trier of fact,
    acting judicially, could reasonably be satisfied that the accuseds guilt was
    the only reasonable conclusion available on the totality of the evidence:
Villaroman
,
    at para. 55.  In my view, the conclusion that Mr. Spencer is guilty of the offences
    that are the subject of this appeal is not the only reasonable conclusion
    available on the totality of evidence. The problem is not simply that there are
    other, reasonable, innocent conclusions available. It is that the findings of
    guilt are themselves unreasonable because the totality of the evidence is incapable
    of supporting a reasonable finding that the Crown proved Mr. Spencers identity
    as the shooter beyond a reasonable doubt.

[45]

In coming to this conclusion, I have considered
    the advantages that the trial judge had at trial. I appreciate that the trial
    judge had the benefit of a four-day trial including full trial submissions, but,
    beyond this, the advantages of the trial judge are few. He had the benefit of
    hearing and observing the testimony of witnesses, but this prosecution did not
    turn on whether the testimony of witnesses should be credited. It turned on the
    sufficiency of undisputed evidence: the DNA evidence, Cst. Breaus description
    evidence, and the surveillance videos. I take no issue with the trial judges
    conclusions relating to the DNA evidence or with the description that Cst.
    Breau provided, and I have had the opportunity to examine the surveillance
    videos, just as the trial judge did. I bear in mind that we must respect the
    fact that it was the trial judges role to determine Mr. Spencers guilt or
    innocence, not ours. However, I am persuaded that the decision he arrived at is
    unreasonable and cannot stand.

[46]

Taken at its highest, the evidence amounts to
    the following.

[47]

At some unknown point in time, Mr. Spencer
    handled, or was in proximity to, the firearm used in the shooting. Over an hour
    before the shooting, Mr. Spencer was in the vicinity of the shooting, at the nightclub
    that the shooter may have attended. It is not known whether the three other
    unknown persons, who handled or were in proximity to the firearm, were also in the
    vicinity of the shooting, nor is it known whether, like Mr. Spencer and the
    shooter, they too were Black, young-adult males with shorter hair.

[48]

In addition, Mr. Spencer wore dark clothing, as
    did the shooter, and as did many of the other Black, young-adult males in the
    vicinity at the time. When asked to comment on how similar the shooters
    appearance was to others around him, Cst. Breau did not suggest that it was unusual
    for the shooter to be wearing a winter jacket, and no such evidence was
    presented.

[49]

Mr. Spencers winter jacket had an indiscernible
    light-coloured patch below the shoulder of the left arm and so, too, did the
    shooters jacket. However, no evidence was led as to how common or uncommon it
    is for winter jackets to have such patches on their left shoulders. It is also unknown
    whether the shooters coat was puffy, as Mr. Spencers was. It may have been. Although
    the shooters jacket appears to be solid coloured in the surveillance images
    showing his flight, as Mr. Spencers jacket appears to be in the nightclub
    surveillance videos, the shooters jacket may in fact have been patterned, as
    Cst. Breau described, and not of a solid colour, like the one Mr. Spencer is
    seen wearing. This cannot be known because the footage of the fleeing suspect is
    grainy and indistinct.

[50]

In the grainy images available from the
    nightclub, captured more than an hour before the shooting, Mr. Spencer was
    wearing white runners with an unidentifiable dark-coloured pattern. The
    resolution does not permit the dark-coloured pattern to be identified or its
    colour determined. That dark-coloured pattern may have been blue or turquoise,
    as the coloured pattern on the shooters white runners appears to be, but, then
    again, it may not have been blue or turquoise. It is impossible to tell. The dark-coloured
    pattern on Mr. Spencers shoes may match the precise shape of the dark-coloured
    pattern on the shooters shoes, but, once again, given the poor quality of the
    relevant images, this cannot be ascertained. The most that can be said is that
    no inconsistencies in general appearance or trim between the running shoes can
    be confidently noted.

[51]

With respect, it cannot reasonably be concluded
    that this evidence excludes the possibility of innocent coincidence. Quite
    simply, even if the points of distinction are put to the side, the totality of
    the evidence is too generic to reasonably permit the identification of Mr.
    Spencer as the shooter, or the elimination of all other potential suspects,
    beyond a reasonable doubt.

[52]

Where an appeal court finds a trial judges
    verdict unreasonable, the appeal court may be able to identify a flaw in the
    evaluation of the evidence, or in the analysis:
Biniaris
, at para.
    37. Where this is so, the court should identify the defects in the analysis
    that led the trier of fact to an unreasonable conclusion:

Biniaris
,
    at para. 37. Here, three defects in the trial judges analysis can be
    identified that appear to have contributed to the unreasonable conclusion that
    he reached.

[53]

First, in para. 27 of his reasons, reproduced
    above in para. 36 of this decision, the trial judge listed six factors that he
    found linked Mr. Spencer to the firearm at the relevant time, place, and
    criminal act. Of those six factors, two were entirely irrelevant in linking Mr.
    Spencer to the firearm. The discovery of the firearm along the escape route
    (the fourth factor) and the spent cartridge (the fifth factor), assist in
    establishing the shooting and the escape route but offer no assistance in
    identifying the shooter.

[54]

Second, the trial judge appears to ascribe more
    incriminating weight to Cst. Breaus fleeting glance evidence (factor 2) than
    it fairly warrants. To be sure, the trial judge finds only that Cst. Breaus
    evidence is not inconsistent with Mr. Spencer but even that conclusion is not
    supported by the evidence. Cst. Breau was clear in describing the jacket worn
    by the shooter as patterned, yet the jacket worn by Mr. Spencer does not appear
    to have been patterned. Moreover, Cst. Breau does not describe the shooters jacket
    as puffy but the jacket worn by Mr. Spencer is clearly puffy. Finally, although
    the discrepancy is not significant, Cst. Breau described the shooter as 54
    tall, perhaps 55 tall, whereas Mr. Spencer is 57 tall. Although it may well
    be true, as the trial judge reasoned, that Cst. Breau may have misjudged the
    shooters height because of the fleeting glance, he may not have done so.
    Moreover, other observations made by Cst. Breau, that the trial judge chose to
    rely upon, were also made by fleeting glance. I need not make a firm finding
    that the trial judge misapprehended any of this evidence to resolve this
    appeal. It is enough to observe that a reasonable determination requires that
    these shortcomings in the Crown case be considered, yet it does not appear that
    they were.

[55]

Third, the trial judge relied on the
    consistency between the images of the footwear and the jacket with the white patch
    worn by the fleeing shooter captured on the 199 Ossington surveillance video
    and that worn by Mr. Spencer (factor 3). In fact, for the reasons offered in
    paras. 48-51 of this decision, the most that can reasonably be said is that the
    footwear and jacket may be consistent, but this cannot be determined, given the
    poor quality of the video.

[56]

In sum, I am persuaded that it was not
    reasonable for the trial judge to have found that Mr. Spencers guilt is the
    only reasonable inference available on the totality of the circumstantial
    evidence. An alternative available reasonable inference, indeed, the only
    available reasonable inference, is that there is a reasonable doubt about
    whether Mr. Spencer was the shooter.

CONCLUSION

[57]

I would therefore allow the appeal, set aside
    Mr. Spencers convictions and the findings of guilt made against him on the
    charges arising from the October 14, 2017 shooting. Where, as is the case here,
    convictions cannot be supported by the evidence, the appropriate remedy is an
    acquittal:
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381, at para.
    14. I would therefore order the acquittal of Mr. Spencer on these charges.

Released: December
    23, 2020 AH

David M. Paciocco J.A.
I agree. Alexandra Hoy J.A.
I agree. Gary Trotter J.A.


