COURT OF APPEAL FOR ONTARIO
Sharpe, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
And
Courtney Carroo
Appellant
Brian Snell for the appellant
John Patton for the respondent
Heard: January 28, 2010
On appeal from the judgement of Justice H. Sachs of the Ontario Superior Court of Justice, dated December 15, 2006.
EPSTEIN J.A.:
1The appellant, Courtney Carroo, was charged with a series of firearm offences – possessing a firearm for a dangerous purpose, uttering a threat to cause harm, using a firearm during the indictable offence of threatening, possessing a firearm without a licence and pointing a firearm.
2These charges arose out of gun shots being fired in the air early in the morning of February 13, 2005. The shooting took place outside the Lambada night club near St. Clair West and Oakwood Streets in Toronto. Based on evidence provided by two eye-witnesses, Mr. Chaudhry a taxi driver, and Mr. Langille a bystander, the police arrested the appellant at the scene.
3Following a two-day, judge-alone trial, in which identification was the only issue, the appellant was found guilty of these offences. In this conviction appeal, the appellant argues that the trial judge misapprehended the evidence and that, in any event, the verdicts are unreasonable. He seeks to have the convictions set aside and acquittals entered or that a new trial be ordered.
BACKGROUND FACTS
4Mr. Chaudhry was driving his taxi that night, and around St. Clair and Oakwood he picked up 3 women and a man. He was immediately told to wait while the group talked to some friends outside of the taxi. The man and a woman got out of the taxi and then the woman got back in with a different man. Chaudhry noticed that the second man appeared to be angry. He then pulled out a gun, loaded it and left the taxi. He started firing shots. The others got out of the taxi. Chaudhry drove the car forward about 50 metres and called 911.
5This is the point where Mr. Langille, an off-duty firefighter, became involved. As he and some friends with whom he had been socializing left the Lambada night club, he noticed a number of people, about 12 to 15, milling about. He was startled by the sound of a “pop” and saw a tall black man approach the group. The man was holding a gun over his head and firing shots into the air. He then lowered the gun to chest level, waived it towards the group and said, “Who wants some of this?” Two women and a man intervened, subdued him and the four of them left the immediate area of the shooting.
6By this time Officer Santeramo had arrived in response to Chaudhry’s 911 call. Chaudhry described the events to the officer. About 10 minutes later, Chaudhry saw three women and a man walking along the sidewalk. He recognized them as the same people who had been in his taxi and identified the man to Santeramo as the shooter.
7Meanwhile, as Langille drove off with friends, he noticed someone walking along the road who he recognized as the gunman. He got out of the car and ran back to the area close to the scene of the shooting. He came upon Santeramo talking to Chaudhry. Langille identified himself and then pointed to the man he believed to be the gunman.
8The officer immediately called the station, got into his cruiser, drove about 35 yards to where the appellant was with three other people. Santeramo placed the appellant under arrest.
The Identification Evidence
9Chaudhry was the main identification witness.
10He had close contact with the shooter from the time when the shooter got into the taxi, talked to people outside, pulled out a gun, loaded the gun and left the taxi. Chaudhry testified that he looked directly at the perpetrator as he was waiting for him to close the door of the cab.
11He described the perpetrator as black, tall and thin with a long face and curly black hair. At first he described the perpetrator’s clothing as “black on top”: later he told the police he was wearing a jacket, possibly with fur on it. Chaudhry also testified that, while in his cab, the shooter was with three women.
12Chaudhry said that, minutes later, he pointed out the appellant to the police as being the shooter, upon recognizing him walking in the area with the three women who had been in his cab. He was sure of the identification.
13He also made a clear and unequivocal in-dock identification of the appellant as the shooter.
14Langille’s interaction with the perpetrator was confined to the relatively brief encounter outside of the night club when he saw the perpetrator come toward him brandishing the gun. He was five to ten feet away from the shooter when this was happening. He then watched as the shooter’s friends subdued him. Langille testified that he was sufficiently close to the group to tell them they had to get the shooter under control, though he did not think they "really heard [him]”. The area, illuminated by street lights, was reasonably well lit.
15Langille testified that what struck him the most when he first saw the gunman outside of the night club was his hair - afro style hair sticking out of the top and bottom of a toque. Langille added that he was wearing a black jacket open in front and something that looked like a thinner maybe jean jacket underneath, and baggy pants. His clothing was baggy. He was tall and slim. He was black. Langille was certain that one of the women with the shooter was wearing white pants with a red stripe along the side.
16Langille gave a similar description of the man he noticed from the car. He was tall and was wearing a puffy jacket and had big afro hair sticking out from under a toque. Furthermore, he was with three other people one of whom was a woman wearing white pants with a red stripe along the side.
17Langille followed the police to the area where the appellant was arrested with three other people. According to Langille, one of the individuals arrested was the woman wearing white pants with a red stripe along the side.
18Langille also made an in-dock identification but his evidence in this respect was tainted by a conversation he had with a police officer just before he testified where the officer identified the appellant for him outside of the courtroom.
19Santeramo testified that after arriving at the scene, the first person to describe the shooter was Chaudhry. While Santeramo was interviewing Chaudhry, Langille ran up and pointed to a person who he identified as the gunman. Chaudhry then identified the same person as the shooter.
20The officer’s notes describe the person he arrested as “male black, puffy hair - - very tall, brown eyes, bluejeans, black boots, blue sweater, grey socks, and approximately 6-4 a hundred and eighty pound.” A second officer’s notes describe one of the women arrested with the appellant as wearing white pants.
21The Crown also relied on evidence that 20 particles of gunshot residue were found on the appellant’s hands, shortly after his arrest. An expert in gunshot residue testified about the implications of this evidence. He said that if a person discharges a firearm he will likely have gunshot residue on his hands. However, he added that there are other ways that gunshot residue can find its way on a person’s hand. If someone is within 50 feet of a person who fires a gun or picks up a recently discharged gun or spent ammunition, residue can be transferred to them.
ISSUES
22The appellant raises two issues:
Were the verdicts unreasonable?
Did the trial judge, in two respects, misapprehended material evidence and did that misapprehension occasion reversible error?
ANALYSIS
23As discussed by Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at pp. 219 - 220, the implications of a finding that there has been a misapprehension of evidence are intertwined with the analysis as to whether the verdict is unreasonable. These analyses are drawn from s. 686 of the Criminal Code, R.S.C. 1985, c. C-46. Where misapprehension of the evidence is alleged, the court should first consider the reasonableness of the verdict: s. 686(1)(a)(i). If the appellant succeeds on this ground, an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice: s. 686(1)(a)(iii). If so, the conviction must be quashed and, in most cases, a new trial ordered. If the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the question of whether the misapprehension of evidence amounted to an error in law: s. 686(1)(a)(ii). If so, the Crown must demonstrate that the error did not amount to a miscarriage of justice: s. 686(1)(b)(iii).
- The Unreasonable Verdict Argument
24The test for an appellate court in deciding whether a verdict by a judge is unreasonable is well known, and was recently scrutinized and reaffirmed by the Supreme Court in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. The test is whether the verdict is one that a properly instructed judge, acting judicially, could reasonably have rendered.
25The appellant characterizes the eye-witness identification evidence as being so weak so as to make this a case based on nothing but circumstantial evidence, and submits that this almost-useless eye-witness identification evidence, bolstered only by inconclusive gunshot residue evidence, amounts to a speculative verdict. He submits, therefore, that on the evidence adduced at trial, no reasonable trier of fact, acting judicially, could convict him.
26With respect, I disagree.
27I start with Chaudhry’s evidence. While Chaudhry’s eye-witness testimony required careful scrutiny, it was far from worthless. Chaudhry faced the shooter directly in the close quarters of a car with relatively good lighting and therefore had clear view of the perpetrator’s face and body type.
28Chaudhry’s evidence does not stand alone. It is bolstered by Langille’s testimony. While Langille’s identification evidence may well be considered less reliable than that of Chaudhry, given the circumstances under which Langille saw the shooter, the trial judge was entitled to consider it together with that of Chaudhry.
29As well, the trial judge was entitled to take into account other evidence relevant to the appellant’s identification as the perpetrator.
30There was the substantially consistent description provided by Chaudhry and Langille about the group of people who accompanied the gunman, and the fact that the appellant was arrested at the scene along with a woman wearing white pants.
31Moreover, there is the gunshot residue. In her reasons for judgment, the trial judge considered the gunshot residue as confirmatory: “Finally, when he was arrested, Mr. Carroo had gunshot residue on his hands. While there are other ways in which Mr. Carroo could have gotten residue on his hands, this evidence does corroborate the eyewitness evidence.”
32The appellant argues that given the evidence of the many ways in which gunshot residue may find its way onto the appellant’s hands, the trial judge’s use of that evidence as part of the circumstantial evidence to support her conclusion that the Crown had proven identification beyond a reasonable doubt was improper.
33I disagree. While it is true, as the trial judge acknowledged, that the gunshot residue may have innocently found its way onto the appellant’s hands, it forms part of the evidentiary picture available for the trial judge’s consideration. The other available explanations for the gunshot residue on the appellant’s hands do not make unreasonable the trial judge’s use of that evidence as a part of the total evidentiary picture in support of the Crown’s case for identification. The appellant did not testify or call evidence. That left the trial judge with no evidence to support an alternative explanation. By contrast, there was other evidence which supported the inference that the gunshot residue had resulted from the firearm offences in question. As the Supreme Court has explained, “it is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise.” R. v. LePage (1995), 1995 CanLII 123 (SCC), 95 C.C.C. (3d) 385 (S.C.C.), at p. 397. Coupled with the other evidence of identity, the trial judge did not err in considering it as some degree of further confirmation of the link between the appellant and the shooting.
34Finally, the appellant argues that the trial judge failed to address satisfactorily evidence that might not have supported the inference that the appellant was the shooter. Particular emphasis was placed on the fact that when he was arrested, the appellant was not wearing the “puffy” coat that Langille had observed earlier.
35I would not accept this argument. Read as a whole the trial judge’s reasons indicate that she was alive to the issues in the case, including the evidence as to the coat, and that she was satisfied based on the totality of the evidence that, despite its weaknesses, there was a sufficient matrix of evidence to support a finding that the appellant was the shooter.
36In the end, the trial judge concluded:
At the end of the day, Mr. Carroo was identified by two independent witnesses as the man they say saw firing shots that day. He is seen by both these witnesses with three other people. One witness identifies one of the females who appear to know the shooter as wearing white pants and Mr. Carroo is arrested with a woman wearing white pants. In addition to that, Mr. Carroo has gunshot residue on his hands. Taken cumulatively, this evidence satisfies me beyond a reasonable doubt that Mr. Carroo was the man who committed the acts described by Mr. Langille and Mr. Chaudhry.
37While the evidence identifying the appellant as the shooter has its weaknesses, as identification evidence most often does, there is a substantial degree of consistency in the descriptions given by the two eye-witnesses of the assailant’s notable physical features and the people with him – particularly the woman wearing the white pants with the red stripe along the side. He was arrested at the scene minutes after the two men saw him shooting a gun. This evidence is bolstered by the gunshot residue evidence. In my view the identification evidence meets the reasonableness standard of review: R. v. Francois (1994), 1994 CanLII 52 (SCC), 91 C.C.C. (3d) 289 at pp. 295-7.
- The Misapprehension of the Evidence Argument
38The appellant submits that the trial judge’s reasons demonstrate that she was mistaken as to the substance of two material parts of the evidence and those errors play an essential role in her reasoning process that resulted in her being satisfied beyond a reasonable doubt on identity.
39First, the trial judge erred in finding that both Chaudhry and Langille identified the same number of people as being in the gunman’s group. I refer to pp. 12 – 13 of her reasons:
Both of the witnesses confirmed that the man they saw had been with three other people. Mr. Langille testified that the other three people were two women and a shorter person he thought was a male. One of the females was wearing white pants with a red stripe. Mr. Chaudhry testified that the group with the shooter consisted of three females. Both witnesses identified the same group, and the group that was arrested consisted of Mr. Carroo and three women, one of whom was wearing white pants.
40The appellant contends that this finding is simply not supported by the evidence – in fact the evidence of the two eye-witnesses was not consistent in terms of their description of the people in the shooter’s group. Chaudhry’s testimony concerning the people in and around his taxi just before the shooting was that the gunman was with a larger group of people. Langille testified that the gunman was with one male and two females.
41Second, the appellant submits that the trial judge erred in finding that the identifications of the appellant made by Chaudhry and Langille at the scene were made independently. Rather, according to the appellant the evidence demonstrates that Chaudhry did not identify the shooter until Langille had pointed him out. As Santeramo testified:
After the male [Langille] ran in between my scout car and the cab driver and pointed out the suspect, the cab driver did say: “there he is; there he is.” So he did agree.
42The appellant argues that these two errors are significant as the independence of the eye-witnesses in their testimony pertaining to their picking the shooter out of the crowd and the similarity of the description of the people the gunman was with at the time played an important role leading to conviction.
43The appellant argues that as a result of these errors, he did not receive a fair trial.
44While I agree that these two findings are material, I am not persuaded that the trial judge misapprehended the evidence.
45I agree with the Crown that at the material time, being when the shots were fired, both Chaudhry and Langille spoke of the gunman’s having been with three other people. The only difference in their evidence relates to their account of the male/female composition. The trial judge considered this discrepancy and, in my view, quite reasonably concluded that Langille’s identification of one member of the group as male was “an understandable mistake in the circumstances.”
46With respect to the second alleged error, in my view, the record supports the trial judge’s finding that Chaudhry and Langille independently identified the appellant as the gunman. I refer to the manner in which both Chaudhry and Santeramo testified to Chaudhry’s identification of the shooter.
47Chaudhry testified that when he saw the group passing his car, he “recognized them, they were the same three girls and the guy who were in my cab.” He also said “...when they passed my car to go a little further, I told the police officer that those were the people who were in my cab, and this was the guy who shot those fires”.
48Santeramo testified that, after Langille pointed out the suspect, Chaudhry had said “there he is; there he is.” Santeramo’s description of this statement was that Chaudhry had “agreed” with Langille, but this does not necessarily mean that he merely affirmed Langille’s identification of the shooter. As I read the evidence, it was open to the trial judge to conclude that the two men independently recognized and then concurrently reported their independent recognitions to the police.
49In my view, there is no indication that the trial judge erred in her appreciation of the evidence.
CONCLUSION
50It is not this court’s function to substitute itself for the trial judge. Rather, it is to conduct an assessment, based on a re-examination of the evidence through the lens of judicial experience, in order to decide whether the verdict is one that a properly instructed trier-of-fact, acting judicially, could reasonably have rendered: see Biniaris.
51Here, the examination discloses a situation where the appellant was arrested at the scene minutes after the shooting and after two eye-witnesses unequivocally identified him as the perpetrator not only by his height, the shape of his face, and his afro hair style, but also by the people with him. This identification evidence was reinforced by the gunshot residue evidence. While there were aspects of the evidence that had the potential of detracting from the Crown’s case in terms of identity, it hardly needs to be said that descriptions provided by honest people of unexpected events such as this are rarely, if ever, perfectly recorded and recalled. Such is the view that one invariably has through the lens of judicial experience.
DISPOSITION
52In my opinion, the verdict is not unreasonable. Accordingly, I would dismiss the appeal.
RELEASED:
“RJS” “G.J. Epstein J.A.”
“FEB 25 2010” “I agree Robert J. Sharpe J.A.”
“I agree Janet Simmons J.A.”
