COURT OF APPEAL FOR ONTARIO
Paciocco, Wilson and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Nicholas Walker
Appellant
Alexandra Heine and Gerald Chan, for the Appellant
Emily Marrocco, for the respondent
Heard: December 11, 2024
On appeal from the conviction entered by Justice Ian A. MacDonnell of the Superior Court of Justice on March 5, 2021, with reasons reported at 2021 ONSC 1358.
PACIOCCO JA:
OVERVIEW
1In the early morning hours of March 28, 2011, Clifenton Ford was shot to death in a crowded bar in what was obviously an intentional killing. On March 5, 2021, after a judge-alone trial, Nicholas Walker was convicted of first-degree murder in connection with Mr. Ford’s death. There were only two live issues at Mr. Walker’s trial, identity, and whether the killing was planned and deliberate.
2Mr. Walker now appeals his first-degree murder conviction. He takes no issue with the trial judge’s finding that the killing was planned and deliberate, and therefore a first-degree murder. Mr. Walker’s focus on appeal is solely on the trial judge’s finding that he was the shooter. He argues that the trial judge: (1) committed legal errors in admitting evidence relevant to his identity, (2) failed to grapple adequately with numerous flaws in the evidence, and (3) arrived at an unreasonable verdict. I would dismiss his appeal for the following reasons.
MATERIAL FACTS
3The Crown case was entirely circumstantial. The Crown could not produce anyone who would testify to having seen the shooting, even though the shooting was a relatively protracted event that occurred in proximity to numerous people.
4Although almost all events in the bar were captured in grainy video recordings by various security cameras, when the first shot was fired at 2:29:03 a.m., the shooter was standing in a “blind spot” that was not within security camera range. After firing that shot, the shooter moved into view of one of the security cameras and was recorded firing what proved to be five more shots into Mr. Ford before exiting the bar swiftly out the front door. The images that were captured of the shooter are not clear enough to permit facial recognition.
5In convicting Mr. Walker, the trial judge accepted the testimony of Mr. Lester Coore that as he was about to leave the bar shortly before it closed, he briefly encountered Mr. Walker, whom he was well acquainted with, in a rear staircase. Consistent with a pretrial ruling he had made, the trial judge permitted Mr. Coore to be shown security camera footage from the rear staircase commencing at 2:21:08 a.m., and to identify the following 29 seconds of video as footage depicting the encounter he was describing (the “staircase video”). Mr. Coore testified that he was able to recognize his own image in this video sequence. He testified that although he could not recognize the second man in the video given the poor quality of the image, he knew that man to be Mr. Walker from their encounter. He said he left the bar after meeting Mr. Walker and waited outside for his girlfriend to finish using the washroom. He said that he heard shots as they were walking towards his car upon reuniting.
6This testimony, which the trial judge credited, became the lynchpin in Mr. Walker’s conviction based on similarities in appearance between the man who had the encounter with Mr. Coore as depicted in the staircase video, and the man who can be seen firing the last five shots into Mr. Ford. The trial judge determined that, not only was the appearance of this person “strikingly similar” between those images, but all other persons who had been in the area where the shooter had been standing at the time of the shooting were materially different in appearance. Using this technique, the trial judge was satisfied that he could trace the movements of the man who Mr. Coore had identified as Mr. Walker from the staircase encounter into the blind spot where he remained until after the first shot was fired, and then into camera view in the front of the bar where he fired the remaining shots into Mr. Ford. This man then walked briskly from the bar and disappeared into the parking lot.
7The trial judge found additional circumstantial support for these conclusions in DNA and fingerprint evidence linking Mr. Walker to a glass that had been left on the bar in the area where the shooter had been. This glass contained what appeared to be cranberry juice, the mix that Mr. Walker had been observed drinking while at the bar.
8The trial judge also found support for his finding that Mr. Walker was the shooter in evidence of animus between Mr. Walker and Mr. Ford arising out of an allegation made by Mr. Ford’s girlfriend, Jonell Walker (“Jonell”1) that Mr. Walker had touched her inappropriately on an earlier occasion.
9Mr. Walker takes no issue on appeal with the trial judge’s finding that he was present in the bar and in the blind spot when the first shot was fired, but as indicated, he contends that the trial judge’s finding that he was the shooter was arrived at in error.
ANALYSIS
(1) Did the Trial Judge Commit Legal Errors in Admitting Evidence?
10In his Appellant Factum, Mr. Walker argued that the trial judge erred in law by permitting Mr. Coore to testify that the second man in the staircase video was Mr. Walker (the “identity testimony”). During oral argument he also submitted that the trial judge erred in permitting Mr. Coore to testify that the staircase video depicted that exchange (the “recognition of the event”). I am not persuaded that either ruling was wrong. I begin with the latter argument.
(1) The Recognition of the Event
11Mr. Walker argues that although it was appropriate for the trial judge to permit Mr. Coore to describe the encounter the two men had, he erred in permitting Mr. Coore to identify that encounter in the staircase video because: (a) the trial judge based that ruling on the mistaken belief that Mr. Walker did not contest the admissibility of this testimony; (b) this testimony was inadmissible lay opinion evidence; and (c) the evidence was inherently dangerous, given that it was both opinion evidence and identification evidence. He argues that if the trial judge was going to find that the staircase video depicted the encounter that Mr. Coore described, he should have drawn that conclusion on his own by comparing what he could see on the video to Mr. Coore’s description of the encounter. I would reject each of these submissions.
(a) Misapprehension of Mr. Walker’s Position
12First, it is not at all clear that the trial judge was mistaken when he said in his admissibility ruling that Mr. Walker had conceded during argument that Mr. Coore could testify that the staircase video “is a recording of his interaction with Mr. Walker”. Several of the exchanges between the trial judge and Mr. Walker’s counsel during the admissibility voir dire support that interpretation of trial counsel’s position. Although there are other comments that suggest the contrary, I am not going to resolve this question because it is unnecessary to do so. Even if Mr. Walker did take the position that testimony from Mr. Coore identifying the encounter in the security video was legally inadmissible, as I am about to explain, that position is wrong in law and the trial judge would have been legally required to reject this submission. Quite simply, the fact that a trial judge did not understand that an appellant was advancing a legally incorrect position is not a viable ground of appeal.
(b) The Lay Opinion Evidence Rule
13I am not persuaded that Mr. Coore was providing inadmissible lay opinion evidence when he identified the encounter captured by the staircase video. The line between fact and opinion is not always clear: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 at p. 835. It is arguable that, as a participant in the encounter, Mr. Coore recognized the encounter in the staircase video as a matter of personal knowledge, not opinion. However, as interesting as this question may be to resolve, there is no utility in doing so because there is a long-standing fixed exception to the presumptive inadmissibility of lay opinion evidence for “the identification of handwriting, persons and things”, recognized in Graat, at p. 835. Even if the testimony Mr. Coore gave identifying the event in the staircase video amounted to lay opinion evidence, it would be admissible pursuant to this fixed or traditional exception.
14In Graat, Dickson J. (as he then was), for the Court, addressed the admissibility of lay opinion evidence and developed a purposive, principled exception to supplement the fixed or settled exceptions to the lay opinion evidence rule. Even if Mr. Coore’s testimony identifying the event in the security video had not been admissible pursuant to the fixed exception for the identification of things, it would satisfy this principled exception.
15First, to meet that principled exception a lay opinion must be relevant: Graat, p. 835. It is obvious that evidence identifying the staircase video as depicting the meeting between Mr. Coore and Mr. Walker would provide relevant data for decision-making during the trial. Mr. Walker does not argue otherwise.
16Second, to meet the principled exception, the lay witness must be in a better position than the trier of fact to form the conclusion they are communicating: Graat, p. 836. Although the trial judge may have been able to infer that the security video captured the encounter based on similarities between Mr. Coore’s description of that encounter and what the security video depicted, Mr. Coore was clearly in a better position than the trial judge to draw that conclusion given that he was a direct party to the encounter.
17Third, to meet the principled exception to the lay opinion evidence rule, the conclusion must be one that is based on ordinary experience and not special experience: Graat, at p. 838. This requirement exists because the expert opinion evidence rule applies instead of the lay opinion evidence rule if special experience is needed to draw a conclusion. Mr. Coore’s conclusion that the staircase video depicted the encounter required no expertise or special experience to arrive at, thereby satisfying this precondition.
18Finally, to provide lay opinion evidence under the principled exception in Graat, it must be necessary for the witness to resort to conclusory statements to communicate their relevant factual observations effectively and completely, such as where the conclusion is merely a “compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”: Graat, at p. 841. In my view, this admissibility precondition is also satisfied. It is notorious that a witness who recognizes another person will base their recognition not only on the details they can identify and describe in testimony, but also on details they have unconsciously observed, or that cannot realistically be identified or articulated in testimony. The same may be taken as true, in my view, when a witness recognizes a dynamic event, such as an encounter in a location that lasts for approximately half a minute. While a witness to an event can no doubt isolate and describe specific familiar features of that event that are depicted in video footage, it cannot reasonably be questioned that their recognition of an event on film will also be influenced by unconscious observations or triggering details of the event that are too subtle to be described. A witness’s testimony that “that is the event” goes beyond the overlapping details that have been isolated and articulated, and if credited, can add weight to testimony disclosing specific overlapping features.
19For these reasons, I am persuaded that Mr. Coore’s testimony that the video depicted his encounter with Mr. Walker was not “inadmissible lay opinion evidence”. If it was opinion evidence at all, it had two different legal avenues for admission: (1) the fixed or traditional exception for “the identification of handwriting, persons and things”, and (2) the principled exception in Graat.
(c) The Inherent Danger of the Evidence
20Mr. Walker argues that the trial judge should not have permitted Mr. Coore to testify that the security video depicted his encounter with Mr. Walker, or to identify Mr. Walker in that video, because this evidence combined both “opinion evidence” and “identification evidence”, two inherently unreliable forms of proof. I will address this submission below as it relates to Mr. Coore’s identification of Mr. Walker on the security video. Here, I will explain why this submission is not a basis for excluding the testimony that Mr. Coore gave identifying the event depicted in the staircase video as the encounter he had with Mr. Walker. I have already addressed the opinion evidence concern relating to Mr. Coore’s identification of the event. In my view, Mr. Walker’s reliance on the inherent unreliability of this “identification evidence” fares no better.
21First, although Mr. Coore’s testimony that he recognized the event in the staircase video was “identification evidence” in the broad sense, it was not the kind of identification evidence that is recognised to be inherently dangerous, namely, evidence identifying persons. Familiar and serious risks with the identification of persons include: (1) the danger of honest mistaken identifications as the result of human limits in the ability to distinguish dependably between people or to observe or recall the detail needed to make a reliable identification of others, and (2) the suggestibility that can result from defective prior identification procedures or from exposure to the person as the suspect prior to the identification testimony being provided: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 100–102, 109, leave to appeal refused, [2012] S.C.C.A. No. 8; and see R. v. Bigsky, 2006 SKCA 145, 217 C.C.C. (3d) 441. When a witness identifies an event depicted on a video recording based on what they know to have transpired, as Mr. Coore did in this case, they are not identifying persons per se, and the kind of risks that are associated with identification evidence relating to persons may not be pressing, or even present. In this case, for example, there were many features of the staircase video that permitted Mr. Coore to identify the event other than the identity of the participants, including its timing, location, and nature of the encounter. The fact that the testimony in this case, if credited, would lead to the ineluctable inference that the second man would have been Mr. Walker, and therefore was Mr. Walker, does not turn the identification of the event into an inherently problematic form of identification evidence.
22In any event, even testimony identifying persons is not presumptively inadmissible. Although this kind of identification evidence can raise special reliability concerns, identification evidence remains a staple in criminal trials. Absent an admission of the identity of the offender, no conviction would be possible in any case without evidence establishing that the accused is the perpetrator. The fact that this evidence was identification evidence, albeit pertaining to an event, does not require its exclusion.
23To be sure, trial judges do have residual discretion to exclude any technically admissible evidence presented by the Crown where “its probative value is outweighed by the potential prejudicial effect” that it creates: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 89; R. v. Schneider, 2022 SCC 34, 474 D.L.R. (4th) 1, at paras. 59–60. However, Mr. Walker has not persuaded me that the trial judge was obliged to exclude this testimony pursuant to that residual discretion. Since the residual exclusionary discretion involves the exercise of judgment and the task is assigned to trial judges to perform, the decision of a trial judge whether to exercise that discretion “should be reviewed with deference”: Schneider, at para. 62. Deference is certainly called for here because Mr. Walker did little during the admissibility voir dire to show the need for discretionary exclusion. He did not ask the judge to exercise his exclusionary discretion, and his submissions were almost entirely confined to whether the testimony of Mr. Coore identifying Mr. Walker in the staircase video was technically inadmissible “Leany evidence”, an issue I address below. He did make brief and limited comments about Mr. Coore’s “unreliability”, but he tied those concerns to the technical admissibility of Mr. Coore’s evidence and did not offer them as a foundation for exclusionary discretion. This creates challenges for Mr. Walker’s current ground of appeal. An appeal based on the failure by a trial judge to exercise their residual discretion to exclude technically inadmissible evidence will not succeed where the accused did not ask the trial judge to exercise that discretion unless it is evident that “had the request been made, the trial judge would have been required to exclude” it: see R. v. Trotta, 2004 CanLII 34722 (ON CA), 191 O.A.C. 322 (C.A.), at para. 42, rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453; Candir, at paras. 80–84. I address the concerns that Mr. Walker raises about the reliability of Mr. Coore’s testimony below. Suffice it to say at this juncture that those concerns do little to undermine the considerable probative value of Mr. Coore’s testimony identifying the staircase video as his encounter with Mr. Walker, and they do little to mark this testimony as too prejudicial to receive. In my view, this is not one of those uncommon cases where the imbalance between probative value and prejudice was so clear that a judge would be obliged to exclude it of their own initiative by invoking the exclusionary discretion.
24I would reject this ground of appeal.
(2) The “Identity Testimony”
25Mr. Walker made what can be characterized as three arguments as to why the trial judge erred in permitting Mr. Coore to refer to the second man in the staircase video as Mr. Walker: (a) this was inadmissible “Leaney evidence”; (b) this was inadmissible lay opinion evidence; and (c) the evidence was inherently dangerous, given that it was both opinion evidence and identification evidence. I am not persuaded by any of these submissions.
(a) Leaney Evidence
26In his Appellant Factum, Mr. Walker argued that the trial judge erred by receiving Mr. Coore’s identification evidence as “Leaney evidence” pursuant to the authority of R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, given that the admissibility preconditions for Leaney evidence had not been met. The trial judge did not make this error. He accepted, as all participants did during the admissibility voir dire, that Mr. Coore’s identification evidence could not be admitted as Leaney evidence since Leaney permits recognition evidence and Mr. Coore could not recognize the image of the second person depicted in the video. As a result, the trial judge did not permit Mr. Coore to identify Mr. Walker as a matter of recognition. Instead, he reasoned that since Mr. Coore “recognized” the event captured by the staircase video as the encounter he had with Mr. Walker, and since he knew the second man in that encounter to be Mr. Walker, he could testify that Mr. Walker was the second man. In my view, this was not Leaney evidence, either in form or substance.
(b) The Lay Opinion Evidence Rule
27When it became clear to Mr. Walker’s trial counsel during the admissibility voir dire that the identification evidence was not Leaney evidence, he fell back on the submission that Mr. Coore should not be permitted to identify the second man depicted in the staircase video because, by doing so, he would be offering inadmissible lay opinion evidence. This was the focus of Mr. Walker’s submission on this issue before us during oral argument. I do not accept this submission.
28First, it is arguable that this testimony was not opinion evidence at all. If the trial judge was to credit Mr. Coore’s testimony that he had an encounter with Mr. Walker that evening, and this video depicting that encounter was credited, the conclusion that the other man in that two-man encounter was Mr. Walker was not a matter of opinion open to debate, but an ineluctable fact known to Mr. Coore as a matter of personal knowledge.
29Second, even if Mr. Coore’s references to the second man as Mr. Walker were “opinion evidence”, his identification of Mr. Walker on the security video was admissible under the fixed exception to the lay opinion evidence for the identification of persons, described in paragraph 13 above.
(c) The Inherent Danger of the Evidence
30I would reject Mr. Walker’s submission that Mr. Coore’s testimony that Mr. Walker was the second man in the staircase video was so inherently dangerous as opinion evidence and identification evidence – two notoriously problematic forms of testimony – that the trial judge erred by failing to exclude it. I have already expressed my view that this was not opinion evidence, and I am far from persuaded that Mr. Coore’s testimony that the second man depicted in the video was Mr. Walker was so problematic as identification evidence that it had to be excluded.
31Since the identification of Mr. Walker was not based on recognition or the purported recollection of the features of his appearance, the usual risks that attend identification evidence were not present. This case is entirely unlike R. v. Olliffe, 2015 ONCA 242, 331 O.A.C. 12; and R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, two cases that Mr. Walker relied upon where a trial judge was found to have failed to give effect to the risks of unsafe recognition evidence. In this case, the identification followed as an indisputable fact if Mr. Coore did have an encounter with Mr. Walker early that morning (which was not disputed) and if the staircase video did depict that encounter. This was not a case of an unreliable identification of the suspect.
(d) The Curative Proviso
32Even if I am wrong and the trial judge should not have permitted Mr. Coore to identify the second man as Mr. Walker, I agree with the Crown that any such error would be a harmless error giving rise to no substantial wrong or miscarriage of justice. Pursuant to s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, I would have dismissed this ground of appeal on that basis. The trial judge ultimately accepted Mr. Coore’s testimony about the meeting and its depiction in the staircase video. That being the case, the conclusion that Mr. Walker was the second man was an inevitable, ineluctable corollary, even leaving aside Mr. Coore’s articulation that Mr. Walker was the second man. In these circumstances, the sole possible role that the erroneously admitted evidence could have played in the case was to provide a redundant, alternative route to a conclusion that was going to be drawn in any event. This, in my view, is the epitome of a harmless error.
33I would reject this ground of appeal.
(2) Did the Trial Judge Fail to Grapple Sufficiently with Deficiencies in the Evidence?
34With respect, the issues that Mr. Walker raises in support of this ground of appeal represent an effort to reargue his case. They do not provide any basis for interfering with the trial judge’s decision.
35First, the trial judge gave due consideration to Mr. Walker’s submission that Mr. Coore’s identification of the event in the staircase video was unreliable because it was tainted by the leading and suggestive police interview that had been conducted. Mr. Walker did not take issue with Mr. Coore’s testimony that he and Mr. Walker had an encounter. His position at trial was that Mr. Coore’s belief that the staircase video depicted that encounter was too unreliable to credit because his recognition of that encounter was tainted. The trial judge addressed this argument adequately. After giving a fair reading to Mr. Coore’s testimony, he rejected Mr. Walker’s submission that Mr. Coore had acknowledged in his testimony that his evidence was tainted. The trial judge then went on to explain, based on what the staircase video depicted, that it was not plausible in his view that Mr. Coore may have been mistaken about this being the event. He said that the theory that Mr. Coore had erred by pointing to the wrong encounter “would require that everything that Mr. Coore said about the purpose and content of the conversation be stripped away.” Mr. Coore would have to have “either consciously or unconsciously made up the details concerning what the conversation was about”, namely, Mr. Coore’s concern that Mr. Walker looked as though he could fall on the stairs. This reasoning provides a complete answer as to why the tainting submission was rejected.
36Mr. Walker also argued that the trial judge did not deal adequately with discrepancies between Mr. Coore’s description of his encounter with Mr. Walker, and what the staircase video depicted. The two discrepancies that were given primary attention at the trial related to: (1) Mr. Coore’s testimony that Mr. Walker had stumbled during their encounter, which the staircase video does not depict; and (2) Mr. Coore’s testimony that he spoke to Mr. Walker before he retrieved his coat, when the encounter depicted in the staircase video occurred after Mr. Coore retrieved his coat.
37I am not persuaded that the trial judge did not pay adequate attention to these two discrepancies.
38First, the trial judge addressed the absence of a stumble on the video at some length and provided a reasoned explanation for rejecting it by quoting testimony Mr. Coore gave in cross-examination qualifying his use of the term “stumble”; “Did I say stumbled? I say I saw him on the stairs like he was gonna fall off….” Not only did this testimony provide a basis for discounting the importance of the missing stumble, but it provided an additional reason for concluding the staircase video did depict the encounter between the two men. As the trial judge noted, the staircase video depicts the second man standing for approximately twenty seconds at the top of a flight of stairs, and shifting his weight, while engaged with an object in his hand that he was manipulating. This event provided an objective foundation for the concern that Mr. Coore described having.
39The trial judge also explicitly addressed the sequence in which the jacket was retrieved, finding the discrepancy to be “incidental”. This was a characterization that the trial judge was entitled to make. I do not accept Mr. Walker’s submission that this sequencing discrepancy took on real importance because it provides support for his theory that his meeting with Mr. Coore may have taken place prior to the depicted encounter, in the blind spot above the staircase. There is no evidence that the encounter may have occurred in the landing blind spot. More importantly, as the trial judge explained, the staircase video encounter conforms to the essential narrative of the encounter that Mr. Coore provided in time, location, and nature. The discrepancy about the sequence in which the coat was retrieved is not capable, on its own, of providing a reasoned basis for the problematic and speculative claim that the staircase video encounter was with someone other than Mr. Walker, and that a similar encounter, unsupported by any evidence, may have just occurred above it on the upper landing area.
40The trial judge was also fully aware of the memory issues Mr. Coore expressed and gave them full consideration. I see no error in his evaluation.
41Finally, the trial judge adequately addressed “exculpatory” evidence that the witness Alvin Gardner gave that Mr. Walker was not wearing a baseball cap that evening, but a wool hat of some kind, possibly a tam or a beret. This testimony, if true, would have undermined both Mr. Coore’s identification of the Walker encounter, and the trial judge’s tracing exercise in which he linked the second man in the staircase video with the shooting. The trial judge was acutely aware of the potential importance of Mr. Gardner’s evidence but, based on his considered and reasoned acceptance of the evidence of Mr. Coore and the presence of a plausible explanation as to why Mr. Gardner may have been mistaken about Mr. Walker’s head wear, he rejected Mr. Gardner’s testimony, stating explicitly that Mr. Gardner’s evidence did not leave him in a reasonable doubt. This analysis was open to the trial judge, and was conducted consistently with the requirements of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
42I would deny this ground of appeal.
(3) Did the Trial Judge Arrive at an Unreasonable Verdict?
43Mr. Walker argues that the verdict was unreasonable because it was not one a properly instructed trier of fact, acting judicially, could have arrived at: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28. I disagree. The verdict was not unreasonable. It was instead the compelling product of a comprehensive, meticulous, and impressive analysis of the evidence.
44I have already explained why the trial judge’s consideration of the “deficiencies” in the evidence Mr. Walker has identified in no way undermine his ultimate finding. In support of his broader submission that the verdict was unreasonable, Mr. Walker also targeted the sufficiency of the trial judge’s treatment of the evidence of animus or motive, and the “unreliability” of the video tracing exercise the trial judge engaged in. I will address these two remaining points in turn.
45First, I reject Mr. Walker’s submission that the animus between Mr. Walker and Mr. Ford arising out of the alleged inappropriate touching of Jonell by Mr. Walker was too minor to stand as a motive for murder, particularly given that Mr. Walker had made apologies for his conduct, and that a respected member of their community had met with the parties informally in an apparent effort to defuse the situation. I do not accept Mr. Walker’s submission that, as a matter of human experience, the allegations were too minor to provide a motive for murder. Evidence was presented of ongoing and tense verbal confrontations between the two men that were evidently elevated enough to cause others to attempt to intercede. Mr. Ford had also been informed that, in a related incident that occurred in his absence, Mr. Walker struck Jonell’s mother in the face with a pool ball he had thrown at Jonell, injuring Jonell’s mother. This was not evidence of a trivial dispute between Mr. Ford and Mr. Walker. It was entirely capable of showing a deep and serious animosity between them.
46I also reject the submission that the trial judge should not have given any weight to the animus because of the reconciliation attempts that had occurred. The trial judge hearkened to this evidence, but he was not satisfied, in effect, that a jury would necessarily find that the reconciliation attempts had diffused the tension. This conclusion was open to him.
47Second, I am not persuaded by Mr. Walker’s criticisms of the tracing exercise the trial judge engaged in. Appropriately, Mr. Walker did not pursue in oral argument the submission he made in his factum that the trial judge exceeded his role by engaging in the close examination of the videos that he did. It is entirely appropriate for a trial judge to analyze and draw inferences from exhibited videos: see, for example, R. v. Ahmed, 2022 ONCA 640, 418 C.C.C. (3d) 1, at para. 83; R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 29; and R. v. Searay, 2020 ONCA 726, at para. 16. Indeed, the trial judge was mindful that concerns about procedural fairness could arise if he was to draw inferences that were not addressed by the parties. To his credit, he asked for further submissions after disclosing his preliminary observations to ensure that the parties could respond to the inferences he was considering.
48I can find no fault in the examination the trial judge undertook in coming to his judgment. He was aware of the broader challenges that the tracing exercise entailed, given the need to coordinate the videos, the large number of patrons at the bar, the general similarity of clothing styles that were worn, and the graininess of the images. He accepted that although he was not able to recognize faces on the videos because “the footage is too grainy to support a Nikolovski-type comparison”, “the quality of the video footage is sufficient to permit individuals who appear in the footage to be distinguished from one another.” I have viewed the videos. That conclusion was not unreasonable.
49The trial judge was also fully alive to the distorting effect that the infrared cameras had on the actual colours of objects depicted in the videos, and he addressed this concern on several occasions. He noted that although the infrared cameras can and did produce false colour images, he was satisfied based on his own examination that the colours were “false in a manner that is consistent” between videos, thereby permitting video to video comparisons. He explained this point by noting that a cap that falsely appears to be white in one image would continue to appear to be white in another. I can find no fault in the trial judge arriving at that conclusion. He was not obliged to accept suggestions in Mr. Hall’s KGB statement to the contrary relating to the colour distortion in the video. Indeed, before arriving at this conclusion, he compared the images of Clinton Hall and Mr. Coore between cameras. Nowhere did the trial judge claim that there would be no differences in shading between images from camera to camera. His point was that the colour distortions would not prevent the comparison of individual images between cameras.
50I would also note that the tracing exercise the trial judge engaged in went far beyond the comparison of the apparent colour of items of clothing. The trial judge meticulously itemized numerous distinctive features of the suspect, including the shooter’s short hair; his clean-shaven face; the length and shade of his jacket; the light-colour of his baseball cap; the open neck; the character and the positioning of his shawl collared sweater he was wearing, including its length relative to his coat; and his “white” shoes. He traced the suspect by a painstaking, meticulous comparison of the persons depicted in each security video, confirming “strikingly similar” features between all the images he concluded to be of the suspect, and finding there to be no apparent material differences. By doing so, he produced a coherent record of the movements of the suspect from the time of his arrival until his departure, which persuasively links the man in the stairs to the shooter.
51Impressively, the trial judge did not stop there. Appreciating that there were only two exits from the bar, he examined each individual person who vacated the bar from the area of the shooting to see if anyone else also matched the “strikingly similar” appearance of the suspect. He systematically explained his conclusion that everyone else was materially distinguishable in appearance, ultimately concluding that the only reasonable conclusion available to him was that the person who had encountered Mr. Coore in the staircase was the shooter. Based on his acceptance that the man who Mr. Coore had met was Mr. Walker, a man who admittedly had the opportunity to do the killing and who had recent animus against Mr. Ford, he found Mr. Walker guilty.
52This was not an unreasonable verdict. It was a compelling one.
CONCLUSION
53I would dismiss the appeal.
Released: January 16, 2025 “D.M.P.”
“David M. Paciocco J.A.”
“I agree. D.A. Wilson J.A.”
“I agree. R. Pomerance J.A.”
