Court of Appeal for Ontario

Date: 2025-09-10

Docket: C70944

Judges: Tulloch C.J.O., Huscroft and Paciocco JJ.A.

Between

His Majesty the King Respondent

and

Marvin Hernandez-Viera Appellant

Counsel

Marianne Salih and Talissa Mohamed, for the appellant

Katie Doherty, for the respondent

Heard: September 3, 2025

On appeal from: The convictions entered by Justice P. Andras Schreck of the Superior Court of Justice, on January 12, 2022, with reasons at 2022 ONSC 289.

Reasons for Decision

[1] After a judge-alone trial, Marvin Hernandez-Viera was convicted of attempted murder and related offences for firing numerous shots at a female acquaintance, striking her twice. The sole issues at the trial were the identity of the single shooter and intent to kill relating to the attempted murder. Mr. Hernandez-Viera has not raised issue on appeal with the finding of intention. His grounds of appeal are confined to the trial judge's conclusion that the Crown proved beyond a reasonable doubt that he was the shooter.

[2] The trial judge did not base that identity finding on direct evidence. He rejected the direct identification evidence that the victim provided, and he gave limited weight to the photo identification evidence provided by the witness who assisted the shooter in renting the vehicle that was confirmed to have been used in the shooting. He found that the "only thing" that he could infer from the testimony of this latter witness was that she "was unable to exclude [Mr. Hernandez-Viera] as being the person she had seen, and he therefore must bear at least some resemblance to that person [who she had rented the vehicle for]". Mr. Hernandez-Viera's conviction therefore depended almost entirely on circumstantial evidence.

[3] That circumstantial evidence included GPS evidence from the suspect vehicle, the accuracy of which was conceded during trial. This evidence recorded the vehicle at the scene of the shooting and then tracked it leaving and travelling directly to a location proximate to the home of a friend of Mr. Hernandez-Viera's. This GPS evidence confirmed that the vehicle parked there and was turned off at 1:43 p.m. Based on its timestamp, a security camera that was operating near the location the vehicle was parked captured Mr. Hernandez-Viera outside of the vehicle at precisely that time, 1:43 p.m. The same security camera and a second security camera nearby captured Mr. Hernandez-Viera and his friend together at four points during the following hour – at 2:01 p.m., 2:08 p.m., 2:09 p.m., and 2:43 p.m.

[4] The trial judge offered the following summary of the circumstantial evidence in the key passage explaining Mr. Hernandez-Viera's conviction:

It defies credulity that another individual shot a person whom Mr. Hernandez-Viera happened to know, then fled in a vehicle rented by a person with Mr. Hernandez-Viera's initials and who physically resembled him and in which there happened to be a water bottle with Mr. Hernandez-Viera's DNA on it, and then drove to a location that happened to be near where Mr. Hernandez-Viera's friend lived and arrived at around the same time that Mr. Hernandez-Viera is shown on security video to be in the area. In my view, this is not a plausible theory or a reasonable possibility.

[5] In his first ground of appeal Mr. Hernandez-Viera argues that the trial judge erred by applying incorrect legal principles in accepting the accuracy of the security camera timestamps on the videos showing him with his friend shortly after the shooting. Specifically, he argues that the trial judge erred in relying upon caselaw, originating with Nicholas v. Penny, [1950] 2 K.B. 466, which was followed by this court in R. v. Bland (1974), 6 O.R. (2d) 54 (C.A.), that, in the words of the trial judge, "stands for the proposition that a measurement device in common usage can be relied on as prima facie evidence of what it has measured" (emphasis in original). He argues that this body of law should be used only where the device is specifically designed to perform the measurement function, and where there is confirmatory evidence of its accuracy. He submits that the security cameras were designed to record video, not record the date and time of the video accurately, and that the trial judge should not have relied upon the stated times without evidence about the accuracy of the measurement system.

[6] We do not accept that the trial judge committed a legal error by misapplying this body of law. He did not apply this authority as establishing a rigid rule requiring readings captured by measuring devices in common usage to be accepted as presumptively correct, absent evidence to the contrary. He recognized that the decision to accept such readings is up to the trier of fact, depending on the circumstances of the case. Appropriately, he looked for and found supporting evidence authenticating the video timestamps in this case as "the approximate time of the events depicted in the video, but not the exact time", which was all that was required to yield relevance. Specifically, he noted that the two security cameras displayed times that were generally consistent with each other, something he evidently considered to be an unlikely coincidence if they were both wrong. Although he did not make the point in this context, he also recognized that the arrival time captured by the GPS in the suspect vehicle, which was conceded to be accurate, fell within that same timeframe. For the timestamps on the security cameras to be materially wrong, they would not only have to be displaying the wrong time, but by incredible coincidence they would have to be displaying wrong times that fell within the same timeframe as the arrival of the suspect vehicle. The unlikelihood of these coincidences supported the trial judge's finding.

[7] To be sure, we would caution against a mechanistic treatment of the Nicholas v. Penny line of authority. It does not hold anything more than that readings captured by measuring devices in common usage can be treated as some evidence of what they display, where there is a factual foundation for finding the measurements they display to be reliable. In this case we do not read the trial judge as having done otherwise. Although the citation of Nicholas v. Penny and the related authority added little to the analysis, it did not result in error.

[8] Relatedly, Mr. Hernandez-Viera argued that the trial judge's conclusion relating to the accuracy of the timestamps was unreasonable given that the GPS data showed the vehicle being turned off at 1:43 p.m., while the timestamp on the first security camera showed Mr. Hernandez-Viera walking on the street at precisely that time – 1:43 p.m. – which would be impossible if Mr. Hernandez-Viera was the shooter. For him to be the shooter, one or both timestamps would have to be wrong, contrary to the trial judge's conclusion that they could be relied upon. Indeed, he argues that the trial judge should have treated these overlapping times as exculpatory evidence that Mr. Hernandez-Viera must not have been the shooter, given that the security footage shows him not to have been in the vehicle when it was turned off by the shooter, its only known occupant.

[9] Again, we disagree. The trial judge did not find the timestamps to be precise. He found the security video timestamps to show the approximate time of events. This was not an unreasonable or unfair inference. It is not uncommon, as a matter of ordinary human experience, for different timing devices not to be perfectly synchronized. The circumstantial evidence in this case, taken as a whole, drove the conclusion that Mr. Hernandez-Viera had arrived in the suspect vehicle. The person who rented it shared his initials and his appearance was not inconsistent with Mr. Hernandez-Viera's appearance. The vehicle came directly from the shooting of a person connected to Mr. Hernandez-Viera, and then parked on a street near Mr. Hernandez-Viera's friend's house. Moreover, Mr. Hernandez-Viera's DNA was found on a water bottle inside the vehicle, supporting a reasoned inference that he had most likely been in that very vehicle. And, as indicated, security cameras near his friend's house captured images of Mr. Hernandez-Viera within that same timeframe. The only way to make sense of this network of intersecting evidence is to infer that Mr. Hernandez-Viera must have been the shooter, and that the recorded times are approximate rather than precise.

[10] We therefore deny this ground of appeal.

[11] It is also evident based on the foregoing that we disagree with Mr. Hernandez-Viera's submission that the verdict was unreasonable. A verdict is not unreasonable in a circumstantial evidence case if a trier of fact, acting judicially, could reasonably be satisfied that the appellant's guilt is the only reasonable conclusion on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. It was open to the trial judge to conclude that the prospect of the innocent, coincidental intersection of the features identified is not reasonable and that guilt alone is the only reasonable inference.

[12] The appeal is dismissed.

"M. Tulloch C.J.O."

"Grant Huscroft J.A."

"David M. Paciocco J.A."