WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 20210111 Docket: C67939

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Levar Tyrell Appellant

Counsel: Matthew Gourlay, for the appellant Benita Wassenaar, for the respondent

Heard: December 8, 2020 by videoconference

On appeal from the conviction entered by Justice David L. Corbett of the Superior Court of Justice on March 6, 2018, and from the sentence imposed on April 25, 2018.

Juriansz J.A.:

[1] The appellant appeals his convictions by a judge sitting alone on charges of attempted murder and assault of a police officer with intent to resist arrest. For the reasons that follow, I would allow the appeal from both convictions. The appellant also appeals his convictions for firearm offences arising out of the same incident as the attempted murder charge. As I explain below, I would dismiss the appeals from those convictions.

A. The Attempted Murder Charge

(1) The relevant facts

[2] Early in the morning of May 1, 2016, the victim was shot in the abdomen while at an after-hours club. A single bullet shattered his pelvis as it passed through his body. He was in a coma for 16 days, underwent several surgeries, and remained in the hospital for a month. A photo array was presented to the victim soon after he emerged from the coma and while still under medication. He picked the appellant’s photo but said he was not sure. He did not mention having seen a gun. When a second photo array was presented some days later the victim positively identified the appellant, said he had not seen a gun, but added the appellant was known to carry a gun.

[3] At trial the victim testified he was at the after-hours club in the early morning when he saw the beginnings of a physical altercation between two men. Acting as “a good Samaritan” he physically intervened by pushing one man aside. Then, while inquiring what was going on, he was shot. He testified that after being shot he saw the appellant holding a gun. The victim had seen the appellant a few times before and knew him by a nickname. Nothing negative had ever passed between them and he did not know of any reason the appellant might have to harm him.

[4] A few weeks after the shooting the police spotted the appellant’s car while he was driving and boxed it into a parking space. When they approached his car, he tried to flee and collided with one of the officers. The police recovered a loaded handgun from the car that matched the spent bullet and casing found at the club after the shooting.

[5] The appellant testified at trial. He acknowledged being at the after-hours club at the time of the shooting and standing in the room where the victim placed him at the time of the shooting. However, he denied being the shooter. He claimed that about a week after the shooting the owner of the club offered to sell him a gun at an extremely low price. He bought the gun intending to sell it for a sizable profit. It never occurred to him the gun might be “hot”.

[6] The appellant testified he did not know the victim, did not recognize him from seeing him at the club before, and had no reason to hurt him.

(2) The trial judge’s reasons for finding the appellant guilty of attempted murder

[7] The trial judge found the appellant’s testimony “utterly unbelievable” and found it did not raise a reasonable doubt of his guilt.

[8] The trial judge accepted the victim’s testimony at trial identifying the appellant and placing a gun in his hands. The trial judge said there was no reason to believe the victim was deliberately trying to set up the appellant to take the fall for the shooting. The victim had identified the appellant after regaining consciousness from a coma, and it would be a remarkable coincidence that he just happened to point the finger at the person who was found in possession of the gun that had been used. The victim’s testimony and the ballistics evidence were independent of each other, and both pointed to the appellant’s guilt.

[9] The trial judge found additional support in the appellant’s conduct after the shooting. First, he had driven a friend to her place and then had spent the night there. The trial judge observed he had “no good explanation” for not going home. He accepted the Crown’s submission “that he did not go home because he was afraid that police would be looking for him and the first place they would look was his house.” Second, after the appellant’s illegally parked car had been towed away during the night, the appellant did not retrieve his car himself but sent a friend. The trial judge did not believe he had another family obligation and accepted the Crown theory “that [the appellant] knew he had hidden the gun in the car and he was afraid that he would be arrested if he went to pick up the car himself”.

[10] The trial judge rejected the defence’s argument at trial that the position of the victim, the apparent trajectory of the bullet, and the position of the bullet and shell casing after the shooting supported an inference that the shot came from a place in the room other than from where the appellant was standing. The trial judge found the bullet and shell casing may have been kicked as people fled the room and the argument was not supported by expert testimony.

[11] The trial judge said the eyewitness identification of the shooter combined with the police locating the gun in the car trunk of the person whom the eyewitness had identified as the perpetrator made this “an overwhelming crown case”.

[12] The trial judge instructed himself as to the specific intent required for attempted murder, saying:

Attempted murder is a specific intent offence. The crown must establish beyond a reasonable doubt that [the appellant] intended to kill [the victim]. Not just that he intended to shoot into a crowd of people or intended to fire the shot that ultimately hit [the victim]. The crown must establish beyond a reasonable doubt that [the appellant] had the specific intention to kill [the victim].

[13] Though there was no evidence of the motive for the shooting, the trial judge observed that “[t]he crown need not prove motive and intent may be inferred from the circumstances of the acts that took place.” The trial judge then inferred the appellant had the specific intent to kill the victim, saying:

Here, I find [the appellant] intentionally fired his handgun across about 20 feet of distance, about 6 metres, striking [the victim] in the abdomen. There is no evidence of accident. There is no evidence of mistaken identity. There is no evidence that [the appellant] was aiming for someone else. In all of these circumstances I am prepared to infer that [the appellant] intended the natural and probable consequences of his act, given his relative proximity to [the victim] and the absence of any evidence that he intended something other than the natural consequences of shooting [the victim]. In my view, that is sufficient to make out the specific intent requirements for attempted murder.

(3) The appellant’s argument

[14] The appellant stressed that the Crown had to prove not only that the appellant discharged the firearm, but that he discharged it with the specific intent to kill: R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at para. 51; The Queen v. Ancio, [1984] 1 S.C.R. 225, at pp. 248-49. As the doctrine of transferred intent does not apply, the Crown had to prove the appellant intended to kill the person he shot: R. v Gordon, 2009 ONCA 170, 94 O.R. (3d) 1, at para. 69, leave to appeal refused, [2009] S.C.C.A. No. 177. The “recklessness” arm for intent to murder does not apply: Ancio, at pp. 250-51.

[15] The appellant submits that while the trial judge accurately stated the legal standard for the intent required, he erred in how he applied that legal standard to the facts of this case.

[16] The appellant does not take issue with the trial judge’s finding of fact that the appellant “intentionally fired his handgun across about 20 feet of distance, about 6 metres, striking [the victim] in the abdomen.” Rather, he argues the finding of intent was with respect to his physical act of firing the handgun, not with respect to the consequence of striking the victim in the abdomen. The trial judge’s conclusion he had the specific intent to kill was an inference. The appellant accepts that where the evidence proves beyond a reasonable doubt the accused has committed a particular act, the common-sense inference may bridge the inferential gap allowing the trier of fact to make a finding of specific intent. As Cory J.A. (as he then was) observed in R. v. Bains, [1985] O.J. No. 41 (C.A.), at para. 27, leave to appeal refused, [1985] S.C.C.A. No. 158:

All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. [Emphasis added]

[17] However, the appellant argues the application of the common-sense inference was manifestly inappropriate here. He proffers as an example an accused who, wildly brandishing a handgun, pulls the trigger and happens to hit the head of a bystander 100 yards away. While it could be said that the accused shot the victim in the head, one could not make a common-sense inference that the accused had the specific intent to kill the victim. The appellant submits that in the circumstances of this case the trial judge misapplied the common-sense inference that sane and sober people intend the natural and predictable consequences of their acts and reversed the burden of proof.

[18] Here, there was no hint of a motive. Both men testified there was no animus between them. During argument the trial judge had recognized that the gap between the proven act of shooting and proof of the required intent was wide. He had observed “I don’t have any evidence of what [the appellant’s] intent was other than the fact that he fired at these men.…So, I mean, I don’t think that’s enough to get me beyond a reasonable doubt that he intended to hit [the victim].”

[19] The appellant submits the trial judge erred by abandoning his initial instinct.

He resorted to the common-sense inference and found the inference should be drawn because the appellant had not led any evidence of accident or mistake. This resulted in the reversal of the burden of proof. The appellant submits the resort to the common-sense inference was unreasonable in the circumstances of this case.

(4) The Crown’s argument

[20] The Crown took the position that the trial judge made a factual error in stating that the appellant fired his handgun from a distance of 20 feet. The Crown points out that the victim had testified the appellant was 10 feet away when the victim saw him holding the gun. No other witness had testified about the distance between the appellant and the victim. The Crown submits the distance of 20 feet in the trial judge’s reasons is without evidentiary support.

[21] Had the trial judge considered the distance from which the appellant fired the handgun to be 10 feet from the victim, as the victim testified, the Crown submits, the common-sense inference that the appellant intended to kill the victim would have been very strong. The Crown submits that the common-sense inference is still available if the distance is considered to be 20 feet but recognizes the inference would be less compelling in that case.

(5) Discussion

[22] I am not persuaded that there is no evidentiary support for the trial judge’s finding that the distance between the appellant and the victim was about 20 feet. The location of the appellant and the victim at the time of the shooting were each clearly marked on photographs in the record. The photographs make clear that they were each standing in diagonally opposite corners of the room. A police witness who had measured the room had testified it was 4.05 metres wide and 6.87 metres long, or 13 ¼ feet wide and 22 ½ feet long. Therefore, the distance between the diagonally opposite corners would necessarily be appreciably greater than the 6.87 metres or 22 ½ feet measured length of the room.

[23] The better view is that the trial judge did not make a mistake but that he based his finding of the distance between the appellant and the victim on their positions in the room and the dimensions of the room. It is worth noting that in his reasons for sentence the trial judge said the distance between the appellant and the victim at the time of the shooting was six to seven metres. The trial judge’s finding was not clearly wrong, unsupported by the evidence, or otherwise unreasonable, and should not be interfered with: R. v. Clark, 2005 SCC 2, [2005] S.C.R. 6, at para. 9.

[24] When the distance between the shooter and the victim is taken to be about 20 feet or six metres as found by the trial judge, I am satisfied the circumstances cannot support the inference beyond a reasonable doubt that the appellant had the specific intent to kill the victim.

[25] The trial judge had accepted the evidence of the appellant that he had no reason to hurt the victim. This was corroborated by the evidence of the victim. The victim offered an account of having intervened in an altercation between two men, neither of whom bore any known connection to the appellant. The appellant had fired a handgun from a distance of about 20 feet across a dimly lit, crowded room in the direction of the victim with the men who were involved in an altercation standing near him. As the trial judge had commented during argument, there was no evidence of what the shooter’s intent was other than that he had fired at these men. The trial judge noted there was no evidence of accident or mistaken identity. He might have noted there was no evidence that the victim was the intended target. That the shooter might have intended to shoot a different person, perhaps one of the men involved in the altercation, is not an irrational or fanciful conjecture. The trial judge should have considered this reasonable possibility: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37.

[26] I would allow the appeal of the conviction for attempted murder.

(6) Other issues

[27] It is unnecessary to deal with the appellant’s other arguments in detail. First, the appellant argues that the trial judge’s assessment of his post-incident conduct was based on misapprehensions of the evidence and these affected his assessment of the appellant’s credibility. Second, the appellant argues that the trial judge erred in summarily dismissing his application to admit video statements from two witnesses who were at the club but did not witness the shooting. The appellant submits the admission of this evidence would have undermined the victim’s credibility.

[28] I am not persuaded the post-incident conduct was of much, if any, importance in undermining the appellant’s credibility. Before referring to post-incident conduct the trial judge had already found the coincidence of the victim identifying the appellant and the appellant’s possession of the gun was “way too remarkable for [him] to be able to accept [the appellant’s] story”. The trial judge made no mention of the post-incident conduct in describing this as an “overwhelming crown case”. As well, the trial judge used the appellant’s post-incident conduct as additional evidence to support his finding that the appellant was the shooter, a finding that was not attacked in the argument on appeal.

[29] Nor am I persuaded that the video statements, had they been admitted, would have had any material effect on the trial judge’s assessment of the victim’s credibility. That the statements should have been admitted was pressed far more vigorously on appeal than it seems to have been at trial.

[30] These two grounds of appeal, which apply to all the appellant’s convictions arising from the shooting incident, fail. Neither of these grounds has any bearing on the appellant’s conviction for assaulting a police officer with intent to resist lawful arrest.

B. The Assault Police Charge

(1) The trial judge’s reasons for finding the appellant guilty of assaulting a police officer with intent to resist lawful arrest

[31] Count 11 of the indictment charged the appellant with assaulting a police officer with intent to resist lawful arrest contrary to s. 270(1)(b) of the Criminal Code.

[32] The trial judge summarized the evidence of how the police arrested the appellant. They spotted his car when he was driving and boxed it into a parking space. As the police approached the car, they ordered the appellant to stay inside the vehicle and told him there was an arrest warrant for him. The appellant disobeyed their direction and attempted to run away, colliding with one of the officers. The appellant testified he was seeking to avoid contact with the officer as he was trying to get away.

[33] The trial judge accepted the appellant’s motivation and intention was to escape from the police and found him guilty of assaulting police with intent to resist arrest contrary to s. 270(1)(b) of the Criminal Code. Speaking of the appellant’s collision with the officer, the trial judge said:

This is a natural consequence of the attempt by [the appellant] to resist arrest, this physical contact between the two of them, and is a natural consequence of his intent to run headlong as fast as he could to try to get around the officer. In my view, in those circumstances, the physical contact that took place was a result of reckless disregard as to whether there would be physical contact between the two of them and his conduct for which [the appellant] is liable under this charge to a finding of guilt. There was not a specific intent to assault. There was an intent to run headlong towards an officer whose duty and obvious intention was to stop [the appellant] in order to effect a lawful arrest. [Emphasis added.]

(2) The appellant’s position

[34] The appellant submits he was found guilty of this charge on the basis of recklessness. He points out that the offence of assaulting police with intent to resist arrest in s. 270(1)(b) of the Criminal Code combines the basic intent to assault with the additional intent to resist a lawful arrest. He quoted this passage from Morris Manning and Peter Sankoff, Manning, Mewett & Sankoff – Criminal Law, 5th ed. (Toronto: LexisNexis Canada, 2015), at p. 975: “applications of force that are careless or negligent do not constitute assault, and the fact that an injury resulted from the force does not alter the need for the offender’s intention to be proven beyond a reasonable doubt.”

[35] The appellant also relied on the decision of this court in R. v. Palombi, 2007 ONCA 486, 225 O.A.C. 264, at para 35, stating: “[t]here is, of course, also a mens rea or fault element for the simple (common) assault offence. The force must have been applied intentionally.”

[36] The appellant submits that while the trial judge found that he intended to resist arrest, the trial judge also expressly found he lacked the specific intent to assault the officer. Given these findings, the trial judge erred by convicting him on this charge.

(3) The Crown’s argument

[37] The Crown accepted the appellant’s exposition of the law and reviewed the testimony of the two police officers in detail. The appellant had dipped his shoulder, buckled up like a hockey or football player, and had charged at the officer. The Crown pointed out that the appellant, himself, had said he tried to “run through” the officer. This evidence, the Crown submitted, made clear beyond a reasonable doubt that the appellant had the intention to assault – not just an intention to resist arrest.

(4) Discussion

[38] I agree with the Crown that the testimony of the officers and of the appellant himself could well support a finding that the appellant intentionally collided with the officer while attempting to get away. However, the trial judge accepted the appellant’s testimony that he tried to avoid contact with the officer. He convicted the appellant on the basis of his “reckless disregard” as to whether he would make contact with the officer. The trial judge’s express finding that the appellant did not have the specific intent to assault is a finding of fact. Given this finding of fact, the conviction on this charge cannot stand and must be set aside. As the trial judge’s finding is determinative of this charge on its merits, an acquittal must be entered.

C. Conclusion

[39] I would allow the appeals from conviction, and set aside the appellant’s convictions for attempted murder and assaulting a police officer with intent to resist lawful arrest and enter acquittals on those charges. I would dismiss the appeals from the other convictions appealed from.

[40] Count 2 of the indictment charged the appellant with committing an aggravated assault on the victim contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46. At the conclusion of sentencing, the trial judge conditionally stayed this count pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729 as the appellant was convicted of attempted murder on count 1. At the end of oral argument, the appellant acknowledged that, if his conviction on count 1 were to be set aside, the proper result would be a conviction for aggravated assault. Proceeding in accordance with the Supreme Court’s decision in R. v. Provo, [1989] 2 S.C.R. 3, at p. 22, I would remit the matter to the trial judge to register a conviction on the aggravated assault charge and sentence the appellant for that offence.

[41] I would set aside the conditional stay on the aggravated assault charge and remit the matter back to the trial judge to enter a conviction and sentence the appellant on that charge. In light of this disposition I would dismiss the appellant’s request for leave to appeal the sentence as moot.

Released: January 11, 2021 “RGJ”

“R.G. Juriansz J.A.”

“I agree. M. Jamal J.A.”

“I agree. S. Coroza J.A.”