Her Majesty the Queen v. Aiken
[Indexed as: R. v. Aiken]
Ontario Reports Court of Appeal for Ontario Fairburn A.C.J.O., Watt and Zarnett JJ.A. May 7, 2021 155 O.R. (3d) 413 | 2021 ONCA 298
Case Summary
Criminal law — Trial — Reasons for judgment — Duty to give reasons — Sufficiency — Two police constables testifying that accused stood and fired a gun at them — Accused claiming that constables attacked him for no reason and he pointed his gun away from them and fired to escape [page414] violent situation — Accused convicted on multiple counts but acquitted of pointing a firearm, discharging a firearm with intent to wound, and attempted murder — Crown's appeal from acquittals allowed — Trial judge failed to address credibility and reliability issues and failed to explain why evidence left him with reasonable doubt.
Two police constables, B and P, responded to a 911 call involving a domestic assault, resulting in an altercation between the accused and the constables. The accused produced a semi-automatic Glock pistol and shot at least five bullets. The constables returned fire. B's trial evidence with respect to how the first three shots were taken at him was largely consistent with how P described the incident. The evidence of the two constables differed slightly as to the shots fired at P. The forensic evidence involving the location of the bullet strikes and cartridge casings, as well as the trajectory of the bullets, was consistent with the officers' testimony regarding the accused standing, facing, pointing, aiming and shooting. The appellant claimed that he had found the Glock some weeks before the shooting and brought it home with him. The day of the shooting, he heard a voice telling him that he was going to get shot that same day, so he placed the gun in the front pocket of his hoodie sweatshirt. He claimed to have been attacked by the officers for no apparent reason. During the altercation he was placed in a headlock and could barely breathe, so he reached for the gun, pointed it away from the officers, and fired it in an effort to escape a violent situation. The trial judge found that the first shot was fired from the pocket of the accused's hoodie and that subsequent shots were taken while he was moving. The accused was found to have shot in B's direction to prevent arrest, but no reasons were given for that finding. The accused was convicted of possessing a restricted firearm without a licence, careless use of a restricted firearm, possessing a loaded restricted firearm, discharging a firearm at a constable with intent to wound or prevent arrest, possessing a restricted firearm while prohibited, and breaching probation. He was acquitted on four other counts, three of which were pointing a firearm at P, discharging a firearm with intent to wound P, and attempted murder of B. The judge stated that he was left in a reasonable doubt about with respect to those counts. The Crown appealed the acquittals.
Held, the appeal should be allowed.
The reasons for judgment did not explain how the trial judge arrived at the acquittals. The central issues in dispute were whether the accused pointed his Glock in the direction of the officers and shot at one or both of them and, if so, what his intention was at the time. In order to address those issues, the trial judge had to consider the evidence of the accused and the two constables and determine how their evidence, when viewed in totality with all the other evidence, informed exactly what happened. Issues of credibility and reliability were inextricably linked to the resolution of the disputed counts at trial. The trial judge understood this when it came to the accused, and rejected his suggestion that he had fired all shots while in the grip of the officers. The trial judge concluded that the accused fired one shot to try to escape and fired the subsequent shots while running away, without in any way addressing issues of credibility or reliability in relation to the officers' evidence. While it was open to the trial judge to reject the officers' evidence, settling on that version of events required him to explain how that was his factual landing point. Had the officers' evidence been accepted, it was a compelling inference that the accused attempted to kill B. At a minimum, the trial judge had to engage with the officers' evidence and explain why, despite that evidence, he had a reasonable doubt about whether the accused intended to kill B and why he had a reasonable doubt about whether the accused pointed his gun at P and discharged it with the intent to, at a minimum, prevent his arrest. A new trial was ordered. [page415]
R. v. Walker, [2008] 2 S.C.R. 245, [2008] S.C.J. No. 34, [2008] 6 W.W.R. 1, 310 Sask. R. 305, 294 D.L.R. (4th) 106, 57 C.R. (6th) 212, 231 C.C.C. (3d) 289, 77 W.C.B. (2d) 732, 375 N.R. 228, EYB 2008-134315, J.E. 2008-1209, consd
Other cases referred to
R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, 374 N.R. 198, 231 C.C.C. (3d) 177, 293 D.L.R. (4th) 375, 57 C.R. (6th) 48, EYB 2008-133045, J.E. 2008-1022; R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, EYB 2006-104245; R. v. Kienapple, [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1, 1974 CCAN para. 10,001; R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60 C.R. (6th) 1, 380 N.R. 47, 297 D.L.R. (4th) 577; R. v. S. (D.E.), [2018] O.J. No. 6632, 2018 ONCA 1046; R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68; R. v. Sliwka (2017), 138 O.R. (3d) 473, [2017] O.J. No. 2661, 2017 ONCA 426, 138 W.C.B. (2d) 312, 38 C.R. (7th) 115; R. v. Trachy (2019), 147 O.R. (3d) 250, [2019] O.J. No. 3867, 2019 ONCA 622, 379 C.C.C. (3d) 51 [Leave to appeal to S.C.C. discontinued [2019] S.C.C.A. No. 277]
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 87 [as am.], 239(1)(a), 244(1) [as am.], 676(1)(a)
APPEAL from acquittals on charges of attempted murder and firearms offences.
Catherine Weiler, for appellant.
Lindsay Daviau and Rameez Sewani, for respondent.
The judgment of the court was delivered by
FAIRBURN A.C.J.O.: —
A. Overview
[1] At approximately 1:00 a.m. on June 8, 2016, two police officers responded to a 911 call involving a domestic assault taking place outside of a residential building. The individual who called 911 said that she had heard a "loud bang" that she thought could have been a "possible gunshot" or "possible glass breaking". The caller gave a description of the male party involved in the domestic dispute, including that he was wearing a grey sweater and grey pants.
[2] Constables Manikosh Pathak and Jason Beccario were dispatched to the residential building, arriving in close succession to one another. There is no dispute that the respondent was smoking outside of the residential building when the officers arrived or [page416] that he matched the 911 caller's description of the male party involved in the domestic dispute.
[3] What followed was a serious altercation between the officers and the respondent, culminating in the respondent producing a restricted firearm -- a semi-automatic Glock 22 pistol -- and shooting at least five bullets from the handgun. The officers eventually returned fire, striking the respondent several times. The respondent was ultimately located in a neighbouring backyard, with his Glock close by. The respondent spent many months in the hospital and in rehabilitation.
[4] The respondent faced a 13-count information. The appellant proceeded by indictment on all electable offences, and the respondent elected to be tried in the Ontario Court of Justice. Following a trial, the respondent was found guilty on nine counts, six of which drew convictions and three of which resulted in conditional stays pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76. The convictions were for: (1) possessing a restricted firearm without being the holder of a licence (count 1); (2) using a restricted firearm in a careless manner (count 2); (3) possessing a loaded restricted firearm (count 7); (4) discharging a firearm at Constable Beccario with the intent to wound the officer or prevent arrest (count 8); (5) possessing a restricted firearm while prohibited from doing so by reason of a court order (count 12); and (6) breaching a probation order (count 13). Counts 3, 4 and 5 were conditionally stayed.
[5] The respondent was acquitted on the remaining four counts. This is a Crown appeal from the following three acquittals:
(1) pointing a firearm at Constable Pathak, contrary to s. 87 of the Criminal Code, R.S.C. 1985, c. C-46 (count 6);
(2) discharging a semi-automatic firearm at Constable Pathak with the intent to wound the officer or prevent arrest, contrary to s. 244(1) of the Criminal Code (count 9); and
(3) attempted murder of Constable Beccario while using a restricted firearm, contrary to s. 239(1)(a) of the Criminal Code (count 10).
[6] The appellant does not appeal from the fourth and final acquittal: the attempted murder of Constable Pathak while using a restricted firearm, contrary to s. 239(1)(a) of the Criminal Code (count 11). [page417]
[7] This Crown appeal is predicated on three alleged errors of law contained in the trial judge's reasons for judgment:
(1) the trial judge made key findings of fact for which there was no evidence;
(2) the trial judge failed to consider the evidence as a whole in relation to the ultimate issue of guilt or innocence; and
(3) the trial judge failed to provide adequate reasons for the acquittals.
[8] For the reasons that follow, I would allow the appeal on the basis that the trial judge's reasons for acquitting the respondent on the three counts appealed from (counts 6, 9 and 10) are inadequate.
B. The Evidence at Trial
[9] Given that a new trial must be ordered in this matter, I will keep the evidentiary review to a minimum, only addressing the evidence that is essential to explain why a new trial is required.
(1) The evidence of the officers
[10] The two officers and the respondent were the only witnesses to the shooting.
[11] While there were minor differences in the officers' viva voce testimony, they can be said to have given largely similar evidence about where, when, and how the shooting commenced and what was occurring while the respondent was firing his Glock.
[12] In brief, both officers described how they saw the respondent when they first arrived on scene. They also described how Constable Beccario attempted to interact with the respondent, but that he failed to cooperate with Constable Beccario's commands. Accordingly, both officers described in a generally consistent manner how they took physical control of the respondent and removed him from the vestibule area of the residential building that he attempted to gain access to after the arrival of the officers on scene.
[13] The officers testified about the serious physical struggle that ensued. This included Constable Pathak's acknowledgment that, at one point, he placed the respondent "in a headlock" after the respondent tried to escape into the residential building by pulling away from Constable Beccario's attempt to grab his arm.
[14] Eventually, when the respondent was outside of the residential building, Constable Beccario testified that he kicked the respondent's legs out from under him to get him to the ground. The respondent was then in what was described by Constable Beccario at trial as a "prayer position": on his knees but with his [page418] head to the ground. He was pointing toward the roadway, with the building and the officers behind him.
[15] The officers continued to attempt to gain control over the respondent. While Constable Beccario attempted to reach for his taser, owing to the struggle, he was unable to access it. The officers then described how they saw the respondent's right hand reach toward the centre part of his body, after which he produced a gun. According to Constable Pathak, the respondent started saying, "Oh, you got the taser. You got a taser. You got a taser", followed by, "I've got this". Constable Pathak testified that the respondent then turned around, pointed his gun at Constable Beccario's upper torso, and fired a shot. Constable Beccario testified that he saw "something black" pointed at his stomach area. By the time he realized that it was a firearm, he heard a loud gunshot and saw "the spark of the gun". While Constable Beccario was not hit by that first shot (or the ones to come), he thought that he had been hit.
[16] Both officers moved away quickly, with Constable Beccario pushing off of the respondent to get some distance and coming to rest against the exterior doorway to the residential building. At that point, Constable Beccario had his back up against the doorway, facing the respondent. He testified that he saw that the respondent was now up on his feet, pointing the gun at him. According to Constable Beccario, the respondent then fired his second shot. Constable Beccario testified that he immediately dropped down to his knee in an effort to get as small as possible to make himself less of a target. Again, he thought that he had been shot.
[17] At this point, Constable Beccario retrieved his firearm and started firing back at the respondent. Constable Beccario then described the respondent as moving onto the roadway, a number of feet from the original shooting position. From the roadway near Constable Beccario's police cruiser, the respondent was said to again face the officer, point the gun at him, and take a third shot.
[18] Constable Beccario's testimony respecting how the first three shots were taken was largely consistent with how Constable Pathak described the incident. As Constable Pathak put it, he knew that the respondent was shooting at Constable Beccario "[b]ecause he was pointing directly toward -- the gun was pointing directly towards Constable Beccario. He was looking towards Constable Beccario at that time."
[19] The forensic evidence also supported that version of events. That evidence included the location of two cartridge casings from the respondent's Glock, both of which had come to rest in locations [page419] that coincided with where the officers said the second and third shots occurred. In addition, there were three bullet strikes found in the doorway of the residential building where Constable Beccario had found himself trapped while he said at least two of the shots were taken.
[20] As for the two shots allegedly directed at Constable Pathak, the evidence of the officers slightly differed. Constable Pathak testified that, having finished shooting at Constable Beccario, the respondent crossed the street, looked in the direction of Constable Pathak, pointed the gun at him, and fired the fourth and fifth shots. There were two cartridge casings from the respondent's Glock located in the general area where Constable Pathak said the fourth and fifth shots occurred. Constable Pathak also testified that when the respondent was running, the Glock was still pointed in the direction of the officers, but the respondent was not looking at the officers. However, Constable Beccario testified that he saw the respondent running away while taking the shots at Constable Pathak, all the while looking back toward Constable Pathak.
[21] Both officers were convinced that they had been shot. Once Constable Pathak lost sight of the respondent, he patted himself down and felt blood coming down his arm. Believing he was shot, he called out for Constable Beccario's help. Constable Beccario brought Constable Pathak to a safe location behind Constable Beccario's police cruiser. They started checking themselves for injuries, while other officers arrived on scene. Neither officer was shot. It turned out that the blood on Constable Pathak's arm was caused by a pre-existing injury.
(2) The evidence of the respondent
[22] The respondent testified that he suffers from schizophrenia and psychosis. He said that he had found the Glock on the ground while out for a walk one night a couple of weeks before the shooting and had brought it home with him. The day of the shooting, the respondent heard a voice in his head telling him that he was going to get shot that same day, so he decided to place the gun into the front pouch of his hoodie sweatshirt.
[23] According to the respondent's testimony, he was attacked by the officers for no apparent reason. When he was placed in a headlock, he could "barely breathe" and he feared for his life. He thought that his premonition about getting shot was coming true. Believing that he was going to die, the respondent testified that he reached into the front pouch of his hoodie, pushed the gun out, pointed it away from the officers, and fired multiple bullets. He said that he took every shot from that position, where he was [page420] laying immobilized by police force, and only in an effort to escape from what he testified was a violent situation. The respondent indicated that he was not trying to harm the officers. In fact, he insisted that if he had wanted to shoot the officers, he could have done so: "I could've shot them in their leg, their balls, their chest, their head." The respondent maintained that the fact that the officers were not shot demonstrated that he was only shooting the gun to successfully escape.
[24] After firing the bullets from his gun and securing his escape, the respondent said that he ran away from the officers, only then being shot by them. The respondent was located in a neighbouring backyard, badly injured from the shooting. While four of the cartridge casings from the respondent's Glock were found at the scene of the shooting, in locations largely consistent with the officers' evidence, a fifth cartridge casing was found in the pocket of the respondent's pants.
C. The Reasons for Judgment
(1) Overview
[25] The trial judge gave oral reasons for judgment.
[26] The first 14 pages of the transcript involve a general review of the evidence at trial, followed by a brief summary of the parties' positions and by four "findings of fact". The findings of fact are as follows.
[27] First, the trial judge found that the Glock had been fired five times in total. While he did not say how he reached this finding of fact, presumably it rested on the four cartridge casings found at the scene of the shooting and the one cartridge casing found in the pocket of the respondent's pants.
[28] Second, the trial judge found that the first shot fired by the respondent "was fired from inside of [the] pocket of his kangaroo type sweater and that explains why the one cartridge was found in that clothing". It is difficult to know where this finding of fact originates from as no one testified, not even the respondent, that the first shot was fired from inside the pocket of his hoodie. Also, the cartridge casing was found in the pocket of the respondent's pants, not his hoodie.
[29] Third, the trial judge found that the respondent took the four subsequent shots " while he was moving from the sidewalk area in front of [the residential building], across the roadway" (emphasis added). The trial judge said that he made this finding of fact based "primarily" upon the evidence of where the four cartridge casings from the respondent's Glock were found. It is unclear how the location of the cartridge casings from the Glock [page421] supported the finding that the shots were taken "while [the respondent] was moving", as opposed to while the respondent was stationary but shooting from different locations, in accordance with the testimony of the officers.
[30] Fourth, and finally, the trial judge found as a fact that at least two of the shots taken by the respondent "were fired at or in the direction of Constable Beccario". This finding was said to be based upon the testimony of the officers, as well as the expert bullet trajectory analysis. Given that trajectory analysis, the trial judge went on to reinforce that he found these shots were fired " as [the respondent] was running across the street and across the front of the [opposing] building" (emphasis added). It is unclear how the trajectory analysis relating to the bullet strikes found in the doorway of the residential building behind where Constable Beccario stood could have demonstrated that the respondent was "running" while taking those shots, as opposed to simply shooting from somewhere along that trajectory line.
[31] Having made these four findings of fact, the trial judge then moved on to deliver the verdicts. I will focus on the trial judge's analysis in relation to the acquittals that form the subject of this Crown appeal.
(2) The attempted murder of Constable Beccario (Count 10)
[32] Both counts of attempted murder were dealt with in two sentences: the first sentence referencing the mens rea for attempted murder being the specific intention to kill; and the second sentence referencing the trial judge's reasonable doubt on that point. The second sentence reads as follows: "On all of the evidence before me, I find I am left in a reasonable doubt about whether [the respondent], in all the circumstances of this case, had that requisite intention to kill." Therefore, the respondent was found not guilty on both attempted murder counts. As previously indicated, the appellant only appeals from the acquittal in relation to count 10, which is the count involving the alleged attempted murder of Constable Beccario.
(3) Discharging a firearm at Constable Pathak (Count 9)
[33] In relation to the counts alleging that the respondent discharged his Glock at the officers with the intent to either wound them or prevent his arrest, the trial judge arrived at different conclusions for each officer. For Constable Beccario, the trial judge went back to his finding of fact that two shots had been fired "in the direction of or at Constable Beccario". On that basis, a conviction was entered on count 8. Later on, during a back-and-forth exchange with the trial Crown, the trial judge clarified that this [page422] finding of guilt had been predicated on a finding that the respondent had not intended to wound Constable Beccario but had shot in his direction in an effort to prevent his arrest. No reasons were given for that finding.
[34] As for Constable Pathak, the trial judge's reasons are reflected in a single sentence, suggesting that the trial judge could not be satisfied on the evidence before him that the charge had been made out: "I am left in a reasonable doubt on that." Therefore, the respondent was found not guilty on count 9.
(4) Pointing a firearm at Constable Pathak (Count 6)
[35] As for count 6, involving the pointing of a firearm at Constable Pathak, the trial judge's reasoning is again captured in a single sentence, referencing the fact that he had been left in a reasonable doubt on that charge.
D. Analysis
(1) Overview
[36] On appeal, the appellant argues that the trial judge erred by: (1) making findings of fact for which there was no evidence; (2) failing to consider the evidence as a whole in relation to the ultimate issue of guilt or innocence; and (3) providing inadequate reasons for the acquittals. The appellant contends that these errors of law should result in a new trial being ordered on the following counts: (1) the pointing of a firearm at Constable Pathak (count 6); (2) the discharging of a firearm at Constable Pathak with the intent to wound the officer or prevent arrest (count 9); and (3) the attempted murder of Constable Beccario (count 10).
[37] The respondent maintains that the trial judge's reasons are sound as they relate to both the convictions and acquittals. The trial judge's findings are said to be rooted in fact. As the reasons relate to the charge of the attempted murder of Constable Beccario, the respondent emphasizes that this was a purely circumstantial case. In addition, regarding the charge of the discharging of a firearm at Constable Pathak, the respondent indicates that the forensic evidence was inconclusive in nature. As such, the reasons reflect that the entirety of the evidence simply left the trial judge with reasonable doubt. Ultimately, the respondent argues that the trial judge did not adopt the Crown's theory at trial. It was open for the trial judge to reject that theory and this does not amount to an error, let alone an error of law. [page423]
[38] Despite the respondent's capable argument, I find that this appeal is about much more than the appellant simply registering a complaint about the Crown's theory being rejected at trial. While it was open for the trial judge to arrive at acquittals in this case, like any decision, it was necessary for the trial judge to provide some insight into how those verdicts were determined. The reasons in this case do not perform that function.
(2) The inadequacy of reasons as a ground of appeal from acquittals
[39] Section 676(1)(a) of the Criminal Code provides the Crown with a limited right to appeal from acquittals. Appeals pursuant to this provision are narrowly restricted to questions of law alone. Additionally, to obtain a new trial after an acquittal has been entered, the Crown must satisfy the appeal court that the error of law is such that it might reasonably be thought that, "in the concrete reality of the case at hand", the error "had a material bearing on the acquittal": R. v. Graveline, 2006 SCC 16, at para. 14.
[40] Trial judges are duty-bound to provide adequate reasons for their judgments: R. v. Walker, 2008 SCC 34, at para. 19. The failure to do so can constitute an error of law: R. v. Trachy, 2019 ONCA 622, at para. 68, leave to appeal to S.C.C. discontinued [2019] S.C.C.A. No. 277.
[41] Reasons for judgment allow for a "proper level of transparency and accountability [that is] essential to the maintenance of the integrity of the trial process and public confidence in that process": R. v. Sliwka, 2017 ONCA 426, at para. 24. Without proper reasons, the parties are left wondering whether their claims have been heard, understood, and adjudicated upon in accordance with the legal principles applicable in the circumstances of the case: Sliwka, at para. 24; R. v. Sheppard, 2002 SCC 26, at paras. 15, 24.
[42] To be sure, reasons for judgment do not need to be perfect. This ground of appeal does not provide an appellate court with the opportunity to intervene "simply because it thinks the trial court did a poor job of expressing itself": Sheppard, at para. 26. At the same time, the reasons for judgment must provide the parties and appellate courts with an opportunity for meaningful appellate review: Sheppard, at paras. 25, 55; R. v. Dinardo, 2008 SCC 24, at para. 25.
[43] While the duty to give reasons applies generally to both reasons for convictions and reasons for acquittals, particular [page424] caution must be exercised in relation to this ground of appeal when it is raised in the context of an appeal from acquittals: Walker, at para. 2. As noted in Walker, at para. 2, "the content of the reasons necessary to give full effect to the right of appeal is governed by the different issues to which the reasons are directed on an acquittal . . . and a conviction" (emphasis in original).
[44] The difference between these situations lies in the fact that while a conviction requires satisfaction of proof beyond a reasonable doubt of every element of the offence, an acquittal can simply rest on the absence of proof: Walker, at para. 22. While this difference does not excuse a "failure to provide intelligible reasons for an acquittal", it does inform an "assessment of whether the reasons are so deficient as to preclude effective appellate review": Walker, at para. 22. The different approach to the adequacy of reasons for an acquittal guards against Crown appeals that are nothing more than claims of an "unreasonable acquittal" under the guise of claims of inadequacy of reasons: Walker, at paras. 2, 21.
[45] In my view, it cannot be said that the appellant in this case is really complaining about an unreasonable acquittal or the simple rejection of a Crown theory that was advanced at trial. To the contrary, for the reasons that follow, I find that the appellant is really raising a concern over the fact that the reasons disclose no "intelligible basis for the verdict[s]" of acquittal: R. v. M. (R.E.), 2008 SCC 51, at para. 53; Sheppard, at para. 28; R. v. S. (D.E.), 2018 ONCA 1046, at para. 13.
(3) The trial judge's reasons are inadequate
[46] The appellant breaks the trial judge's errors into a few separate issues, but this appeal really comes down to the adequacy of the reasons for judgment.
[47] While the respondent was convicted of six counts on the information, the fact is that he conceded or did not dispute his guilt on four of those counts:
(1) he did not dispute his guilt on count 1 involving the possession of a restricted firearm without being the holder of a licence;
(2) he did not dispute his guilt on count 7 involving the possession of a loaded restricted firearm;
(3) he conceded his guilt on count 12 involving the possession of a restricted firearm while prohibited from doing so by reason of a court order; and
(4) he conceded his guilt on count 13 involving the breach of a probation order. [page425]
[48] It is with little surprise that these four counts were not in dispute at trial. The fact is that, on his own evidence, the respondent had a loaded, restricted firearm in the front pouch of his hoodie when he was approached by the officers, he had no licence for that firearm, he was prohibited by a court order from being in possession of a firearm, and he was bound by a probation order at the time. The trial was not focussed on any of these issues.
[49] Also, at the end of the day, after a long colloquy between counsel and the trial judge, defence counsel largely acknowledged that, based on the respondent's own testimony, he was guilty of count 2, involving the careless use of a firearm. As defence counsel said to the trial judge: "Well, you are the decision maker here."
[50] Therefore, the trial was not focused on whether the respondent was in possession of the loaded Glock or whether he fired that Glock five times. The central issues in dispute were whether the respondent pointed his Glock in the direction of the officers and shot at one or both of those officers and, if so, what his intention was at the time that he discharged those bullets. Those were the matters that most critically needed resolution at trial.
[51] In order to address those issues, the trial judge had to consider the evidence of the three eyewitnesses to the shooting, the two officers and the respondent, and determine how their evidence, when viewed in totality with all of the other evidence, informed exactly what happened and what was in the respondent's mind at the time that the shooting occurred. In my respectful view, the reasons for judgment are simply unresponsive to those central issues at trial and do not show how the trial judge came to the disputed acquittals that he reached.
[52] Issues of credibility and reliability were inextricably linked to the resolution of the disputed counts at trial. The trial judge understood this when it came to the respondent. In this regard, the trial judge rejected the respondent's suggestion that he had fired all shots while still in the physical grip of the officers: "I do not believe [the respondent] in his testimony that he fired all of the shots while he was being held in a chokehold by the officers."
[53] While the trial judge found that the respondent fired the first shot, presumably the hoodie shot, in "an attempt to escape from the officers", he concluded that the four subsequent shots were all fired while the respondent was running away from the scene. The trial judge came to this conclusion without in any way addressing issues of credibility or reliability in relation to the officers' evidence. Again, without addressing the veracity or accuracy of the testimony of the officers, the trial judge found that the [page426] respondent simply shot two times at Constable Beccario while running away so as to prevent arrest. While it was of course open to the trial judge to reject the officers' evidence in this case, settling upon such a version of events required the trial judge to explain how this was his factual landing point.
[54] Both officers painted a powerful picture of the respondent standing, facing them, raising his arm, pointing the Glock at them, and shooting. In the case of Constable Beccario, at least two of those shots were fired at very close range. The officers' evidence is riddled with references to the respondent "standing", "facing" them, "pointing" the firearm "directly" at them, and shooting. That evidence necessarily informed not only the circumstances around the shooting but also what was in the mind of the respondent as he took those shots. None of that evidence can be easily reconciled with the trial judge's suggestion that the respondent merely fired a few times as he ran away.
[55] Again, this is not to suggest that the trial judge had to accept the officers' evidence on these points. If he was going to reject that evidence, though, he needed to offer at least some explanation for doing so. This is particularly true given that the forensic evidence involving the location of the bullet strikes and cartridge casings, as well as the trajectory of the bullets, was entirely consistent with the officers' testimony regarding the respondent standing, facing, pointing, aiming, and shooting.
[56] As the trial Crown said in her closing submissions, the evidence of Constables Beccario and Pathak was determined to be entirely supported by "the objective physical evidence". In the case of Constable Beccario, the trial Crown emphasized that the fact that the shots were taken at such a close range, combined with the fact that at least two of the bullet strikes found in the doorway of the residential building were at head and torso height, led to the inescapable inference of an intention to kill Constable Beccario. While I would not suggest that a finding of specific intent to kill had to be made in those circumstances, it was certainly a compelling inference that was open to the trier of fact, had the officers' evidence been accepted.
[57] Quite simply, the reasons for judgment do not explain how the trial judge arrived at the acquittals in this case. At a minimum, he had to engage with the officers' evidence and explain why, despite that evidence, he had a reasonable doubt about whether the respondent intended to kill Constable Beccario and why he had a reasonable doubt about whether the respondent pointed his gun at Constable Pathak and discharged it with the intent to, at a minimum, prevent his arrest. [page427]
E. Disposition
[58] In light of the six convictions registered in this case, resulting in a global sentence of eight years less five years and six days of credit for pre-trial custody, some might wonder why the respondent should be the subject of another trial on these matters. That is not the question before this court. The question before this court is whether there were adequate reasons given for entering acquittals on three very serious counts involving attempted murder, shooting at a police officer, and pointing a firearm at a police officer. Whatever verdicts ultimately result in this case, the public and the officers involved in this matter are entitled to know the basis of those verdicts.
[59] I would allow the appeal, set aside the acquittals on counts 6, 9 and 10, and order a new trial on those counts.
[60] Pending the result of the new trial, I would conditionally stay the conviction on count 8 (discharging a firearm at Constable Beccario with the intent to wound the officer or prevent arrest) until a verdict is reached on count 10 (the alleged attempted murder of Constable Beccario). Should an acquittal be entered on count 10, then the conditional stay on count 8 will be lifted.
Appeal allowed.
Notes
1 While the information initially contained 15 counts, the Crown withdrew two counts in November 2018, long before the start of trial.
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