Court of Appeal for Ontario

CITATION: R. v. Alvarez, 2016 ONCA 259

DATE: 20160408

DOCKET: C59746

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keron Alvarez

Appellant

Jonathan Dawe, for the appellant

Karen Papadopoulos, for the respondent

Heard: April 5, 2016

On appeal from the conviction entered on November 29, 2013 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The trial judge convicted the appellant of 11 counts stemming from the abduction of the complainant, namely: (i) uttering a threat (x2); (ii) assault with a handgun; (iii) pointing a firearm (x2); (iv) forcible confinement; (v) attempted murder; (vi) assault; and (vii) possession of a firearm contrary to a prohibition order (x3). He was sentenced to a global term of imprisonment of 10 years less pre-trial custody.

[2] After considering the complainant’s evidence, together with all the other evidence tendered by the Crown, the trial judge found the appellant and his accomplice abducted the complainant at gunpoint as she walked home with her boyfriend. He accepted that the complainant was dragged through alleyways and held hostage in a nearby townhouse; that the appellant tried to shoot her but his gun did not go off; and that the appellant and his accomplice beat her up.

[3] Further, the trial judge accepted that the appellant did all this to try and start a fight with the complainant’s boyfriend. And in fact, the appellant did exchange gunfire with the boyfriend.

[4] The central issue at trial was identity. The appellant did not testify and no defence evidence was called.

[5] On the appeal of his convictions, the appellant submits the trial judge erred in two ways. First, he claims the trial judge failed to consider the possibility that because the complainant had been exposed to an image of the appellant, her identification evidence was contaminated. Second, he asserts that the trial judge convicted the appellant of attempted murder by ignoring potentially exculpatory evidence and/or exculpatory interpretations of the evidence.

[6] The impact of the evidence of the complainant having viewed a You Tube video of the appellant some five months after the abduction and prior to her viewing his photo in the lineup was an issue for the trial judge to decide based on the facts. When his reasons are read as a whole, it is clear he was alive to the potential contamination from the You Tube video. It is equally clear that he relied on other independent evidence to satisfy himself that the video did not contaminate her identification evidence.

[7] The appellant’s assertion that the trial judge may not have appreciated the true nature of the problem is not supported by the record. In our view, and consistent with the trial judge’s findings, any potential concerns raised by the video are satisfied by the amount and quality of the one on one time the complainant spent with the appellant.

[8] This case was not an identification case involving a fleeting glimpse of a complete stranger. Here, the complainant had met the appellant for the first time in her building a few months prior to the abduction, when he offered to help her with her groceries. In addition, the night before her abduction, the complainant witnessed “a brief but heated” argument between her boyfriend and the appellant while in a Pizza Pizza restaurant.

[9] Furthermore, during the events that gave rise to the criminal acts, the complainant had on numerous occasions observed the appellant close up and even engaged him in conversation. And, as she testified, she walked outside with the appellant and remained beside him in the alleyway before, during and after the gunfight.

[10] Finally, we note that the appellant’s trial counsel did not raise the issue in his closing submissions. This ground of appeal is dismissed.

[11] We also reject the appellant’s assertions that the trial judge misapprehended evidence or failed to provide adequate reasons for convicting him of attempting to murder the complainant.

[12] First, the trial judge specifically adverted to evidence of the other witness who said he saw only one man. He found the difference between this evidence and that of the complainant as being “no more than what one would expect given the circumstances in which the observations of all of the witnesses, including [the complainant], were made.” He was wholly entitled to reach this conclusion.

[13] Second, the trial judge did not convict the appellant of attempt murder based only on the complainant’s subjective belief. Rather, he convicted him on an objective assessment of all the evidence pointing to attempted murder, which included the complainant’s observations. He assessed her testimony on this issue together with other facts he found that surrounded her account. The trial judge concluded that the only reasonable inference is that the appellant “pointed the gun at her head and pulled the trigger.”

[14] Furthermore, it is beyond dispute that the appellant’s weapon was an operable firearm since he had fired it moments earlier at her boyfriend. Thus, it was entirely open to the trial judge to then find that when the appellant “pointed the gun at [the appellant’s] head and pulled the trigger”, he expected to shoot her.

[15] We find no error in either trial judge’s approach or his conclusions. We would once again point out that trial judges are in the best position to make the necessary findings of fact and are entitled to great deference. In doing so in this case, the trial judge did not misapprehend evidence as argued by the appellant and his reasons for his decision are more than adequate. The conviction for attempt murder was reasonable.

[16] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”

"H.S. LaForme J.A."