Her Majesty the Queen v. Spencer

[Indexed as: R. v. Spencer]

Ontario Reports

Court of Appeal of Ontario

Hoy, Trotter and Paciocco JJ.A.

December 23, 2020

154 O.R. (3d) 1 | 2020 ONCA 838

Case Summary

Criminal law — Appeal — Grounds — Unreasonable verdict — Circumstantial evidence of identification — Police officer observing a male fire a single shot from a handgun — Officer pursuing shooter before losing sight of him — Trial judge discounting discrepancies between officer's description based on "fleeting glimpse" of shooter and accused — Handgun with DNA from four persons including accused and shell cartridge recovered from scene — Officer testifying unable to identify accused at trial — Crown relying on circumstantial evidence including officer's description, DNA evidence, and grainy surveillance videos — Trial judge finding that totality of evidence excluded possibility of innocent coincidence — Appeal from conviction allowed and accused acquitted — Accused's guilt not the only reasonable conclusion based on the circumstantial evidence.

Criminal law — Evidence — Circumstantial evidence of identification — Police officer observing a male fire a single shot from a handgun — Constable pursuing shooter before losing sight of him — Trial judge characterizing officer's view of shooter as "fleeing glimpse" Handgun with DNA from four persons including accused and shell cartridge recovered from scene — No direct evidence that accused was shooter as officer unable to identify accused in court — Crown relying on circumstantial evidence of officer's description, DNA evidence and grainy surveillance videos — Trial judge finding that totality of evidence excluded possibility of innocent coincidence — Appeal from conviction allowed and acquittal entered — Accused's guilt was not the only reasonable conclusion based on the circumstantial evidence.

Two police officers responded to a call of someone having a gun pointed at him. There were many people at the scene including about 100 people, primarily black men wearing hoodies or jackets. One of the officers saw a male in a parking lot near a nightclub point a handgun into a laneway and fire a single shot. The officer pursued the shooter for about 150 metres before losing sight of him and did get brief glimpse of his face during chase. A semi-automatic handgun and a shell casing were found nearby. The DNA of four people was extracted from the grip of the handgun. One of those people was the accused. Security footage from the nightclub taken over an hour before the shooting showed the accused inside the club. Security cameras along the shooter's escape route showed the constable chasing the shooter. The officer described the shooter as being a slim or skinny black man, about 5'4" and wearing [page2] a pattern puffy winter jacket with white patch on sleeve. The accused was charged with seven counts of weapons offences under the Criminal Code. At trial, there was no direct evidence that the accused was the shooter as the officer could not identify the accused. The Crown relied on the circumstantial evidence of the DNA found on the gun, the officer's description and the surveillance videos. The trial judge characterized the constable's description as being based on a "fleeting glance". The judge also observed that individual frames of one of the videos showed the shooter's footwear and a patch of white on the upper left shoulder area of his jacket, and that those images were consistent with what the accused was wearing based on the nightclub video. The judge concluded that the totality of the evidence excluded the possibility of innocent coincidence. The trial judge discounted the discrepancies between the accused, who was 5'7", had a muscular build at trial and was wearing a solid coloured jacket and the officer's description of the shooter. The accused was convicted of intentionally discharging a firearm while being reckless to the life or safety of another, possession of a restricted unlicensed firearm and breach of probation. He appealed.

Held, the appeal should be allowed.

The trial judge erred in finding that the accused's guilt was the only reasonable conclusion available on the circumstantial evidence. Taken at its highest, the evidence established that at some unknown point in time, the accused handled or was in proximity to the firearm used in the shooting and that over an hour before the shooting, the accused was in the vicinity. It was unknown whether the three other unknown persons who handled the firearm were also in the vicinity of the shooting or whether they matched the constable's description. It was unknown whether the shooter's jacket was a solid colour, like the accused's, or patterned, as the footage of the fleeing suspect was grainy and indistinct. It was impossible to tell from the videos whether the pattern on the accused's shoes matched the pattern on the shooter's shoes. The most that could be said was that no inconsistencies in general appearance or trim between the running shoes could be confidently noted. Even if the points of distinction were put to the side, the totality of the evidence was too generic to reasonably permit the identification of the accused as the shooter, or the elimination of all other potential suspects, beyond a reasonable doubt. The judge listed six factors linking the accused to the firearm at the relevant time, place and criminal act. Of those, the discovery of the firearm along the escape route and the spent cartridge were entirely irrelevant in identifying the shooter. The judge also appeared to ascribe more incriminating weight to the constable's "fleeting glance" evidence than it fairly warranted. The judge's conclusion that the constable's evidence was not inconsistent with the accused being the shooter was not supported by the evidence. Also, the most that could be reasonably said about the jacket and footwear was that they may be consistent, but the poor quality of the video made that impossible to determine. The only available reasonable inference was that there was a reasonable doubt about whether the accused was the shooter. The accused was acquitted.

Cases referred to

R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Dipnarine, [2014] A.J. No. 1102, 2014 ABCA 328, 584 A.R. 138, 8 Alta. L.R. (6th) 373, 316 C.C.C. (3d) 357; R. v. Grayston, [2016] O.J. No. 5528, 2016 ONCA 784; R. v. H. (W.), [2013] 2 S.C.R. 180, [2013] S.C.J. No. 22, 2013 SCC 22, 335 Nfld. & P.E.I.R. 1, 442 N.R. 200, 297 C.C.C. (3d) 4, 106 W.C.B. (2d) 158 359 D.L.R. (4th) 442; R. v. Kienapple, 1974 CanLII 14 (SCC), [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; R. v. Pittiman, [2006] 1 S.C.R. 381, [2006] S.C.J. No. 9, 2006 SCC 9, 264 D.L.R. (4th) 1, 346 N.R. 65, 209 O.A.C. 388, 206 C.C.C. (3d) 6, 36 C.R. (6th) 87; R. v. Spencer, [2019] O.J. No. 5364, 2019 ONCJ 746; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, [page3] [2016] S.C.J. No. 33, 2016 SCC 33, 338 C.C.C. (3d) 1, 130 W.C.B. (2d) 627, 30 C.R. (7th) 223, 486 N.R. 360, 401 D.L.R. (4th) 385; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 86(1), 88(1), 90(1), 92(1) [as am.], 95(1) [as am.], 244.2(1)(b), 733.1 [as am.]

APPEAL from conviction for weapons offences [2019] O.J. No. 5364, 2019 ONCJ 746, and from sentence imposed on February 25, 2020.

Nickolous Spencer, acting in person.

Brian Snell, appearing as duty counsel.

Hannah Freeman, for respondent.

The judgment of the court was delivered by

PACIOCCO J.A.: —

Overview

[1] On October 14, 2017, shortly after closing time for the area bars, Cst. Breau witnessed someone fire a single shot into a crowded laneway. It appears that no one was injured.

[2] Cst. Breau gave chase as the shooter fled, but the shooter escaped. Shortly after, a nine-millimetre Luger semi-automatic handgun (the "handgun"), later linked circumstantially to the shooting, was found under a car along the shooter's escape route. The DNA of four people was detected on the grip of the handgun. One of the DNA profiles was from the appellant, Nickolous Spencer. Mr. Spencer was subsequently arrested and charged with offences arising from the shooting.

[3] At his trial, no one provided direct evidence that Mr. Spencer was the shooter. However, based on circumstantial evidence, the trial judge convicted Mr. Spencer, finding that Mr. Spencer's guilt was the only reasonable inference that could be drawn from the evidence.

[4] In my view, that finding by the trial judge was unreasonable. For reasons that follow, I conclude that the circumstantial identification evidence presented at trial was too generic to establish Mr. Spencer's identity beyond a reasonable doubt, and that the trial judge committed reasoning errors that led him to find otherwise. I would set aside Mr. Spencer's conviction and order his acquittal.

[5] Based on my conclusion that Mr. Spencer's convictions must be set aside, his sentence appeal is moot. [page4]

Material Facts

A. The crime and the investigation

[6] There are many bars and restaurants around the intersection of Ossington Avenue and Dundas Street West in Toronto. On October 14, 2017, at approximately 2:41 a.m., as many people were leaving local establishments, someone called the police to report that a man had pointed a handgun at him. The location of the call was "possibly" an address on Dundas close to Ossington, or a nightclub on Ossington close to the intersection (the "nightclub"). A general description of the suspect was provided.

[7] Cst. Breau responded immediately. He and his partner arrived within a few minutes. They parked their police vehicle on Dundas, just outside a "Green-P" parking lot that abuts Dundas, to its north, and a laneway, to its west. The laneway runs parallel to Ossington and is where the entrance to the nightclub was located. From 20-25 feet away, while inside his police vehicle, Cst. Breau saw a male, wearing a dark hoodie, in the parking lot. Cst. Breau believes the man had his hood up. He watched the male point a handgun westward into the laneway before firing a single shot. Cst. Breau estimated that there were "100 plus" people in the laneway at the time. A shell casing was later discovered in the parking lot.

[8] The shooter then attempted to enter a taxicab on Dundas to the west of where Cst. Breau's vehicle was parked. He then tried another taxicab. Cst. Breau testified that as the shooter began to enter the second taxicab his "head pops up". Cst. Breau is of the view that at that point the shooter saw Cst. Breau "running right at him" from "a good 50, 30, 50 feet away".

[9] The shooter fled on foot westbound on Dundas, and Cst. Breau gave chase. The shooter then turned southbound on Ossington. Cst. Breau, who was running on the road in the traffic, lost sight of the shooter after the shooter turned eastbound on Halton Street, which leads back to the laneway abutting the parking lot. Cst. Breau agreed that the distance he chased the shooter was "about 150 metres".

[10] A firearm was subsequently located on the north side of Halton St. It was a nine-millimetre Luger semi-automatic handgun. Forensic examination determined an "agreement of class and individual characteristics" between the shell casing found in the parking lot and a cartridge test-fired from this handgun.

[11] The DNA of four people was extracted from the grip of the handgun. One of the DNA profiles was similar enough to Mr. Spencer's DNA profile that it can safely be concluded that it was his DNA. Security footage was also obtained from the nightclub, taken over an hour before the shooting, showing Mr. Spencer inside the [page5] club. Additional surveillance footage, obtained from security cameras along the shooter's escape route, shows someone running past, followed five or six seconds later by an individual known to be Cst. Breau. The Crown's position is that based on his size and appearance, it can be concluded that the suspect was Mr. Spencer.

[12] On February 4, 2018, Mr. Spencer was charged with the following counts arising from this incident: (1) possession of a prohibited firearm contrary to s. 92(1) of the Criminal Code, R.S.C. 1985, c. C-46; (2) intentionally discharging a firearm while being reckless as to the life or safety of another, contrary to s. 244.2(1)(b) of the Criminal Code; (3) careless use of a firearm, contrary to s. 86(1) of the Criminal Code; (4) possession of a loaded prohibited firearm without authorization, contrary to s. 95(1) of the Criminal Code; (5) possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code; (6) carrying a concealed weapon, contrary to s. 90(1) of the Criminal Code; and (7) breach of a probation order not to possess weapons, contrary to s. 733.1 of the Criminal Code.

B. The evidence at trial

[13] It was not disputed during the trial that the handgun and the cartridge were used by the shooter, nor was it disputed that Mr. Spencer can be seen in the videos taken at the nightclub more than an hour prior to the shooting. It is also agreed that it is the shooter who is depicted in the surveillance video that was captured along the shooter's escape route. Mr. Spencer acknowledges that he had no authority to possess firearms and, on October 14, 2017, was under a probationary order not to possess weapons. The sole issue at the trial was whether the Crown could prove beyond a reasonable doubt that Mr. Spencer was the shooter.

[14] There was no direct evidence that he was. The circumstantial evidence that the Crown relied upon can be placed in three categories: (1) DNA evidence; (2) description evidence (provided by Cst. Breau); and (3) the surveillance videos. I will now describe each of these in more detail.

(1) DNA evidence

[15] Dr. Claxton of the Centre for Forensic Science testified about the four DNA profiles extracted from the grip of the handgun. He explained that the DNA from each person could have been deposited by direct contact, or indirectly, such as by sneezing in proximity to the handgun. Dr. Claxton also testified that the sequence of contact could not be determined. [page6]

(2) Description evidence

[16] At the trial, Cst. Breau said that he would not be able to recognize the shooter. There were limitations in his opportunity to observe, given distance, perspective (for most of the time he was looking at the shooter's back) and the darkness, illuminated only by artificial light.

[17] Cst. Breau gave relatively detailed evidence about the "hoodie" worn by the shooter: "[I]t was a dark grey/white sort of hoodie/jacket with a hood. To me it looked almost like the snow on the old televisions but it was a darker colour than the white that's in that snow on the television. It was kind of speckled", or "checked like the old checkered TV". He said if he had to pick a colour it would be "dark grey", but he affirmed during cross-examination that it was "definitely patterned, not a single colour". He could not describe anything about the style of the hoodie/jacket other than to suggest that its length was to the hip area, and he did not see any logos or patterns. He agreed during re-examination that he was not saying there were no logos or patterns, but that if there were, he did not see them.

[18] Cst. Breau did offer some descriptive details of the shooter, but he testified that he had not seen the shooter's facial features. He described the shooter as "a male black, light skinned, dark afro hair, thinner build, skinnier build about five, five-ish, 5'4" in height I believe", and he described the shooter's hair as "shorter". When asked if he could give an approximate age he said, "Only what was given in the text of the [police] call, which was approximately 24 years of age." He then said that from a distance he would "put" the shooter in his "mid-20s".

[19] When Mr. Spencer was arrested, his height was recorded as 5'7". At his trial, Mr. Spencer did not appear to have a thinner or skinnier build. Instead, he presented as muscular.

[20] When asked how similar in appearance the shooter had been to the other individuals "who were around him", Cst. Breau said: "In terms of male blacks and clothing, ah, there were, well there were 100 plus people there in the laneway and a lot of people had some dark clothing on, hoodies and were male blacks."

(3) Surveillance videos

[21] A security camera video in the nightclub captured coloured images of Mr. Spencer at approximately 12:30 a.m. He is wearing a dark, puffy jacket with a light-coloured patch on the left arm below the shoulder, as he climbs a staircase leading to the entrance of the club. [page7]

[22] Black and white security video images of Mr. Spencer were captured inside the nightclub. As he is entering and being checked by the doorman, he appears to be wearing a dark puffy jacket. In some of the still images, extracted from the video and admitted into evidence, the jacket appears to be lighter in colour than the pants he is wearing. Subsequently, including when he can last be observed, shortly after 1:00 a.m., Mr. Spencer is wearing a t-shirt without a jacket. The images taken inside the nightclub also show that he is wearing light-coloured running shoes with dark markings. The trial judge described the images as "grainy".

[23] Coloured security video from 213 Ossington was also admitted into evidence, as Exhibit 13. A man wearing dark clothing and white shoes can be seen running swiftly past a small crowd of people. Approximately five or six seconds later, a police officer, known to be Cst. Breau, is seen running in the same direction down the middle of the road. A grainy still image extracted from this security video, used by the Crown during closing argument, shows the first man in motion as he runs past the people on the sidewalk. His left arm is largely obscured by another individual. The Crown contends that a light marking could nonetheless be observed on the man's left arm.

[24] Black and white images of the street, taken from a security camera at 219 Ossington, show a male running southbound wearing dark clothing and light-coloured shoes. The video was entered into evidence as Exhibit 15 A. The images are grainy and blurred. The Crown contends that the surveillance film shows a light-coloured patch on the upper left arm, and white shoes with dark markings.

[25] Coloured images from 199 Ossington, captured by a security camera inside the store facing the store entrance, were admitted as Exhibit 16. The Crown contends that, through the window adjacent to the door, a person can be seen approaching from the north, wearing dark clothing with a light-coloured patch on their left arm. The surveillance video then shows that person to be wearing white running shoes with what appears to be a blue, perhaps turquoise, pattern running along the side of the shoe. The Crown extracted a still photo from this video footage, isolating the image of one of the shoes, which it relied on during argument.

[26] During his testimony, Cst. Breau was shown this video footage. When asked if he could recognize this person, Cst. Breau testified: "Well that running by certainly matched the same male that I was chasing earlier. . . . Uh, it went by very quick." When the video footage was slowed, Cst. Breau said: "That looks like the same black jacket and short black hair."

[27] Further security images were captured subsequently, from the alley camera at 199 Ossington. The Crown contends that they [page8] capture the shooter returning from his successful flight. The Crown also contends that the light-coloured patch can be seen.

[28] None of the surveillance images from along the escape route capture the suspect's face.

C. The trial judge's decision

[29] After a four-day trial, the trial judge found Mr. Spencer guilty of all charges, except count 6, the concealed weapon charge, which was withdrawn at the request of the Crown. I will describe the trial judge's analysis of (1) the DNA evidence, (2) the description evidence, and (3) the surveillance video. I will then relay the listed reasons that the trial judge gave for his conclusion that the only reasonable inference is that Mr. Spencer was the shooter.

(1) DNA evidence

[30] In describing the probative value of the DNA evidence, the trial judge said [at para. 19]: "This evidence confirms that the defendant at some point handled, or was in close proximity to, the handgun at the centre of this prosecution." The trial judge recognized that "[t]he presence of Mr. Spencer's DNA on the handgun is some circumstantial evidence of the identity of the shooter" [para. 19], but noted correctly, citing R. v. Grayston, [2016] O.J. No. 5528, 2016 ONCA 784, at para. 14, that "the connection of the accused with the crime will depend on the existence of other evidence capable of establishing that the accused was in contact with the object at the relevant time and place" [para. 26].

(2) Description evidence

[31] The trial judge characterized Cst. Breau's description of the shooter as based on "a fleeting glance", noting [at para. 11] that Cst. Breau had "minimal opportunity to make observations of the shooter", having had only a "brief glimpse of the shooter's face in artificial light 30-50 feet away". Because Cst. Breau had only a fleeting glance, the trial judge found [at para. 13] "little ultimate significance" in the discrepancy between Cst. Breau's estimate of the shooter's height, at 5'4", and Mr. Spencer's measured height at the time of his arrest, at 5'7".

[32] The trial judge then found [at para. 14] that the "video surveillance of Mr. Spencer attending the [nightclub]" is "consistent" with Cst. Breau's description of the shooter. He noted [at para. 15] that, in the nightclub video, Mr. Spencer "appeared as a short, slight, light-skinned, short-haired African-Canadian male". He then relied on Mr. Spencer's appearance in the nightclub video to discount the discrepancy between Mr. Spencer's muscular build [page9] at trial and Cst. Breau's description of the shooter as having a thinner or skinnier build.

(3) Surveillance videos

[33] The trial judge noted [at para. 15] that the nightclub video recordings were black and white, and that "[t]he resolution was often grainy and indistinct". He described the coat and shoes that Mr. Spencer was wearing as they appeared in those videos: "He wore a puffy, hooded winter jacket. On the upper portion of the left sleeve a white or light patch or insignia was visible. He wore running shoes which appeared to be mainly white with a distinctive pattern on the lower portion."

[34] In his reasons, the trial judge relied heavily on the surveillance video from 199 Ossington, which he described as "not colour" and "of poor resolution". The images from the inside of the store are in fact in colour. He said [at paras. 20-21]:

When slowed to a frame-by-frame series of photographs, the video records both the footwear of the runner and a patch of white on the upper left shoulder area of his clothing. . . . My assessment is that the footwear in this video is consistent in both general appearance and trim with the footwear worn in the [nightclub] earlier that morning by Mr. Spencer.

Both the image of the white patch captured in the 199 Ossington video and the upper left arm patch on the jacket worn by the defendant in the [nightclub] are indistinct. While it is not possible to discern the shape or detail of either the white arm patch on the upper left arm of the jacket of the shooter running southbound on Ossington or that seen on Mr. Spencer in the [nightclub], the white patch is a feature that distinguishes the jacket from similar garments worn in the [nightclub] and on the path of the shooter's flight.

[35] The only other surveillance video the trial judge expressly relied upon was the video from the alley camera at 199 Ossington of a Black, youthful male walking northbound, in the direction of the scene of the shooting. The trial judge noted that "[n]o facial features could reliably be discerned". However, he said [at para. 22]:

The person was wearing a jacket consistent with that worn by the shooter fleeing southbound on Ossington a few moments before. On the upper left arm of this person was a flash of white. The Crown's position is that this person was the shooter, who had just discarded his weapon and outrun the police foot pursuit. I find that this submission is supported by the evidence.

(4) The reasons for convicting

[36] The trial judge then summarized, in para. 27 of his reasons, why he was satisfied beyond a reasonable doubt that Mr. Spencer's identity as the shooter was the only reasonable conclusion that could be drawn from the Crown's circumstantial case: [page10]

The following evidence is available to link Mr. Spencer's DNA, found on the handgun grip, to the relevant time, place and criminal act:

1. The defendant's admitted presence at a club located a few feet from the location of the shooting within several hours of the shooting.

2. The fleeting glance by Constable Breau of the shooter, a man not inconsistent with Mr. Spencer, and the continuous visual contact the officer maintained as the two men passed the video surveillance at 199 Ossington Avenue until he lost sight of the shooter on Halton.

3. The consistency between the images of the footwear and the jacket with the white patch worn by the fleeing shooter captured on the 199 Ossington surveillance video and that worn by Mr. Spencer in the [nightclub].

4. The discovery of the firearm used in the shooting on the shooter's escape route within a few minutes of the shooting.

5. The discovery of the spent cartridge at the location of the shooting and the forensic evidence establishing its connection to the handgun.

6. The consistency between the image of the jacket with the white patch worn by the male captured in the lane surveillance camera, as he walked northbound within a few minutes of the shooting and that worn by Mr. Spencer in the club.

[37] On this basis, the trial judge concluded that the totality of the evidence excluded the possibility of innocent coincidence and established Mr. Spencer's identity as the shooter.

[38] The trial judge subsequently sentenced Mr. Spencer to eight years of imprisonment on count 2, for intentionally discharging a firearm while being reckless to the life or safety of another. The trial judge also imposed a concurrent sentence of four years on count 1, possession of a restricted, unlicensed firearm, as well as one month of consecutive imprisonment on count 7, breach of probation. The other charges were stayed under the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76.

[39] Mr. Spencer was given credit for presentence custody, as well as credit for the harsh conditions of his pretrial detention and for the punitive terms of release that applied during the period that he was released pending trial. In total, the eight-year, one-month sentence that was imposed was reduced by 518 days.

Issues

[40] Mr. Spencer appeals his conviction and seeks leave to appeal his sentence. Since I would allow the conviction appeal, the sentence appeal is moot, and I will say no more about it. The sole issue that I will consider is: Did the trial judge err in finding that Mr. Spencer's guilt is the only reasonable conclusion available on the circumstantial evidence? [page11]

Did the trial judge err in finding that Mr. Spencer's guilt is the only reasonable conclusion available on the circumstantial evidence?

[41] I am mindful that substantial deference is owed to findings of fact and findings of mixed fact and law made by trial judges. However, it is an error to render an unreasonable decision, even where, as here, the trial judge understands and applies the correct legal test and accurately identifies relevant legal principles. Justice Cromwell described the unreasonable verdict standard in circumstantial evidence cases in R. v. Villaroman, [2016] 1 S.C.R. 1000, [2016] S.C.J. No. 33, 2016 SCC 33, at para. 55:

Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence.

(Citations omitted)

[42] Appropriately, during argument, the Crown drew our attention to the admonition that an appeal court must recognize that "[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt": Villaroman, at para. 56, citing R. v. Dipnarine, [2014] A.J. No. 1102, 2014 ABCA 328, 584 A.R. 138, at para. 22. This does not mean that an appeal court must leave it to the trier of fact to determine whether it is reasonable to convict. Reading the admonition in this way would eliminate unreasonable verdict appeals in circumstantial evidence cases.

[43] The essential point is the familiar one: that appeal courts should not overturn verdicts simply because they would have found to the contrary. A reviewing court must treat a verdict with great deference and pay due regard to the advantages the trier of fact had at the trial: R. v. H. (W.), [2013] 2 S.C.R. 180, [2013] S.C.J. No. 22, 2013 SCC 22, at paras. 2, 27; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at paras. 36-37. A verdict should be found to be unreasonable only where the verdict is one that a properly instructed trier of fact could not reasonably have rendered on the totality of the evidence: H. (W.), at para. 26; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, at para. 23; and see Biniaris, at para. 37.

[44] As Cromwell J. makes clear, in a circumstantial evidence case such as this, the salient question is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence": Villaroman, at para. 55. In my view, the conclusion that Mr. Spencer is guilty of the offences that are the subject [page12] of this appeal is not the only reasonable conclusion available on the totality of evidence. The problem is not simply that there are other, reasonable, innocent conclusions available. It is that the findings of guilt are themselves unreasonable because the totality of the evidence is incapable of supporting a reasonable finding that the Crown proved Mr. Spencer's identity as the shooter beyond a reasonable doubt.

[45] In coming to this conclusion, I have considered the advantages that the trial judge had at trial. I appreciate that the trial judge had the benefit of a four-day trial including full trial submissions, but, beyond this, the advantages of the trial judge are few. He had the benefit of hearing and observing the testimony of witnesses, but this prosecution did not turn on whether the testimony of witnesses should be credited. It turned on the sufficiency of undisputed evidence: the DNA evidence, Cst. Breau's description evidence and the surveillance videos. I take no issue with the trial judge's conclusions relating to the DNA evidence or with the description that Cst. Breau provided, and I have had the opportunity to examine the surveillance videos, just as the trial judge did. I bear in mind that we must respect the fact that it was the trial judge's role to determine Mr. Spencer's guilt or innocence, not ours. However, I am persuaded that the decision he arrived at is unreasonable and cannot stand.

[46] Taken at its highest, the evidence amounts to the following.

[47] At some unknown point in time, Mr. Spencer handled, or was in proximity to, the firearm used in the shooting. Over an hour before the shooting, Mr. Spencer was in the vicinity of the shooting, at the nightclub that the shooter may have attended. It is not known whether the three other unknown persons, who handled or were in proximity to the firearm, were also in the vicinity of the shooting, nor is it known whether, like Mr. Spencer and the shooter, they too were Black, young-adult males with shorter hair.

[48] In addition, Mr. Spencer wore dark clothing, as did the shooter, and as did many of the other Black, young-adult males in the vicinity at the time. When asked to comment on how similar the shooter's appearance was to others around him, Cst. Breau did not suggest that it was unusual for the shooter to be wearing a winter jacket, and no such evidence was presented.

[49] Mr. Spencer's winter jacket had an indiscernible light-coloured patch below the shoulder of the left arm and so, too, did the shooter's jacket. However, no evidence was led as to how common or uncommon it is for winter jackets to have such patches on their left shoulders. It is also unknown whether the shooter's coat was puffy, as Mr. Spencer's was. It may have been. Although the shooter's jacket appears to be solid coloured in the surveillance images [page13] showing his flight, as Mr. Spencer's jacket appears to be in the nightclub surveillance videos, the shooter's jacket may in fact have been patterned, as Cst. Breau described, and not of a solid colour, like the one Mr. Spencer is seen wearing. This cannot be known because the footage of the fleeing suspect is grainy and indistinct.

[50] In the grainy images available from the nightclub, captured more than an hour before the shooting, Mr. Spencer was wearing white runners with an unidentifiable dark-coloured pattern. The resolution does not permit the dark-coloured pattern to be identified or its colour determined. That dark-coloured pattern may have been blue or turquoise, as the coloured pattern on the shooter's white runners appears to be, but, then again, it may not have been blue or turquoise. It is impossible to tell. The dark-coloured pattern on Mr. Spencer's shoes may match the precise shape of the dark-coloured pattern on the shooter's shoes, but, once again, given the poor quality of the relevant images, this cannot be ascertained. The most that can be said is that no inconsistencies in general appearance or trim between the running shoes can be confidently noted.

[51] With respect, it cannot reasonably be concluded that this evidence excludes the possibility of innocent coincidence. Quite simply, even if the points of distinction are put to the side, the totality of the evidence is too generic to reasonably permit the identification of Mr. Spencer as the shooter, or the elimination of all other potential suspects, beyond a reasonable doubt.

[52] Where an appeal court finds a trial judge's verdict unreasonable, the appeal court "may be able to identify a flaw in the evaluation of the evidence, or in the analysis": Biniaris, at para. 37. Where this is so, the court "should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion": Biniaris, at para. 37. Here, three defects in the trial judge's analysis can be identified that appear to have contributed to the unreasonable conclusion that he reached.

[53] First, in para. 27 of his reasons, reproduced above in para. 36 of this decision, the trial judge listed six factors that he found linked Mr. Spencer to the firearm at the relevant time, place and criminal act. Of those six factors, two were entirely irrelevant in linking Mr. Spencer to the firearm. The discovery of the firearm along the escape route (the fourth factor) and the spent cartridge (the fifth factor), assist in establishing the shooting and the escape route but offer no assistance in identifying the shooter.

[54] Second, the trial judge appears to ascribe more incriminating weight to Cst. Breau's "fleeting glance" evidence (factor 2) than it fairly warrants. To be sure, the trial judge finds only that Cst. Breau's evidence is "not inconsistent with Mr. Spencer" but [page14] even that conclusion is not supported by the evidence. Cst. Breau was clear in describing the jacket worn by the shooter as patterned, yet the jacket worn by Mr. Spencer does not appear to have been patterned. Moreover, Cst. Breau does not describe the shooter's jacket as puffy but the jacket worn by Mr. Spencer is clearly puffy. Finally, although the discrepancy is not significant, Cst. Breau described the shooter as 5'4" tall, perhaps 5'5" tall, whereas Mr. Spencer is 5'7" tall. Although it may well be true, as the trial judge reasoned, that Cst. Breau may have misjudged the shooter's height because of the fleeting glance, he may not have done so. Moreover, other observations made by Cst. Breau, that the trial judge chose to rely upon, were also made by fleeting glance. I need not make a firm finding that the trial judge misapprehended any of this evidence to resolve this appeal. It is enough to observe that a reasonable determination requires that these shortcomings in the Crown case be considered, yet it does not appear that they were.

[55] Third, the trial judge relied on the "consistency between the images of the footwear and the jacket with the white patch worn by the fleeing shooter captured on the 199 Ossington surveillance video and that worn by Mr. Spencer" (factor 3). In fact, for the reasons offered in paras. 48-51 of this decision, the most that can reasonably be said is that the footwear and jacket may be consistent, but this cannot be determined, given the poor quality of the video.

[56] In sum, I am persuaded that it was not reasonable for the trial judge to have found that Mr. Spencer's guilt is the only reasonable inference available on the totality of the circumstantial evidence. An alternative available reasonable inference, indeed, the only available reasonable inference, is that there is a reasonable doubt about whether Mr. Spencer was the shooter.

Conclusion

[57] I would therefore allow the appeal, set aside Mr. Spencer's convictions and the findings of guilt made against him on the charges arising from the October 14, 2017 shooting. Where, as is the case here, convictions cannot be supported by the evidence, the appropriate remedy is an acquittal: R. v. Pittiman, [2006] 1 S.C.R. 381, [2006] S.C.J. No. 9, 2006 SCC 9, at para. 14. I would therefore order the acquittal of Mr. Spencer on these charges.

Appeal allowed.

End of Document