Court of Appeal for Ontario

Date: 20210521 Docket: C67263

Tulloch, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Tristan Palmer Respondent

Counsel: Sean Horgan, for the appellant Janani Shanmuganathan and Owen Goddard, for the respondent

Heard: November 19, 2020 by video conference

On appeal from the acquittals entered on July 4, 2019 by Justice Suhail A.Q. Akhtar of the Ontario Superior Court of Justice.

Tulloch J.A.:

A. Overview

[1] In the early morning hours of January 11, 2018, two groups of young men were involved in an altercation outside a nightclub in downtown Toronto. When the nightclub’s security guards broke up the fight, the men moved their dispute into a nearby underground parking lot. According to the Crown, the respondent, Tristan Palmer, was one of the men involved in the altercation. The Crown alleged that he shot David Abraham during the second encounter in the parking lot before fleeing the scene.

[2] The respondent was charged with aggravated assault and several firearms offences. Aside from a grainy surveillance video from the parking lot that captured the alleged incident from a distance, the Crown’s case was entirely circumstantial. In his testimony, Mr. Abraham denied ever being in the parking lot, let alone being shot.

[3] Following a three-day trial in the Superior Court of Justice, the trial judge acquitted the respondent of all charges.

[4] The Crown appeals the acquittals on three grounds.

[5] First, it argues that the trial judge misapprehended two aspects of the parking lot surveillance video:

(i) there actually was one, if not two, “muzzle flashes” coming from the respondent’s gun at the time of the alleged shooting, and

(ii) the sudden reactions of the alleged victim and others immediately after the flash indicated that there had been at least one gunshot.

[6] This misapprehension, according to the Crown, prevented a holistic consideration of the cumulative impact of the Crown’s case.

[7] Second, the Crown submits that the trial judge failed to assess individual items of evidence in the context of the case as a whole. Third, it contends that the trial judge failed to provide reasons demonstrating that he considered the totality of the evidence.

[8] At the conclusion of the oral hearing, we dismissed this appeal with reasons to follow. These are the reasons.

B. Background

[9] At trial, the Crown called several witnesses, including: the head of security at the nightclub; three civilian witnesses who observed part of the events from their apartment buildings; and Mr. Abraham, the alleged victim. The Crown also adduced: surveillance footage; vehicle registration information for a car in the surveillance footage; an agreed statement of fact; photographs of evidence found in the parking lot and evidence seized from Mr. Abraham; and cell phone tower data.

[10] The defence called no evidence.

[11] In the sections that follow, I summarize each evidentiary component, in turn.

(1) The Testimony of the Head of Security

[12] Barry Donaldson, the head of security at the nightclub, testified that his security team broke up a physical altercation between two groups of males outside the club around 2:50 a.m. on January 11, 2018. One group primarily consisted of Black males; the other group was Caucasian.

[13] Mr. Donaldson testified that a Black individual threatened to “come back and shoot” him. This individual proceeded to walk across the street, and turn into a nearby alleyway. Some of the Caucasian males followed. Within one or two minutes, Mr. Donaldson heard gunshots come from that alleyway.

[14] Mr. Donaldson could not positively identify the person who threatened him. However, he described the individual as being a darker-skinned Black male, in his late twenties, standing at approximately 5”10 and 180 pounds. The male had cornrows and wore a thin, dark bomber jacket. The Crown alleged that this description was consistent with the respondent’s physical appearance.

[15] Mr. Donaldson also took a video of some of the participants in the altercation, which the Crown tendered at trial. One individual in the video was Caucasian and wore a hooded puffy black jacket, a white t-shirt, and distressed jeans. He wore his hair in a bun at the back. It was undisputed by the parties that this individual was Mr. Abraham, the alleged victim of the shooting.

(2) The Testimony of the Civilian Witnesses

[16] Three civilian witnesses testified at trial. All of them lived in condos located either adjacent to the nightclub or by the parking lot. Around 3:00 a.m. on January 11, 2018, the sounds of a commotion outside caused each of them to look down to the streets below.

[17] The first civilian had a view of the parking lot from his window. He observed a dark car exit the parking lot at around 3:00 a.m. He thought the car might be a Dodge Charger. He did not hear any gunshots.

[18] The second civilian lived in a condo just to the left of the nightclub. From his window, he saw two groups of men fighting in the street – one group was Black, and the other, Caucasian. He heard the men yell some “racist remarks.” He filmed this altercation for about ninety seconds. The men walked into an alleyway, where he could no longer see them. He heard about three to five gunshots shortly after and called 911.

[19] The third civilian could see the parking lot entrance from his balcony. He saw two groups of men arguing. A group of Black males went into the parking lot and the Caucasian males followed. Shortly after, he heard three gunshots that seemed to come from the parking lot. He then saw a dark “Dodge Charger” exit the parking lot, pick up a passenger in the alleyway, and speed off.

(3) The Testimony of David Abraham

[20] Mr. Abraham, the alleged gunshot victim, testified at trial. He was the only witness called by the Crown who was in the parking lot at the material time.

[21] Mr. Abraham was an uncooperative witness. He denied having any knowledge of an altercation on the morning of January 11, 2018. He also denied ever being shot. He claimed that he could not remember where he was that night, nor who he was with.

[22] The Crown presented him with the video filmed by Mr. Donaldson, the security guard at the night club. Mr. Abraham denied being the individual wearing the hooded puffy jacket, white t-shirt, and distressed jeans in the video. He admitted that he wore his hair in a bun at the back but falsely claimed the individual in the video had a buzz cut (as noted above, it is clear that the individual in the video wore his hair in a bun, like Mr. Abraham).

[23] Similarly, Mr. Abraham denied being one of the individuals captured by the surveillance footage. His presence in the surveillance footage was undisputed by the defence.

[24] As well, the Crown presented Mr. Abraham with hospital records from the night in question, which contained his name and date of birth. The hospital record indicated that a “David Abraham” arrived by taxi at 3:25 a.m. Notes taken at the hospital indicated that he had suffered a minor gunshot wound and had a scratch on his left hip, which was closed with a staple. Mr. Abraham insisted that he could not recall attending the hospital that night.

[25] Finally, the Crown presented him with images of bloody clothing – a hooded puffy jacket, white t-shirt and distressed jeans – which the police seized from “Mr. Abraham” at the hospital. This clothing matched the apparel worn by the individual alleged to be Mr. Abraham in Mr. Donaldson’s video. The t-shirt and jeans had small holes in them, consistent with the location of Mr. Abraham’s injury on his left hip. Mr. Abraham testified that he did not recognize any of the clothing.

(4) Surveillance Footage

[26] The Crown tendered video surveillance evidence that P.C. Yekaterina Galamiyeva seized from three different camera locations at the parking garage. P.C. John Antonaros also seized surveillance footage from two locations in the alleyway where the parking lot entrance was located. The officers testified to assist the court in understanding the chronology of events, as depicted in the surveillance videos.

[27] Notably, there was an issue with the timestamps on the surveillance videos. According to the officers, the cameras in the alleyway had accurate timestamps; whereas, all the cameras from the parking lot were one hour behind, aside from one, which was ten minutes behind. At trial, defence counsel argued that the inconsistencies in the timestamps were vague and inconclusive, putting video continuity into question. The trial judge addressed these submissions at the hearing, noting that:

Well, who cares whether they’re a minute or three minutes off? I mean let’s just assume that you know they’re in the general vicinity. What the Crown is saying is look all of these events are happening and it’s similar looking people. They’re all going in the same direction and they’re all coming out from the same direction. They match with the witnesses. So, you don’t need to know the exact times. You just have to be certain that this is what the incident that they’re referring to.

[28] I agree with the trial judge’s assessment of this issue, and the parties do not seem to take issue with it on appeal. It is clear that the events depicted in the videos correlate with the timestamps when they are adjusted by an hour or ten minutes, depending on the camera. Accordingly, I proceed on the same basis as the trial judge.

[29] In these reasons, for the sake of simplicity, I have corrected the timestamps from the parking lot surveillance footage either by ten minutes or an hour depending on the camera, to account for the above-noted delay in the parking lot surveillance videos. Therefore, the timestamps referred to below are necessarily approximate. With that said, the chronology can be summarized as follows.

[30] At around 2:51 a.m., footage from the parking lot shows a man entering the garage through a stairway door. The same man ran to a black car that was parked in the lot. Soon after, the car proceeded up the ramp and exited the parking lot. The alleyway surveillance videos show the car exiting the parking lot, before it is parked in the alleyway at 2:52 a.m. It appears that the driver then exited the car, left the alleyway, and turned onto the street outside the nightclub. The Crown alleged that the man who moved the car was the respondent.

[31] At 2:55 a.m., the alleyway surveillance videos capture the altercation as it moves from the street into the alleyway. The Black individuals walk backwards towards the parking lot ramp, facing the Caucasian individuals. The Black individuals seem to gesture towards the parking lot. One of the Black individuals appears to have his right hand in his jacket pocket. The Crown alleged that this individual was the respondent and that he was holding a gun in his pocket.

[32] One of the Caucasian individuals seems to pull something from his waistband and extend his arm towards one of the Black individuals, as he followed him into the parking lot at a quick pace. Defence counsel at trial argued that this footage showed Mr. Abraham brandishing a firearm at the scene. On appeal, the respondent similarly notes that this footage provides evidence that other people in the parking lot, aside from the alleged shooter, may have had guns with them that night.

[33] At 2:59 a.m., a parking lot video depicts two Black individuals engaging with four Caucasian individuals as they walk down the ramp and enter the parking lot. A fifth man, who was Caucasian, comes down the ramp. The men are clearly arguing and appear to be circling each other in an aggressive manner in the parking lot.

[34] At 3:00 a.m., the parking lot footage shows a Black individual, alleged to be the respondent, extending his right arm while facing in the direction of a Caucasian male, alleged to be Mr. Abraham. There was a flash in the surveillance footage. The man alleged to be Mr. Abraham reacts suddenly and runs in the opposite direction; others appear to react with similar haste, though some Caucasian individuals stay behind. This is the only footage that captures the alleged shooting. It is very grainy and taken from a considerable distance. The Crown alleged that the flash was a “muzzle flash”; that is, a light from a discharging firearm.

[35] The parking lot footage then shows the man alleged to be Mr. Abraham going up the ramp, with an apparent limp. The alleyway videos capture him as he exits the parking lot and walks away from the scene. The man alleged to be the respondent leaves the parking lot through the stairway exit.

[36] About 40 seconds after the apparent gunshot, the parking lot footage shows one of the Caucasian individuals and a Black individual struggling with one another. It is the same camera that captured the alleged shooting. During this struggle, there is a second flash in the surveillance footage. As the two men come closer to the surveillance camera, still struggling, it becomes clear that the cause of this second flash was the glare of the Caucasian individual’s cell phone.

[37] Shortly after, at 3:02 a.m., the alleyway surveillance video shows a person retrieving the black car from the alleyway. The car then goes back down the parking lot ramp. Once inside the parking lot, surveillance footage shows two individuals entering the vehicle. The car then exits the parking lot. The alleyway surveillance footage shows a third individual entering the car in the alleyway. The car then speeds away.

(5) The Vehicle Registration for the Dodge Challenger in the Surveillance Footage

[38] Police reviewed the surveillance videos and concluded that the dark vehicle was a Dodge Challenger. [1] They were able to identify the last three numbers of the licence plate. They consulted the Ministry of Transportation, which identified eight registered owners of black Dodge Challengers bearing consistent licence plates.

[39] P.C. Galamiyeva determined that one of those owners was a Black male with similar facial features and height to the man depicted in the surveillance videos – he had a high forehead, round eyes, and stood at a height of 5”10. That male was the respondent.

(6) The Agreed Statement of Fact

[40] An Agreed Statement of Fact attested to the following:

(i) Toronto police first located blood, casings, and an undischarged round in the underground parking lot at 3:18 a.m. on January 11, 2018. Police then secured the scene.

(ii) An officer arrived at 4:50 a.m. and took photos of bullet strike marks and potential bullet strike marks.

(iii) The officer could not determine whether any of the bullet strike marks/possible bullet strike marks were made by the same caliber or same firearm.

(iv) The bullet strike marks and possible bullet strike marks were located in the same general area of the garage as the bullet casings that were located.

(v) Police could not determine the age of the bullet strike marks or possible bullet strike marks.

(7) Photographs of Evidence Obtained at the Scene and Evidence Seized from Mr. Abraham at the Hospital

[41] The Crown adduced the photographs taken at the crime scene, which showed the following pieces of evidence: three undischarged bullet casings; an undischarged bullet; what appeared to be two bullet strike marks; and a “fresh blood” trail, which led up the vehicle ramp to the exit. The Crown did not call any forensic experts at trial to testify about these items.

[42] The Crown also tendered photographs of the bloody clothing police seized from Mr. Abraham at the hospital.

(8) Cell Phone Records

[43] The respondent’s mother provided police with a phone number associated with the respondent. On the day in question, phone records indicated that at 12:55 a.m., and again at 1:14 a.m., the respondent’s phone sent signals to the cell tower that was closest to the area of the altercation. The Crown argued that the records placed the respondent in the vicinity of the parking lot at the material time.

C. Decision below

[44] In essence, there were two questions before the trial judge: (1) whether the respondent was the man in the parking lot, as depicted in the surveillance videos; and (2) if so, whether the respondent shot at Mr. Abraham.

[45] The trial judge answered the first question in the affirmative: the evidence, when viewed cumulatively, demonstrated that the man in the parking lot and alleyway surveillance videos was the respondent. In coming to that conclusion, the trial judge relied on the mobile phone evidence, which situated the respondent in the vicinity of the parking garage at the material time. He also concluded that the respondent’s vehicle was the Dodge Challenger captured in the surveillance videos, based on the information from the Ministry of Transportation. Lastly, he relied on the surveillance footage from the parking lot, finding that the person who initially moved the respondent’s car wore very similar clothing to that of the alleged shooter. According to the trial judge, the “value of the evidence is cumulative” and sufficiently proved that the man in the parking lot who extended his arm in the direction of Mr. Abraham was indeed the respondent.

[46] However, with respect to the second question – whether the respondent shot at Mr. Abraham – the trial judge harboured a reasonable doubt. He reasoned that the respondent’s mere presence at the scene could not suffice. The trial judge found that Mr. Abraham was “without question” lying when he testified and denied involvement in the events in question. In the absence of any credible testimony from the alleged victim, the trial judge observed that the Crown was left with the video evidence and the discovery of shell casings at the scene. In his view, this evidence was insufficient to discharge the heavy burden necessary to prove guilt. As he put it:

However, the act captured on the video is not as clear. I agree that Mr. Palmer raises his arm - an action consistent with firing a gun - but, unlike the Crown and officer Galimiyeva, I did not see a muzzle flash when he does so. Although I accept that casings are found in the area in which Mr. Palmer is alleged to have fired the shots, the amount of activity and people in the area raise concerns about whether the casings are in their original position rather than being disturbed by the other people present.

Whilst I might strongly suspect that Mr. Palmer may well have fired and shot Mr. Abraham. Mr. Abraham’s evidence - or his failure to testify truthfully - leaves a hole in this case which is sufficiently large to raise a reasonable doubt. [Emphasis added].

[47] On balance, although the trial judge “strongly suspect[ed] that Mr. Palmer may well have fired and shot at Mr. Abraham,” he was unable to find that the Crown proved its case beyond a reasonable doubt. Accordingly, he acquitted the respondent.

D. Issues

[48] As noted above, the appellant makes three arguments on appeal:

(i) the trial judge misapprehended the “muzzle flashes” and the reactions of the Caucasian individuals in the surveillance video, preventing an assessment of the cumulative impact of the Crown’s case;

(ii) the trial judge failed to assess individual items of evidence in the context of the case as a whole; and

(iii) the trial judge failed to provide reasons demonstrating that he considered the totality of the evidence.

E. Positions of the Parties

(1) Position of the Appellant

[49] The appellant argues that there were three errors of law in the trial judge’s approach to the evidence which had a material bearing on the acquittal, and the verdict would not necessarily have been the same had the errors not occurred.

[50] According to the appellant, the first error of law rested on the trial judge’s “inability to see the muzzle flashes” in the parking lot surveillance footage, as well as his failure to consider the reactions of the individuals who suddenly moved away after the alleged muzzle flash. The appellant submits that the trial judge misapprehended the surveillance footage, which comprised a key aspect of the evidence and therefore foreclosed a complete consideration of the Crown’s case.

[51] The second error of law is alleged to compound the trial judge’s misapprehension of evidence: the appellant argues that the trial judge erred by failing to contextualize several individual pieces of evidence within the broader context of the Crown’s case. Specifically, the appellant points to the following evidence that was allegedly overlooked by the trial judge:

i) at the time of the shooting, the respondent is standing just left of the bullet casings;

ii) Mr. Abraham was supposedly shot near the area where the bullet strike marks were found;

iii) the blood trail follows Mr. Abraham’s exit out of the parking garage; and

iv) the undischarged bullet was in the path of where the shooter ran in the aftermath of the muzzle flashes.

On this basis, the Crown submits that the trial judge’s assessment of these individual items in isolation, or his disregard for them altogether, undermined the cumulative strength of the circumstantial case against the respondent.

[52] Lastly, the appellant argues that the trial judge made a third legal error by providing insufficient reasons. In particular, when assessing whether the respondent in fact shot at Mr. Abraham, the trial judge referred only to:

(i) Mr. Abraham’s testimony denying his involvement in any altercation or his attendance at the hospital thereafter;

(ii) the surveillance footage; and

(iii) the discovery of shell cases at the scene.

[53] The appellant submits that there is no indication in the trial judge’s reasons that he grappled with the other inculpatory evidence (i.e., the bullet strike marks, the blood trail, or the undischarged bullet), nor did he consider the evidence cumulatively.

[54] In sum, the appellant submits that, when the persuasive power of all the evidence is properly considered in a cumulative fashion, there is only one possible conclusion: the respondent shot Mr. Abraham in the parking lot.

(2) Position of the Respondent

[55] As I will explain, the Crown is not permitted to appeal a verdict on the basis that it is unreasonable. The respondent submits that, in essence, the appellant’s arguments amount to an appeal of what the Crown believes to be an unreasonable acquittal. He contends that the trial judge did not commit the legal errors suggested by the appellant, foreclosing this court from intervening with the verdict.

[56] First, the respondent argues that the trial judge did not misapprehend the flash. Rather, he submits that the record demonstrates that the trial judge saw a flash of some kind on the surveillance footage when the respondent’s arm was extended; the trial judge just couldn’t conclude beyond a reasonable doubt that the light was a “muzzle flash.” As such, the respondent contends that the trial judge’s interpretation of what happened in the parking lot surveillance video amounted to a factual finding and did not disclose a legal error.

[57] Second, the respondent argues that the trial judge did consider the “cumulative power” of the Crown’s circumstantial case; it just wasn’t as strong as the appellant contends.

[58] Finally, with respect to the trial judge’s reasons, the respondent argues that the trial judge’s reasons were sufficient as he addressed the key pieces of circumstantial evidence that were material to the question of who shot Mr. Abraham.

[59] In closing, the respondent submits that it is clear that the trial judge applied careful scrutiny to the totality of the evidence. The Crown simply did not meet its burden of proof. Accordingly, he argues that there is no basis upon which to disturb the verdict.

F. Analysis

(1) Standard of Review

[60] The circumstances under which this court can intervene to overturn an acquittal are narrow. Section 676(1)(a) of the Criminal Code restricts the Crown’s right of appeal from an acquittal of an indictable offence to “any ground of appeal that involves a question of law alone.” So long as the trial judge took a legally correct approach to the evidence, the Crown cannot argue that the verdict is unreasonable: R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 35, leave to appeal refused, [2012] S.C.C.A. No. 64; R. v. Curry, 2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, at para. 37. As the Supreme Court of Canada observed in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33: “[T]he concept of ‘unreasonable acquittal’ is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt.”

[61] The Crown resists the suggestion that it is effectively bringing an unreasonable verdict appeal, under the guise of appealing legal errors. The Crown contends that the trial judge did make errors of law, including by assessing the evidence in a piecemeal fashion and not in its totality: see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31; R. v. Button, 2019 ONCA 1024, at para. 9. This court may set aside an acquittal where the trial judge considered each component of the case separately, such that “the persuasive effect of the totality of the evidence – the strength of the Crown’s case – was taken out of play”: Rudge, at para. 66. As this court put it in Rudge, at para. 47:

[T]he prosecution is entitled to a legally correct approach to the evidence that bears upon the determination of whether the onus has been met – a contextual approach based on a full evidentiary footing in which the proper standard of proof is applied.

A misapprehension of evidence may dovetail this legal error where it prevents a trial judge from considering the totality of the Crown’s evidence: Curry, at para. 50.

[62] In the event that the Crown is successful in showing an error of law, it does not necessarily follow that this court is obliged to set aside an acquittal. The onus on the Crown is a heavy one. To overturn an acquittal, the Crown must satisfy the court, with a reasonable degree of certainty, that the legal error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16; R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1, at para. 135; Button, at para. 15.

(2) The Trial Judge Did Not Misapprehend the Evidence

[63] As noted above, the Crown takes issue with the trial judge’s finding that he did not see a “muzzle flash” in the surveillance footage. According to the Crown, the trial judge misapprehended the evidence by failing to recognize at least one, if not two muzzle flashes on the surveillance footage when the respondent extended his arm in the direction of Mr. Abraham. It follows, the Crown submits, that this misapprehension prevented the trial judge from assessing the totality of the case against the respondent.

[64] I cannot accept this submission. I am not persuaded that the trial judge misapprehended the flash in the surveillance footage. During the course of the trial, the Crown took the trial judge to the footage containing the alleged muzzle flash on seven occasions. On one of those occasions, the trial judge instructed the Crown to pause the surveillance footage at the precise moment of the alleged muzzle flash. She did so and took note of the timestamp. In her closing submissions, she again returned to the moment of the flash. The following discussion then unfolded:

THE CROWN: So, he’s about to make a left hand turn, 180 and he extends his hand at the right.

THE COURT: Okay.

THE CROWN: Extends his right hand. Now I - I was successful yesterday in pausing right on the muzzle flash. We could see the yellow flash that looks....

THE COURT: Okay. Okay, I see.

THE CROWN: A bit of lightning, but I’ll try to do that again.

...VIDEO STARTED 10:58:00

...VIDEO STOPPED 10:58:07

THE COURT: So, it’s obviously happened right? Now, you....

THE CROWN: So, it obviously happened…

[65] In my view, a fair reading of the trial record reveals that the trial judge was aware of the flash but was not convinced beyond a reasonable doubt that it emanated from a gun.

[66] The defence argued the flash could have come from a phone or a reflection. In support of this submission, defence counsel played a subsequent part of the surveillance footage from the same camera that captured the alleged shooting. As noted above, the video shows two men struggling, and then a flash occurs. As the men come closer to the camera, it becomes apparent that the flash came from the glare of a phone. Defence counsel highlighted the similarities in the flash caused by the phone and the flash in the footage of the alleged shooting. The following colloquy between counsel and the trial judge then ensued:

THE COURT: Well, yes, all right. Well, I - I see what you’re saying. I mean that’s - so what the Crown’s arguing is that the person holds out the...

DEFENCE COUNSEL: Fair enough.

THE COURT: ...the - extends the arm.

DEFENCE COUNSEL: Fair enough.

THE COURT: Now, you’re right, I mean it could be that that person’s pointing...

DEFENCE COUNSEL: Sure.

THE COURT: ...and holding a phone at the same time.

DEFENCE COUNSEL: Holding anything in his hand...

THE COURT: Yes.

DEFENCE COUNSEL: ...having a watch on his hand. It flashing, it being a reflection, anything. So, the people in this clip respond as if panicked. They back up from the flash. I pointed that out to Your Honour.

[67] This discussion shows that the trial judge understood the positions of both counsel with respect to the flash. The Crown is correct that the trial judge ultimately concluded that he did not see a muzzle flash at the moment in question. But this was not a misapprehension of evidence. Rather, it was a factual finding, which the trial judge was entitled to make, and is not subject to appeal.

[68] It may have been preferable for the trial judge to explicitly state that he disagreed with the Crown’s theory about the origin of the flash. However, the basis of his conclusion was apparent from the record, even without being articulated. I am satisfied that the trial judge was aware of the flash but ultimately found the defence theory more persuasive.

[69] Turning to the reaction of the parties in the seconds after the gun was allegedly discharged, I am not persuaded that the trial judge misapprehended the surveillance video. The inference the Crown repeatedly asked the trial judge to draw from the parties’ reaction was patently obvious, and it was not lost on the trial judge. He understood the submission but clearly did not agree with the interpretation advanced by the Crown – again, a finding he was entitled to make.

[70] Given my conclusion that the trial judge did not misapprehend the evidence, it follows that the trial judge’s findings with respect to the flash did not lead to a subsequent failure to consider the totality of the evidence before the court.

[71] I would dismiss this ground of appeal.

(3) The Trial Judge Assessed the Evidence in the Context of the Case as a Whole

[72] The Crown’s next ground of appeal alleges that the trial judge failed to assess the individual items of evidence wholistically, which unfairly diluted the strength of the Crown’s case against the respondent. In advancing this submission, the Crown contends that the trial judge failed to give appropriate weight to the combined effect of the following pieces of evidence: again, the supposed “muzzle flash” at the time of the alleged shooting; the reactions of those present directly after the flash, as depicted in the surveillance video; the bullet fragments, strike marks, and blood trail found at the scene; the bloody clothes seized from Mr. Abraham at the hospital; and the medical records indicating that Mr. Abraham suffered a minor gun wound that evening.

[73] The Crown’s submission on this ground seems to operate on the assumption that the evidence, when cumulatively considered, was overwhelming. As the Crown put it: “When all of the evidence is considered in its totality, the combined effect of all the evidence compels the conclusion that the Respondent shot Abraham” (emphasis added). I do not see the evidence in this case in the same light.

[74] A guilty verdict was by no means a foregone conclusion. The Crown’s case was almost entirely circumstantial and the evidence suffered from the following frailties: (i) no one, including the alleged victim, identified the respondent as the shooter; (ii) the victim denied ever being shot; (iii) the only direct evidence that the respondent shot a gun was grainy and blurry surveillance footage; (iv) there was at least one other reasonable explanation for the impugned flash; (v) the Crown called no expert to testify about the forensic evidence found at the scene, and as such, the forensic evidence could not materially assist in identifying who discharged a gun; (vi) the “fresh blood” was not positively identified as being Mr. Abraham’s; (vii) the bullet strike marks could not be dated; (viii) the firearm was never recovered, and the type of firearm that was used was unknown; and (ix) there were multiple people moving around the parking lot during and after the alleged shooting, potentially disturbing the crime scene.

[75] The trial judge was aware of the burden on the Crown and his obligation to assess the cumulative impact of the evidence. In fact, in finding the respondent was in the parking lot that night, the trial judge expressly rejected defence counsel’s attempt to challenge the cumulative persuasive impact of the evidence by undermining each piece in isolation. Instead, he found this approach “misconceived” and then notes that “the value of the evidence is cumulative.” I am not persuaded that the trial judge was operating under any misconception about his duty to assess the evidence in a cumulative fashion.

[76] I agree that the Crown’s evidence is consistent with the respondent being the shooter. But that is not the standard in a criminal trial. There were frailties in the Crown’s case and the trial judge was entitled to conclude that the Crown did not discharge its onus beyond a reasonable doubt.

[77] I would dismiss this ground of appeal.

(4) The Trial Judge’s Reasons Were Sufficient

[78] The third and final ground of appeal raised by the appellant concerns the sufficiency of the trial judge’s reasons. The appellant contends that the reasons disclose no indication that the trial judge properly considered the Crown’s case as a whole, since he only referred to Mr. Abraham’s testimony, the video evidence, and the shell casings.

[79] I agree that the trial judge did not address several pieces of evidence adduced at trial. However, failing to do so did not amount to an error in law.

[80] The issue the trial judge needed to determine was whether the respondent shot Mr. Abraham. The presence of blood in the parking lot, in conjunction with the witnesses hearing gunshots, the bloody clothes seized from Mr. Abraham, and the medical evidence that Mr. Abraham had an injury, all support the conclusion that Mr. Abraham was shot in the parking lot that night. However, as alluded to above, absent testimony from an expert, this evidence did not assist in identifying who shot Mr. Abraham.

[81] The same can be said about the location of the bullet strike marks and bullet fragments. The trial judge would have been engaging in speculation if he had determined who in the parking lot may have fired the shots, and from where the shots were fired. Those bullet strike marks also could not be dated, and it was unknown whether they were caused by the same firearm that injured Mr. Abraham. Likewise, the ages of the casings or the undischarged bullet were unknown.

[82] I am satisfied the trial judge’s reasons responded to the case’s live issues and the parties’ key arguments. Mr. Abraham’s testimony, or lack thereof, the surveillance footage and the shell casings were key in determining whether the respondent was the one who shot Mr. Abraham. The trial judge sufficiently addressed and considered all three evidentiary components.

[83] While he may not have explicitly addressed every part of the Crown’s case, the fact that a trial judge fails to deal with each piece of evidence or fails to record each piece of evidence and their assessment of it, does not amount to a legal error: J.M.H., at para. 31. An appellate court does not hold the trial judge to some abstract standard of perfection, and in this case, the trial judge’s reasons were reasonably intelligible to the parties and provided the basis for meaningful appellate review.

[84] I would dismiss this ground of appeal.

G. Conclusion and Disposition

[85] Based on the foregoing, I am not satisfied that the trial judge committed the alleged errors of law. I would dismiss the appeal and uphold the acquittals.

Released: May 21, 2021 “M.T.” “M. Tulloch J.A.” “I agree. B.W. Miller J.A.” “I agree. David M. Paciocco J.A.”

[1] A police officer identified the vehicle as a Dodge Challenger, not a Dodge Charger as the civilian witnesses had indicated. The cars look similar. The police officers testified that the two cars can be distinguished on the basis of their shapes and the number of doors.