COURT OF APPEAL FOR ONTARIO DATE: 2021-09-17 DOCKET: C68108

Tulloch, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Gary Scott Respondent

Counsel: Frank Au and Scott Patterson, for the appellant Nader R. Hasan, Dragana Rakic and Karen Bernofsky, for the respondent

Heard: May 11, 2021 by video conference

On appeal from the acquittal entered on January 30, 2020, by Justice Kelly P. Byrne of the Superior Court of Justice, sitting without a jury.

Trotter J.A.:

A. Introduction

[1] Henryk Dabrowski was murdered in his apartment on October 28, 2017. He was stabbed 23 times, and his face, hair, and hands were covered with a brown substance that appeared to be chocolate sauce. Months later, the respondent was charged with second degree murder. After a judge alone trial, the respondent was found not guilty. The Crown appeals his acquittal.

[2] The trial judge provided thorough reasons for judgment in which she carefully evaluated all of the evidence. The Crown isolates three aspects of the trial judge’s reasons and contends they reflect errors of law that were instrumental in her decision to acquit the respondent.

[3] I would dismiss the appeal. The trial judge made no legal errors in her analysis. The Crown disputes the weight the trial judge assigned to certain pieces of evidence and attacks the reasonableness of the acquittal, both of which are beyond the scope of proper appellate review on a Crown appeal.

B. Factual Background

(1) Introduction

[4] The bulk of the trial judge’s findings are uncontested. Consequently, the following general overview relies heavily on her reasons. I will review the contested portions of the evidence in greater detail when addressing the grounds of appeal.

[5] The trial was brief, lasting only a week. The respondent made many admissions. The Crown’s case was entirely circumstantial. The only issue was identity.

[6] The precise time of Mr. Dabrowski’s death was never established. After he was killed, however, witnesses observed the respondent moving around the building, going between floors, and changing his appearance. His comings and goings were captured by security video cameras, which turned out to be a significant feature of this case. At one point, the respondent was seen leaving the building with his hand wrapped in a white towel, returning just a few minutes later. A contentious issue at trial was whether anything was concealed under the towel. The Crown contended the respondent disposed of the murder weapon, a knife. The trial judge disagreed and found that there was nothing concealed in the towel.

[7] The Crown relied on forensic evidence concerning an apparent “trail” of what appeared to be chocolate sauce, leading from the deceased’s apartment to the respondent’s. The trial judge rejected the proposition that the deposits or stains that the Crown pointed to were sufficient to establish a “trail”. This conclusion is linked to the Crown’s complaint, discussed below, that the trial judge improperly rejected an admission made by the respondent concerning the apparent presence of a sticky substance on a stairwell door handle close to Mr. Dabrowski’s apartment.

[8] It was admitted at trial that the respondent had been in Mr. Dabrowski’s apartment on the day that he was killed. The police seized shoes from the respondent’s apartment. The shoes could not be excluded as having made the impressions in Mr. Dabrowski’s apartment. The footwear impressions expert, Detective Johnston, however, could not say when the impressions were made. The police also seized a jacket, seen in some of the video clips, that contained a small stain of Mr. Dabrowski’s blood. The trial judge found that the respondent was inside Mr. Dabrowski’s apartment after he had been killed.

[9] The respondent called no evidence in his defence.

[10] Twice in its factum, the Crown makes mention that this trial was meant to be a bifurcated procedure. That is, it was expected that the respondent would be found to have killed Mr. Dabrowski and the proceedings would then shift to address a potential defence of not criminally responsible on account of mental disorder (“NCRMD”): Criminal Code, R.S.C. 1985, c. C-46, s. 16.

[11] The Crown leaves the impression that the trial of the question of the respondent’s guilt in killing Mr. Dabrowski was a mere formality along the road to a NCRMD hearing. The respondent rejects this proposition and contends that the Crown’s case was seriously challenged through cross-examination, especially that of William Cameron, whose evidence the trial judge largely rejected.

[12] Whatever may have transpired behind the scenes before trial, it is not in issue on this appeal, nor does it form a backdrop for our consideration. At trial, the respondent enjoyed the full protection of the presumption of innocence. The trial judge was tasked with determining whether the evidence proved beyond a reasonable doubt that the respondent killed Mr. Dabrowski. She did just that, making the following thoughtful observations, at para. 102:

In a case like this where an individual has been brutally murdered, I am mindful that the desire to want to identify the offender is strong. Human nature wants to blame and hold someone accountable. As I navigate my way through the evidence, I remind myself that suspicion and probable guilt are not a basis for conviction. Our law requires certainty and nothing less than proof beyond a reasonable doubt will suffice. When I consider the evidence against Mr. Scott, I am unable to say with a level of certainty that he stabbed Mr. Dabrowski. I find myself left in a state of reasonable doubt. Our law requires that Mr. Scott be given the benefit of that doubt.

[13] As discussed below, the trial judge was entitled the make the findings that she did based on the evidence and lack of evidence before her.

(2) Mr. Dabrowski and The Apartment Building

[14] Mr. Dabrowski and the respondent lived in the same building at 5 Wakunda Place. Mr. Dabrowski lived in apartment 213; the respondent lived in apartment 502. 5 Wakunda Place is connected to an adjacent building, 7 Wakunda Place, via an enclosed walkway that extends from a lobby on the second floor. As discussed below, a good deal of evidence focused on the respondent’s movements that night within 5 Wakunda and back and forth between 5 and 7 Wakunda.

[15] The apartment buildings, and one other, are part of a Toronto Community Housing Complex. The trial judge observed that many residents deal with addictions and have other challenges. It was common for the police, the fire department, and ambulances to be at the complex on a daily basis.

[16] Mr. Dabrowski sold beer out of his apartment for double the price he paid for it. He accepted cash or, if someone was low on cash near the end of the month, he took collateral, such as personal items. As discussed below, the respondent may have left electronics at Mr. Dabrowski’s apartment.

[17] Mr. Dabrowski was last seen alive at 5:32 p.m. on the night he was murdered. Mr. Dabrowski’s neighbours found his body at approximately 8:50 p.m. At least five people entered Mr. Dabrowski’s apartment after he was found dead, one of whom helped himself to a beer.

[18] When the police arrived, Mr. Dabrowski was lying in a pool of blood. He had been stabbed 23 times in his torso, and he suffered other defensive wounds. Mr. Dabrowski’s hair, face, and hands were covered in a brown substance that appeared to be chocolate sauce. The apartment otherwise seemed to be in order: a significant amount of money, electronics, and other valuables were left undisturbed. The police did not find the murder weapon.

(3) The Respondent’s Movements That Night

[19] The respondent was on the move around the Wakunda buildings around the time Mr. Dabrowski was killed. Of importance to the appeal is the evidence of William Cameron, who claimed to see the respondent three times that night, and the evidence of Arthur Ramsay, who spoke with the respondent while in an elevator. Their evidence is better understood against the backdrop of the security video footage, which establishes the following timeline on the evening of the murder: [1]

• 6:22:16 p.m. The respondent stands outside the elevator on the fifth floor. He is wearing a blue shirt and green Adidas shoes but does not get on the elevator.
• 6:37:20 p.m. As Mr. Cameron enters 5 Wakunda Place via the second-floor walkway, a man runs past him, moving north away from the direction of Mr. Dabrowski’s apartment and toward the north stairwell.
• 6:40:03 p.m. The respondent enters the elevator on the fifth floor. His appearance has changed. He is wearing a green jacket with the hood up, a blue shirt, black pants, a black mask, and green Adidas shoes. He is carrying a black gym bag, and there is a white cloth on his right hand.
• 6:40:30 p.m. The respondent exits the elevator on the first floor and walks across the lobby and into the north stairwell.
• 6:40:35 p.m. The respondent enters the north stairwell on the first floor and heads up the stairs.
• 6:40:45 p.m. Mr. Cameron enters the second-floor walkway from outside, and a man runs past him, heading south from the north stairwell, toward Mr. Dabrowski’s apartment. The trial judge accepted that the respondent is the man in the footage.
• 6:43:15 p.m. The respondent walks from the second-floor lobby to the walkway and drops an envelope addressed to Mr. Dabrowski.
• 6:43:18 p.m. to 6:45:48 p.m. The respondent walks along the second-floor walkway, leaves 5 Wakunda Place, and walks southbound on the sidewalk. He then returns to 5 Wakunda Place from the same direction in which he left.
• 6:46:25 p.m. The respondent stands outside the main entrance to 5 Wakunda Place. He is talking to two people and hands them a CD out of his bag.
• 7:53:18 p.m. The respondent boards the elevator on the fifth floor. Mr. Ramsay is in the elevator. The respondent has changed his clothes again and is wearing white shoes and a multi-coloured shirt. He is carrying a beer in his left hand and his right hand is wrapped in an unknown item.

(a) William Cameron

[20] William Cameron lived at 7 Wakunda Place. He was an important but contentious witness. He testified to seeing the respondent three times that night. The trial judge concluded Mr. Cameron only saw the respondent twice.

[21] First, at 6:37 p.m. (approximately one hour after Mr. Dabrowski was last seen alive), Mr. Cameron said he saw the respondent running from the direction of Mr. Dabrowski’s apartment on the second floor toward the north stairwell and up the stairs. He was wearing a “varsity style” jacket with mixed colours. [2]

[22] The trial judge viewed the corresponding video clip (6:37:20 p.m.) “numerous times”, noting that it was blurry and fleeting. She was unable to conclude that the male who was running away was the respondent. The trial judge rejected Mr. Cameron’s evidence that it was the respondent.

[23] Second, at 6:40 p.m., Mr. Cameron passed the respondent on the first floor, as the respondent was getting off the elevator and Mr. Cameron was getting on. The respondent had changed his clothes and was now wearing a green jacket over a blue shirt. He had the hood of the jacket up over his head and wore a black mask. Mr. Cameron testified that the respondent was holding an object in his right hand, wrapped in a white cloth. I will address this evidence in more detail below.

[24] A few seconds later, as Mr. Cameron got off the elevator on the second floor, he saw the respondent for the third time. The respondent was walking southbound down the second-floor hallway, away from the north stairwell and in the direction of Mr. Dabrowski’s apartment. Upon reviewing the video surveillance, the trial judge concluded that it was the respondent in this sequence.

(b) Arthur Ramsay

[25] Mr. Ramsay lived on the 10th floor at 5 Wakunda Place. He knew Mr. Dabrowski and the respondent. On October 28, 2017, he and his friend were on an elevator with the respondent at 7:53:18 p.m. The respondent told Mr. Ramsay that he was depressed, out of sorts, and needed someone to talk to. He asked Mr. Ramsay to go to Mr. Dabrowski’s apartment to retrieve a piece of electronic equipment for him, telling Mr. Ramsay to “go down and if the door is open” get it for him. Mr. Ramsay declined to do so, but suggested he would tell Mr. Dabrowski to go see the respondent, to which the respondent replied, “I can do it myself”.

[26] When the three men got off the elevator, they ran into a fourth resident who asked the respondent why his hand was wrapped. There was no response.

(4) Items Seized from the Respondent

[27] The police searched the respondent’s apartment on November 1, 2017, four days after the murder. The police seized a green jacket and a pair of green Adidas shoes. The shoes were found in the respondent’s bathtub. There was a small bloodstain inside the right sleeve of the jacket, and the respondent conceded it was Mr. Dabrowski’s blood. There was no evidence, however, as to how much blood was inside the sleeve where the bloodstain was located. No blood was found on the exterior of the jacket.

[28] The shoes tested positive for the presence of blood, but the sample was too small to be tested for DNA. The respondent did not dispute that his shoes left footwear impressions in the blood inside Mr. Dabrowski’s apartment; however, there was no evidence as to when the impressions were made.

(5) Substance “Trail” and Formal Admission

[29] The Centre of Forensic Science (“CFS”) tested the brown substance that covered Mr. Dabrowski’s hair, face, and hands. It was never formally identified as chocolate sauce, though the parties agreed the substance looked like chocolate sauce, and the CFS determined that it contained carbohydrates and starches.

[30] The Crown introduced a series of photographs of dark stains, alleging they formed a trail running from Mr. Dabrowski’s second floor apartment up to the respondent’s apartment on the fifth floor:

1. The first stain was in the hallway outside Mr. Dabrowski’s apartment;
2. The second stain was in the north stairwell, on the third-floor landing;
3. The third stain was in the north stairwell, on the fourth-floor landing, near the door;
4. The fourth stain was on the inside door handle in fifth-floor stairwell; and
5. The fifth stain was on the hallway floor just outside the respondent’s apartment.

[31] Both the fourth and fifth stains shared some similar features and properties with the brown substance found in Mr. Dabrowski’s apartment. The CFS confirmed that the fourth and fifth stains contained carbohydrates and possibly proteins, but no starches. There was no evidence that the carbohydrates in either sample matched the other, nor that they matched the substance covering Mr. Dabrowski.

[32] As already mentioned, the respondent admitted that Mr. Cameron noted a sticky, brown, molasses-type substance on the second-floor door handle leading to the north stairwell immediately after a male ran past him and into the stairwell.

C. The Trial Judge’s Essential Findings

Time of Death

[33] The trial judge found that Mr. Dabrowski was killed between 5:32 p.m. and 6:43 p.m. She narrowed this time frame futher, based on video footage showing the respondent wearing the jacket on which the blood stain was found. At 6:40:45, he was seen walking in the direction of Mr. Dabrowski’s apartment. At 6:43:40, he is seen leaving the complex on the second-floor walkway when he drops a letter addressed to Mr. Dabrowski. Both times he is wearing the green jacket. This led the trial judge to conclude, at para. 86:

I am satisfied, based on this evidence, that Mr. Scott had been inside and was coming directly from Mr. Dabrowski’s apartment when he dropped the envelope at 6:43:45. I am further satisfied that it was during his attendance inside Mr. Dabrowski’s apartment that Mr. Scott left the foot impression and got the stain on his jacket. Based on these findings, the only logical conclusion is that Mr. Dabrowski had been stabbed certainly by the time Mr. Scott left his apartment just prior to 6:43:45 p.m. [Emphasis added.]

Opportunity

[34] The trial judge found that the respondent did not have the exclusive opportunity to commit the murder. She found that, although he may have had a two to three-minute opportunity to kill Mr. Dabrowski when he was inside the apartment, “I am unable to exclude the possibility that others may also have had opportunity prior to Mr. Scott’s attendance.” The trial judge pointed to the 48 minutes prior to Mr. Scott’s attendance that she said were “completely unaccounted for.”

The Respondent’s Movements

[35] The trial judge found the respondent’s movements and interactions in the aftermath of the killing to be “somewhat curious and unusual”; however, they were not necessarily indicative of guilt. Although his face was covered at times, the respondent traveled in public areas and had seemingly uneventful interactions with others. At other times, his face was not covered.

The White Cloth

[36] The trial judge declined to find that the respondent was concealing a weapon under the white cloth that was captured on video. She further rejected the Crown’s submission that the respondent had a cloth in his hand because he had injured himself while stabbing Mr. Dabrowski. As the trial judge observed, at para. 96, “Mr. Scott is seen repeatedly on the video with the white cloth wrapped around his right hand, both before and after entering Mr. Dabrowski’s apartment. There is no evidence on the video footage that the cloth is stained.”

Blood on the Respondent’s Jacket

[37] The trial judge found that the minimal amount of blood found on the respondent’s jacket was not indicative of the respondent killing Mr. Dabrowski as opposed to merely being inside his apartment. As this forms the basis for one of the grounds of appeal, I address this evidence in more detail below.

The “Trail” of Brown Substance and Stains

[38] At trial and on appeal, the Crown contends that there was an identifiable “trail” of the brown substance, thought to be chocolate sauce, from Mr. Dabrowski’s apartment to the respondent’s apartment. The trial judge dealt with this evidence in great detail. She found the photographs of the location of the stains to be problematic and not adequately explained. Ultimately, she was unable to find the “trail” the Crown attempted to demonstrate. The trial judge, however, did find that the respondent did transfer two of the stains, “which is consistent with Mr. Scott’s position that he was present inside the apartment at some time contemporaneous to the stabbing. The finding, however, does not assist me in finding that Mr. Scott was the stabber.” The trial judge’s finding in relation to what Mr. Cameron “noted” about the substance on the second floor door handle is discussed below.

Motive

[39] Based on the respondent’s conversation with Mr. Ramsay in the elevator, the Crown suggested that the retention of electronics by Mr. Dabrowski may have been a motive for the killing. The trial judge rejected this theory as “speculative”, noting that “there is absolutely no evidence of motive.”

Conclusion

[40] Based on the above, the trial judge concluded that she was not satisfied beyond a reasonable doubt that the respondent was responsible for the stabbing of Mr. Dabrowski. Accordingly, she acquitted the respondent.

D. Analysis

[41] The Crown advances three grounds of appeal:

1. The trial judge misapprehended the evidence of Mr. Cameron, causing her to fail to consider the totality of evidence on the ultimate issue;
2. The trial judge erred in how she approached a formal admission that Mr. Cameron observed a sticky substance on a second floor door handle after a man ran past him and went through the door; and
3. The trial judge erred in speculating about the amount of blood that would have been on the killer as a result of the stabbing.

[42] The Crown submits that the trial judge committed legal errors in her analysis of the evidence that undermined a legally appropriate approach to the evidence and resulted in an unlawful acquittal. The respondent claims that the Crown’s attempts to undermine the trial judge’s factual findings, including her credibility assessment of the Crown’s main witness, Mr. Cameron, are nothing more than thinly veiled attempts to contrive questions of law. In effect, the Crown attacks the reasonableness of the acquittal.

[43] Section 676(1)(a) of Criminal Code limits an appellate court’s ability to set aside an acquittal. The Crown must establish an error based on a question of law alone; errors of fact or mixed errors of fact and law are not sufficient: R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 35; R. v. Palmer, 2021 ONCA 348, at para. 60; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.

[44] Short of a legally flawed approach to the evidence, the Crown is precluded from arguing that an acquittal is unreasonable. Section 686(1)(a)(i) of Criminal Code furnishes appellate courts with the power to set aside a conviction when it is determined that it is unreasonable or cannot be supported by the evidence; there is no corresponding power to set aside an acquittal on this basis. This is not simply a matter of textual asymmetry. There is a more fundamental principle at stake. In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33, Arbour J. said, “as a matter of law, the 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.” See also J.M.H., at para. 27.

[45] Further, identifying an error of law is only the first step in the analysis. In order to succeed in overturning an acquittal, the Crown must also establish, with a reasonable degree of certainty, that the error of law “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, 89 Alta. L.R. (6th) 1, at para. 135; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 160; R. v. Button, 2019 ONCA 1024, at para. 15; Palmer, at para. 62.

[46] The Crown has not identified any legal errors in the trial judge’s reasons. The Crown essentially challenges the reasonableness of the acquittal and asks us to engage in our own weighing of the evidence and to reach our own conclusion on the ultimate issue of guilt. The contested findings were open to the trial judge to make on the record before her.

(1) Misapprehension of Evidence

(a) Introduction

[47] The core of the Crown’s submission is that the trial judge failed to consider all of the evidence in relation to the issue of guilt and innocence, a recognized error of law: J.M.H., at para. 31. This error is most typically seen when a trial judge subjects individual pieces of evidence to the standard of proof beyond a reasonable doubt, failing to the evaluate the cumulative effect of all of the evidence: R. v. B.(G.), [1990] 2 S.C.R. 57.

[48] This case rests on a different footing. The Crown submits that the trial judge misapprehended the evidence of the main Crown witness, Mr. Cameron, concerning what the respondent was carrying in his hand. This mistake, in turn, was instrumental in the trial judge’s negative assessment of Mr. Cameron’s credibility. It prevented the trial judge from considering the whole of the evidence. I disagree.

(b) The Disputed Evidence

[49] This ground of appeal focuses on a narrow issue concerning the interpretation of Mr. Cameron’s evidence. Specifically, at issue is his description of what the respondent may have been carrying when Mr. Cameron saw him for the second time that evening, at 6:40 p.m.

[50] The respondent was carrying something in his hand that was longer than his hand and was wrapped in a white cloth. He said that the respondent “had something in [his] hand wrapped up in either a towel, or like a bag, that was sticking out, like, straight, like as if you’re holding like a pipe or, like, a bat or something…or a knife.” The import of his evidence was that whatever protruded from his hand was covered by the towel – “whatever part of it he was holding in his hand, and the part that wasn’t in his hand was wrapped in something white.”

[51] The dispute that arose at trial, and on appeal, was whether Mr. Cameron was describing something protruding from the respondent’s hand that was covered by the towel, or something protruding from the towel.

(c) The Trial Judge’s Reasons

[52] During Mr. Cameron’s cross-examination, it is clear that the trial judge believed Mr. Cameron said that the object in the respondent’s hand was not completely covered by the towel. The trial judge was corrected on this point by the Crown. It is clear from the various exchanges with counsel throughout the rest of the trial that the trial judge understood the main import of Mr. Cameron’s evidence (i.e., that there was an object that was completely covered by the towel). Moreover, the trial judge advised counsel that she had ordered a transcript of Mr. Cameron’s evidence and that she would re-read it.

[53] The trial judge addressed this evidence in her reasons for judgment on more than one occasion. On the first occasion, at para. 66, she said the following:

Mr. Cameron said he saw this individual again two or three minutes later when he got on the elevator on the first floor. He said this individual was getting off the elevator. He said the only difference was his face was covered and he had something in his hand that was wrapped up in a white towel or a bag. He said something was sticking straight out like a pipe or bat or something. Later, Mr. Cameron said the object was sticking straight out and it could have been a bat, a pipe, a knife or a chair leg. [Emphasis added.]

[54] The Crown submits that this passage demonstrates that the trial judge persisted in her belief that Mr. Cameron said the object was not completely covered by the towel. I disagree. This passage reveals an accurate understanding of Mr. Cameron’s evidence on this point. This becomes clear when other passages from the trial judge’s reasons are considered.

[55] To frame the first passage relied upon by the Crown, it is necessary to take a step back to consider Mr. Cameron’s evidence more generally. Mr. Cameron purported to identify the respondent on three occasions that night. He volunteered information about how good he is at eyewitness identification. In cross-examination, when he was confronted with the fact that the respondent was wearing a mask, he changed his testimony and acknowledged the respondent’s face was covered on one occasion. However, the evidence demonstrated that the respondent was masked on two occasions. This led the trial judge to make the following findings and credibility assessment, at paras. 72-74:

In cross-examination, Mr. Cameron was questioned about his evidence that the male had something wrapped in his hand. Mr. Cameron would not even entertain the possibility that he was wrong on this point. He said he was certain that the male was not holding a gun because he had fired firearms before. He later added that the object protruded about five inches out from his wrapped hand and guessed that the object was close to 10 inches long including the handle.

Later, he testified it could have been four different things and without any prompt said, “if you really want to know what I think, it was probably a knife.” He said he knows this because he was going to go into the knife business at point in his life and gave some details about that. He was adamant on this point.

I do not accept Mr. Cameron’s evidence that he saw something protruding from the white cloth that was wrapped around Mr. Scott’s hand. I have viewed the compilation video contained in Exhibit 4 multiple times. It provides a clear view of Mr. Scott’s wrapped hand from a variety of angles and I am unable to see anything protruding from that hand. [Emphasis added.]

[56] In my view the trial judge did not misapprehend the evidence. Taken together, the trial judge understood that Mr. Cameron said that whatever the respondent had in his hand was covered by a white cloth. During the course of his testimony, the object grew in size, as did Mr. Cameron’s apparent clarity.

[57] Ultimately, having reviewed the videotape evidence, the trial judge was unable to see anything protruding from the respondent’s wrapped hand, whether wrapped or not. It was open to her to make this finding.

[58] For the sake of completeness, I will address the Crown’s further arguments on this issue. The Crown submits that the trial judge’s misapprehension of the hand/towel evidence caused her to unfairly assess Mr. Cameron’s evidence, resulting in a skewed assessment of the case as a whole, and a failure to consider the totality of the evidence bearing on the ultimate issue. In making this submission, the Crown relies on R. v. Curry, 2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, in which Tulloch J.A. held that the trial judge was “blinded” by what he mistakenly believed to be the evidence of a Crown witness, causing him to ignore other important evidence: at para. 51.

[59] This case is different from Curry. In that case, the trial judge misunderstood the evidence of a key witness on the identification of the driver in a fatal driving case, resulting in an acquittal. It distorted his assessment of other evidence led by the Crown that was indicative of guilt. Here, the evidence of Mr. Cameron on the hand/towel issue was far from central to the Crown’s case. The trial judge’s rejection of the hand/towel evidence did not lead her to ignore or devalue other evidence supporting the Crown’s theory.

[60] Moreover, the trial judge’s finding on this aspect of the evidence did not overwhelm her assessment of Mr. Cameron’s credibility. There were many reasons to reject Mr. Cameron’s evidence, separate and apart from the hand/towel evidence. In her submissions, the trial Crown acknowledged that Mr. Cameron “became frustrated and combative during his cross-examination.” On appeal, the Crown asserts in its factum, “Mr. Cameron is not the kind of witness who is likely to endear himself to a trial judge.” The trial judge made the following observations of Mr. Cameron, at paras. 75-77:

Mr. Cameron was prone to exaggeration and eager to share details that had no relevance to this case. His testimony had a stream of consciousness quality to it. Layered on top of all of this was a tendency towards theatrics on his behalf. More than once he stood up or came out of the witness box to demonstrate things without being asked to do so. If Mr. Cameron interpreted a question as being confrontational, he had a tendency to dig in and overstate.

Overall, Mr. Cameron was argumentative and combative. His answers were often non-responsive. He did not seem to appreciate the difference between an actual observation and speculation, and he was quick to exaggerate whenever the opportunity presented itself. For these reasons, I am cautious about relying on the testimony of Mr. Cameron unless corroborated by other evidence.

To that end, I am prepared to accept the portions of his evidence that are consistent with the video surveillance evidence. [Emphasis added.]

[61] I do not accept the Crown’s submission that the trial judge was led to these conclusions because she failed to appreciate Mr. Cameron’s evidence on the hand/towel issue. The trial judge’s assessment of his credibility is broad and wide-ranging, transcending the hand/towel evidence. Even if she did err in her interpretation of this evidence, which she did not, it was only part of her analysis. It did not drive a skewed approach to Mr. Cameron’s evidence, the assessment of which is a question of fact: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10.

[62] Moreover, the trial judge had the videotape evidence to assist her. While it did confirm that one of the respondent’s hands was covered with a towel, it did not reveal anything protruding – neither from his hand nor from under the towel.

[63] In essence, the Crown asks us “to dissect and microscopically examine single passages from the trial judge’s reasons in isolation and out of context” and to “improperly substitute [our] own credibility assessments for those made by the trial judge”: R. v. Harris, 2014 ONCA 746, at para. 16. See also R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 13. I would decline to do so and dismiss this ground of appeal.

(2) Improper Use of Admissions

[64] As discussed at the outset, the trial was an efficient one. A number of admissions were made under s. 655 of the Criminal Code, which provides:

s. 655 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

[65] The admission at issue was one of six admissions in Exhibit #7 – Admissions Re Scene. Admissions #2 to #6 purport to state objective facts about what the police did and what the CFS found, mostly in relation to the presence, location, and properties of the brown substance. The contentious admission, #1, is different. It reads as follows:

While taking out his garbage William Cameron noted a sticky brown molasses type substance on the door handle leading to the North Exit stairwell. This happened when Mr. Cameron followed the person that had ran past him into the north exit stairwell. The person went up the stairs and Mr. Cameron went down the stairs to take out his garbage. [Emphasis added.]

[66] This admission does not purport to state an objective fact: rather, it records the observations Mr. Cameron said that he made. It was an admission that, if asked about the matter during his testimony, Mr. Cameron would have provided that information. Exhibit #8 contained further admissions along these same lines.

[67] This type of admission has been called an informal admission: see R. v. Stennett, 2021 ONCA 258, at para. 57; R. v. Korski, 2009 MBCA 37, 236 Man. R. (2d) 259, at paras. 114-128, 137; R. v. Falconer, 2016 NSCA 22, 372 N.S.R. (2d) 186, at para. 49. Discussing the difference between admissions as to objective facts (formal admissions) and admissions as to the anticipated evidence of a witness (informal admissions), Watt J.A. said in Stennett, at para. 58, “An agreement about what a witness could say or would have said is not an agreement that what they say is true”: Korski, at para. 125.

[68] When Exhibit #7 was entered, Mr. Cameron had already testified. It is not apparent from the record why he was not asked about this issue when he gave evidence. Moreover, a police officer also testified about the brown substance and stains but said nothing about the door handle on the second floor.

[69] The trial judge inquired of counsel whether the admission in question was a formal admission. The parties agreed that it was. It would appear that they were mistaken. As Watt J.A. said in Stennett, at para. 58, “Those that recite what a witness would say retain their true character, however they may be styled.”

[70] The trial judge discussed this evidence at para. 36 of her reasons:

The final stain for consideration comes in the form of an admitted fact pursuant to s. 655 of the Criminal Code. It is an admitted fact that Mr. Cameron noted a sticky brown molasses type substance on the second-floor door handle leading to the north stairwell. The evidence is that Mr. Cameron felt the sticky substance on the door handle immediately after a male had run into the stairwell. There is no evidence that the substance was tested or photographed by the police. There is no evidence that this door handle formed part of the police investigation regarding the substance trail from Mr. Dabrowski’s apartment to Mr. Scott’s apartment. Surely if the handle had been covered in a brown sticky substance, the police would have noted it. They did not. Accordingly, I am cautious about the weight I am prepared to attach to this evidence. [Emphasis added.]

[71] The Crown submits that, notwithstanding how the admission is characterized, the trial judge committed an error of law by failing to act on the admission because her rejection was based on speculation about the police investigation. The Crown contends that this admission was critical because, according to the combined force of Mr. Cameron’s evidence and the admission, the brown substance was deposited onto the door handle at 6:37:20 p.m. by the respondent. The Crown submits that this moves the time of the murder forward by three minutes, contrary to the trial judge’s findings on this issue. I have a number of problems with the Crown’s submissions on this issue.

[72] First, the trial judge did not fail to give effect to the admission. This assertion is simply incorrect. She merely expressed caution about how much weight she was prepared to attach to it. The trial judge was entitlted to take this approach. The Crown offers no authority to support its position that a trial judge is required to assign any particular weight to admitted facts simply because they are admitted, or to find they assist the Crown in discharging its burden. Essentially, the Crown submits that the trial judge should have regarded this admission as more significant than she did. For the same reasons given in relation to the first ground of appeal, this court is not empowered to engage in this fact-finding exercise.

[73] Second, while it might be said that there is a degree of speculation involved in the trial judge’s treatment of this evidence, it may also be viewed as a valid observation about a lack of evidence on this point. Moreover, it must be considered in conjuction with the trial judge’s more general findings about the evidence concerning the brown substance.

[74] Third, it is difficult to accept the submission that this evidence was crucial, let alone important, to the Crown’s case. After all, police witnesses were not asked about this evidence, nor was Mr. Cameron when he testified.

[75] Fourth, the Crown’s submission on appeal ignores the trial judge’s rejection of Mr. Cameron’s evidence that it was the respondent who ran past him to enter the north stairwell at 6:37 p.m. She did so because Mr. Cameron was unreliable, and the video footage was fleeting and blurry. This critical finding rendered the informal admission about the door handle insignificant.

[76] Lastly, it is unclear how the Crown’s case would have been strengthened by moving the time of death forward to 6:37 p.m. Mr. Dabrowski was last seen alive at 5:32 p.m., leaving a lengthy period of time unaccounted.

[77] I would dismiss this ground of appeal.

(3) Improper Speculation

[78] This ground of appeal relates to the testing of items seized from the respondent’s apartment four days after Mr. Dabrowski was killed. The green jacket worn by the respondent had a blood stain inside the right sleeve that was admitted to be Mr. Dabrowski’s blood.

[79] The Crown submits that the trial judge erred in finding that these items were seized the day after the murder. This error is insignificant. The trial judge was aware of the possibility that the items could have been washed by the respondent following the murder.

[80] The Crown submits that the trial judge improperly speculated about the blood staining evidence on the inner sleeve of the jacket. She addressed this aspect of the evidence at paras. 98 and 100 of her reasons:

I turn now to the blood on Mr. Scott’s jacket. The evidence before me is that blood, identified as coming from Mr. Dabrowski, was found on the inside sleeve of Mr. Scott’s jacket. There is no evidence as to the exact location of the stain or the quantity of blood on the jacket. I do know that Mr. Dabrowski was stabbed 23 times and the amount of blood in and around his body in the photographs is significant. Common sense would suggest the killer would have been covered in blood. There is no evidence, aside from the stain on the jacket and the footwear impression, that Mr. Scott was covered in blood. The amount of blood depicted in the photographic evidence suggests that it would have been unavoidlable for anyone who attended inside that apartment to not have gotten some blood on their person.

Given the substantial amount of blood and brown substance at the crime scene, one would expect anyone who went inside to have some blood transferred onto their person. To that end, one would expect the stabber, after 23 stabs, to be covered in blood. There is no evidence that Mr. Scott was covered in blood. Quite the opposite, my impression was that the amount of blood and brown substance attached to Mr. Scott was minimal. [Emphasis added.]

[81] The Crown took a different view of the blood on the respondent’s items found in the bathtub. It was her theory that the respondent washed these items. She further took the view that the presence of blood on his clothing explained why he changed his appearance later in the evening. As she submitted during her closing argument:

He’s completely, one hour and ten minutes after he’s seen leaving the building with his hand covered, he’s completely changed his appearance, and in my respectful submission that’s because his clothing was covered in the victim’s blood. And we know from the forensic evidence that the victim’s DNA and his blood was found on the jacket Mr. Scott had been wearing. [Emphasis added.]

[82] The trial Crown asked the trial judge to find that the respondent’s clothing would have been “covered in the victim’s blood.” The Crown can hardly complain now, on appeal, that the trial judge erred in following the trial Crown’s sensible lead. Moreover, the trial judge’s reasons demonstrate that she was aware that the respondent had changed his clothes on the night of the murder, and the possibility that the respondent had washed the items found in his bathtub.

[83] I would dismiss this ground of appeal.

E. Disposition

[84] I would dismiss the Crown’s appeal from acquittal.

Released: “MT” September 17, 2021

“Gary Trotter J.A.”

“I agree. M. Tulloch J.A.”

“I agree. L.B. Roberts J.A.”

[1] This summary is taken largely from para. 39 of the reasons for judgment. [2] After Mr. Cameron testified, the respondent made a number of admissions, one of which was that Mr. Cameron noted a sticky brown substance on the door handle. I will return to this issue below when considering how the trial judge dealt with this admission in her reasons.