Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210922 DOCKET: C67008

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Brandon Belcher Appellant

Counsel: Julie Santarossa, for the appellant Nicholas Hay, for the respondent

Heard and released orally: September 20, 2021 by video conference

On appeal from the convictions entered by Justice Gregory A. Campbell of the Ontario Court of Justice on April 8, 2019.

Reasons for Decision

[1] After a joint trial before a judge of the Ontario Court of Justice, the appellant was convicted of aggravated assault and assault with a weapon. He appeals his convictions.

[2] The appellant was alleged to have been one of two assailants who, each armed with a weapon, attacked another man in a public area of an apartment building. The area in which the attack occurred was under video surveillance.

[3] The trial was brief. The single issue to be determined was whether the appellant was the person who wielded a baseball bat during the attack on the victim.

[4] The victim professed no memory of the attack, likewise of the identity of his attackers.

[5] In substance, the case for the Crown consisted of video surveillance of the assault and of the area in which the assault occurred. The assault began in the hallway on one of the floors of an apartment building and continued into the stairwell. The assailant said to be the appellant had a bandana covering his face. Later in the attack, the bandana fell off, but the assailant’s face was hidden from the surveillance camera’s view by the nature of the safety glass in the door to the stairwell.

[6] Both assailants left the stairwell. They entered an apartment unit on the floor on which the attack occurred. It was the same apartment unit they had left to begin the armed attack on the victim.

[7] In addition to the surveillance video, the Crown called a police officer who was familiar with both participants who appeared in the video. The officer was satisfied that given the assailant’s stature, the concave portion of his face, and his facial hair, the characteristics matched those of the appellant. However, in cross-examination, the officer agreed that he could not say for certain that the appellant was the assailant.

[8] The trial judge watched the video filed as an exhibit. He was not satisfied on the basis of the video and the police officer’s recognition evidence that the appellant was the second assailant who wielded the baseball bat.

[9] The critical evidence for the trial judge was that the assailants entered the apartment from which they had left to commence their attack immediately after its conclusion. The video surveillance, which the trial judge believed was uninterrupted, showed no one leaving the apartment until police arrived at which time the apartment remained under constant police observation. It followed, the trial judge concluded, that the appellant, the second male to leave the apartment about six and one-half hours after the assault, must have been the second assailant. This, even though the appellant was not dressed in the same clothing as the second assailant shown in the video.

[10] Critical to the trial judge’s conclusion that the appellant was the second assailant was his finding that the video was uninterrupted from the time of the assault until the police arrived. But this was not in fact so. There were four interruptions in the video, of almost seven minutes duration.

[11] The parties occupy common ground that the trial judge misapprehended the video surveillance evidence. Perhaps he conflated admissibility with completeness. In any event, he misapprehended the nature of this evidence. His reliance on the completeness of the video to identify the appellant as the second assailant was central to his reasoning that the appellant’s guilt had been established beyond a reasonable doubt.

[12] It follows, in our view, that the convictions entered at trial cannot stand. We recognize, as Crown counsel concedes in this court, that for a misapprehension of evidence to warrant setting aside a conviction on the basis of a miscarriage of justice, the misapprehension must meet a stringent standard. The misapprehension must have to do with the substance of the evidence, not merely a matter of detail. The misapprehension must be material, not peripheral to the reasoning of the trial judge. And the error must play an essential part in the judge’s reasoning process resulting in a conviction, not simply in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 3.

[13] In the usual course, the appropriate remedy in these circumstances would be to allow the appeal, set aside the convictions, and order a new trial. However, the appellant also challenges the verdict rendered at trial as unreasonable and seeks entry of a verdict of acquittal rather than an order for a new trial.

[14] We accept, as the decision in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 12 and 13 teaches, that an erroneous understanding of the evidence on a material issue may render a verdict unreasonable within s. 686(1)(a)(i) of the Criminal Code. Although the case for the Crown was not overwhelming, we are unable to say that the verdict is one that a properly instructed trier of fact acting judicially could not reasonably have rendered. We have in mind that the appellant was found in the same apartment as the first assailant, the apartment from which the assailants left to commence the attack and to which they returned at its conclusion. The second assailant was similar in appearance to the appellant. It is also not without significance that the appellant, who now alleges that the Crown has failed to negative various possibilities other than the appellant’s participation as the second assailant, did not testify at trial.

[15] In the result, we are not satisfied that the verdict rendered at trial was unreasonable within s. 686(1)(a)(i) of the Criminal Code.

[16] The appeal is allowed, the convictions set aside and a new trial ordered on the counts of aggravated assault and assault with a weapon, a baseball bat.

“David Watt J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.”