Court of Appeal for Ontario

Citation: R. v. Henry, 2021 ONCA 892

Date: 2021-12-13

Docket: C68830

Before: MacPherson, Coroza and Sossin JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Tyler Henry (Appellant)

Counsel:

Tyler Henry, acting in person

Erin Dann, appearing as duty counsel

Philippe Cowle, for the respondent

Heard: December 8, 2021

On appeal from the convictions entered on April 30, 2020, with reasons at 2020 ONSC 1691, and the sentence imposed on September 16, 2020, by Justice Michael F. Brown of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of eighteen counts of various offences, including attempted murder, arising out of a violent altercation with firearms in a bar which involved injuries to an intended victim and a number of bystanders.

[2] The trial judge imposed a global sentence of 17 years. The sentence was further reduced through credits for presentence custody, credit for harsh conditions according to R v. Duncan, 2016 ONCA 754, and credit for the impact of COVID-19 conditions going forward. These credits resulted in a net sentence of 10 years and 5 months.

The Conviction Appeal

[3] The appellant’s appeal of his convictions focuses on the identification evidence, including the recognition evidence of Mr. Reza, a security supervisor at the apartment building where the appellant lived, and the testimony of one of the intended victims, Mr. Powers, who testified that the appellant was not the primary shooter.

[4] First, with respect to Mr. Reza, the appellant submits that the recognition evidence should be accorded no weight as Mr. Reza was initially unable to name the appellant from a photo shown to him by the police, and was only thereafter able to identify the appellant from a video taken nearby the location of the shooting. The appellant argues that the trial judge relied on this evidence to supplement his own conclusion that the appellant bore a strong resemblance to the primary shooter captured in a video from the bar where the incident occurred.

[5] Second, according to the appellant, the trial judge failed to give a reason as to why he did not believe Mr. Powers’ exculpatory testimony.

[6] The trial judge’s reasons provide a summary of the appellant’s position with respect to the identification evidence, including the need for caution with respect to Mr. Reza’s recognition evidence and with respect to the exculpatory testimony of Mr. Powers. The trial judge also reviewed the standard arising from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, with respect to the inferences a trier of fact can draw from circumstantial evidence.

[7] The trial judge concluded, at para. 117, that “[o]n the totality of the evidence,” the identification of the appellant as the primary shooter had been proven beyond a reasonable doubt. He specified that in reaching this conclusion, he relied on the video footage from surveillance cameras, the recognition evidence from Mr. Reza, and other evidence such as a distinctive pair of ripped jeans found in the appellant’s residence and depicted on the surveillance video of the primary shooter. The trial judge added, at para. 118, “[i]n coming to the conclusion I have in regard to this essential element, as I indicated earlier in these reasons, I have cautioned myself with respect to the frailties of identification evidence in regard to my viewing of the videos as well as to the recognition evidence of Mr. Reza.”

[8] We see no error in principle in the trial judge’s reliance on the circumstantial evidence in the record to reach his conclusion.

[9] The trial judge also explained his rejection of the testimony of Mr. Powers. The trial judge disbelieved that Mr. Powers did not recall what led to the altercation or his being shot, and that he did not recognize other individuals he is shown greeting in a surveillance video of the bar just before the shooting. As a result of these “deliberate lies,” the trial judge discounted the exculpatory evidence Mr. Powers provided as to the identification of the primary shooter: at para. 90, 109-110.

[10] In our view, the trial judge explained, with sufficient detail and specific references to the record, why he did not accept Mr. Power’s testimony that the appellant was not the one who shot him.

The Sentence Appeal

[11] The appellant’s appeal of his sentence relates to the trial judge’s failure to sufficiently account for the time in custody awaiting trial during the COVID-19 restrictions.

[12] We do not accept this submission. In his reasons for sentence, the trial judge specifically adverted to the difficulties of the appellant’s pretrial detention during COVID-19 restrictions, including lockdowns, the cancellation of programs and visitations, and social distancing requirements, which were reflected in the 10 months and 23 days credited for harsh conditions of detention pursuant to Duncan.

[13] The trial judge explained that there is no “mathematical equation” to determine the amount of time to credit for harsh conditions. He accepted the justification for this credit but found the defence’s submission on the appropriate credit to be excessive. We find no basis to interfere with the trial judge’s discretion on the quantum of Duncan credit to be applied.

[14] Similarly, the trial judge accepted the defence’s argument with respect to the need for further credit because of the COVID-19 restrictions then in place and going forward. He provided an additional 12 months of credit on this basis. It was well within the trial judge’s discretion to reach this conclusion and he did not err in doing so.

[15] The appellant argued that the global sentence was too harsh. In all the circumstances, we find that the sentence was reasonable.

[16] Accordingly, the appeal is dismissed.

“J.C. MacPherson J.A.”

“S. Coroza J.A.”

“Sossin J.A.”