COURT OF APPEAL FOR ONTARIO DATE: 20231031 DOCKET: C69895

Simmons, Lauwers and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Shane Williamson Appellant

Counsel: Leora R. Shemesh and Rameez Sewani, for the appellant Baaba Forson, for the respondent

Heard: February 23, 2023

On appeal from the convictions entered by Justice Tory Colvin of the Ontario Court of Justice on November 26, 2020.

Zarnett J.A.:

Introduction

[1] The appellant was charged with multiple firearms offences, including possession of a firearm for a dangerous purpose, carrying a concealed firearm, possession of a firearm knowing its possession is unauthorized, discharging a firearm with intent, and four counts of possession of a firearm while prohibited by order. The charges all arose from shootings that took place early in the morning of April 13, 2019, in a parking lot in Hamilton. One of the shooters was female, the other male.

[2] The only issue at trial was identity of the male shooter. The trial judge concluded that the Crown had proven, beyond a reasonable doubt, that the appellant was the male who possessed and discharged a firearm in the parking lot.

[3] The appellant raises two grounds [1] on his conviction appeal. [2]

[4] First, he argues that the trial judge erred by failing to properly consider the exculpatory aspects of statements made by the appellant to the police, which the Crown had introduced into evidence. He submits that the trial judge relied on the inculpatory aspects of those statements that put the appellant at the scene with awareness of the shooting, but overlooked their exculpatory aspects, because the appellant had said he was at the scene as a bystander or victim, not as the shooter. The exculpatory aspects of the statements had to be evaluated by the trial judge through the framework in R. v. W.(D.), [1991] 1 S.C.R. 742. But, according to the appellant, the trial judge failed to do so.

[5] Second, and closely related to his first ground of appeal, the appellant submits that the trial judge’s reasons are inadequate. In his submission, the reasons simply do not engage with the frailties in the eyewitness evidence and other shortcomings in the Crown’s case, or with the exculpatory evidence relied on by the defence. In the latter respect, according to the appellant, the reasons jump from a conclusion that the appellant was at the scene to a conclusion that he was the male shooter. The reasons do not demonstrate the trial judge even appreciated that the defence theory was that the appellant was not shooting but was being shot at. Nor do they show why the trial judge rejected that theory. The appellant argues that he cannot know, from the reasons, why he was convicted. [3]

[6] For the reasons that follow, I would dismiss the appeal.

[7] The trial judge analyzed the evidence through the lens of the test in R. v. Villaroman, [2016] 1 S.C.R. 1000. He concluded that guilt beyond a reasonable doubt was the only inference from the whole of the evidence after considering and rejecting other possible inferences inconsistent with guilt. Although the trial judge did not expressly refer to the test in W.(D.), his approach necessarily entails the conclusion that he applied the substance of it — that he did not believe the exculpatory evidence, did not consider that it raised a reasonable doubt, and was satisfied on the basis of the evidence he did accept that the Crown had proven its case beyond a reasonable doubt. He thus applied the correct burden and standard of proof to the evidence as a whole.

[8] The trial judge’s reasons are relatively short; it would have been better had he provided more detail. But that is not the test of whether the reasons are sufficient. The reasons discuss the combination of the eyewitness evidence and the other evidence, refer to the argument that there were gaps in the evidence, and show the trial judge’s path of reasoning to the conclusion that identity was proven. The trial judge did expressly refer to the theory that the appellant was present at the scene only as a victim in his summary of the Crown’s position which involved a critique of that theory. Moreover, reading the reasons in the context of the arguments at trial, it is clear that his rejection of what he called the “alternative explanation” raised by defence counsel referred to exactly that theory which was the central plank of defence counsel’s argument. The trial judge’s ultimate conclusion, that the defence theory was not a reasonable possibility, albeit brief, is sufficient to permit appellate review and tells the appellant why he was convicted.

Factual Context

[9] Early in the morning of April 13, 2019, two different shooters fired shots in the parking lot of the Knights of Columbus Hall located on Queenston Road in Hamilton. Many people were in the parking lot when the shots were fired. One of them was Sajjad Elahi, a taxi driver who was waiting for a passenger. He was parked about 90 metres from where the shots were fired.

[10] Mr. Elahi testified that about five to seven minutes after his arrival at around 2:40 a.m. on April 13, he saw a white BMW automobile pull into the driveway, which was the entrance to the parking lot. A female exited the vehicle and spoke to people in front of the Hall. She appeared to get angry, took out a handgun and fired approximately three shots at the building or into the air.

[11] Seconds later, Mr. Elahi saw a second person fire gunshots. He described this shooter as a white male, about five foot nine to five foot ten, with short hair who was wearing a white T-shirt, white or off-white shorts, long white socks, white shoes, a baseball cap turned backwards and a purse or pouch around his waist. He saw the man take a gun from his purse or pouch and fire approximately four shots at the wall and door of the building. The man then walked away briskly, crossed Queenston Road towards a gas station and an arena, and disappeared through the trees of a park.

[12] Mr. Elahi called 911 and gave a description of the person he saw.

[13] Around 3:05 a.m., a police officer patrolling the area on an unrelated matter saw a male walking on Britannia Avenue near Normanhurst Avenue, which is about four blocks north and a few streets west of the parking lot where the shooting occurred. He was wearing a white shirt, white shorts, white shoes and was carrying a black bag. Three or four minutes later, when the officer heard a police broadcast about the shooting with a description of a male suspect, he went on the police radio to inform dispatch that he had seen a male matching that description. Around 3:06-3:08 a.m., another patrolling officer saw a man in all white with a hat and black bag walking on Britannia Avenue. When he heard the description of the shooter on the broadcast, he also believed it was the same man.

[14] Police searched the area where the officers had seen the man they thought matched the shooter’s description. They found the appellant in a backyard at 14 Shelby Avenue, hiding in a cubby hole behind a shed. Shelby Avenue intersects with Britannia Avenue and is one street west of and parallel to Normanhurst Avenue. The appellant was wearing all white and had a black fanny pack and two baseball caps (one white and one black). They arrested him.

[15] Julian Avenue is located between the parking lot and where the appellant was found. A gun was located down the driveway of 191 Julian Avenue, hidden under a planter in the yard by the garage. There were no fingerprints or DNA recovered from it, but casings at the scene of the shooting were determined, within the limits of practical certainty, to be from this handgun.

[16] Through the means of surveillance video that captured a man who matched the shooter’s description walking down and then back up a driveway at 191 Julian Avenue, and calculations of distances and walking times, the Crown presented a path of travel tying these locations and sightings together. The Crown’s theory was that the male shooter Mr. Elahi saw leaving the parking lot after the shootings was the man who appeared on the surveillance video on Julian Avenue where the gun was found, the man who was seen on Britannia Avenue by the police officers, and the man found by police hiding on Shelby Avenue. That man was the appellant.

[17] One of the officers testified that upon arrest the appellant stated: “I’m the victim, I was scared for my life, people were shooting at me, I’ve been shot before.” Another officer testified that upon being advised of his right to counsel, the appellant said: “For what? I ran away from this bullshit.” According to one of the officers, on being placed in a cell, the appellant “stated that he came out of the hall and heard gunshots, said there was five people standing there, and he ran away” and that “he [the appellant] would have gunshot residue because he’d be feet – he was five feet away from the gunfire.”

[18] Two particles of gunshot residue were found on the back of the appellant’s T-shirt. There was evidence that the residue could have been transferred from the front of the T-shirt to the back, because it had been rolled up. No gunshot residue was found on the appellant’s hands.

[19] The appellant did not testify.

The Trial Judgment

[20] In relatively short oral reasons (18 transcript pages), the trial judge found that the Crown had met its burden.

[21] The trial judge reviewed the evidence and then summarized the positions of the parties. He instructed himself on the use of circumstantial evidence, citing the principles in Villaroman.

[22] The trial judge summarized the defence argument:

Counsel for Mr. Williamson has admitted the date, time and place of the offence. She admits that he was subject to four prohibition orders and that he did not have a permit to possess the weapon. She further admits Mr. Williamson is the person arrested. She does dispute his identity as the shooter.

Counsel for Mr. Williamson argues that there are such gaps in the chain of evidence as to leave a reasonable doubt as to identity. Counsel stresses the lack of evidence in this case. There is, she argues, no evidence of the route taken; there is no clear identification evidence of the male shooter in white at the scene; there is no clear evidence of the identification of the male on the two video captures; there is no clear evidence linking the found handgun to the accused, no fingerprints, no DNA. In her view, this lack of evidence is fatal to the Crown’s case.

She points to the timeline of the evening. The shooting takes place at about 3:00 in the morning. Officer Baird sees the man in white shortly before 3:10 at Britannia and Normanhurst. Mr. Williamson is arrested at 3:53 in the morning.

[23] He then summarized the Crown’s argument as follows:

The Crown argues that the totality of the evidence, when coupled with the chronology, are proof beyond a reasonable doubt of Mr. Williamson’s guilt. She argues that if he were the intended victim, he would have been shot; he was within a few feet of the shooters. This, by his statements to police on arrest. She argues the chronology of the video captures, the police sightings, the hiding of the firearm, and Mr. Williamson’s ultimate arrest are confirmation of his identity as the male shooter.

[24] The trial judge then found that the Crown had proven its case beyond a reasonable doubt and rejected the defence argument. He stated:

There can be but one conclusion; the man arrested is the man who is in the videos, the man described at the scene, the man noticed by the three police officers, and ultimately the man arrested.

The tests from the Centre of Forensic Sciences on the handgun that was found indicate beyond a reasonable doubt that it fired a number of the casings found at the scene. I accept that gunshot residue can be transferred. From the evidence, it could be transferred from a hand to a shirt, from a firearm to a shirt, or indeed be the result of proximity to the discharge of a firearm. It is further evidence of Mr. Williamson’s presence at the scene, but in itself does not necessarily tie into the firearm.

The alternative explanation that’s argued for by counsel for the defence do not raise any other possible conclusion.

The totality of the evidence amounts to proof beyond a reasonable doubt of Mr. Williamson’s guilt. Indeed, guilt is the only possible conclusion on the totality of the evidence.

Analysis

(1) The Exculpatory Utterances Ground of Appeal

[25] The appellant argues that the trial judge failed to grasp the appellant’s theory of the case which placed him at the scene of the shooting as an innocent bystander who fled out of fear, and therefore failed to grasp the exculpatory nature of the appellant’s utterances to this effect. The appellant says the trial judge erred in failing to apply W.(D.) and consider whether this exculpatory evidence left him any reasonable doubt.

[26] The appellant correctly submits that the principles underlying W.(D.) apply not only where the accused testifies, but also where “there is other defence evidence called contradicting the Crown’s case and/or conflicting evidence favourable to the defence in the Crown’s case (for example, an exculpatory remark in a statement put in by the Crown), and the [trier of fact] must make credibility findings in that context”: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105.

[27] In this case the Crown proffered the appellant’s statements to the police. The appellant submits that the trial judge erred in not applying the substance of the W.(D.) analysis to the exculpatory aspects of those statements, which explained that although the appellant was at the scene of the shooting it was as a victim who ran away, not a shooter.

[28] I do not accept this argument. As the appellant correctly concedes, a trial judge’s reasons need only disclose that, in substance, the principle in W.(D.) has been followed. That underlying principle is that the correct burden and standard of proof must be applied to the evidence as a whole: R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 23. The three steps in W.(D.) [4] are not a rigid formula and the trial judge need not explicitly refer to them: R. v. Boucher, [2005] 3 S.C.R. 499, at para. 29. The trial judge’s reasons meet that standard.

[29] Given that a large part of the evidence in the case was circumstantial, the trial judge referred to and instructed himself on the principles in Villaroman. Doing so was not inconsistent with applying W.(D.) in substance. The principles in Villaroman, in common with that underlying W.(D.), also insist that the burden of proof rest squarely with the Crown, that guilt must be proven beyond a reasonable doubt, and that such a conclusion may be drawn only after considering all the evidence including any gaps or lack of evidence.

[30] As Cromwell J. stated in Villaroman, the trier of fact should convict only if “an inference of guilt drawn from circumstantial evidence [is] the only reasonable inference that such evidence permits”: at para. 30. Such a conclusion may be reached only after considering “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: at para. 37. These alternatives to guilt may arise from the evidence or from a lack of evidence, since the Crown and not the accused bears the burden to prove facts and “whether there is a reasonable doubt is assessed by considering all of the evidence”: at paras. 35-36. “If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: at para. 35.

[31] The trial judge reviewed the evidence. He expressly referred to the theory that the appellant was an intended victim rather than a shooter (which arose from the exculpatory aspects of his statements) when he summarized the Crown’s position respecting it. He expressly referred to the defence argument that there were gaps and a lack of evidence pertaining to identification. He concluded that:

There can be but one conclusion; the man arrested is the man who is in the videos, the man described at the scene, the man noticed by the three police officers, and ultimately the man arrested.

The alternative explanation that’s argued for by counsel for the defence do not raise any other possible conclusion.

The totality of the evidence amounts to proof beyond a reasonable doubt of Mr. Williamson’s guilt. Indeed, guilt is the only possible conclusion on the totality of the evidence.

[32] Read in the context of the arguments at trial, the trial judge’s reference to the “alternative explanation that’s argued for by counsel for the defence” was a reference to the defence theory based on the exculpatory aspects of the police statements.

[33] Counsel for the appellant at trial had made the contention that the appellant was present, but not as the shooter, a centrepiece of her argument, tying it to those aspects of his statements. She stated at the outset of her argument: “if we assume Mr. Williamson was at the Knights of Columbus that evening, and I think there is strong circumstantial evidence to suggest that he was there, but if we're to assume that he was there and was not the shooter, which is my respectful argument to you, Your Honour”. She returned to that contention throughout her argument, stating, for example: “His utterances acknowledge his presence at the Knights of Columbus, and certainly his knowledge of the shooting. And his utterances further suggest that he was, in fact, a victim here, or a potential victim here since there were no actual victims.” Moreover, in closing submissions, Crown counsel at trial adverted to this theory and described it as the defence “alternative explanation” for the evidence:

[Counsel for Mr. Williamson] submits [there] are gaps in the evidence, and this sort of alternative explanation for why Mr. Williamson is hiding – is caught hiding simply four blocks away from the location where the firearm is recovered, and in the exact clothing as described by Mr. Elahi that the shooter had. And so my friend will say that … he gave an explanation with his utterances that he's hiding because he's been shot at before.

[34] Accordingly when the trial judge said that “[t]he alternative explanation that’s argued for by counsel for the defence do not raise any other possible conclusion…[than guilt]” he was clearly rejecting the theory and its evidentiary support. It was the equivalent of saying, consistently with the first two steps of the W.(D.) approach, that he did not believe the exculpatory statements nor did they raise a reasonable doubt.

[35] Consistent with the third step of W.(D.), the trial judge reached his finding of guilt beyond a reasonable doubt on the basis of the evidence he did accept – as he expressly made that finding based on the “totality of the evidence”. Although some of the evidence he adverted to was consistent with both the Crown theory that the appellant was the shooter and the defence theory that he was a victim, the trial judge was alive to this. He specifically noted “Mr. Williamson’s statement that he was at the scene would not be sufficient to prove him the shooter beyond a reasonable doubt”. He went on to consider evidence that pointed to Mr. Williamson as the shooter. In particular, the trial judge noted that Mr. Williamson’s clothing on the night of his arrest matched the clothing described by Mr. Elahi as that of the male shooter, the clothing seen in the two videos taken on Julian Avenue, and that of the person shown on video going behind the Julian Avenue address where the firearm linked to the shooting was found. The trial judge’s review of this evidence explains why he considered an inference of guilt to be the only reasonable inference available to him.

[36] The trial judge thus followed the steps in W.(D.) in substance, if not in form. More importantly he adhered to the principle underlying both W.(D.) and Villaroman. He correctly applied the burden and standard of proof to the evidence as a whole.

[37] I would therefore reject this ground of appeal.

(2) The Sufficiency of Reasons Ground of Appeal

[38] The appellant argues that the trial judge’s conclusory reasons do not suffice. He submits that the trial judge failed to address and explain how he resolved the important issues in this case. This critique has several prongs.

[39] First, the appellant contends that the trial judge’s reasons do not address the frailties of the eyewitness testimony. The appellant submits that this was especially necessary since the Crown’s case depended substantially on eyewitness identification. The distance between the incident and Mr. Elahi’s point of observation, the limited length of time in which the incident occurred, the fact that other people were around, the lack of photo line-up, and the fact that Mr. Elahi’s description of the shooter did not include an arm sleeve tattoo and large chain on his neck, which the appellant had, were all causes of concern. In the circumstances, the appellant argues, relying on R. v. Downey, 2018 NSCA 33, at para. 56; and R. v. Gough, 2013 ONCA 137, at para. 36, that the trial judge should have assessed the potential frailties of eyewitness evidence.

[40] Second, the appellant argues that the trial judge failed to consider other shortcomings in the evidence, including that no link was established between the appellant and the female shooter or the white BMW, and the absence of forensic evidence linking the appellant to the crime. The appellant argues that there is nothing in the trial judge’s analysis that explains how these problems with the Crown’s case were overcome.

[41] Third, the appellant submits the reasons do not demonstrate that the trial judge appreciated the defence theory that the appellant was a bystander who fled the scene and the effect of the exculpatory utterances. The appellant contends that the trial judge treated presence at the scene as the equivalent of being the shooter.

[42] I do not accept these arguments.

[43] In R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 15-17, McLachlin C.J. explained:

This Court…has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered.…

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. [Citations omitted; emphasis in original.]

[44] The trial judge’s reasons fulfill those purposes, when read in the context of the evidence and the arguments.

[45] First, with respect to the eyewitness testimony, this was not a case like Downey or Gough where the Crown’s case was premised entirely or almost entirely on an eyewitness who said that the perpetrator is the accused: see Downey, at para. 39; Gough, at paras. 1-7, 39. The problems with eyewitness identification in such a case are particularly acute.

[46] Here, no witness expressly said that the appellant was the shooter. Rather, the case against the appellant was circumstantial. Mr. Elahi provided a contemporaneous description of the shooter and the way he left the scene. Police officers provided a description of a person they saw in the vicinity, matching in many respects Mr. Elahi’s description of the shooter. The gun that had fired shots in the parking lot was recovered in the area, and video surveillance evidence showed a person matching the shooter’s description walking down the driveway where it was found. The appellant was found hiding in the area, wearing clothing that largely corresponded to the description of the shooter. A chronology was presented that tied the route of exit taken by the shooter from the parking lot to the various sightings, the hiding place of the gun, and the hiding place of the appellant.

[47] Second, the trial judge’s reasons are sufficient to show how he addressed gaps in the evidence.

[48] I begin by noting that not all of the “gaps” noted by the appellant appear to have been raised in closing argument by defence counsel at trial. For example, the appellant notes that no link was established between the appellant and the female shooter, but defence counsel at trial did not raise this point in closing submissions, nor does it have any direct bearing on the main issue at trial, which was the identity of the male shooter.

[49] The trial judge referred to the evidence and to the arguments about gaps in the evidence. The issue for the trial judge was the inference to draw from the evidence in light of any gaps or lack of evidence. This was quintessentially a matter for him as the trier of fact.

[50] His reasons explain why he convicted, namely, that on the basis of Villaroman, he considered whether the only reasonable inference from the circumstantial evidence was guilt, and whether there was another plausible theory or reasonable possibility based on the evidence or lack of evidence, that was inconsistent with guilt. He was satisfied that guilt was the only reasonable inference on all the evidence, and that there was no other inference inconsistent with guilt that was a reasonable possibility.

[51] Finally, with respect to the sufficiency of the reasons regarding the defence theory that he was a bystander based on exculpatory aspects of the appellant’s statements to the police, this point fails for the reasons given above rejecting the appellant’s first ground of appeal. Read in the context of the arguments of counsel, the trial judge’s reference in his reasons to the “alternative explanation” of defence counsel was clearly a reference to the theory based on the exculpatory aspects of the statements to police. The reasons make it clear why the trial judge rejected it. He concluded, among other things, that the appellant was the person who, following the shooting, was observed going to the location where the firearm involved in the shooting was found; therefore the theory that he had been at the scene only as a bystander or victim was not a reasonable possibility. It was open to the trial judge to make that finding.

[52] The trial judge’s reasons, read in context, show why the judge decided as he did. I would therefore reject this ground of appeal.

Conclusion

[53] I would dismiss the conviction appeal and dismiss the sentence appeal as abandoned.

Released: October 31, 2023 “J.S.” “B. Zarnett J.A.” “I agree. Janet Simmons J.A.” “I agree. P. Lauwers J.A.”

Notes

[1] The appellant abandoned his sentence appeal, withdrew a ground of appeal relating to the trial judge’s findings of fact, and withdrew an unreasonable verdict ground of appeal.

[2] The trial judge stayed two charges pursuant to the principle in Kienapple v. R., [1975] 1 S.C.R. 729 (careless use of a firearm and possession of a firearm without a licence) and convicted the appellant of the lesser included offence of discharging a firearm recklessly (s. 244.2(1)(b)) instead of discharging a firearm with intent (s. 244(1)). The appellant was convicted of the other offences listed in para. 1.

[3] In his factum, the argument that the trial judge failed to assess and consider frailties in the eyewitness evidence is presented as a separate ground of appeal. However, since that argument forms part of the insufficient reasons ground of appeal, I address it in that context.

[4] Those three steps are: If the exculpatory evidence is believed the accused is to be acquitted; even if not believed, if the exculpatory evidence raised a reasonable doubt the accused is to be acquitted; if the exculpatory evidence does neither, the trier of fact must still be convinced, on the basis of the evidence that they do accept, that the Crown has proven its case beyond a reasonable doubt.