REASONS FOR JUDGMENT

[1] Taya Amankwah was shot in the abdomen by a hooded man who had his face covered by a bandanna. She and her sister were leaving an apartment building where they had been visiting someone when the man got out of a black SUV in the parking lot, ran up to her and shot at her eight times with a handgun. He then ran back to the SUV and quickly drove away. Ms. Amankwah was struck in the abdomen and the foot but survived her injuries.

[2] The Crown alleges that Marvin Hernandez-Viera was the man who shot Ms. Amankwah. He is charged with attempted murder (Count 1), discharging a firearm with intent to wound (Count 2), aggravated assault (Count 3), several firearm possession offences (Counts 4, 5, 6), wearing a disguise with intent to commit an indictable offence (Count 7), and occupying a vehicle in which there is a firearm (Count 8). He has elected to be tried in this court without a jury.

[3] Identity is the sole issue with respect to all the counts except Count 1, where intent is also in issue. In support of its theory that Mr. Hernandez-Viera was the shooter, the Crown relies on the direct evidence of Ms. Amankwah, who purported to recognize Mr. Hernandez-Viera despite the fact that the shooter’s face was covered, as well as other circumstantial evidence said to link Mr. Hernandez-Viera to the SUV used by the shooter. Included in this is the evidence of the woman who rented the SUV for a friend of a friend she knew only as “M.H.” and who selected a photograph of Mr. Hernandez-Viera from a photo line-up as being that person. The Crown also relies on other circumstantial evidence, including Mr. Hernandez-Viera’s DNA on a water bottle found in the rented vehicle and evidence showing him to be in the area where GPS records indicate the vehicle was driven after the shooting.

[4] Mr. Hernandez-Viera has applied to exclude the recognition evidence of Ms. Amankwah and the identification evidence of the woman who rented the vehicle on the basis that the probative value of the evidence is outweighed by its prejudicial effect. The parties agreed that the evidence relevant to this application could be blended with the evidence at trial.

[5] I have concluded that the prejudicial effect of the identification evidence does not outweigh its probative value, but that the recognition evidence of Ms. Amankwah should be given no weight and the identification evidence of the other witness should be given little weight. However, based on the other circumstantial evidence, I am satisfied beyond a reasonable doubt that Mr. Hernandez-Viera was the person who shot Ms. Amankwah and that he did so with the intent to kill her and accordingly find him guilty on all counts.

[6] The following reasons explain these conclusions.

I. EVIDENCE

A. The Shooting

[7] On August 20, 2019, Taya Amankwah and her sister visited someone in an apartment building on Dixon Road. They left the building by the rear entrance, which leads to a parking lot. As they did so, a man dressed in dark clothing parked in a nearby SUV got out of his vehicle, ran up to Ms. Amankwah, shot at her several times with a handgun, ran back to his vehicle, and quickly drove away. Ms. Amankwah was struck in the stomach and the foot. She was immediately taken to a hospital and eventually recovered, although she suffers from permanent nerve damage and post-traumatic stress disorder.

B. The Victim’s Recognition Evidence

[8] A security video camera captured the man exiting the vehicle, firing his gun, and returning to the vehicle. It is clear from the video that he had his head covered with a hood and his face covered by a bandanna such that only his eyes were visible. Ms. Amankwah testified that she only saw the man for a “couple of seconds” but could see that his eyes were brown and his skin was white. She could not see his hair. After being shown the security video, Ms. Amankwah agreed that she could have seen the shooter’s face for at most three seconds.

[9] Despite the brevity of her opportunity to see the man who shot her and the fact that his face was covered, Ms. Amankwah testified that she recognized him as Mr. Hernandez-Viera. She had known Mr. Hernandez-Viera for a few years. They were initially simply acquaintances, but became friends in early 2019, after which they saw each other a few times per month. The last time Ms. Amankwah saw Mr. Hernandez-Viera was in the early summer of 2019.

[10] According to Ms. Amankwah, Mr. Hernandez-Viera loaned her $300 which she was unable to repay. Mr. Hernandez-Viera repeatedly asked her for the money, but she ignored him. She believed that this upset Mr. Hernandez-Viera, although they never actually argued about it. Ms. Amankwah believed that the outstanding debt was Mr. Hernandez-Viera’s motive for shooting her.

[11] It was repeatedly suggested to Ms. Amankwah in cross-examination that her belief that Mr. Hernandez-Viera was the person who shot her was arrived at through deduction based on her belief that he had a motive to do so rather than recognition. Ms. Amankwah denied this and maintained that her conclusion as to his identity was based only on her ability to recognize him. When asked at the preliminary inquiry why she believed that Mr. Hernandez-Viera was the person who shot her, she responded that it was because she did not think anyone else would have a reason to do so and that she had “put two and two together.” Ms. Amankwah explained that she had been confused when she gave that evidence at the preliminary inquiry.

C. The Rental of the Shooter’s Vehicle

[12] The police were able to identify the vehicle used by the shooter, a Dodge Journey, through its licence plate, which was visible on the security video. It belonged to a car rental company in Rexdale and had been rented on August 10, 2019 by an individual called Brittany Patram. Ms. Patram testified that she had been asked by a friend to rent the vehicle for his friend, who was identified to her only as “M.H.” She first met M.H. on August 10 at another rental agency. It turned out not to have any vehicles available, so she drove M.H. to a second rental agency where she rented a vehicle. Ms. Patram signed the agreement and M.H. paid the agency $3000 in cash. A few days later, the agency contacted Ms. Patram and advised her that M.H. wanted to exchange the vehicle that had been rented for a different vehicle, which she agreed to.

D. Ms. Patram’s Identification Evidence

[13] Ms. Patram testified that she was in M.H.’s company for about 45 minutes in total. She was interviewed by the police about three weeks later on August 20, 2019, at which time she described M.H. as being about 5’6” tall, with “sandy blonde hair” that was curly or wavy, brown eyes and white skin. She described his face as having little freckles and being “kind of rough,” by which she meant that he had some acne.

[14] Det. Connor Rogers prepared a photographic line-up to show to Ms. Patram using the Intellibook booking system, which contains a database of photographs taken of individuals who had been arrested as well as descriptors of those individuals. Photographic line-ups are created by the system based on the descriptors inputted by the user. Mr. Hernandez-Viera’s photograph and descriptors were already in the Intellibook system and Det. Rogers inputted the descriptors that were in the system, which had his race as “white,” his hair colour as “black,” his hair length as “short,” his facial hair as “unshaven,” and his complexion as “light” or “fair.” Based on these, the system generated a number of photographs, although Det. Rogers did not note how many. He selected 12 of those photographs to be used in the line-up.

[15] Det. Rogers had not received any training in preparing photographic line-ups and had prepared at most three others on prior occasions. He agreed that in order to be fair, the decoy photographs in the line-up should be as similar to the suspect as possible. Det. Rogers testified that he believed that the description provided by Ms. Patram matched Mr. Hernandez-Viera.

[16] The photographic line-up was shown to Ms. Patram by a police officer who was not involved in the investigation. Each photograph was in an envelope. Ms. Patram was asked to shuffle the envelopes and then open each in turn and look at the photograph. She was told that the person involved in the incident under investigation may or may not be in the photographs she was to view and that once she finished viewing a photograph, she would not be able to look at it again. She was to number each photograph as she looked at it and then write “yes” on the envelope if she recognized the person in the photograph and “no” if she did not.

[17] Mr. Hernandez-Viera’s photograph was in the 10th envelope opened by Ms. Patram. After looking at it for about 40 to 45 seconds, she asked the police officer if she could come back to it and was told that she could not. She then said, “Oh my god, what if I’m unsure …?” The officer told her to take her time. After looking at the photograph for almost three and a half minutes, Ms. Patram wrote “yes” on the envelope.

[18] Ms. Patram agreed that she selected the 10th photograph because it bore the closest resemblance to the person she had rented the car for and that she was not actually sure that it was the same person.

E. GPS Records

[19] The rented vehicle used by the shooter was equipped with GPS technology that recorded its movements. The GPS data shows that the vehicle left the area of Dixon Road at 1:24 p.m. on August 18, 2019. It travelled to a location on Henrietta Street, arriving there at 1:40 p.m. and the ignition was turned off at 1:43 p.m. At 2:47 p.m., the ignition was turned on and the vehicle travelled to another location on Henrietta Street, where the ignition was turned off at 2:49 p.m. At 3:33 p.m., the police observed the vehicle parked between 21 and 23 Henrietta Street. The ignition was turned on the following day at 4:31 p.m., after which the vehicle travelled to Westmore Drive, where the ignition was turned off at 5:02 p.m.

F. Mr. Hernandez-Viera’s Visit to a Friend’s Residence

[20] Jacob Latiff was a friend of Mr. Hernandez-Viera. In August 2019, he lived in a townhouse complex on St. Clair Avenue West, which is in the general vicinity of where the Dodge Journey was parked on Henrietta Street. He testified that he saw Mr. Hernandez-Viera a couple of times a week in the summer of 2019.

[21] Mr. Latiff was shown video footage with a time stamp indicating 1:43 p.m. on August 18, 2019, although there was no evidence as to the accuracy of the time stamp. Mr. Latiff identified the area depicted in the video as being in the townhouse complex where he lived and identified two individuals in the video as being himself and Mr. Hernandez-Viera. In the video, Mr. Hernandez-Viera was wearing a white hoodie with blue arms, grey pants and white running shoes and was holding a bag. Mr. Latiff testified that he recalled Mr. Hernandez-Viera having a bag, but did not know what was in it. In cross-examination, he agreed with a suggestion that he had seen into the bag and had not seen any dark clothing or a bandanna.

[22] Video footage time stamped as 2:00 p.m. on August 18, 2019 was identified by Mr. Latiff of being on Liverpool Street at the back of his townhouse complex. This video also showed Mr. Latiff and Mr. Hernandez-Viera. In it, Mr. Hernandez-Viera is shirtless with a tank top draped over his neck and is wearing grey pants and flip-flop sandals. Mr. Latiff testified that he and Mr. Hernandez-Viera were on their way to visit a friend who lived nearby. He agreed with a suggestion put to him in cross-examination that the flip-flop sandals Mr. Hernandez-Viera had changed into had come from the bag he had been carrying in the earlier video.

[23] A video time stamped at 2:08 p.m. again showed Mr. Latiff and Mr. Hernandez-Viera, but this time each is holding a bag. Mr. Latiff testified that both bags were his and that they had been picked up from his friend’s home. The bags contained clothing that Mr. Latiff has purchased for himself but which he did not wish his mother to see because he did not want her to know that he was making frivolous purchases.

[24] Mr. Latiff testified that he believed that Mr. Hernandez-Viera arrived and left that day in an Uber. He did not see Mr. Hernandez-Viera in an Uber, but agreed with a suggestion that he had seen him summon an Uber on his phone.

G. DNA on a Water Bottle in the Rented Vehicle

[25] A plastic water bottle was found under a floor mat in the back of the rented Dodge Journey and a DNA profile was obtained from it. It is an agreed fact that Mr. Hernandez-Viera could not be excluded as the source of the profile and it is over one trillion times more likely that the profile originated from him than from an unknown person unrelated to him. It is also an agreed fact that there is no way to determine when or how the DNA was deposited on the bottle.

II. ANALYSIS

A. Application to Exclude Identification Evidence

[26] Mr. Hernandez-Viera has applied to exclude the identification evidence of both Ms. Amankwah and Ms. Patram on the basis that its probative value is outweighed by its prejudicial effect. It is well-established that a trial judge has an overriding discretion to exclude evidence on that basis and that it can be exercised with respect to evidence of identification: R. v. Holmes (2002), 2002 CanLII 45114 (ON CA), 62 O.R. (3d) 146 (C.A.), at para. 40; R. v. Singh, 2014 ONSC 6511, at paras. 27-30; R. v. Brown, [1999] O.J. No. 4865 (Ont. Gen. Div.), at paras. 6-12; R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at fn. 5.

[27] The type of prejudice that must be weighed against the probative value of the impugned evidence on applications such as this was described in R. v. Frimpong, 2013 ONCA 243, 1 C.R. (7th) 242, at para. 18:

Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge’s instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge’s instructions.

It is the second type of prejudice described in Frimpong that is at issue in this case. Counsel for Mr. Hernandez-Viera does not suggest that the identification evidence of Ms. Amankwah and Ms. Patram cannot be adequately tested and challenged through cross-examination. Indeed, he conducted highly effective cross-examinations of both witnesses.

[28] The danger with respect to eyewitness identification evidence is that it often comes from witnesses who sincerely believe that they have made an accurate identification but are in fact mistaken: Singh, at para. 30. As Belzil J.A. put it in the oft-cited case of R. v. Atfield, 1983 ABCA 44, 25 Alta. L.R. (2d) 97, at para. 3, “because they are honest and convinced, they are convincing.” A particularly stark example of the danger that can be caused by this type of evidence can be found in the wrongful conviction case of R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, where Rosenberg J.A. made the following observations (at para. 21):

I wish to make a few comments about the identification evidence in this case. We now know that the homeowner was mistaken. No fault can be attributed to her. She honestly believed that she had identified the right person. What happened in this case is consistent with much of what is known about mistaken identification evidence and, in particular, that honest but mistaken witnesses make convincing witnesses. Even the appellant, who knew he was innocent, was convinced that the trier of fact would believe her. The research shows, however, that there is a very weak relationship between the witness’ confidence level and the accuracy of the identification. The confidence level of the witness can have a “powerful effect on jurors”: see Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) at 28; see also R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (SCC) at 148.

[29] When counsel for Mr. Hernandez-Viera first filed his material in support of this application, this was to be a jury trial. Mr. Hernandez-Viera has since re-elected, and the types of prejudice that may arise in a jury trial are often attenuated in a trial by judge alone: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 56. I am well aware of the weak relationship between a witness’s level of confidence and the accuracy of her identification and of how the flaws in an identification procedure can undermine the value of identification evidence. Indeed, for reasons that I will explain, I have concluded that only limited weight should be given to the identification evidence of Ms. Patram and no weight should be given to the identification evidence of Ms. Amankwah. As a result, the application is dismissed.

B. Assessment of the Identification Evidence

(i) Ms. Amankwah

[30] Ms. Amankwah saw the man who shot her for at most three seconds. He was hooded and had a bandanna covering all of his face other than his eyes. In my view, she could not have accurately recognized anyone in these circumstances. In addition to this, Ms. Amankwah was inconsistent with respect to the basis for her conclusion that Mr. Hernandez-Viera was the person who shot her. While she maintained in her evidence at trial that her conclusion was based solely on her recognition, she had previously indicated that it was at least partly a result of deduction on her part. I do not find her explanation for the inconsistency convincing.

[31] Furthermore, I have serious concerns about Ms. Amankwah’s credibility. During her testimony at both the preliminary inquiry and at trial, she deliberately lied about the identity of the person she had been visiting prior to being shot. She eventually acknowledged lying after being pressed in cross-examination and explained that she had done so to protect the person in question as she believed that some harm may come to him if his address was known.

[32] The Crown accepts that Ms. Amankwah lied, but submits that this should not affect her credibility because her motive for doing so was understandable. I do not agree. If Ms. Amankwah was charged with perjury, her motive for lying would not afford her a defence. More importantly, it is clear to me that Ms. Amankwah believes that Mr. Hernandez-Viera is the person who shot her. If she is willing to perjure herself to protect someone, then she may well be willing to perjure herself to ensure that a person she believes to be guilty is convicted. As a result, I find that I cannot rely on Ms. Amankwah’s evidence on any point except where it is confirmed by other independent evidence.

[33] In all the circumstances, I do not accept that Ms. Amankwah recognized Mr. Hernandez-Viera as the man who shot her.

(ii) Ms. Patram

[34] In The Inquiry Regarding Thomas Sophonow (Winnipeg: Manitoba Justice, 2001), the Honourable Peter Cory made a number of recommendations with respect to how a photographic line-up should be conducted. The line-up prepared by Det. Rogers and shown to Ms. Patram followed all of the recommendations except the following:

The photos should resemble as closely as possible the eyewitnesses’ description. If that is not possible, the photos should be as close as possible to the suspect.

In this case, Det. Rogers did not prepare the line-up in accordance with the description provided by Ms. Patram and instead used the description of Mr. Hernandez-Viera found in the Intellibook description. He did not seem to be aware of the Sophonow recommendations. It is clear that a line-up based on Ms. Patram’s description could have been prepared.

[35] The description used by Det. Rogers was inconsistent with Mr. Hernandez-Viera’s appearance in some respects: he does not have sandy-coloured, wavy hair or “rough” skin. At least one aspect of the description, that Mr. Hernandez-Viera was “unshaven,” was inconsistent with both Ms. Patram’s description as well as Mr. Hernandez-Viera’s appearance in the photograph.

[36] Given that the Sophonow recommendations contemplate using the suspect’s description when using the witness’s description is not feasible, I do not view Det. Rogers’s failure to follow this recommendation as overly problematic, although it would have been preferable for him to have done so. However, I take a different view of his reliance on the descriptor “unshaven.” While Det. Rogers tried to suggest in his testimony that some shadow on one side of Mr. Hernandez-Viera’s face in the photograph could be facial hair, it is obvious that he has no facial hair whatsoever. In contrast, the individuals in eight of the nine photographs Ms. Patram looked at before Mr. Hernandez-Viera’s have obvious facial hair, as do the two in the subsequent photographs. In circumstances where Ms. Patram would have been expecting to see a clean-shaven person, it is not surprising that she picked Mr. Hernandez-Viera.

[37] In addition to the problem with the line-up, Ms. Patram hesitated before selecting Mr. Hernandez-Viera’s photograph and appeared unsure when doing so. She agreed in cross-examination that she selected his photograph because it bore the closest resemblance to the person she had seen and that she was not actually sure that it was the same person.

[38] For these reasons, the only thing I am prepared to infer from Ms. Patram’s selection of Mr. Hernandez-Viera’s photograph was that Ms. Patram was unable to exclude him as being the person she had seen and he therefore must bear at least some resemblance to that person. However, that is the extent of the weight I am prepared to give to this evidence.

C. Circumstantial Evidence of Identity

(i) Relevant Legal Principles

[39] Without Ms. Amankwah’s evidence, the Crown’s case with respect to the element of identity is entirely circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):

... [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

[40] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, at para. 60. However, the Crown is not required to negate every possible conjecture, not matter how fanciful or irrational: Villaroman, at para. 37. Put another way, a trier of fact cannot act on alternative interpretations of the circumstances that are unreasonable: Stennett, at para. 61.

[41] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4. It follows from this that alternative inferences need not be as strong or as compelling as the inference of guilt. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[42] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhary, 2021 ONCA 560, at para. 19.

(ii) Assessment of the Circumstantial Evidence

(a) Motive

[43] One of the circumstances the Crown relies on is Ms. Amankwah’s evidence as to Mr. Hernandez-Viera’s motive to kill her. I have not considered this. For the reasons indicated, I am not prepared to rely on Ms. Amankwah’s unconfirmed evidence. As well, I have considerable difficulty with Ms. Amankwah’s evidence on this issue. According to her, the debt was for $300 and was simply to help her and not related to any kind of illegal business. The debt had been outstanding for only a few months, and Mr. Hernandez-Viera had done little to enforce it beyond making a few requests that he be paid back. I find this to be an unlikely motive to shoot someone. If Mr. Hernandez-Viera had a motive to shoot Ms. Amankwah, it was likely something different than what she described.

(b) The Relevant Circumstances

[44] In this case, the circumstances the Crown relies on to establish Mr. Hernandez-Viera’s identity as the shooter and which I accept are the following:

Mr. Hernandez-Viera knew Ms. Amankwah;
the car driven by the shooter was rented by a person with the same initials as Mr. Hernandez-Viera (“M.H.”);
the person who rented the shooter’s vehicle had a physical resemblance to Mr. Hernandez-Viera;
a water bottle with Mr. Hernandez-Viera’s DNA on it was found in the vehicle driven by the shooter;
immediately after the shooting, the vehicle was driven directly to a location that was near where a friend of Mr. Hernandez-Viera lived and parked there at 1:43 p.m.;
security video shows Mr. Hernandez-Viera and his friend in the area of the friend’s residence at 1:43 p.m. In it, Mr. Hernandez-Viera is wearing clothing different than that worn by shooter.

(c) Accuracy of the Time Stamp on the Security Video at Mr. Latiff’s Residence

[45] With respect to the last circumstance, counsel for Mr. Hernandez-Viera points out that there was no evidence as to the accuracy of the time stamp on the security videos at Mr. Latiff’s townhouse complex and as a result, it cannot be determined that the video was taken at the time indicated. With respect, I do not agree for the following reasons.

[46] There is a line of authority that stands for the proposition that a measurement device in common usage can be relied on as prima facie evidence of what it has measured. These authorities can be traced back to Nicholas v. Penny, [1950] 2 K.B. 466, where Lord Goddard stated (at p. 473):

The question in the present case is whether, if evidence is given that a mechanical device such as a watch or speedometer -- and I cannot see any different in principle between a watch and a speedometer -- recorded a particular time or a particular speed, which is the purpose of that instrument to record, that can by itself be prima facie evidence, on which a court can act, of that time or speed. It might be that in a particular case the court would refuse to act on such evidence. For instance, if it were a question whether a man died before midnight on a certain day and one party alleged that he died half a minute before 12 o'clock and another party that he died half a minute after 12 o’clock, and the first party said, “It was half a minute before 12 because I observed the time by the clock,” it might be that the court would say, “We will not find that as a fact unless we are satisfied as to the accuracy of the clock.”

Nicholas v. Penny has been followed in several Ontario cases: R. v. R.W. Tomlinson Ltd., [2010] O.J. No. 6172 (C.A.), at para. 8; R. v. Bland (1975), 1974 CanLII 809 (ON CA), 6 O.R. (2d) 54 (C.A.); R. v. Bedford, [2019] O.J. No. 1680 (C.J.), at para. 20; R. v. Amyot, 1968 CanLII 317 (ON SC), [1968] 2 O.R. 626 (Co. Ct.); R. v. Gill (2007), 58 M.V.R. (5th) 116 (Ont. S.C.J.), at paras. 20-21. While none of those cases dealt with video time stamps, I see no reason why the same principles should not apply.

[47] Based on the foregoing, I am of the view that what is stated on a video time stamp is prima facie evidence of the time at which the video was made which a trier of fact may, but is not required to accept. Whether or not a trier of fact accepts the evidence will depend on the circumstances of the case. For example, where the issue is the exact time when something took place, a time stamp is unlikely to be relied upon absent additional evidence as to its accuracy. Of course, it will always be open to a party to challenge the accuracy of the time stamp through other evidence.

[48] In this case, there were two security videos in the area of Mr. Latiff’s home and the times on them were generally consistent with each other considering Mr. Latiff’s narrative of the sequence of events during Mr. Hernandez-Viera’s visit. I therefore accept that the time stamp on the videos can be relied on to show the approximate time of the events depicted in the video, but not the exact time.

(d) Other Reasonable Inferences

[49] Subject to two issues which I will address below, the circumstantial evidence that Mr. Hernandez-Viera was the shooter is compelling. It defies credulity that another individual shot a person whom Mr. Hernandez-Viera happened to know, then fled in a vehicle rented by a person with Mr. Hernandez-Viera’s initials and who physically resembled him and in which there happened to be a water bottle with Mr. Hernandez-Viera’s DNA on it, and then drove to a location that happened to be near where Mr. Hernandez-Viera’s friend lived and arrived at around the same time that Mr. Hernandez-Viera is shown on security video to be in the area. In my view, this is not a plausible theory or a reasonable possibility.

[50] The two aspects of the circumstantial evidence that seemingly do not fit in with the other evidence are that Mr. Hernandez-Viera was wearing different clothes than the shooter when seen in the video near Mr. Latiff’s house and that the security video shows him walking with Mr. Latiff at 1:43 p.m., which according to the GPS records is the time when the vehicle was being parked and when the driver must have been in it.

[51] With respect to the difference in clothing, this does not, in my view, raise a reasonable doubt. Mr. Hernandez-Viera obviously changed his clothing at some point. I appreciate that Mr. Latiff testified that he did not see different clothing in the bag being carried by Mr. Hernandez-Viera, but even if he is to be believed on this point, there are other places the clothing could have been left. Even with the difference in clothing, the only reasonable inference to be drawn from the whole of the evidence is that Mr. Hernandez-Viera was the person who shot Ms. Amankwah.

[52] With respect to the time on the video and the GPS records, I accept that Mr. Hernandez-Viera could not have been parking a vehicle at the same time as he was walking with Mr. Latiff. However, in my view this does change the fact that the only reasonable inference from the whole of the circumstantial evidence is that Mr. Hernandez-Viera was the shooter. As noted earlier, there was no evidence at to the accuracy of the time stamp on the video and while I accept that it was generally accurate, it may well have been off by a few minutes.

(e) Conclusion on Identity

[53] For the foregoing reasons, I am satisfied beyond a reasonable doubt that Mr. Hernandez-Viera is the person who shot Ms. Amankwah. The defence concedes that if identity is proven, Mr. Hernandez-Viera is guilty on all counts except the count charging attempted murder.

D. Intent for Attempted Murder

[54] To prove a charge of attempted murder, the Crown must prove a specific intent to kill. The secondary intent for murder in s. 229(a)(ii) of the Criminal Code, an intent to cause bodily harm the accused knows is likely to cause death while being reckless as to whether death ensues or not, is insufficient to prove the offence of attempted murder: R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, at pp. 248-251.

[55] As is often the case, there is no direct evidence as to Mr. Hernandez-Viera’s intent and the Crown relies on circumstantial evidence. In this case, Mr. Hernandez-Viera discharged eight shots at Ms. Amankwah from a short distance away (about six feet, according to her). One of the shots struck her in the abdomen and was potentially lethal. In these circumstances, the inference that Mr. Hernandez-Viera was shooting wildly without intending to hit Ms. Amankwah is not, in my view, reasonable. The only reasonable inference is that he shot her while intending to kill her.

III. DISPOSITION

[56] For the foregoing reasons, Mr. Hernandez-Viera is found guilty on Counts 1, 2, 3, 4, 5, 6, 7 and 8.

Justice P.A. Schreck

Released: January 12, 2022.

R. v. Hernandez-Viera, 2022 ONSC 289

Case Summary