R. v. Walters-Cambronne, 2024 ONSC 5885

COURT FILE NO.: CR-50000310-0000

DATE: 20241025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CLAY WALTERS-CAMBRONNE

Defendant

Catherine Glaister and Anita Verma, for the Crown

Morrie Luft, for the Defendant

HEARD: July 29, 30, 31, August 1, 2, 6, 2024

REASONS FOR JUDGMENT

J. R. PRESSER J.

I. INTRODUCTION

[1] In the early hours of January 22, 2022, Reggie Amankwa was shot in the face and the abdomen at point blank range. He was standing in the alley outside a party venue at 60 Colville Road in Toronto at the time. Fortunately, he survived. But aside from describing the shooter’s skin and eye colour, he was unable to identify the shooter.

[2] There are videos from multiple security cameras both inside and outside the party venue. These depict the shooting. The videos show a man, the shooter, entering the alley where Mr. Amankwa was standing. He walks down the alley toward Mr. Amankwa with another man and engages in what the Crown says was a hand-off of the gun from the other man. The shooter then approaches Mr. Amankwa, shoots him twice, and flees.

[3] Police could not initially identify the shooter. The gun was not recovered. There were no eyewitnesses who could identify the shooter, no DNA, and no fingerprints. Police ran images from the surveillance videos through a police facial recognition algorithmic tool. The tool identified a suspect, Nathaniel Gordon, from images of the man who walked down the alley with the shooter. It did not identify any suspect from images of the shooter. Police further investigated and ultimately arrested and charged Mr. Gordon with a number of offences arising from the January 22, 2022, shooting.

[4] Eventually, Detective Constable Julian Maletta saw a police bulletin containing a still photograph screen shot from a surveillance video of the shooting. He believed he recognized the shooter as Clay Walters-Cambronne, the defendant. DC Maletta had been bitten and spat on by Mr. Walters-Cambronne in the course of arresting him 18 months earlier. DC Maletta requested further images of the January 22, 2022, shooting. He received and reviewed two surveillance videos. This confirmed his belief that the shooter was Mr. Walters-Cambronne.

[5] Mr. Walters-Cambronne was arrested and charged with one count of attempted murder, one count of conspiracy to commit murder, two counts of possession of a prohibited or restricted firearm without authorization or licence, four counts of possession of a weapon while prohibited by four different s. 110 weapons prohibition orders, and one count of failing to comply with probation by possessing a weapon. He was initially jointly charged with Mr. Gordon, but their charges were severed. Mr. Walters-Cambronne was tried before me, sitting as a judge alone.

[6] The main issue for my determination is whether the Crown has proven beyond a reasonable doubt that the shooter was Mr. Walters-Cambronne. For the following reasons, I have come to the conclusion that it has not. Having very carefully reviewed and considered all of the evidence, I am left with a reasonable doubt that Mr. Walters-Cambronne was the shooter.

II. THE CHARGES AND THE ISSUES

[7] Mr. Walters-Cambronne was charged with nine counts in an indictment, as follows:

Count 1: attempted murder of Reggie Amankwa, contrary to s. 239(1)(a)(i) of the Criminal Code;

Count 2: conspiring with Nathaniel Gordon to murder Reggie Amankwa, contrary to s. 465(1)(a) of the Criminal Code;

Count 3: possession of a loaded restricted or prohibited firearm without authorization, licence and registration certificate, contrary to s. 95(2)(a)(ii) of the Criminal Code;

Count 4: possession of a restricted or prohibited firearm knowing that he was not the holder of a licence and registration certificate, contrary to s. 92(3)(a) of the Criminal Code;

Counts 5, 6, 7, 8: each is a charge of possession of a weapon while prohibited, each corresponding to one of four separate s. 110 weapons prohibition orders, contrary to s. 117.01(3)(a) of the Criminal Code;

Count 9: failing to comply with probation by possession of a weapon, contrary to s. 733.1(1)(a) of the Criminal Code.

[8] He pleaded not guilty to all charges.

[9] The Crown did not call any evidence to prove three of the firearms prohibitions or the probation order. Accordingly, at the end of the prosecution case, Crown counsel invited me to dismiss counts 5, 6, 8, and 9. I did so.

[10] The defence conceded that if I find that the shooter was Mr. Walters-Cambronne, the elements of the offences charged at counts 3, 4, and 7 would be proven.

[11] As a result, at the end of the trial, Mr. Walters-Cambronne faced counts 1, 2, 3, 4, and 7. The main issue for my determination was whether the Crown had proven beyond a reasonable doubt that the shooter was Mr. Walters-Cambronne. If I found that it had, on the basis of the defence concession, convictions for counts 3, 4, and 7 would follow. I would then have to move on to consider whether the Crown had proven the other elements of attempted murder (count 1) and the elements of a conspiracy to commit murder (count 2) beyond a reasonable doubt.

III. THE EVIDENCE

(1) Overview and Background

[12] On January 22, 2022, Mr. Amankwa attended a dance or party at 60 Colville Road, which was a commercial unit just south of Keele Street and Lawrence Avenue in Toronto. It was a kitchen restaurant and hangout spot called Rich Kitchen that hosted events, even during Covid lockdown periods.

[13] Mr. Amankwa was shot outside in the alley between 60 and 58 Colville Road at approximately 3:43am. The shooter was not at the event at 60 Colville Road that night. He entered the alley, with another man, from a parking lot on the other side of a gated fence moments before he shot Mr. Amankwa. The second man, suspect #2, was at the event at 60 Colville Road earlier that night, before the shooting. Surveillance videos show suspect #2 appearing to see Mr. Amankwa in the venue earlier that night, before exiting to the alley while talking on his phone. The shooter and suspect #2 entered the alley together and walked along it toward Mr. Amankwa. There appeared to be a handoff of something from suspect #2 to the shooter, which the Crown alleges is the gun. When the men reached Mr. Amankwa, the shooter faced him and shot him. Suspect #2 stood behind Mr. Amankwa and appeared to pull him to the ground. After Mr. Amankwa fell to the ground, the shooter shot him again. Then both men, and a number of bystanders, fled.

[14] All of the evidence of relevant events comes from surveillance video cameras inside and outside of 60 Colville Road and from outside 58 Colville Road. Sgt Noel Hudson was the Gun and Gang centralized shooting response team investigator assigned to investigate this shooting. According to Sgt Hudson, the date and time stamps on the videos from 60 Colville Road are 23 hours and 58 minutes ahead of real time. As a result, the videos from this location are stamped January 23, 2022, when all relevant events actually occurred on January 22, 2022; and the time stamps are two minutes later than the actual time on January 22, 2022. To use an example given by Sgt Hudson in his testimony, a video stamped January 23, 2022, at 2:56:17 depicts events that actually occurred on January 22, 2022, at 2:54:17 am. The defence did not take issue with the timing of events, or with Sgt Hudson’s evidence as to the difference between the 60 Colville Road video date and time stamps and the real date and time. The defence also did not take issue with the authenticity of the videos. The trial proceeded on the basis that the videos depict what they purport to depict. In the summary of the evidence that follows, I have endeavoured to refer to the actual corrected date and time, not the incorrect date and time stamps indicated on the 60 Colville Road security camera videos.

(2) Timeline of Events

[15] A security camera video from inside 60 Colville Road depicts Mr. Amankwa standing near a washroom in the venue at 2:54:25 am. He is wearing a black ski jacket with a black hood ringed by tan-coloured fur overtop a grey tracksuit. He also wears a black close-fitting hat that covers his forehead, goes around his face and under the chin with a white Nike swoop logo on the left side.

[16] A security camera video from outside the venue depicts suspect #2 arriving at 2:56:10 am. This and other videos depict suspect #2 wearing a black ski jacket with a prominent white Polo logo on the left chest and a black hood. He also wore a black toque, black sweatpants with a light-coloured stripe down the side of each leg, white running shoes, and a necklace with a large pendant that says “1025” on it, and a white or cream-colored sweatshirt, possibly with a hood, with an open quarter zip collar emerging from the top of the jacket.

[17] At 2:58:31 am, the video shows suspect #2 seeing Mr. Amankwa for the first time, outside the washroom at 60 Colville Road. At 3:01:38 am, suspect #2 walks to the dance floor. At 3:03:38 am, suspect #2 is seen by the camera on the dance floor, moving around, and then standing in one spot. At 3:10:01 am, Mr. Amankwa walks by suspect #2 on the dance floor and goes off camera. Suspect #2 watches Mr. Amankwa. At 3:11:50 am it appears that suspect #2 is smoking a cigarette on the dancefloor, which he is holding in his left hand. He appears to be holding a cellphone in his right hand. The screen of the phone can be seen illuminating as suspect #2 moves his fingers. At 3:12:56 am, suspect #2 walks off camera to the right.

[18] Suspect #2 is then seen standing in a group of people behind and to the left (from the viewer’s perspective) of what appears to be a table where the DJ is set up. Sgt Hudson testified that this was directly across from where suspect #2 and Mr. Amankwa had earlier entered the dance floor. At 3:38:38 am, suspect #2 is shown with his phone in his left hand, apparently texting, and holding a cigarette in his right hand. At 3:38:52 am, Mr. Amankwa is seen on a different security camera video walking across the dancefloor on the other side of the DJ table from where suspect #2 is standing. Suspect #2 is in the distance on this video, facing where Mr. Amankwa walks. Mr. Amankwa walks across the screen from the right and exits to the left. At 3:58:58 am, suspect #2 walks off camera to the left. As he does so, he is holding his cellphone to his left ear with his left hand, apparently talking on the phone.

[19] At 3:38:56 am, Mr. Amankwa exits from 60 Colville Road through a side exit to the alley between 60 and 58 Colville Road. He is carrying a bottle of what appears to be alcohol in his right hand. Suspect #2 is shown on video from an interior camera exiting through the same side exit to the alley between the two buildings at 3:39:23 am, still holding his phone in his left hand to his left ear. An exterior camera’s video depicts Mr. Amankwa standing outside in the alley, looking toward the side door and the interior of 60 Colville Road. He moves the bottle from his right hand to his left and puts his right hand into the front pouch of his sweatshirt at 3:39:28 am. At 3:39:32 am, suspect #2 is shown on the exterior camera video exiting from 60 Colville Road into the alley, still holding his phone to his left ear. He walks by Mr. Amankwa in the alley. The two men noticeably look at each other, perhaps making eye contact, as suspect #2 walks by and goes off screen to the left. Suspect #2 is moving in the direction of a gate that gives access from the alley between 60 and 58 Colville Road to a street with a parking lot.

[20] At 3:41am, an exterior security camera video from 58 Colville Road depicts a car reversing into a parking lot on the street beyond the alley, hitting another vehicle, and ultimately parking. Two people get out. The driver, who according to Sgt Hudson is suspect #1, the shooter, gets out of the car and crosses the street. The passenger gets out of the car, goes around, and gets into the driver’s side of the car. The shooter meets another person, who according to Sgt Hudson, is suspect #2. The two men head toward the gate that gives access to the alley between 60 and 58 Colville Road. Sgt Hudson testified that he was able to identify the shooter and suspect #2 in these videos by viewing multiple videos, relying on the clothing the men were wearing to identify them, and tracking their movements from one video to the next. The defence did not take issue with Sgt Hudson’s identification of these men as the shooter and suspect #2 or his description of their movements, as depicted in these videos.

[21] The shooter and suspect #2 enter the alley and at 3:43:41 am are depicted walking from the gate down the alley toward Mr. Amankwa. The shooter is wearing a winter jacket with the hood up, covering his head. The upper part of the jacket is shiny and red; the bottom is black. Suspect #2 also has the hood of his black jacket up. When the shooter is approximately half of the distance between the gate and Mr. Amankwa, he turns around so that he is walking backwards toward Mr. Amankwa. He is facing suspect #2 who continues to walk forward down the alley. At 3:43:49 am, the shooter and suspect #2 are very close to each other and it looks like they are exchanging something. Suspect #2 bends his elbow and takes something from his pocket, which he hands to the shooter’s right hand. The Crown alleges that this was suspect #2 handing a gun to the shooter. The defence did not take issue with the fact that this video depicted suspect #2 handing a gun to the shooter.

[22] At 3:43:54 am, the shooter reaches Mr. Amankwa and turns around to face him. Suspect #2 stands behind Mr. Amankwa. The shooter raises his right hand and shoots Mr. Amankwa at 3:43:56 am. Suspect #2 pulls Mr. Amankwa down and onto the ground from behind and runs back down the alley toward the gate. At 3:44:00 am, the shooter shoots a second time at Mr. Amankwa, who was lying on the ground. The shooter then steps around Mr. Amankwa, walks a few steps, runs toward the gate, and exits through it at 3:44:06 am.

[23] Mr. Amankwa was left alone in the alley. His blood is visible on the snow on the ground, as is the bottle he was previously holding, and a gun. Sgt Hudson explained that this gun was recovered by police. It was not the firearm that was used in the shooting. Sgt Hudson testified that he could see on the surveillance videos that Mr. Amankwa pulled out a firearm that dropped to the ground the moment he was shot. Police were unable to determine whether Mr. Amankwa shot his firearm. The firearm used to shoot Mr. Amankwa was never recovered. No bullet casings were recovered from the alley.

[24] The shooter returns to the car and enters the front passenger seat at 3:44:19 am. At 3:44:41 am, the car transporting the shooter is seen driving out of the parking lot, and along the street behind a tractor trailer.

[25] Mr. Amankwa was transported by ambulance to Sunnybrook Health Sciences Centre and was taken to the trauma room. He had two gunshot wounds. One wound was to his abdominal area above the belly button with an exit hole in his back. The other wound was to his face, which either entered through the left cheek near the jawbone and exited out of the right cheek or entered the right cheek and exited through the left cheek near the jawbone.

(3) Evidence Relating to Identification

(a) Police Identify Suspect #2 as Nathaniel Gordon

[26] Sgt Hudson explained that police submitted surveillance videos and photos of the shooter and suspect #2 to a police forensic unit for assessment using facial recognition software. The facial recognition tool identified a suspect, Nathaniel Gordon, from images of suspect #2. It did not identify a suspect from images of the shooter.

[27] Police sought and obtained a search warrant for Mr. Gordon’s residence. When they executed the search warrant, they found and seized a necklace with a pendant that said “1025 DOTARACHI” on it, as well as a pair of black sweatpants with a white and light grey stripe down the side of each leg. The pendant and sweatpants appear to be the same as those worn by suspect #2 at 60 Colville Road on January 22, 2022.

[28] Mr. Gordon was arrested and charged with a number of offences arising from the shooting of Mr. Amankwa. He is being tried on a separate indictment.

(b) DC Maletta Identifies the Shooter as Clay Walters-Cambronne

[29] Police initially did not have any leads as to the identity of the shooter.

[30] Ultimately, Sgt Hudson prepared and sent out a bulletin to other police divisions, asking for assistance in identifying the shooter. Sgt Hudson said this was a “last ditch effort” to figure out who the shooter was. The bulletin contained two still images drawn from the surveillance videos: one of suspect #2 and the other of the shooter. It also included an image of a jacket that looked like the distinctive half shiny red, and half black jacket worn by the shooter.

[31] On March 3, 2022, DC Julian Maletta viewed the bulletin, which he had received by email. He testified that the bulletin caught his eye. He believed that he recognized the person in the red jacket as Clay Walters-Cambronne, but he wanted to see more. He wrote to Sgt Hudson and asked whether there were other videos or photos of the shooting that Sgt Hudson could share to help him confirm that the shooter was Mr. Walters-Cambronne.

[32] DC Maletta had had a previous interaction with Mr. Walters-Cambronne. On August 5, 2020, DC Maletta’s birthday, he was one of the officers who participated in arresting Mr. Walters-Cambronne. DC Maletta testified that Mr. Walters-Cambronne resisted arrest, bit DC Maletta’s face causing injury, and spat on him multiple times. DC Maletta was only in Mr. Walters-Cambronne’s presence on this one occasion, for a total of 20 to 30 minutes. Nevertheless, he maintained that the interaction and Mr. Walters-Cambronne were very memorable for him. The officer had to seek medical attention for the injuries inflicted by the bite. He testified that Mr. Walters-Cambronne took a chunk out his face, like multiple small stab wounds. He agreed that his medical records indicated that this was a “bite mark with superficial skin break. Crash injury in the centre,” but did not agree that the injury was so benign. DC Maletta had to cancel his birthday celebrations on the day of this incident and was off work for 30 days as a result of it.

[33] Mr. Walters-Cambronne was criminally charged for biting and spitting on DC Maletta. The officer checked that case on policing databases on multiple occasions, for status updates. Each time he did so, he saw Mr. Walters-Cambronne’s booking photograph from August 6, 2020. He said that the defendant’s likeness was imprinted in his memory from the interaction they had, and also from looking at the defendant’s mugshot. But DC Maletta maintained that he did not need to look at the mugshot to identify Mr. Walters-Cambronne. He said the incident in August 2020 was stressful and memorable for him. He said he would have recognized the defendant even if he had not looked at the mugshot.

[34] Sgt Hudson responded to DC Maletta’s email by forwarding two clips from the surveillance videos depicting the shooting. DC Maletta viewed the videos on March 11, 2022. He explained that he viewed each of the two videos normally, and then played each slowly frame by frame, but at normal speed. He could not recall whether he zoomed into any of the frames.

[35] DC Maletta explained that, after having viewed the bulletin, he formed a belief that the person in the red jacket was Mr. Walters-Cambronne. Once he viewed the videos, he said, he became certain. He testified that he recognized Mr. Walters-Cambronne right away. He testified that he could see the shooter’s face clearly in the video clips, and that the shooter had the following features and characteristics that were the same as the defendant’s : complexion, which DC Maletta described as a light black skin tone; pronounced rounded almost pointed eyebrows; black hair in dreadlocks, which DC Maletta described as “the distinct dreads”; dark bags under the eyes; goatee beard or dark, thick, facial hair; a unique or distinctive strutting or swagger to the step, which DC Maletta also described as moving with confidence; and a calm demeanour when shooting, with his non-shooting hand down by his side and a look of zero fear on his face.

[36] After viewing the two video clips, DC Maletta looked up Mr. Walters-Cambronne’s booking photograph from August 6, 2020, to confirm his identification. He communicated to Sgt Hudson that he was certain the shooter was Mr. Walters-Cambronne. He did not believe that he communicated to Sgt Hudson at that time what features or characteristics of the defendant’s he recognized in the surveillance videos of the shooter. On September 17, 2023, Sgt Hudson wrote to DC Maletta asking him for a will-say. DC Maletta provided a will-say to Sgt Hudson on October 8, 2023. He agreed that he was trying to be as complete as possible when he wrote his will-say. In cross-examination, DC Maletta acknowledged that he had omitted from the will-say any mention of recognizing the shooter’s prominent eyebrows or his manner of walking or moving. The officer explained that he simply immediately recognized the defendant when he saw the surveillance videos. He said that the entirety of what he viewed brought to his mind right away that this was Mr. Walters-Cambronne. DC Maletta analogized the experience to looking in the mirror and recognizing one’s own face – he said one doesn’t think ‘that’s my nose, that’s my eye.’ Rather, the officer said, one recognizes the whole. He said it was difficult, 18 months after making the identification when he wrote his will-say, to recall and reconstruct the process of the identification and to explain what it was that he had recognized.

[37] At trial, the Crown sought the admission of DC Maletta’s identification evidence under the exception to the presumptive inadmissibility of lay opinion evidence for recognition ID evidence established in R. v. Leaney, [1989] S.C.R. 393. After a Leaney voir dire, I admitted DC Maletta’s recognition ID evidence with its ultimate reliability and weight to be determined at the end of the trial, as I will explain further below.

(c) Evidence of the Victim, Reggie Amankwa

[38] Mr. Amankwa testified at trial. He was either a reluctant witness who did not want to share much information, or he had very limited memory of the incident at issue. He testified that the shooting was a traumatic and upsetting experience for him, and that he was doing his best to answer all questions asked of him. He was still receiving treatment for his injuries from this shooting.

[39] Mr. Amankwa said that he had no information about who may have shot him. He could not identify the shooter or suspect #2. He said he did not know Mr. Walters-Cambronne and had never met him before. However, Mr. Amankwa said he remembered certain features of the shooter. He said that the person in the red jacket, the last face he saw, had fair skin and green eyes. He maintained that he was 100 % certain that the shooter had green eyes. He did not remember the shooter’s hair, only his skin and eye colour.

[40] Police never asked Mr. Amankwa to look at a photo line-up in relation to this case.

(d) Surveillance Videos Depicting the Shooter

[41] A number of the surveillance videos from outside of 58 and 60 Colville Road in the early hours of January 22, 2022, depict the shooter. There are videos and excerpts of videos from a number of angles and distances depicting him: walking down the alley between the two buildings toward Mr. Amankwa, forward at first and then backward; turning around to face Mr. Amankwa and then shooting him; turning to shoot him again for a second time; stepping around him and then fleeing down the alley to the gate. There are screen shots of the shooter originating from some of these videos. The videos of the shooter moving down the alley before and after the shooting provide the best views of him walking and of his manner of moving. The videos and screen shots of the shooter immediately before, during, and after the shooting provide the best views of his face, hair, and body shape and size, both from the front and in profile. All of the videos are captured from some distance, provide fleeting views of the shooter, most of which are shadowy and/or grainy and do not depict a high level of detail.

(e) Images of Mr. Walters-Cambronne

[42] The Crown filed a number of known photos and videos of Mr. Walters-Cambronne. These include police booking photographs of Mr. Walters-Cambronne from an arrest on March 31, 2022, from the front and each side; a police booking video from March 31, 2022; two police body worn camera videos of Mr. Walters-Cambronne on arrest on March 31, 2022; a police booking photograph of Mr. Walters-Cambronne on arrest on August 6, 2020; and a police booking video from August 6, 2020.

[43] These photos and videos were not tendered as evidence that Mr. Walters-Cambronne had previously been arrested, or of any prior discreditable conduct that might be inferred from the fact of prior arrests. They were tendered, and admitted, solely for their evidentiary value as known images in establishing his appearance, for the purpose of assessing whether he was the shooter. I have only considered them as such.

(f) Evidence of Prior Association Between Mr. Walters-Cambronne and Mr. Gordon

[44] The Crown filed three transcripts of proceedings in the Ontario Court of Justice evidencing that Mr. Walters-Cambronne and Mr. Gordon were known to each other and had prior associations. The Crown position is that if I find that suspect #2 was Mr. Gordon, the evidence of a prior relationship between Mr. Gordon and Mr. Walters-Cambronne was evidence that supported the identification of Mr. Walters-Cambronne as the shooter.

[45] The first transcript, dated November 14, 2016, is of guilty plea proceedings before Vaillancourt J. Both Mr. Walters-Cambronne and Mr. Gordon pleaded guilty to possession of property obtained by crime over $5000, namely a motor vehicle, and to occupying a motor vehicle knowing there was a prohibited firearm in it. They each also pleaded guilty to failing to comply with an order of the youth court. The facts underpinning the convictions were that on May 24, 2016, officers received information that the occupants of a particular vehicle in a particular location on the streets of Toronto were in possession of a firearm. Police were already looking for that vehicle, which had been reported stolen several days earlier. They located the vehicle and conducted a high-risk takedown. Both occupants fled from the vehicle. After a very brief foot pursuit, both Mr. Walters-Cambronne and Mr. Gordon were arrested. When the men fled the vehicle, they left the car doors open. Police could see a firearm in plain view on the floor of the front passenger seat.

[46] The second transcript, dated January 17, 2017, is of the completion of the sentencing hearing in relation to the above charges and the reasons for sentence. Both Mr. Walters-Cambronne and Mr. Gordon were sentenced to time served plus one day and a three-year probation order. One of the conditions of probation was that neither man was to have contact with the other.

[47] The third transcript was from June 12, 2019. It is of a guilty plea by Mr. Walters-Cambronne before Shandler J. to one count of failing to comply with the January 17, 2017, probation order by having contact with Mr. Gordon. The facts underpinning the conviction were that on February 3, 2017, police were investigating an allegation of assault. They attended at an address in Toronto where they arrested Mr. Walters-Cambronne and six other people for possession of drugs. One of the people arrested with Mr. Walters-Cambronne was Mr. Gordon, with whom he was to have no contact under the terms of his probation.

[48] These three transcripts were not tendered as evidence of Mr. Walters-Cambronne’s (or Mr. Gordon’s) prior convictions, his prior discreditable conduct, or his character. They were tendered, and admitted, for their evidentiary value in establishing that these two men were known to each other and had associated with each other before the date of this shooting. And for their evidentiary value, if any, in establishing that Mr. Walters-Cambronne was the shooter. I have only considered them as such.

(g) Other Evidence

[49] There was no other evidence that could corroborate or support that the shooter was Mr. Walters-Cambronne. The gun used to shoot Mr. Amankwa was never recovered. There were no fingerprints or any DNA evidence from the scene. There was no detailed evidence about the car the shooter arrived and departed in, such as licence plate number or ownership, registration, or insurance. There was no evidence from any of the multiple bystanders/eyewitnesses.

[50] Sgt Hudson testified that police had investigated the shooter’s distinctive red and black jacket. They traced its purchase to a store at Yorkdale Mall. However, the store could not provide information about who had purchased the jacket. As a result, there was no evidence about who had purchased the jacket. The jacket itself was not recovered and was not in evidence.

[51] Sgt Hudson also explained that he had viewed a lot of surveillance videos from the building Mr. Gordon lived in from several days before, the day of, and several days after, the shooting. He did not see Mr. Walters-Cambronne in any of these videos. He also did not see any videos of anyone wearing the red and black jacket worn by the shooter.

IV. ANALYSIS

(1) Applicable Legal Principles

[52] The Crown may seek to establish that a perpetrator depicted in images from a crime scene is the accused through the testimony of a witness “who is sufficiently familiar with the accused to recognize them and assist the trier of fact in determining whether the accused is the person seen: R. v. Leaney”: R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208 at para. 28.

[53] The admission of such recognition or Leaney evidence is an exception to the presumptive inadmissibility of (lay) opinion evidence: R. v. Berhe, 2012 ONCA 716, 292 C.C.C. (3d) 456 at para. 21; R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.) at paras. 71 – 73; R. v. Abdikarim, [2018] O.J. No. 7367 (O.C.J.) at para. 31.

[54] As such, recognition evidence will only be admitted if it meets the two-step test of threshold admissibility for this type of evidence: Hudson, at para. 29. To be satisfied of threshold admissibility, the trial judge must find: (1) that the witness has a sufficient prior acquaintance with the defendant to enable them to recognize the defendant; and (2) that, as a result of their familiarity or prior acquaintance with the defendant, the witness is “in a better position than the trier of fact to identify the perpetrator”: Hudson, at para. 30; Berhe, at para. 14; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (C.A.), at para. 39.

[55] Recognition evidence that meets this “prior acquaintance/better position” test of threshold admissibility will be admitted in evidence: Berhe, at para. 14. The trier of fact must then assess its ultimate reliability and what weight to give it, if any: Hudson, at paras. 29, 33. In Hudson, at para. 33, the Court of Appeal held that in a determination of ultimate reliability and weight to be attributed to recognition evidence, the trier of fact should consider the following non-exhaustive factors:

1. the circumstances of the identification, including whether it was independent or suggested; and 2) the level of detail provided in the description, including the ability of the witness to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Berhe, at para. 22. However, the “importance of unique identifiable features varies with how well the witness knows the person he or she identifies” (the better a person knows the accused, the less important the articulation of identifiable features becomes): R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234 (Ont. C.A.), at para. 46; 3) the quality of the video or photographic evidence upon which the witness is making their identification (the witness’ testimony will be more reliable as the quality increases); and 4) the circumstantial or direct evidence available that can corroborate or undermine the reliability of the witness’ description.

[56] In addition, in weighing and assessing the reliability of recognition identification evidence, triers of fact must remain aware that recognition evidence is but one form of identification evidence. This means that all of the frailties and dangers inherent in identification evidence are present in recognition evidence. Accordingly, the trier of fact must exercise the same caution in assessing the reliability of recognition evidence as it would with any other identification evidence: Hudson, at para. 34, citing M.B., at para. 34, R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501 at para. 39, R. v. Chafe, 2019 ONCA 113, 371 C.C.C. (3d) 91 at paras. 29-32, and R. v. McCracken, 2016 ONCA 228, 348 O.A.C. 267 at para. 25. In Hudson, at para. 35, the Court of Appeal summarized the frailties and reasons for caution that arise with identification evidence as follows:

The frailties of identification evidence have been well documented: M.B., at paras. 29-31; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 (S.C.C.), at para. 52; R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (Ont. C.A.). While seemingly reliable, particularly where witnesses are credible and convincing in their testimony, eyewitness identification is inherently unreliable; M.B., at para. 29; McCracken, at para. 25. Although witnesses may honestly believe their account reflects the reality of their observations, they “are often completely unaware of the interpretive process whereby they fill in the necessary but missing data” and arrive at a distorted recreation of the events they actually witnessed: Miaponoose, at p. 422, quoting the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983), at p. 10. Where proper precautions are not taken in assessing identification evidence, the likelihood of wrongful conviction increases. The trier of fact, therefore, “must be satisfied of both the honesty of the witness and the correctness of the identification”: R. v. Reitsma (1997), 1998 CanLII 825 (SCC), 125 C.C.C. (3d) 1 at 2 (B.C.C.A.), at para. 41, per Rowles J.A. (dissenting), rev’d [1998] 1 S.C.R. 769 (S.C.C.) (adopting dissenting reasons of Rowles J.A.): R. v. Cole, [2006] O.J. No. 1654 (Ont. S.C.J.), at para. 20.

[57] In addition to determining the ultimate reliability and weight to be attributed to recognition identification evidence if admitted, a trier of fact may make findings of identification based on their own comparison of the defendant with images of the perpetrator: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at para. 23. Indeed, a trier of fact can use good quality videotape as the sole basis for identifying a defendant before them as the perpetrator of the crime: Nikolovski, at para. 23. The Supreme Court gave guidance as to how a trier of fact should assess the weight to be given to surveillance video images at para. 29 of Nikolovski:

The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

[58] The trier of fact must use greater caution in performing a Nikolovski assessment of images to identify a perpetrator where the video or photo quality is poor: R. v. Cuming (2001), 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 19.

(2) Application to this Case

(a) Admission of DC Maletta’s Recognition Evidence

[59] The Crown sought to have DC Maletta’s recognition identification of Mr. Walters-Cambronne as the shooter admitted into evidence. Following a voir dire, I admitted the evidence. I came to the conclusion that both steps in the test for threshold admissibility of recognition evidence were met in this case on a balance of probabilities.

[60] At the first step, I concluded that DC Maletta had a sufficient familiarity or prior acquaintance with Mr. Walters-Cambronne to enable him to recognize the defendant. Key considerations in assessing the level of familiarity of the proposed witness with the defendant are the nature of the relationship between them, “including the frequency and intensity of past contact”: Hudson, at para. 31. DC Maletta only had a single in-person encounter of 20 to 30 minutes’ duration with Mr. Walters-Cambronne, on the night of August 5-6, 2020. However, this single encounter would have been highly impactful and memorable for DC Maletta. He testified that it was stressful and traumatic for him. I accept that it was. Mr. Walters-Cambronne bit DC Maletta’s face and spat on him multiple times during the course of an arrest. DC Maletta acknowledged that he had punched the defendant in the face and the body in the course of the arrest, and that the defendant was only subdued when police tasered him. The bite caused injury, for which the officer had to seek medical attention. The incident took place on DC Maletta’s birthday. He had to cancel his birthday celebrations in its wake. He also had to miss 30 days of work as a result of the interaction and his injury. The defendant was criminally charged with assault causing bodily harm for having bitten and spat on the officer. DC Maletta was the victim in the case, which is not a regular or ordinary position for a police officer to find themself in.

[61] This unusual and traumatic combination of events would have been very intense for the officer. It would have made Mr. Walters-Cambronne very memorable for him. DC Maletta testified, and I accept, that the defendant’s likeness was imprinted in his mind. As a result, I find that DC Maletta would have been far more familiar with the defendant and his appearance than he would have been if this were a single ordinary or uneventful 20-to-30-minute interaction or arrest.

[62] In addition, DC Maletta followed Mr. Walters-Cambronne’s assault causing bodily harm charge. He looked it up in policing databases on a number of occasions. When he did, he saw Mr. Walters-Cambronne’s police booking photograph from August 6, 2020. In my view, DC Maletta’s repeated subsequent reviews of this mugshot of the defendant would have reinforced the officer’s memory of the man who bit his face and spat on him.

[63] Overall, I concluded that DC Maletta had a sufficient acquaintance in the unique and intense circumstances of this case to be able to recognize Mr. Walters-Cambronne.

[64] I was also satisfied that the second step of the threshold admissibility test was met here. Because of his familiarity with Mr. Walters-Cambronne, DC Maletta was in a better position than the trier of fact, me, to identify the perpetrator. The officer testified that over the course of his encounter with the defendant, he had the opportunity to observe the man from a number of distances and angles. He saw Mr. Walters-Cambronne from up close during the arrest and biting, and from further away when he observed the defendant walking to an ambulance. He also saw Mr. Walters-Cambronne’s movements and reactions during a stressful encounter, his arrest, and the ensuing struggle. During the trial, I was able to observe Mr. Walters-Cambronne as he walked into court and when he sat in the dock. But I did not have the opportunity to observe him up close, nor in a face-to-face intense interaction. I did not have the opportunity to observe him walking or moving as he normally would, outside the petri dish of the courtroom where he was on trial. On the few occasions in which I saw Mr. Walters-Cambronne walking or moving through the courtroom, he was fettered by hand cuffs and leg cuffs. This could not tell me how the defendant usually moves, and there was no way for me to get this information unaided. Mr. Walters-Cambronne’s gait and manner of moving are relevant to identification. This is because the shooter is depicted walking and running down the alley, standing in close proximity to Mr. Amankwa, and shooting him.

[65] DC Maletta’s observations of Mr. Walters-Cambronne gave him opportunities to make relevant observations. These opportunities were simply not available to me in the courtroom in a criminal trial. I concluded that the officer’s familiarity, born out of his opportunities to observe the defendant, could not be matched by in-court viewing by me, unaided. I was satisfied that DC Maletta’s advantage in recognizing Mr. Walters-Cambronne would be of assistance to me, that his experience with the defendant afforded him a level of familiarity that would enable him “to provide valuable and otherwise unavailable identifying information”: Hudson, at para. 31.

[66] The defence resisted the admission of the recognition evidence, arguing that DC Maletta’s recognition evidence was not credible or reliable. In particular, the defence argued that the officer’s evidence as to what features and characteristics of the shooter he recognized was embellished on the stand. The defence argued that the features and characteristics DC Maletta purported to recognize did not actually match Mr. Walters-Cambronne’s. Defence counsel further argued that the officer had animus toward the defendant that caused a process of filling in what he expected to see; a sort of confirmation bias. The defence also submitted that the images of the shooter on the surveillance videos were of poor quality, and did not afford adequate views of the shooter, such that DC Maletta could not reliably recognize and identify the defendant.

[67] I considered these challenges to the admissibility of the recognition evidence. I determined that they were not factors that undermined threshold admissibility in this case. Rather, they are considerations that go to the ultimate reliability and weight to be assessed by me acting in my capacity as trier of fact at the end of the trial.

[68] The fundamental question at the threshold admissibility stage is whether the proposed witness has sufficient familiarity with the defendant to be able to provide valuable identifying information that is otherwise unavailable to the trier of fact. In answering this question, “the trial judge should base his or her determination primarily on the evidence of the nature of the relationship, including the nature of past contact, as opposed to a potential witness’ anticipated testimony”: Hudson, at para. 31. A recognition witness does not have to be able to point to “some unique identifiable feature or idiosyncrasy of the person to be identified” in order to meet the standard of threshold reliability: Berhe, at para. 22. Factors like the circumstances of the identification, level of detail provided in the description, and the quality of the video evidence upon which the witness is making their identification are to be considered once the evidence is admitted, as going to ultimate reliability and weight: Hudson, at para. 33; Berhe, at para. 22.

[69] In this case, for reasons already given, I was satisfied that DC Maletta’s recognition identification satisfied the “prior acquaintance/better position” test of threshold admissibility. The issues with that evidence that were raised by the defence arise from the substance of his testimony, and from factors identified by the Court of Appeal as going to reliability and weight. I admitted the evidence with its ultimate reliability and weight to be determined at the end of the trial.

(b) Assessing the Ultimate Reliability and Weight to be Attributed to DC Maletta’s Recognition Evidence

[70] Having carefully considered DC Maletta’s recognition identification evidence alongside all the evidence, I am left with concerns about its reliability. As a result, I accord DC Maletta’s evidence little weight.

i. The circumstances of the identification, including whether it was independent or suggested

[71] The first factor for consideration in assessment of the ultimate reliability and weight to be attributed to recognition evidence is the circumstances of the identification, including whether it was independent or suggested: Hudson, at para. 33. In this case, no one suggested to DC Maletta that the shooter was the defendant. Rather, he received a police bulletin via email. The bulletin included screen shot photographs of the perpetrators and a brief summary of the incident, noting that the suspects were unknown. It asked anyone with information to contact the Gun and Gang Task Force. When DC Maletta looked at the bulletin, he believed the man in the red jacket was Mr. Walters-Cambronne. He emailed Sgt Hudson to ask for more images of the man to confirm that it was. Seeing the two videos forwarded to him confirmed in his mind that the man in the red jacket was Mr. Walters-Cambronne.

[72] This was not a situation where someone else suggested an identification of the shooter as the defendant to DC Maletta. In that sense, his recognition identification was not influenced by others. However, a conclusion that there were no outside influences on DC Maletta’s recognition is not tantamount to a conclusion that DC Maletta’s recognition was uninfluenced by factors other than the appearance of the shooter in the photograph. I think there is a reasonable possibility that DC Maletta’s recognition was influenced by internal factors, which adversely impacts on its reliability. I will explain.

[73] I have very carefully studied the screen shot photograph of the shooter contained in the police bulletin. The image of the shooter is so dark and of such poor quality that it would be very difficult to recognize anyone in it. The shooter stands facing the camera, but he is mostly blocked by Mr. Amankwa’s back and suspect #2’s back. Mr. Amankwa faces the shooter and suspect #2 stands behind Mr. Amankwa. Both are between the camera and the shooter. The shiny red hood of the shooter’s jacket is up, completely blocking the top of his head and some of his forehead. This image is drawn from a video taken by a camera that was outside in the alley between 58 and 60 Colville Road, very late at night when it was dark out. Sgt Hudson testified that there was bright artificial light in the alley. The light must have been above where the shooter was standing because the area around and behind the shooter and the outer surface of his hood and jacket are brightly illuminated. But the shooter’s entire face is very dark. His hood is casting a shadow. The left side of his face is in shadow, barely visible from partway down the forehead to just below what may be a moustache, or to the top of his lips. The right side of his face is almost completely not visible, aside from a shadow that seems to suggest the right eye. The following characteristics are not visible in this photograph: the shooter’s hair, height, body shape and build, face shape, eyebrows, eye colour, and whether he has a beard. His skin colour is difficult to discern because of the shadow. It appears to be light black or brown, but it may be white. He likely has a moustache, but this could be a shadow under the nose. The most that could be said upon looking at the photograph of the shooter in the bulletin is that he is wearing a red jacket, appears to be a man, may have light black or brown skin, and may have a moustache.

[74] It would be very difficult to recognize the shooter as anyone in particular from this photograph. At best, one could see very generic possible similarities between the shooter and a particular person. One would certainly want to see other, better, and clearer images before making an identification. DC Maletta did request other images. However, he testified that once he viewed the bulletin, he formed a belief that the person in the red jacket was Mr. Walters-Cambronne. He said he requested other images and angles of the person to confirm his belief that this was Mr. Walters-Cambronne.

[75] In my view, the bulletin photograph of the shooter did not depict enough detail to allow anyone to form a belief about who it was. It would not be reasonable to form a belief as to identity of the shooter on the basis of what one can see in this photograph. Perhaps a very close intimate of the shooter’s (such as a spouse or a parent) who was extremely familiar with their appearance could form a belief from looking at what is depicted in the bulletin. Perhaps not. But DC Maletta did not have that degree of intimacy or familiarity with Mr. Walters-Cambronne.

[76] The most this photograph could have done was raise a suspicion in the officer that this might possibly be Mr. Walters-Cambronne, with a recognition that it might equally be someone else. But DC Maletta was not just suspicious. He testified that he believed it was Mr. Walters-Cambronne. He wanted to see more images, not to inquire further and determine whether his suspicion was well-founded, but to confirm his already existing belief. It is not surprising then, that DC Maletta confirmed that the shooter was Mr. Walters-Cambronne when he viewed the videos. He saw what he expected to see.

[77] I am not suggesting that DC Maletta knowingly set out to “get” Mr. Walters-Cambronne by identifying him as the shooter, regardless of what the images showed. Nor that DC Maletta made an intentionally wrong identification. Nor that he knowingly lied to the court. I accept that DC Maletta sincerely believes that the shooter was Mr. Walters-Cambronne, and that he was genuinely certain that he had accurately recognized the man. However, when it comes to identification evidence, honest and well-meaning witnesses may be mistaken: Miaponoose, at p. 5.

[78] I am concerned that DC Maletta’s sincere and certain identification is not reliable because of the selective and interpretive perception and memory processes at play here. Honesty and sincerity do not equate with reliability; certainty should not be mistaken for accuracy when dealing with identification: M.B., at paras. 61-65. In Miaponoose, at pp. 4-5, the Court Appeal cited p. 10 of the Law Reform Commission Study, which says that perception is an interpretive process, governed by experience and expectations, and is therefore prone to error:

. . . psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus, the final recreation of the event in the observer’s mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification.

[79] DC Maletta formed a belief that the shooter in the bulletin was Mr. Walters-Cambronne, notwithstanding that the photograph was of very poor quality and did not allow for the formation of such a belief. This gives reason for concern that DC Maletta did not actually recognize Mr. Walters-Cambronne, but that he saw a “fuzzy image of someone in fact unknown” and “unintentionally ‘filled-in’ details of a man familiar” to him: M.B., at para. 60.

[80] DC Maletta’s evidence supports a conclusion that he engaged in such a process of filling in details. In his will-say, DC Maletta noted that when he viewed the bulletin, he saw that the shooter had dark bags under his eyes, dark thick facial hair, and a light skin tone. It is simply not possible to see bags under the eyes of the shooter in the bulletin. The area of the shooter’s eyes appear as dark recesses, in shadow. Almost no detail can be seen. DC Maletta testified that dark bags under the eyes were one of the features of the defendant that he remembered from their August 2020 interaction. But in my view, he could not have seen bags under the shooter’s eyes in the bulletin photo. He may, instead, have been unconsciously remembering that Mr. Walters-Cambronne had bags under his eyes from their interaction or from the August 2020 booking photo, and he may have been filling that detail in when he viewed the bulletin.

[81] The bulletin photograph does depict what might be a dark moustache, but this might also be shadow. It is not possible to see dark, thick, facial hair in this photo. At best, one could see the suggestion of a dark moustache. Mr. Walters-Cambronne had a dark moustache and beard when DC Maletta interacted with him, as revealed in the August 2020 booking photo. The officer may have been unconsciously filling in Mr. Walters-Cambronne’s facial hair when he viewed the photo.

[82] DC Maletta testified that when he viewed the bulletin, he could see the shooter’s eyes, nose, light black skin tone, prominent eyebrows, and what “should be” facial hair. In cross-examination, he acknowledged that he had not mentioned anything in the will-say about seeing the shooter’s eyebrows when he viewed the bulletin. He explained that he was doing his best to reconstruct the process of identification and that this may have been an inadvertent omission from the will-say. He asked to see the bulletin again. When it was shown to him on the stand, DC Maletta maintained that the shooter’s prominent eyebrows were visible to him in the bulletin. He testified that the eyebrows were the first thing he was drawn to in viewing the bulletin on the stand. I do not agree that the shooter’s eyebrows are prominent, or even really visible, in the bulletin. As noted, the area of the shooter’s eyes appear as dark shadowed recesses, within which almost no detail can be seen. It is not possible to distinguish eyebrows from eyes in the shadowy image, and it is certainly not possible to see whether the shooter’s eyebrows were prominent. The August 2020 booking photograph of Mr. Walters-Cambronne depicts what might be described as prominent eyebrows. Again, the officer may have been unconsciously filling in a characteristic he observed in Mr. Walters-Cambronne when he viewed the bulletin. `

[83] DC Maletta’s recognition of the shooter as the defendant may well have been influenced by his past experience with and personal expectations of Mr. Walters-Cambronne. Given the previous traumatic and intense interaction between the officer and the defendant, it would be understandable for DC Maletta to have expected – even unconsciously – that Mr. Walters-Cambronne would commit a further violent offence. Faced with the bulletin photograph that might generically resemble the defendant and given his experiences and what would be understandable expectations, DC Maletta may have unintentionally filled in details of the defendant. Even in the absence of conscious animus toward Mr. Walters-Cambronne. Having seen the bulletin photograph, which he believed was the defendant, DC Maletta was psychologically primed to find confirmation of his earlier identification when he viewed the videos.

[84] In sum, consideration of the first Hudson factor gives rise to some concern about the reliability of DC Maletta’s recognition identification evidence. While the officer’s identification was not suggested or influenced by others, in my view, it may have been influenced by the officer’s interpretive processes of memory and perception. This negatively affects the reliability of the identification.

ii. The level of detail provided in the description

[85] The second factor for consideration in assessing the reliability and weight to be accorded to recognition evidence is the level of detail provided in the description. This includes a consideration of the witness’ ability to point to unique identifiable features or characteristics. The more intimately familiar the recognition witness is with the person they are identifying, the less important such unique characteristics or idiosyncrasies will be to the reliability of the identification: Hudson, at para. 33.

[86] DC Maletta did describe some features and characteristics that he said were shared by the shooter and Mr. Walters-Cambronne. However, he struggled to explain what it was that he recognized, or what was distinctive to Mr. Walters-Cambronne about many of these characteristics. Some of the features he described were not present in the bulletin or the videos DC Maletta viewed in making his identification. Some of the features were not distinctive, unique, idiosyncratic, or identifiable; they were generic. One of the features described by DC Maletta was not observable in known images of Mr. Walters-Cambronne or present in my observations of him. While DC Maletta was acquainted with the defendant, he was not so familiar that the details of the features that led to the identification were unimportant. The level of detail provided by the officer undermines the reliability of his recognition identification.

[87] DC Maletta did not make any contemporaneous notes when he viewed the bulletin on March 3, 2022, or when he viewed the two videos forwarded by Sgt Hudson on March 11, 2022. When he told Sgt Hudson that the shooter was Mr. Walters-Cambronne, he did not provide any detail about what he recognized or why he could make this identification. He just identified the shooter as Mr. Walters-Cambronne. When DC Maletta was asked to produce a will-say 18 months later, he noted the details and features he said he recognized as Mr. Walters-Cambronne’s in the bulletin and the videos. At trial, DC Maletta testified that when he saw the photograph in the bulletin, he recognized Mr. Walters-Cambronne’s light black complexion, his prominent eyebrows that are rounded and slightly pointed, dark bags under his eyes, his eyes and nose, and that he thought he could see some facial hair. He testified that when he viewed the videos, he could see the shooter’s face clearly, and he recognized Mr. Walters-Cambronne right away. He said he recognized Mr. Walters-Cambronne’s distinctive dreadlock hair, his distinctive walk which he described as a strut or swagger, his confidence and demeanour, his pronounced eyebrows, his goatee, and his light black skin tone.

[88] In cross-examination, the officer agreed that in-chief he had added two details that he had not included in the will-say. These were: (i) that when he viewed the bulletin, he noted that the shooter had prominent eyebrows, like Mr. Walters-Cambronne’s; and (ii) that in the video, the shooter, like Mr. Walters-Cambronne, had a distinctive strutting, confident walk, and a calm demeanour when he moved. When challenged about these omissions or inconsistencies, DC Maletta explained that he simply immediately recognized the shooter as the defendant when he saw the bulletin and the videos. He said he recognized the shooter in his entirety as Mr. Walters-Cambronne. DC Maletta explained that when he produced his will-say, he had to recreate what it was that he had recognized, much as he was doing when he testified. He said he found it difficult, 18 months after viewing the bulletin and the videos when he prepared his will-say, to remember and reconstruct the process of identifying the defendant and what it was that he had recognized. He said he may have inadvertently left some details out of the will-say, even though he was endeavouring to be complete and thorough when he wrote it. DC Maletta maintained that he had an independent recollection of what he recognized. He said his testimony was the best evidence of that.

[89] Any witness could be forgiven for forgetting minor details when writing up a will-say 18 months after the fact. But in my view, DC Maletta had not just forgotten to include in his will-say details that he knew and remembered all along and then included in his testimony. Rather, as he explained, he had recognized and identified the shooter as Mr. Walters-Cambronne as a whole when he made his identification. He said he immediately recognized the defendant when he saw the surveillance videos; the entirety of what he saw brought to mind right away that this was Mr. Walters-Cambronne. DC Maletta did not slow down his mental process of recognition to query or determine what features or characteristics he saw in the bulletin and the surveillance videos that resembled the defendant. He effectively acknowledged this when he said the process of recognizing Mr. Walters-Cambronne was like the process of recognizing himself in the mirror: he would not think about whether he recognized his own nose or his own eyes but would recognize himself as a whole. So, it was when the officer recognized the defendant: he did not identify particular identifiable features or characteristics, but instead recognized the whole. In this way, DC Maletta’s initial recognition was a bare one. It was unsupported by distinguishing marks or individual features.

[90] For this reason, the processes of producing a will-say and testifying in court were processes of deconstructing the holistic recognition and trying to recreate what individual features would together have led to the identification. In submissions, the defence asked me to find that DC Maletta was embellishing when he testified to the features and characteristics that led him to identification. I do not think DC Maletta was embellishing, at least not in the sense of adding new details to amplify previous observations or existing evidence. Instead, his testimony leads me to conclude that when he wrote his will-say, he was parsing his March 2022 recognition into its constituting parts for the first time. Producing the will-say required DC Maletta to do what he had not done before: turn a bare recognition into an explained and supported one. It required him to note individual identifiable characteristics shared by the shooter and Mr. Walters-Cambronne for the first time. When he testified, DC Maletta was endeavouring to recall what features and characteristics he had identified when he engaged in the retrospective exercise required to produce the will-say. He was also engaging in that parsing exercise afresh on the stand.

[91] As a result, DC Maletta struggled to explain what identifiable individualized features he had recognized, and why. He said he recognized the nose and eyes but did not explain what he recognized about them. This was a conclusory or bare assertion that he recognized these features, with no detail or explanation. It did not allow me to assess the accuracy of DC Maletta’s recognition of these features. Without any detail as to what DC Maletta recognized in the nose or the eyes, I could not look at the bulletin, the videos, the known photos of the defendant, and the defendant himself to determine whether DC Maletta could actually have recognized these features.

[92] Some of the feature’s DC Maletta said he recognized were not visible in the bulletin or the videos. As already noted, DC Maletta saw dark bags under the shooter’s eyes, but these were not visible in the bulletin. There are also no dark bags under the eyes of the shooter that can be discerned in the videos reviewed by the officer. While these two videos do provide images of the shooter’s face from the front and from the side, the images are not clear or detailed enough to show bags under the eyes. Not even when played frame by frame with the images magnified. DC Maletta also testified that he recognized the shooter’s distinctive strutting walk or swagger, and the confidence with which the shooter moved. He acknowledged that in one of the videos, the shooter is walking backwards, and that he had never seen Mr. Walters-Cambronne walking backwards. He maintained, however, that he recognized the shooter’s distinctive walk. I have viewed the videos seen by DC Maletta numerous times. I do not find anything distinctive in the way the shooter walks or moves. Not when he walks forward, not when he walks backward, and not when he runs. There is a slight bounce to the shooter’s step for a very brief moment in one of the videos, but in my view, this was not a swagger or a strut. It was a momentary physical manifestation of high adrenaline, excitement, or nerves. As the shooter only bounced in a few of his steps on the video, I could not conclude that this was his usual manner of walking. It was also not unique nor identifiable. I did not see anything in the way the shooter walked or moved that was suggestive of calm confidence, as described by DC Maletta. The officer offered the way the shooter kept his left arm straight down by his side while shooting with the right arm as an example of his calm and confident demeanour. I agree with DC Maletta that the shooter kept his left arm straight by his side when he shot with his right arm. But nothing about this demonstrated calm confidence, and it was not a unique or identifiable manner of moving.

[93] Other features described by DC Maletta were similarly not distinctive or were of questionable distinctiveness. He said he recognized the hair, which he called the “distinctive dreads.” What appears to be dreadlocks or small braids are visible in some of the videos, but I am not at all sure that this is a distinctive or identifying characteristic. There are other men with dreadlocks or braids depicted on the surveillance videos from cameras inside 60 Colville Road on the night of January 22, 2022. What seemed a unique or distinctive characteristic to DC Maletta, a white man, may actually be a common characteristic among black people, in the context of this cross-racial identification: R. v. Mathias, 2018 ONSC 221, 145 W.C.B. (2d) 366 at paras. 87-89. DC Maletta acknowledged in cross-examination that he had never received training in cross-racial identification.

[94] I also consider that the light black skin tone, thick dark facial hair, and prominent eyebrows DC Maletta said he recognized may seem unique to an identifying witness who is white but may not be so among black people. I repeat that the bulletin and videos cannot be said to reliably depict a light black skin tone given the bright artificial light and shadows in the alley; and add that while facial hair is visible in the videos, the quality of the images does not permit a conclusion that the facial hair is thick.

[95] One of the features and characteristics that DC Maletta said he recognized in the bulletin and videos is not observable in the known images of Mr. Walters-Cambronne or present in my observations of him. In the booking photograph and video of the defendant from August 2020, his skin appears to be a medium black, not light black or fair. In the booking photograph from March 2022, his skin appears to be light black, but the body worn camera and booking videos from the same date depict Mr. Walters-Cambronne as having medium black skin. In my observations of him in court, the defendant had a medium black complexion. I recognize that skin colour, like hair style and facial hair, may change over time. A person’s skin may become darker with exposure to sun, and conversely, lighter with lack of exposure to sun. Also, the perception and description of a person’s skin colour involves a measure of subjectivity, as they do with many personal features and characteristics. But the booking photograph and video of the defendant from August 2020, when DC Maletta encountered him, appear to me to depict a medium black complexion. Mr. Walters-Cambronne himself also appeared to me to have a medium black complexion. DC Maletta’s description of the skin colour he recognized did not match what I find Mr. Walters-Cambronne’s skin colour to be.

[96] It is worth noting that DC Maletta said nothing at all about one feature of Mr. Walters-Cambronne’s that is distinctive. In the August 2020 booking photo, Mr. Walters-Cambronne has a small horizontal scar on his right cheek, under his eye. This cheek scar is also visible in the March 31, 2022, photograph of the defendant from the front. The frontal booking photograph from March 31, 2022, also reveals that Mr. Walters-Cambronne has a short but pronounced horizontal scar on his forehead above the bridge of his nose. It is not possible to determine whether he had the forehead scar on August 6, 2020, because a stray dreadlock or braid covers part of the middle of his forehead in the booking photograph from that date. But it is clear that Mr. Walters-Cambronne had at least the right cheek scar when he encountered DC Maletta. The scar is small, and likely not visible from a distance. However, DC Maletta was close to Mr. Walters-Cambronne on August 5, 2020, close enough to get bitten. The cheek scar would have been visible and noticeable at that proximity. It was not visible in the bulletin, or the videos viewed by DC Maletta.

[97] It seems to me that a careful recognition witness would describe not only those distinctive features of the defendant they recognized in the perpetrator, but also those distinctive features of the defendant that were absent. In some cases, failure to mention distinctive characteristics is important enough to reduce an identification to a non-identification: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163 at para. 16. In this case, I do not consider DC Maletta’s failure to mention the absence of Mr. Walters-Cambronne’s cheek scar in images of the shooter to be such a significant omission. The cheek scar was small and given the poor quality of the images DC Maletta reviewed, it was unlikely to be visible even if present on the shooter. But DC Maletta’s failure to mention that Mr. Walters-Cambronne has a scar on his cheek, which he could not see in the bulletin or the videos, indicates a lack of attention to detail in the process of making his identification.

[98] In summary, consideration of the second Hudson factor causes me concern about the reliability of DC Maletta’s recognition identification. He initially made a bare recognition identification of Mr. Walters-Cambronne, without reference to any unique identifiable features or characteristics. In preparing his will-say and testifying, the officer endeavoured to dissect what he had recognized and in-fill details. But he struggled to articulate just what it was that he had recognized. What resulted was some detail about characteristics and identifying features, but many of these were generic, not unique, or distinctive, not present in the bulletin or videos, or not present in known images or the appearance of the defendant. In other words, DC Maletta was not able to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Hudson, at para. 33. He did not know the defendant well enough, having only encountered him on one occasion for 20 to 30 minutes (albeit an intense and memorable encounter), to make the articulation of identifiable features unimportant: M.B., at para. 46. The lack of detail relating to identifying features undermines the reliability of DC Maletta’s identification evidence.

iii. The quality of the images upon which the identification was made

[99] The third factor for consideration in assessment of the ultimate reliability and weight to be afforded to recognition evidence is the quality of the images upon which the identification was made. The higher the quality of the images, the more reliable the identification: Hudson, at para. 33.

[100] The quality of the photograph of the shooter in the bulletin was, as I have already described, extremely poor. The shooter faces toward the camera, but only part of his face is visible. He is wearing his hood, which casts his face in shadow. Very little detail can be seen in this photograph.

[101] The quality of the two videos viewed by DC Maletta is better but does not allow for clear or detailed views of the shooter’s face. One of the videos, which is 13 seconds in duration, depicts the shooter walking down the alley toward Mr. Amankwa, approaching him, and shooting him. There is a very brief period, of approximately one to two seconds, where the shooter’s face is illuminated. This gives a fleeting view of the front and then the right side of his face. The camera is situated above the scene and at some distance, which has the effect of minimizing the detail that can be seen and creating some distortion of features (for example, the upper features of the face look larger than lower ones). Many of the views in this video are grainy, making it hard to see detail. Zooming in to magnify the frames where the shooter’s face is visible causes blurriness or reduced resolution, decreasing the quality of the images. Playing the video frame by frame or at reduced speed causes pixilation, decreasing the quality of the image.

[102] The other video, which is six seconds in duration, depicts the shooter from behind as he approaches Mr. Amankwa and from the front as he turns to shoot him. There is a one to two second period in which, as the shooter shoots, he turns to the side. The left side of his face is illuminated and visible. This camera is also situated above the scene, but it is closer than the other one. The images of the shooter’s face are less grainy than those in the other video, but it is still difficult to see detail. The period in which the shooter’s face is visible in profile is very short, and the shooter is moving throughout. Again, efforts to magnify the frames in which the face is visible causes blurriness or reduced resolution in the images, thereby decreasing their quality. Playing the video frame by frame or at reduced speed causes pixilation, also decreasing the quality of the image.

[103] The quality of the videos viewed by DC Maletta is better than the quality of the bulletin. Both videos do provide views of the shooter’s body, and brief quick-moving views of his face. However, the ability to see the shooter’s face clearly is severely constrained in both videos given the following limitations: the distorting effects of the position of the camera in the first video; the distance from the cameras to the shooter; the distorting effects of bright artificial light and shadows in both videos; the graininess of many of the images making it difficult to see detail; the distorting effects of trying to magnify images or play them more slowly; and the short duration of the views of the shooter’s face, during which time he is constantly moving. Although the overall quality of these videos is not poor, they are not of good quality either. I would characterize the views of the shooter’s face as poor. It would be difficult for anyone, even someone acquainted with him, to reliably identify the shooter from these images. That DC Maletta recognized the shooter from viewing these images decreases the reliability of his identification.

iv. Other evidence that can corroborate or undermine the reliability of the recognition identification

[104] The fourth factor set out in Hudson for consideration in determining the reliability and weight of recognition evidence is whether there is other evidence that supports or undermines the recognition witness’ identification: Hudson, at para. 33.

[105] In this case, there is little to no other direct or circumstantial evidence that supports DC Maletta’s identification of Mr. Walters-Cambronne as the shooter. As noted, there is no DNA evidence, no fingerprints, and no eyewitness testimony implicating the defendant. The Crown submits that if I find that Mr. Gordon was suspect #2, the fact that he and Mr. Walters-Cambronne were previously acquainted is some evidence that the defendant was the shooter. For reasons I will explain further below, I am not able to find that suspect #2 was Mr. Gordon. And even if I were able to do so, the most recent documented association between the two men was in February 2017. There is no evidence of any contact of any kind between them in the five years from that last contact to the date of this shooting, or in the several days that followed it. As a result, I am unable to give the evidence of Mr. Gordon and Mr. Walters-Cambronne’s prior relationship and associations much weight as evidence identifying the latter.

[106] There is, however, some evidence that could undermine DC Maletta’s identification of Mr. Walters-Cambronne. Mr. Amankwa testified that the shooter had fair skin and green eyes. I have already found that Mr. Walters-Cambronne has medium black skin, not fair skin. The March 31, 2022, booking photograph reveals that he has dark-coloured eyes, not green ones. Mr. Amankwa’s evidence, if accepted, undermines DC Maletta’s identification.

[107] The Crown urged me to give Mr. Amankwa’s description of the shooter little or no weight, submitting that he was a reluctant witness who was not at all forthcoming when he testified. I agree that Mr. Amankwa was not a witness who had a lot of evidence to share. This may have been because, as a result of having been shot, injured, and traumatized, he had little memory of the events of January 22, 2022. However, as I will discuss in greater detail below, I have concerns about Mr. Amankwa’s credibility. As a result, I attribute little to no weight to his exculpatory description of the shooter.

[108] There is no other evidence supporting DC Maletta’s identification, and no other evidence undermining it. Given the absence of other supporting, the fourth Hudson factor does not bolster the reliability of DC Maletta’s recognition evidence.

(c) Nikolovski Assessment – Comparing Mr. Walters-Cambronne with Images of the Shooter

[109] I have compared known images of Mr. Walters-Cambronne and his appearance in court before me with images of the shooter from the scene. In other words, I have performed a Nikolovski assessment. I have come to the conclusion that Mr. Walters-Cambronne and the shooter have some generic similarities in appearance, but I am not satisfied that Mr. Walters-Cambronne is the shooter.

[110] I have carefully viewed and reviewed all the surveillance videos and still photograph screen shots from the videos, as well as the known images of Mr. Walters-Cambronne, on multiple occasions. I also observed Mr. Walters-Cambronne’s appearance closely and carefully during the trial. I have come to the following conclusions:

• The shooter had a dark beard and moustache. In August 2020 and March 2022, Mr. Walters-Cambronne had a dark beard and moustache;

• The shooter had prominent dark eyebrows. Mr. Walters-Cambronne has prominent dark eyebrows;

• The shooter had dark hair in braids or dreadlocks. In August 2020 and March 2022, Mr. Walters-Cambronne had dark hair in braids or dreadlocks. At trial, Mr. Walters-Cambronne did not have his hair in small braids or dreadlocks. Rather, it was parted in the middle and braided into one braid along each side of his head. Hairstyle can be changed with ease. As a result, the different hairstyle at trial does not undermine the evidentiary value to identification of the similarity between the shooter’s hairstyle and that of Mr. Walters-Cambronne two months after the shooting;

• The shooter’s skin appears to be light black or brown, although it is difficult to determine the colour with certainty because of the bright artificial lighting and shadows in the alley. Mr. Walters-Cambronne has medium black skin. The shooter’s skin colour appears lighter than that of Mr. Walters-Cambronne;

• The shooter’s face appears to be long and narrow. Mr. Walters-Cambronne’s face appears to be wider than the shooter’s across the middle of the face, in the area of the eyes and the cheeks;

• In some of the images, the shooter’s nose appears long, straight, and narrow. In other images, particularly those where the shooter’s face is seen from the side, his nose appears curved or bent. Mr. Walters-Cambronne’s nose is wider and shorter than the shooter’s nose appears to be, and is straight, not curved or bent;

• Mr. Walters-Cambronne has dark eyes. It is not possible to see the colour of the shooter’s eyes in any of the images;

• In the August 2020 and March 2022 booking photos, Mr. Walters-Cambronne had noticeable bags under his eyes. I did not have the opportunity to observe whether he had noticeable bags under his eyes at trial. I was never close enough to him to do so. It is not possible to see whether the shooter had noticeable bags under his eyes in any of the images;

• In August 2020 Mr. Walters-Cambronne had a scar on his right cheek under his eyes. In March 2022, he also had a scar in the middle of his forehead above the bridge of his nose. The forehead scar appears completely healed in the March 2022 booking photograph, so I conclude that both scars were present at the time of the shooting two months earlier. It is not possible to see whether the shooter had a scar on his right cheek or on his forehead;

and

• The shooter looks like a lean person inside a bulky jacket in some of the images from the front, where one can see that the jacket is unzipped, as well as in some of the images from the side and back. In the August 6, 2020, booking video and the March 31, 2022, body worn camera and booking videos, Mr. Walters-Cambronne appears broader and bulkier. In court I observed that Mr. Walters-Cambronne is broader and bulkier than the shooter appears.

[111] One point requires further elucidation. Sgt Hudson identified a lighter, possibly reddish, spot to the left and a little below the shooter’s chin in one of the screen shot photographs. The Crown asked me to find that this spot was the tip of a braid or dreadlock that had been dyed red. The shooter’s hair is otherwise not visible in this screen shot. No other red tips are visible in any of the other images of the shooter, including images where the shooter’s braids or dreads are visible. In the body worn camera and booking videos and the booking photograph of March 2022, Mr. Walters-Cambronne has multiple braids or dreads with red tips. In these known images of Mr. Walters-Cambronne, he has many more red tips than the shooter appears to have. In at least two points in the surveillance videos from inside 60 Colville Road, a man (or two different men) are shown at the party with blond tips on their braids or dreads.

[112] I consider it possible that the spot identified by Sgt Hudson is a red hair tip. But in the photograph depicting the possible red tip, the shooter’s hair is in a shadow cast by his hood. This makes it difficult to determine whether the light spot is a red tip, a light trick, or something else. Even if the shooter did have a red tip in his hair, he was not depicted in any of the images as having more than that one. Some two months later, in March 2022, Mr. Walters-Cambronne had red tips in his hair, but he had many of them. Of course, hair style and colour may easily be changed. But the apparent difference in the number of red tips undermines the evidentiary value of the one red tip, even if the shooter did have a red tip. In addition, the two appearances of a black man or men with coloured hair tips in the surveillance videos of the same night raises the question of whether coloured tips are distinctive among black men. They may not be. As a result, the presence of a red tip does not assist me much in determining whether the shooter was Mr. Walters-Cambronne, even if the shooter did have a red tip.

[113] Having compared Mr. Walters-Cambronne’s appearance with the images of the shooter, I do see some similarities. Both men have dark beards and moustaches, both have prominent dark eyebrows, both have dark hair in braids or dreadlocks, and it is possible that both have a red tip in their hair. However, there are other features of Mr. Walters-Cambronne’s that are not visible in the images of the shooter. For example, the noticeable bags under his eyes, his facial scars, his medium black skin, and his dark eyes cannot be seen in the images of the shooter. And there are features of Mr. Walters-Cambronne that are different from how those of the shooter appear in the images: skin colour, nose shape and size, and body shape. In other words, Mr. Walters-Cambronne and the shooter share some characteristics, but there are also meaningful differences, and some points of comparison that are simply not available because of the quality of the images of the shooter. My Nikolovski assessment does not permit me to conclude with certainty that Mr. Walters-Cambronne was the shooter.

(d) Considering All the Evidence

[114] I now move on to consider whether the similarities in appearance, despite the differences, considered in combination with all the evidence and absence of evidence, satisfy me beyond a reasonable doubt that Mr. Walters-Cambronne was the shooter. Considering all of the evidence as a whole, I am not satisfied that the Crown has proven that Mr. Walters-Cambronne was the shooter beyond a reasonable doubt.

i. The prior relationship between Mr. Gordon and Mr. Walters-Cambronne

[115] As noted, the Crown took the position that if I find that Nathaniel Gordon was suspect #2, I could conclude that the history between Mr. Gordon and Mr. Walters-Cambronne was some evidence that the defendant was the shooter. Underpinning this submission was the video evidence suggesting that suspect #2 was tracking Mr. Amankwa through the party in the period leading up to the shooting. The defence did not take issue with the fact that suspect #2 was tracking Mr. Amankwa or appeared to be. It will be recalled that in the time leading up to the shooting, suspect #2 appeared to be texting and then talking on his phone, including when he followed Mr. Amankwa out of 60 Colville Road into the alley. Suspect #2 then disappears from camera down the alley, returns shortly thereafter with the shooter, hands him a gun, positions himself behind Mr. Amankwa, and pulls Mr. Amankwa down once the shooter starts shooting. It seems clear, and the defence did not contest, that suspect #2 was communicating with the shooter to arrange to meet and carry out the shooting. In this way, the video evidence supports a conclusion that suspect #2 and the shooter were working together to shoot Mr. Amankwa. The Crown asked me to find that suspect #2 was Mr. Gordon, and that the prior relationship between him and Mr. Walters-Cambronne was some evidence that the latter was the shooter.

[116] I am not able to find that suspect #2 was Mr. Gordon. I recognize that it may have been him. The distinctive “1025” pendant and the black pants with light stripe down each leg worn by suspect #2 on the night of the shooting were found by police in Mr. Gordon’s home. However, the surveillance video images of suspect #2 really do not resemble the booking photographs of Mr. Gordon filed in evidence by the Crown. In addition, I did not have Mr. Gordon before me to be able to observe his appearance and compare it to the surveillance videos of suspect #2 for myself. On this evidence, I do not accept that Mr. Gordon was suspect #2. In coming to this view, I have not fallen into the error of applying the criminal standard of proof beyond a reasonable doubt to the individual items of evidence relating to suspect #2’s identity: R. v. Menard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.

[117] However, even if suspect #2 is Mr. Gordon, I do not consider the evidence of his past associations with the defendant to be compelling evidence of Mr. Walters-Cambronne’s identity as the shooter.

[118] In November 2016, both men pleaded guilty to committing some offences together in late May 2016. They were each sentenced to probation, which prohibited them from having contact with one another. Mr. Walters-Cambronne subsequently pleaded guilty to breaching that probation order by having contact with Mr. Gordon in early February 2017. This is evidence that the two men were acquainted, and that they had contact on two occasions over eight and a half months. The most recent documented contact between them was just under five years before this January 2022 shooting. There is no evidence of any contact between them since. Sgt Hudson testified that he viewed many videos from Mr. Gordon’s building from the several days before and after the shooting, as well as from the day of the shooting. He never saw Mr. Walters-Cambronne in those videos.

[119] The evidence of the association between Mr. Walters-Cambronne and Mr. Gordon is dated. Five years is a long time in a friendship or an association. In the absence of evidence of more recency in the relationship, it cannot be assumed that a friend or associate of five years ago is still a friend or associate. This evidence is too remote in time to be of much assistance in establishing that if Mr. Gordon was involved in a criminal enterprise, his collaborator must – or even may - have been Mr. Walters-Cambronne. I give this evidence little weight in establishing the shooter’s identity.

ii. Mr. Amankwa’s evidence

[120] Mr. Amankwa testified that the shooter had fair skin and green eyes. He said he was 100% sure that the shooter had green eyes. This evidence is exculpatory for Mr. Walters-Cambronne, who has medium black skin and dark eyes. The Crown submitted that I should attribute little or no weight to Mr. Amankwa’s description of the shooter. In the Crown argument, Mr. Amankwa was a reluctant witness who only purported to lack memory of the relevant events, and whose evidence lacked credibility as a result.

[121] Mr. Amankwa was not a forthcoming witness. This may have been because he did not actually remember much of what happened on January 22, 2022. He was shot twice that day and was seriously injured. He testified that, at the time of trial, he was still receiving treatment for his injuries. He said he was doing his best to answer the questions asked of him. He may have been. It may be that he was prevented from providing more information by the limits of his memory in these circumstances.

[122] It is also possible that Mr. Amankwa was not forthcoming because he did not want to testify. One could not fault him for not wanting to relive the events of that terrible day, which were no doubt very traumatic for him.

[123] A further possibility is that Mr. Amankwa was not forthcoming because he knew that Mr. Walters-Cambronne was the shooter, and he was afraid. Or that he knew who suspect #2 was and was afraid to give evidence that could accurately identify his co-perpetrator. If fear of this sort was what animated Mr. Amankwa’s reluctance on the stand, this would adversely affect his credibility, including the credibility of his description of the shooter. He may have been intentionally misleading the court to exonerate the person who shot him because he was afraid of what would happen to him if he truthfully identified or described the shooter.

[124] Mr. Amankwa testified that he did not know the shooter or suspect #2. But in the minutes immediately before the shooting, as suspect #2 was exiting from the party and walking toward him, the video reveals that Mr. Amankwa moved the bottle he was holding from his right hand to his left. He put his right hand in the front pouch of his sweatshirt. This may be where he was carrying his gun. That is to say, it may be that upon seeing suspect #2, Mr. Amankwa was preparing to have to pull out and maybe use his gun. The video depicts that as suspect #2 then walked past Mr. Amankwa, the two men noticeably looked at each other, appearing to make eye contact. Taken together, these videos suggest not only that suspect #2 and Mr. Amankwa were known to each other, but that Mr. Amankwa had reason to think that he might need to use his gun when the other man appeared in the alley. If this is what transpired, and it seems likely that it is, Mr. Amankwa lied when he said he did not know suspect #2.

[125] Even if Mr. Amankwa did not know the shooter - there is no evidence suggesting that he did - and was only lying about suspect #2, such a lie would seriously detract from his credibility overall.

[126] In these circumstances, I have real concerns about Mr. Amankwa’s credibility. I attribute little to no weight to his evidence that the shooter had fair skin and green eyes.

iii. Other evidence

[127] In considering whether the Crown has proven beyond a reasonable doubt that Mr. Walters-Cambronne was the shooter, I have considered all the evidence. I have also considered the absence of evidence. Missing from the evidence in this case are features of Mr. Walters-Cambronne that are not visible in the images of the shooter. These include the noticeable bags under his eyes, his facial scars, his medium black skin, and his dark eyes, none of which can be seen in the images of the shooter. There is also no other direct or circumstantial evidence that corroborates the identification of Mr. Walters-Cambronne.

(e) Conclusion

[128] I have painstakingly considered all the evidence and lack of evidence in this case: the similarities between the shooter and Mr. Walters-Cambronne; the ways in which Mr. Walters-Cambronne’s appearance differs from that of the shooter; DC Maletta’s recognition identification, about which I have reliability concerns and to which I attribute little weight as a result; the evidence of Mr. Walters-Cambronne’s past association with Mr. Gordon, which I find not to be compelling with respect to the identification of Mr. Walters-Cambronne; Mr. Amankwa’s exculpatory description of the shooter, about which I have credibility concerns and to which I attribute little weight as a result; and the absence of other evidence supporting the identification of Mr. Walters-Cambronne. In its entirety, the evidence and absence of evidence does not satisfy me that the Crown has proven the identity of the shooter to be Mr. Walters-Cambronne beyond a reasonable doubt. The defendant generally resembles the shooter. He might be the shooter. But on this evidence, I am not sure. I cannot find that DC Maletta’s recognition was accurate. Having considered all of the images of the shooter and Mr. Walters-Cambronne, and Mr. Walters-Cambronne’s appearance in court, alongside all the evidence in the case, I cannot confidently conclude that he was the shooter. I am left with a reasonable doubt.

[129] Having come to the conclusion that the Crown has not proven the identity of the shooter to be Mr. Walters-Cambronne beyond a reasonable doubt, I need not consider whether it has proven the other elements of the offences of attempted murder or conspiracy to commit murder.

V. DISPOSITION

[130] Mr. Walters-Cambronne is found not guilty of all counts in the indictment.

J. R. Presser J.

Released: October 25, 2024