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EVIDENCE - Methods of proof - Circumstantial evidence - Identification

Thursday, February 25, 2021 @ 6:20 AM  


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Appeal by accused from conviction for offences arising from a shooting. An officer witnessed someone fire a single shot into a crowded laneway. The shooter escaped. A handgun circumstantially connected to the shooting was found under a car along the shooter’s escape route. The DNA of four people was detected on the grip of the handgun. One of the DNA profiles was from the appellant. Security footage was also obtained from the nightclub, taken over an hour before the shooting, showing the appellant inside the club. Additional surveillance footage, obtained from security cameras along the shooter’s escape route, showed someone running past the officer. It was agreed that it was the shooter who was depicted in the surveillance video that was captured along the shooter’s escape route. None of the surveillance images from along the escape route capture the suspect’s face. The circumstantial evidence that the Crown relied upon consisted of DNA evidence, description evidence provided by the officer and the surveillance videos. The trial judge concluded that the totality of the evidence excluded the possibility of innocent coincidence and established the appellant’s identity as the shooter.

HELD: Appeal allowed. The appellant was acquitted. The circumstantial identification evidence presented at trial was too generic to establish the identity beyond a reasonable doubt. The totality of the evidence was incapable of supporting a reasonable finding that the Crown proved the appellant’s identity as the shooter beyond a reasonable doubt. It could not reasonably be concluded that this evidence excluded the possibility of innocent coincidence. The trial judge listed two factors that were entirely irrelevant in linking him to the firearm. He appeared to ascribe more incriminating weight to the officer’s fleeting glance evidence than it fairly warranted and relied on the consistency between the images of the footwear and the jacket with the white patch worn by the fleeing shooter captured on one of the surveillance video and that worn by the appellant. In fact, the most that could reasonably be said was that the footwear and jacket might be consistent, but this could not be determined, given the poor quality of the video.

R. v. Spencer, [2020] O.J. No. 5711, Ontario Court of Appeal, A. Hoy, G.T. Trotter and D. Paciocco JJ.A., December 23, 2020. Digest No. TLD-February222021008