R v McIvor, 2021 MBCA 55

Citation: R v McIvor, 2021 MBCA 55 Date: 20210528 Docket: AR20-30-09495 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN : Her majesty the queen ) M. B. Cheater ) for the Appellant Respondent ) ) C. R. Savage - and - ) for the Respondent ) jerry eric MCIVOR ) Appeal heard: ) January 8, 2021 (Accused) Appellant ) ) Judgment delivered: ) May 28, 2021 On appeal from 2020 MBQB 117 beard JA I. THE ISSUES [ 1 ] The accused is appealing his conviction, following a judge-alone trial, for the reckless discharge of a firearm under

section 244.2 of the Criminal Code . There was a conditional stay of proceedings entered regarding convictions for the careless use of a firearm under section 86(1) and the unauthorized possession of a firearm in a motor vehicle under section 94(1). [ 2 ] The accused has raised the following grounds of appeal: (

i) the trial judge misapprehended evidence that was material to her ultimate decision; (ii) the verdict, which was based on circumstantial evidence, was unreasonable; and (iii) the reasons were insufficient for appellate review. [ 3 ] This case involved a shooting, and the issue before the trial judge was whether the Crown had proven the identity of the two individuals who carried out the shooting beyond a reasonable doubt. II.

THE FACTS [ 4 ] The accused and his co-accused (who is not a party to this appeal) approached the complainant at around 10:00 p.m. on August 25, 2018, at his workplace, and offered to sell him a television. They drove to the complainant’s house to consult with his wife. The two accused took a television out from behind the front seats of the van they were driving and carried it into the house. [ 5 ] The complainant became concerned that the television had been stolen, so he told the two accused to leave. An argument ensued, during which the complainant hit the accused several times.

The two accused loaded the television back into the van, which the complainant described as a grey/beige Dodge Caravan, and drove away. [ 6 ] Some time later that evening, the complainant and his wife went out to get gas for their vehicle. At 11:25 p.m., while en route to the gas station, they received a telephone call from their daughter, who was at their house. She was screaming and crying,

then the call was dropped. The complainant’s wife only heard gunshots (the shooting). [ 7 ] Neighbours witnessed the shooting and were able to give the police some details. Rosemary Bruce was outside when she heard three gunshots, which she could see being fired at the complainant’s house. At 11:26 p.m., she called 911 regarding the shooting, and then she and her husband drove over, which took only seconds. They saw a silver Dodge van (the suspect van) pulling away, and no one else was around. [ 8 ] Donnivin Flett (Mr. Flett) was socializing at another neighbouring house.

While looking out the window, he saw a silver Dodge Caravan (the suspect van) pull up to the complainant’s house and then he “heard a bunch of shots go off”. He saw the passenger side sliding door, which was facing the complainant’s house, open, and shots coming from within the suspect van through that door. He noted that the suspect van had tinted side and back windows and a dent on the passenger side of the rear door of the vehicle. He saw the suspect van leave the scene, then return a short time later and drive slowly past the house, return, and then drive off. [ 9 ] Neither Ms Bruce nor Mr.

Flett could say how many people were in the suspect van, although Mr. Flett thought that he saw three shadows inside. [ 10 ] Several RCMP officers arrived at the house at 11:36 p.m. The officers found three bullet holes in the house, from which fragments were later recovered. No shell casings were found at the scene. [ 11 ] At around 12:15 a.m., the police received two further calls. One was from the accused’s wife, and the other was from his foster parents. The accused’s foster mother advised the police that she believed that the accused had stolen their van (the Beardy van).

She later called again to say that a rifle was missing, and she believed that the accused had it. [ 12 ] At 12:38 a.m., while driving around the community canvassing for information, an officer saw a grey Dodge Caravan drive by and he attempted to stop it to do a traffic stop. As the van drove away at high speed, the officer noted a large “white Ram” decal on the back window and took down the license plate number, being HFP 916 (the Beardy van). He believed that he saw two shadows in the Beardy van.

He followed the Beardy van, but lost sight of it momentarily, before seeing it again at 12:45 a.m., in a field, parked close to the accused’s house. He was joined by another officer, and the two waited for backup. While they were still waiting, the Beardy van left at 1:37 a.m., driving at high speed. They followed but lost track of it. [ 13 ] In the very early morning hours of August 26, 2018, the complainant and his wife went out to a birthday party at the Ross residence, which was located in a different rural community, approximately 20 kilometres away from their house.

They testified that, while they were there, the two accused arrived in a grey van. The complainant’s wife asked Mrs. Ross to call the RCMP. The complainant and other individuals at the party restrained the two accused, but the co-accused managed to escape and run off. The police arrived at 2:22 a.m. and immediately arrested the accused. [ 14 ] The Beardy van was parked in front of the Ross residence, and the complainant identified it as the same van that the two accused were driving when they were at his house earlier with the television.

The police found four rifle shell casings in the front seat area of the Beardy van, and a television behind the front seats. The rifles were never found. [ 15 ] The accused’s foster father described the missing firearms as two old .303 rifles.

The bullet fragments that were retrieved from the complainant’s house were confirmed to have “probably” been fired from a .303 British rifle, and the four shell casings found in the van were determined to be of .303 calibre. [ 16 ] The accused’s foster father, who was a farmer, testified that he sometimes used the rifles for shooting wild animals, and that he sometimes shot from inside of his vehicles, including the van.

He said that he was unsure of when the rifles went missing, but he was home the night of the shooting and he did not see anyone go into his bedroom, where the rifles were stored. [ 17 ] The accused’s foster father also testified that he owned the grey van with licence number HFP 916 and that the dent in the rear door had occurred before it was stolen. [ 18 ] The accused has acknowledged that he and his co-accused used the Beardy van to take the television to the complainant’s house at 10:00 p.m., that the same van was seen by the police at 12:38 a.m. and that it was ultimately seized by the police at the Ross residence at 2:22 a.m.

III. MISAPPREHENSION OF EVIDENCE Standard of Review [ 19 ] It is the role of the trial judge to make findings of fact and, from those facts, to draw factual inferences.

As it is not the role of appellate courts to retry cases, those factual findings and conclusions or inferences are entitled to deference on appeal and “are not to be reversed [on appeal] unless it can be established that the trial judge made a ‘palpable and overriding error’” (see Housen v Nikolaisen , 2002 SCC 33 at para 10 ; see also para 25; HL v Canada (Attorney General) , 2005 SCC 25 at para 74 ; and R v Clark , 2005 SCC 2 at para 9 ). [ 20 ] Factual errors can constitute a misapprehension of the evidence.

This Court recently explained this ground of appeal in R v SRF , 2020 MBCA 21 , as follows (at paras 7-8): To succeed on the ground of a misapprehension of evidence, the accused must establish a misapprehension that goes to the substance, rather than the detail, of the decision. It must be material, rather than peripheral, to the reasoning of the trial judge, and it must play an essential

part in the reasoning process on conviction. . . . ( See R v Lohrer , 2004 SCC 80 at paras 1 , 3.) Misapprehension is not to be confused with a different

interpretation of the evidence than the one adopted by the trial judge. (See R v Whiteway (BDT) et al , 2015

MBCA 24 at paras 31-32 .) When reviewing a trial judge’s reasons to determine whether there has been a misapprehension of the evidence, an appellate court should not “dissect, parse, or microscopically examine the reasons” ( R v Sinclair , 2011 SCC 40 at para 54 ).

To order a new trial, “more is needed than an ‘apparent’ mistake”; “(t)he plain language or the thrust of the reasons must disclose an actual mistake” and “the errors (must be) readily obvious” (at para 53). (See also R v Devloo , 2020 MBCA 3 at para 64 ; and R v Kionke , 2020 MBCA 32 at paras 18-19 .) The Parties’ Positions [ 21 ] The accused argues that the trial judge misapprehended the following evidence: the officer’s evidence with respect to the shell casings in the Beardy van; Mr.

Flett’s evidence regarding the tinted windows in the suspect van; and the testimony regarding the arrival of the two accused at the Ross residence in the Beardy van. [ 22 ] The Crown argues that the trial judge did not misapprehend any of the evidence. Analysis—Misapprehension of Evidence [ 23 ] Dealing first with the shell casings, the trial judge stated that, when the Beardy van was found at the Ross residence, the police found three used shell casings but no gun.

The accused argues that this was an error, as the police actually found and tested four shell casings, which raised the issue of whether all of those casings came from the accused’s foster father shooting at wild animals from inside the van. [ 24 ] I agree with the Crown that the trial judge did not misapprehend this evidence. The officer who examined the Beardy van at the Ross residence testified that he found three shell casings in the front passenger area of the Beardy van when he looked in at the Ross residence, and he later said that four casings were sent for testing.

He did not say, and he was never asked, whether he also found the fourth casing. [ 25 ] Dealing next with the window tinting, the trial judge stated that “the van was identified by Donnivin Flett by tinted windows and a dent.” The accused argues that “Mr. Flett did not testify [that] the tint was notable, and only relied on the colour of the vehicle and the dent as identifying features”, and that the Crown did not argue that the tint was an identifying feature. [ 26 ] Both of those arguments are not supported by the record. Mr. Flett did testify that he saw that “[t]he windows were blacked out too.

Except the front windows, they weren’t blacked out.” He went on to confirm that the side and back windows were blacked out. Further, the Crown did raise the window colouring of the Beardy van as supporting Mr. Flett’s identification of the suspect van. [ 27 ] Finally, the accused argues that the trial judge erred in accepting the evidence of the complainant and his wife about seeing the two accused arrive at the Ross residence.

As he points out, this evidence was not included in their witness statements to the police or in the complainant’s testimony at the preliminary inquiry, and it was only disclosed to the defence just prior to the trial. He argues that their version of the events is inconsistent with that of the officer, that the trial judge did not explain how she reconciled that inconsistency and that she should not have accepted their evidence. [ 28 ] The evidence supported the testimony of the complainant and his wife that they were at the Ross residence that night.

In addition to the complainant and his wife testifying that they were at the Ross residence when the grey van arrived, the police officer who testified stated that he saw the complainant coming out of the tall grass by the residence and that he spoke to him. [ 29 ] The first alleged inconsistency relates to the accused’s argument that, while the complainant said that he could see the accused and co-accused arriving, that could not be the case because the complainant was at a bonfire at the back of the Ross residence which was not, according to the police officer, visible from where the Beardy van was located at the front of the house.

The evidence does not support the assertion that the complainant was at the bonfire when the Beardy van arrived. The complainant testified that he and others were at a picnic table when the van arrived, and there was no evidence as to where that was located. Further, it was not suggested to the complainant in cross-examination that he could not see the Beardy van; in fact, the questioning on cross-examination presumed that he had seen the “same car” pull up as he had seen with the television. [ 30 ] The other alleged inconsistency relates to the complainant’s wife’s testimony.

The police officer testified that the only vehicle that he saw, upon arriving at the Ross residence, was a grey van, while the complainant’s wife testified that she was in a vehicle parked at the front of the Ross residence when the grey van arrived.

When asked whether he saw any other vehicles, the officer said, “[f]rom what I can remember, the only vehicle that I seen and I noticed was the silver Dodge Caravan”, but he added, “[i]t’s a large driveway” and later, “Well, as far as I remember, no [other vehicles].” [ 31 ] It was open to the trial judge to accept all, some or none of the testimony of the witnesses, and her findings are entitled to deference.

Given the rather tentative answer of the police officer regarding the presence of other vehicles and the distance that the complainant and his wife travelled to get to the Ross residence, it was clearly open to the trial judge to accept the testimony of the complainant’s wife that she was in a vehicle parked at the front of the house when the two accused arrived. In my view, the trial judge did not misapprehend the evidence as to the presence of another vehicle at the front of the Ross residence, and she made no palpable and overriding error in so finding.

[32] In my view, the trial judge did not err by misapprehending the evidence, and I would dismiss this ground of appeal. IV. UNREASONABLE VERDICT BASED ON CIRCUMSTANTIAL EVIDENCE The Parties’ Positions [33] The accused argues that there were numerous gaps in the evidence which undermine the reasonableness of theinferences drawn by the trial judge.

His position is that those evidentiary gaps suggest that there were reasonable alternative inferencesavailable on the evidence that were not extinguished by the Crown’s evidence and that each would result in an explanation of theevidence that was inconsistent with the guilt of the accused.

He argues that, due to those gaps, the evidence at trial was insufficient tosupport a conviction on the standard set out in R v Villaroman, 2016 SCC 33, and, as a result, this Court should conclude that the verdictwas unreasonable and acquit him. [34] The Crown’s position is that the factual inferences drawn by the trial judge were available on the evidentiary recordand that a finding that there is no other rational explanation for the circumstantial evidence other than the accused’s guilt wasfundamentally for the trier of fact.

It argues that there was no reasonable alternative explanation as to how someone other than the twoaccused could have obtained the Beardy van between 10:00 p.m. and 2:22 a.m., and that it would be inappropriate for this Court to“revive inferences that the trial judge reasonably rejected.” Principles—Unreasonable Verdict [35] The Supreme Court of Canada set out the principles related to the determination of the reasonableness of a verdict in acase based on circumstantial evidence in Villaroman (at paras 55-56): A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v.

Biniaris,2000 SCC 15 . . . Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect ofthe evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal mustbe done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the questionbecomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonableconclusion available on the totality of the evidence [citations omitted].

The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine [R v Dipnarine, 2014 ABCA 328], atpara 22. The court noted that “(c)ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdictis not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “(i)t is stillfundamentally for the trier (of) fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise adoubt.” [emphasis added] [36] The limited role of an appellate court in reviewing a trial judge’s findings and inferences of fact, including gaps in theevidence, was also very clearly set out (at paras 69, 71): These were gaps in the Crown evidence about Mr. Villaroman’s possession and control of the computer that the trial judge had totake into account in weighing the evidence.

However, the Court of Appeal, in its analysis of these gaps, in effect retried the case. It wasfor the trial judge to decide, as he did, whether the evidence of Mr. Villaroman’s powers of control and direction over the computer . . .when considered in light of human experience and the evidence as a whole and the absence of evidence, excluded all reasonableinferences other than guilt. In my view, while not every trier of fact would inevitably have reached the same conclusion as did the trialjudge, that conclusion was a reasonable one.

The Court of Appeal’s analysis overlooks the important point made in Dipnarine that it is fundamentally for the trier of fact to drawthe line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it isunreasonable.

While the Crown’s case was not overwhelming, my view is that it was reasonable for the judge to conclude that theevidence as a whole excluded all reasonable alternatives to guilt. [37] As the majority of this Court stated in R v Fedyck, 2018 MBCA 74, aff’d 2019 SCC 3, quoting from Villaroman at para67, “[t]he role of an appellate court, in reviewing a conviction based on circumstantial evidence, is to focus on ‘the question of whetherthe inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him’” (at para 24). (See also R v Ponace, 2019 MBCA 99 at paras 17-19; R v Herntier, 2020 MBCA 95 at paras 359-63; and R v Anderson, 2020 ONCA780 at paras 24-31.)

Analysis—Unreasonable Verdict [38] The accused states that the trial judge drew the following four factual inferences that led to her finding that the onlyreasonable conclusion was that the two accused were guilty of the offences: - the Beardy van was used by the two accused to attend the complainant’s home at 10:00 p.m. and was the same van seen by policeat 12:38 a.m. and located at the Ross residence at 2:22 a.m.; - the Beardy van was also the suspect van seen shooting at the complainant’s house at 11:25 p.m.; - both accused were together in the Beardy van when shots were fired from the van at the complainant’s house at 11:25 p.m. andduring the police chase at 12:38 a.m.; and - both accused were jointly involved in the shooting, one as the shooter and one as the driver. [39] The accused accepts the first inference, and he challenges the last three.

Further, he argues that there was no evidenceto connect him to the Beardy van after 10:00 p.m. [40] The accused also challenges the weight to be given to individual pieces of evidence, like the .303 shell casings found inthe Beardy van and the bullet fragments found in the complainant’s house, given that the missing rifles were never located to enablethem to be matched to the shells or bullet fragments, and Mr. Flett’s identification of the suspect van.

He suggests that there arereasonable alternative inferences that can be drawn from this, and other, evidence in relation to factual inferences like the identificationof the suspect van. However, the accused acknowledges that the points that he is now raising, regarding these and other findings and theavailable inferences, were all argued at the trial and were, therefore, clearly before the trial judge. [41] The difficulty with the accused’s argument is that he has failed to distinguish between underlying factual findings andinferences, and those conclusions that constitute an element of the offence.

He is asking this Court to apply the Villaroman analysisregarding reasonable alternative inferences to the individual underlying factual inferences drawn by the trial judge. [42] As stated at para 19 herein, a trial judge’s factual findings and factual conclusions or inferences are entitled to deferenceon appeal and “are not to be reversed [on appeal] unless it can be established that the trial judge made a ‘palpable and overriding error’”(Housen at para 10).

Where evidence exists to support a factual inference, “an appellate court will be hard pressed to find a palpable andoverriding error” (ibid at para 22). [43] Further, the law is clear that the burden of proof beyond a reasonable doubt applies to the evidence as a whole; it doesnot apply to individual pieces of evidence. (See R v Morin, (SCC), [1988] 2 SCR 345 at 356; and S Casey Hill, David MTanovich & Louis P Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters, 2013) (loose-leaf updated2021, release 2) pt V, ch 28 at para 28:20.50 (online: WL Can (date accessed 25 May 2021)).) [44] It is the findings or conclusions regarding the elements of an offence that must be proved beyond a reasonable doubt(see Canadian Judicial Council: National Committee on Jury Instructions, “Model Jury Instructions”,

section 5.1 at para 6, online: National Judicial Institute <www.nji-inm.ca/index.cfm/publications/model-jury-instructions/> (date accessed 20 May 2021); and TheHon Mr Justice David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed (Toronto: Carswell, 2015) at 259-61) and it is thoseconclusions to which the Villaroman analysis applies. In Villaroman, the issue was whether “it was reasonable for the judge to find thatthe respondent knew that he had physical possession of the pornography that was in fact in his computer’s memory” (at para 57). TheCourt explained (at paras 18, 22): . . .

It is now settled that no particular form of instruction to the jury is required where the evidence on one or more elements of theoffence is entirely or primarily circumstantial. . . . . . . [W]here proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful forthe jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship betweenproof by circumstantial evidence and the requirement of proof beyond reasonable doubt. . . . [emphasis added] [45] This is similarly illustrated in Anderson (at paras 24, 27): As this was a case where the element of knowledge that the package contained a controlled substance was based entirely oncircumstantial evidence, the jury could not convict the appellants of importing or possession for the purpose of trafficking, unless theonly reasonable inference from all of the evidence was that they had such knowledge: see R. v.

Villaroman, 2016 SCC 33, [2016] 1S.C.R. 1000, at paras. 30-42. Other plausible theories or other reasonable possibilities must be based on logic and experience, applied tothe evidence or the absence of evidence, and not on speculation: see Villaroman, at para. 37.

. . . While the individual pieces of evidence may well have been open to reasonable alternative inferences, the circumstantial evidence considered as a whole allowed the jury to infer knowledge and therefore guilt beyond a reasonable doubt. . . . [emphasis added] (See also Herntier at paras 365, 371-72 ; and McWilliams’ , pt VI, ch 31 at para 31:130.) [ 46 ] Thus, an individual factual inference that, itself, does not constitute an element of the offence does not have to be proven beyond a reasonable doubt; rather, it is owed deference if it is reasonably available on the evidence.

In this context, there is no obligation on the Crown to refute all other reasonable factual inferences. [ 47 ] In this case, the only element of the offence at issue was the identity of the perpetrators of the shooting. The Crown was required to prove beyond a reasonable doubt that the two accused were the persons who shot at the complainant’s house.

Where the conclusion as to the identity of the shooters was based on circumstantial evidence, the trial judge was required to apply the principles set out in Villaroman to that analysis, to determine whether a finding that the two accused were the shooters was the only reasonable conclusion available on the totality of the evidence. [ 48 ] In coming to that conclusion, the trial judge made factual findings and drew factual inferences, including that the accused was a passenger in the Beardy van at 10:00 p.m. and at 2:22 a.m., that he had a motive for the shooting, that the van and rifles were taken from his foster parents’ residence, and that the shell casings in the van and bullet fragments found at the scene were consistent with the missing rifles.

She also found that the descriptions of the suspect van were consistent with the Beardy van—in particular, the dent in the rear door. These individual factual findings and inferences, as well as the first three set out at para 38 herein, and those at para 40 , were open to her on the record and were not tainted by any palpable and overriding error. [ 49 ] While the accused suggests that, even if the suspect van was the Beardy van, someone else may have been in it at the time of the shooting, that inference was implicitly rejected by the trial judge, and she made no error in doing so.

In this case, such a finding would be speculative as there was no evidence to support it. This type of speculation was specifically rejected in Villaroman (see paras 65, 67-69 ). [ 50 ] The accused also challenges the trial judge’s final inference, being that “both accused were jointly involved in the shooting, one as the shooter and one as the driver.” Because the identification of the shooter is an element of the offence which the Crown must prove beyond a reasonable doubt, this conclusion is to be reviewed on appeal by applying the Villaroman principles. [ 51 ] While other

interpretations of the evidence, particularly when looked at individually, and other factual inferences were possible, it was for the trier of fact to consider the evidence as a whole, not piecemeal, and to determine whether, when taken as a whole, the evidence and the absence of evidence raised a reasonable alternative explanation to that of guilt, such as that the two accused were not joint participants in the shooting.

In my view, the trial judge was entitled to conclude that the evidence and the absence of evidence, when considered as a whole and in light of human experience, excluded all reasonable alternatives to guilt. Thus, her verdict was not unreasonable. [ 52 ] For these reasons, I would find that the trial judge’s decision was reasonable and I would dismiss this ground of appeal. V.

SUFFICIENCY OF THE REASONS The Parties’ Positions [ 53 ] The accused argues that the trial judge failed to address any of the issues and alternative inferences that he raised, so there is no way to know from her decision what evidence was accepted or rejected, how those issues were resolved, or why those alternative inferences were rejected. [ 54 ] The Crown’s position is that a trial judge does not have to answer each and every argument made by counsel, or reject every inference put forward.

Rather, the reasons, when considered in the context of the entire proceeding, including the evidence and arguments, must show why she decided the case as she did. It argues that the trial judge’s reasons in this case, when read in that way, fulfill this function and, therefore, are not insufficient. Principles [ 55 ] The Supreme Court of Canada addressed the question of the sufficiency of reasons in R v REM , 2008 SCC 51 , wherein McLachlin CJC, for the Court, stated (at paras 53, 55): . . .

More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review. The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context.

It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt

with the contradictions. . . . [ 56 ] She explained (at para 17): These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. . . . [ 57 ] McLachlin CJC went on to caution against too easily concluding that reasons are deficient (at para 56): . . .

The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. . . .

Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. . . . [ 58 ] This was summarized by the Court in R v Vuradin , 2013 SCC 38 , wherein Karakatsanis J stated, “The core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he did on the counts relating to the complainant?” (at para 15; see also Villaroman at para 15 ).

These principles were recently confirmed by the majority in R v GF , 2021 SCC 20 at paras 68-78. Analysis—Sufficiency of Reasons [ 59 ] First, the accused argues that the trial judge failed to address material contradictions in the evidence. The contradictions relate to the evidence of the complainant and his wife that they saw the two accused arrive at the Ross residence together in the Beardy van, which, he argues, is contradicted by that of the police officer.

I have already addressed that evidence and, as noted earlier, I am of the view that the record demonstrates that there was no contradiction in that evidence, so there was no contradiction for the trial judge to address. [ 60 ] Further, the accused argues that the trial judge failed to address the gaps in the evidence that were raised by him and the co-accused. As noted, a trial judge is not required to address every argument raised by each party.

Rather, she is required to explain why she decided as she did. [ 61 ] The trial judge correctly set out the issues, recognized that it was a case based on circumstantial evidence and that the principles in Villaroman would apply, and briefly explained the positions of the parties.

She reviewed the evidence correctly and in detail and then, in an organized manner, set out her factual findings and inferences. [ 62 ] She first dealt with the identification of the Beardy van at the complainant’s house at 10:00 p.m., in the chase at 12:38 a.m., and at the Ross residence at 2:22 a.m., noting that the two accused were present at both 10:00 p.m. and 2:22 a.m.

She found that the only reasonable inference was that they were also in the van at 12:38 a.m. [ 63 ] She then moved on to consider whether the suspect van was the Beardy van, and she set out the evidence that she accepted as determining that issue, such as Mr. Flett’s description of the vehicle and the shell casings. Next, in asking who was involved in the shooting, she set out the evidence that she found identified the two accused as the perpetrators.

Finally, she addressed the lack of evidence as to who was shooting and who was driving and found that the driver and shooter were acting jointly, so they could be convicted without determining who played which part. [ 64 ] In my view, the trial judge’s reasons clearly explain why she found the accused guilty of the offences and are sufficient to permit meaningful appellate review. As a result, they are not insufficient. I would dismiss this ground of appeal. VI. DECISION [ 65 ] For the reasons set out herein, I would dismiss the appeal. JA I agree: JA

I agree: JA