In a criminal trial it is important to ensure the judge is apprised of the nature of the evidence such that the conclusions they make about the evidence are reasonable.
Sometimes, despite a criminal defence lawyer’s best efforts, judges still make mistakes.
R. v. Belcher, 2021 ONCA 652, is an appeal relating to an aggravated assault case where the trial judge got it wrong.
The accused was on trial for aggravated assault and assault with a weapon. The key issue to be decided in the case was whether the prosecution had proven identity.
The accused was allegedly one of two assailants who, each armed with a weapon, attacked another man in a public area of an apartment building. The area in which the attack occurred was under video surveillance.
The assault began in the hallway on one of the floors of an apartment building and continued into the stairwell. The assailant said to be the accused had a bandana covering his face. Later in the attack, the bandana fell off, but the assailant’s face was hidden from the surveillance camera’s view by the nature of the safety glass in the door to the stairwell.
Both assailants left the stairwell. They entered an apartment unit on the floor on which the attack occurred. It was the same apartment unit they had left to begin the armed attack on the victim.
The prosecution called a police officer who was familiar with both participants who appeared in the video. The officer was satisfied that given the assailant’s stature, the concave portion of his face, and his facial hair; the characteristics matched those of the appellant. However, in cross-examination, the officer agreed that he could not say for certain that the appellant was the assailant.
The trial judge watched the video filed as an exhibit. He was not satisfied on the basis of the video and the police officer’s recognition evidence that the appellant was the second assailant who wielded the baseball bat.
The video surveillance, which the trial judge believed was uninterrupted, showed no one leaving the apartment until police arrived at which time the apartment remained under constant police observation. The trial judge concluded that the appellant, the second male to leave the apartment about six and one-half hours after the assault, must have been the second assailant.
The judge made this finding, even though the appellant was not dressed in the same clothing as the second assailant shown in the video.
The surveillance video was not complete. There were four interruptions in the video, of almost seven minutes duration.
The Court of Appeal ordered a new trial.