The Sherman Murders: Stargazing Suspects and Gait Analysis
On December 14, 2021, the CBC along with other major news outlets published new details in the investigation of the killings of Barry and Honey Sherman. Barry Sherman was a Canadian businessman and CEO of Apotex Inc., a pharmaceutical company. He and his wife were prominent philanthropists living in Toronto.
On December 13, 2017, the two were found deceased in a semi-seated position on the deck of their North York home’s indoor pool. They were hanging by belts from a railing. Initially, the police believed the deaths to have been a murder-suicide. The Sherman family hired a private investigation firm which conducted its own investigation, and the police later classified the Sherman deaths as a double homicide.
The December 14, 2021 news release claimed that police had obtained security footage from the neighborhood of the Sherman’s North York home. The video was taken in the "evening or night hours of Dec. 13, 2017," which was the same day the couple were last seen alive. Homicide Det. Sgt. Brandon Price told the media that police had combed through hours of security footage in connection with the murders but have been "left with one individual" they were unable to identify. The police claimed that this individual is being treated as a suspect.
While the police claimed that this was not the only video of the “suspect”, the police were unable to determine what this individual’s purpose was in the neighborhood. The security footage is less than 25 seconds in length and without colour. The skin colour, weight and gender of the individual depicted in the video are not known.
Sergeant Price told the press that the released security clip has the "greatest likelihood" of someone being able to identify the person. He asked the public to pay attention to the unknown person’s stride to see if that helps anyone identify the suspect. Sergeant Price claimed that the suspect “kicks their right foot up with each step.” According to a Global News report, Sgt. Price admitted that part of the reason why the security footage was released so late was because it was “poor quality” and that “investigative steps to identify the individual” had been exhausted.
Various analysists and professionals have weighed in on the video since its release. For instance, a National Post article showcased the opinion of forensic pediatrist Michael Nirenberg. According Mr. Nirenberg, the video was “good footage”. A gait analyst, he explained, would build a head-to-toe profile of the way a suspect walk, in order to link them to footage of a perpetrator.
The release of the security footage, along with widespread commentary prompts one to consider what does it mean when the police treat a person as a “suspect”? And, how can evidence of this suspect’s “gait” been used in Court?
Whether or not a person is a suspect depends on an “objective” or impartial assessment of the all of the evidence, viewed from the eyes of a reasonably skilled investigator. Labelling a person as a “suspect” is closely related to the reasonable suspicion standard. A police officer’s reasonable suspicion can arise from “a constellation of factors” and such factors need only indicate the possibility of criminal behaviour, not a probability. That means that the Toronto Police likely believe that the individual is possibly involved in the murders of Barry and Honey Sherman.
At first blush, a reasonable suspicion is a confusing term that even best and brightest minds in our legal system have struggled to properly define. Supreme Court of Canada Justice Karakatsanis attempted to explain it as follows:
[R]easonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. ( R. v. Chehil, 2013 SCC 49 at para 32.)
Reasonable suspicion is engaged in various contexts in the Canadian criminal justice system. For example, when police deploy sniffer dogs (K9 Units) on highways, they must reasonably suspect that a vehicle or person is involved in illegal activity. Similarly, when the police want to install a tracking device on a vehicle, they must reasonably suspect that an offence has or will be committed and that tracking that vehicle will assist in the investigation.
Police also have important obligations to individuals who are treated as suspects during police interviews. Unlike ordinary witnesses, suspects must be informed of why they are being detained or questioned, that they have the right to seek and consult with a lawyer, and that anything they say can be used as evidence. Suspects also have the right to remain silent when detained and interrogated by the police during a criminal investigation.
Considering the above in relation to the Sherman murders, it is likely that if police formally question the person believed to be in the released security video, they would be obligated to inform that person that: they are being detained in relation to a homicide investigation, they have the right to seek and instruct legal counsel without delay, they have the right to remain silent, and anything they say can be used against them as evidence.
At the same time, considering the information indicated in the news release to date, one is left to wonder whether the individual in the security video can truly be treated as a suspect. In the absence of skin colour, weight and gender as well as not knowing the purpose for why the person was in the neighborhood, the individual could be anybody. It may well have been a random person walking through the neighborhood. That person could have been on Christmas vacation visiting relatives who were temporarily working in Canada. Any tip received relating to this individual would beg the question: How many Canadians walk with kicking their right foot up, and, if an expert is required to interpret a person’s walk, how can ordinary Canadians hope to do that accurately?
It appears that the fundamental assumption the police are making in releasing the security footage is that the individual shown walking in it was actually from Canada, known to Canadians, and is still in Canada today. If the Sherman murders were a “targeted assassination” or a “professional hit”, then it is entirely possible that the perpetrators were from outside of Canada. In the absence of skin colour, weight and gender, those perpetrators could be from the US, Europe, Africa, Asia, or Timbuktu. The security footage is also 4 years old. A lot can happen in four years: people die, people move away, and memories fade.
In terms of gait analysis, this has been typically admitted as expert evidence in trials throughout the world and in Canada. For instance, R v Aitken was a murder case out of British Columbia. The victim, Adan Merino, was shot to death outside the Chelsea Apartment building where he lived.
There were no human witnesses to the shooting, but the event was captured on the security closed circuit television that was positioned above the doorway to the building. The videotape revealed a man with the hood of his jacket pulled low over his forehead and a scarf masking the lower part of his face. He was holding a towel. Then it appeared a gun was shot more than once into Merino’s body. Eighteen hours before the shooting, the closed-circuit television also captured a person of similar size and stature as the shooter canvassing the area and inspecting the buzzer system. This person was not camouflaged and it was easier to make out details of his appearance. The police had dubbed this individual a "person of interest". This individual was of the same approximate height as the accused.
The key questions at the trial were: Who was the shooter? Was he the same individual as the person of interest, and, if so, was the person of interest the same individual as the accused?
A forensic gait analyst - Mr. Kelly - compared footage of the unknown person walking to the person of interest (the accused) and determined that there were similarities in their stance and walk. The Crown sought to lead the forensic gait analysis as expert evidence as part of its case.
The trial judge accepted the expert’s evidence and ruled:
Mr. Kelly’s evidence is such that would not ordinarily be within the experience and knowledge of the trier of fact, and, therefore, meets the test of necessity. It takes his trained eye to be able to isolate features of the stance and gait of the person of interest, the shooter and the accused to appreciate the magnitude and similarity of the unusual features. I do not think that Mr. Kelly offends the ultimate issue rule as he makes no identification or absolute conclusions. He simply offers one more piece of circumstantial evidence that narrows the gap between who could be the shooter, and the person of interest and the accused (R. v. Aitken, 2008 BCSC 1423 at para 25)
The accused was convicted of first-degree murder and appealed his conviction. The Court of Appeal for British Columbia held that a “forensic gait” expert had been properly admitted and dismissed the appeal.
Aitken demonstrates that forensic gait analysis is typically classified as another piece of circumstantial evidence. It cannot as a matter of law serve as the evidence that the accused is guilty.
But what does that mean for the Sherman murders? Separate and apart from the gait analysis, the accused in Aitken told a civilian witness that he and his associate had killed witnesses who were going to testify against them in a court case. In addition, a considerable amount of the evidence of Aitken’s involvement in the Merino murder came from intercepted private communications obtained by police. Based on the information released to the public to date, it appears that the gait analysis by itself may not be sufficient to solve the murders, let alone support a conviction.