This week’s top three summaries: R v Mills, 2021 ONSC 6492: crim neg causing #death, R v Wilson, 2021 ONSC 6663: #principled exception, and R v Wilson, 2021 ONSC 6599: #alternate suspect & circ evidence.
R v Mills, 2021 ONSC 6492
[October 6, 2021] Criminal Negligence Causing Death - Acquittal Based on Mental Element [M. Forestell J.]
AUTHOR’S NOTE: This case provides a good overview of the proper applicant of the mental element of this offence: a marked departure from the standard of care of a reasonable person in the accused's shoes. The circumstances for the alleged offence centred on the decision to let a child swim on a school trip to Algonquin Park. Though the action was found to be negligent in the civil sense, it did nor rise to a marked departure given the assessment of the ability to swim that had already occurred.
Overview
[1] Jeremiah Perry was a vibrant, active, and engaging 15-year-old boy. He died by drowning on July 4, 2017 while swimming in Big Trout Lake in Algonquin Park.
[2] Jeremiah drowned on the third day of what was planned as a six-day wilderness canoe trip. The trip was planned, organized and led by the accused person, Nicholas Mills, a teacher at Jeremiah’s high school, C.W. Jefferys Collegiate Institute, in Toronto.
[4] Lucia Fernandez was one of the students in the group. She was also a National Lifeguard (“NL”) certified lifeguard. She had been hired to act as a lifeguard on the trip. When it became known that Jeremiah was missing, there were seven students swimming in the lake and one student was on the shore about to enter the water. Mr. Mills and Ms. Souza were in the water standing near a drop-off into deep water. Lucia Fernandez was lifeguarding.
[5] None of the people at the swim site saw Jeremiah enter the deep water. He was last seen in shallow water and he was not wearing a lifejacket.1
[6] Mr. Mills testified that he had given Jeremiah permission two days earlier to swim without a lifejacket after Jeremiah had demonstrated the ability to swim 50 meters without one.
[7] One of the students in the water when Jeremiah went missing was Boran Balci. Boran was in deep water wearing a lifejacket when he felt something pull his leg and pull him under the water. Boran was able to resurface and called to Mr. Mills for help. Jeremiah was noted to be missing right after this event. Despite a search by Lucia Fernandez and another lifeguard who attended from a neighbouring campsite, Jeremiah could not be located. His body was recovered by Ontario Provincial Police (“OPP”) divers the next day.
[8] Mr. Mills is charged with criminal negligence causing the death of Jeremiah...
Legal Principles
Actus Reus of the Offence of Criminal Negligence Causing Death
[12] To prove the actus reus of criminal negligence causing death, the Crown must prove beyond a reasonable doubt that Mr. Mills did something that caused Jeremiah’s death or that he failed to do something that he had a legal duty to do and that failure caused Jeremiah’s death.[3]
[14] The conduct that is considered need not be the sole cause of death, but it must be a significant contributing cause of death. The question of whether conduct caused death is generally resolved by asking, “‘But for’ the conduct, would the death have occurred?”[6]
Fault Element of the Offence of Criminal Negligence Causing Death
[15] ... The fault element of this offence is that the acts or omissions that caused the death “show a wanton or reckless disregard for the lives or safety of other persons”. This issue is determined by applying a modified objective standard of fault. A court must be satisfied that the conduct was a marked and substantial departure from that of a reasonable person in the same circumstances.[7] This test asks two questions:
- Whether the acts or omissions created a risk to others and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible; and,
- Whether the failure to foresee the risk and take steps to avoid it, if possible, was a marked and substantial departurefrom the standard of care expected of a reasonable person in the same circumstances.[8]
[16] In applying the modified objective test, the conduct is measured against a reasonable person. The personal characteristics and background of the accused person are generally not relevant. However, in R. v. Creighton[9] and more recently, in R. v. Javanmardi,[10] the Supreme Court explained that the application of the reasonable person test is informed by the nature of the activity undertaken. Certain activities require special care and skill. If a person undertakes such an activity without the requisite qualifications or fails to exercise the special care required by the nature of the activity, that person may be found to have departed from the standard of a reasonable person in the circumstances. As stated by Abella J. in Javanmardi, “while the standard is not determined by the accused’s personal characteristics, it is informed by the activity” [emphasis original].[11]
[17] The Supreme Court of Canada has also made it clear that the test for the fault element in the offence of criminal negligence is not applied in a vacuum. McIntyre J. wrote in R. v. Tutton:[12]
Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts. Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of the facts, was reasonable ... If an accused under s. 202 [now 219] has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct....
[18] Therefore, the activity in which the person is engaged, and the circumstances existing and known to the accused person are relevant considerations in determining whether the Crown has proven the mental element of the offence.
FIRST ISSUE: HAS THE CROWN PROVED THE ACTUS REUS OF THE OFFENCE, I.E., WAS THERE CONDUCT OF NICHOLAS MILLS (ACTS OR OMISSIONS) THAT CAUSED OR SIGNIFICANTLY CONTRIBUTED TO THE DEATH OF JEREMIAH PERRY?
[329] I am satisfied beyond a reasonable doubt that Mr. Mills’ act of allowing Jeremiah to swim without a lifejacket and his failure to adequately supervise Jeremiah caused Jeremiah’s death.
[330] Contextual facts that are relevant to the issue of whether the conduct that caused the death was a marked and substantial departure from the standard of care of a reasonable person in the circumstances are the following:
- Christopher Mackie suggested to Mr. Mills at Sparrow Lake Camp that Mr. Mills should implement measures for the non-swimmers on the trip, including requiring them to wear lifejackets when they were in the water or within three meters of the water. (I do not find that Ms. Weeden and Mr. Freeborn issued a serious warning to Mr. Mills.) ...
- Mr. Mills, with the approval of Dr. Gala, had permitted a large number of non-swimmers to participate in the trip.
- Mr. Mills was aware that half of the students on the campsite and half of the students in or near the water at the time of Jeremiah’s death were weak or non-swimmers.
- Jeremiah had demonstrated to Mr. Mills an ability to swim 50 meters without a lifejacket, but he had not demonstrated an ability to tread water and he had not demonstrated an ability to swim in deep water without a lifejacket. His demonstrated swimming ability was, at best, that of a novice swimmer. ...
- Jeremiah and the other children were warned by Mr. Mills that there was a steep drop-off and told to remain together and to avoid the deep water.
- Despite the warning, Alex, Jahliel and Boran all went into the deep water with Mr. Mills’ knowledge.
- At the time of Jeremiah’s drowning, Lucia Fernandez was lifeguarding the group and Mr. Mills and Ms. Souza were supervising. ...
- At the time of Jeremiah’s drowning there were no safeguards such as a buddy system or bather counting system in place.
- Mr. Mills had the qualifications and experience necessary to undertake the wilderness canoe trip.
- Mr. Mills was aware of the OPHEA guidelines and he was aware of the practices of Scouts Canada and other organizations with respect to rules around swimming on canoe trips. I will consider these practices in more detail in my review of the evidence relating to the standard of care.
APPLICATION OF THE PRINCIPLES TO THE FAULT ELEMENT IN THIS CASE
[403] I find that the OPHEA guidelines were, in 2017, viewed by many teachers and administrators as a framework within which to exercise discretion and that modifications were accepted as reasonable and necessary. TDSB students regularly attended Boundless School where they participated in whitewater rafting, a prohibited activity under the OPHEA guidelines. Some schoolboards in Ontario did not adopt OPHEA guidelines. Many private and independent schools did not adopt the OPHEA guidelines. Ms. Leizer, an experienced physed teacher had no concerns about compliance with OPHEA guidelines on the trip and Dr. Gala agreed with the modifications made by Mr. Mills. The decision by Mr. Mills to allow non-swimmers and weak swimmers to participate was not, in itself, unreasonable although it did not comply with OPHEA guidelines or TDSB rules. The noncompliance with OPHEA guidelines and TDSB policies is a factor in assessing reasonableness but it is not determinative.
[404] I accept that non-swimmers can and do participate in canoe trips safely. The evidence before me is that Scouts Canada, in 2017, permitted non-swimmers to participate in canoe trips and did not conduct swim testing or bring lifeguards. Commercial enterprises take non-swimmers on canoe trips without swim testing and did so in 2017.
[405] It was reasonable and within the standard of care to take weak and non-swimmers on the trip. However, the number of weak and non-swimmers on the trip is a relevant circumstance for me to consider in assessing the reasonableness of the conduct of Mr. Mills.
[406] Similarly, allowing students to swim without a lifejacket following an assessment of their swimming ability was not conduct that, in itself, fell below the standard of care. Commercial outfitters permitted clients on trips to swim without lifejackets. Careful and prudent parents permit children to enter the water without lifejackets at a variety of swim sites. [Emphasis added by PM]
[408] The presence of one 17-year-old lifeguard, rather than two 18-year-old lifeguards, did not meet the requirements of the OPHEA guidelines but I find that having one 17-year-old lifeguard was reasonable and met or exceeded the standards at many similar swim sites. The presence of a lifeguard does not, in itself, mean that the conduct of Mr. Mills met the standard of care, it is merely one factor that I must weigh in the reasonableness analysis.
[409] Mr. Mills had knowledge of the swimming ability of Jeremiah. He made a brief observation of Jeremiah when he tipped out of the canoe at Sparrow Lake Camp and assessed Jeremiah’s swimming at the swim site on July 2nd, two days before the drowning. He was aware that Jeremiah could keep himself afloat and move 50 meters through the water without a lifejacket. The distance of 50 meters is a standard distance used in swim tests. The OPHEA swim test requires a 50 meter swim, as does the Swim to Survive test described in the testimony of Michael Shane. Although a test administered by a qualified lifeguard that included treading water would have been a better test of Jeremiah’s swimming ability, allowing him to swim without a lifejacket after he demonstrated an ability to swim 50 meters met the standard.
[410] As set out in the caselaw, the first question in determining the fault element is whether the conduct of allowing Jeremiah to swim without a lifejacket in the circumstances created a risk and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible.
[411] A reasonable person in the same circumstances as Mr. Mills would be a teacher on a wilderness canoe trip at a swim site with eight students at or near the water with a steep drop off into deep water. That teacher would be aware that about half of the students are weak or non-swimmers who are unfamiliar with Ontario Lakes. A further contextual fact is that it had been suggested to him that the weak or non-swimmers should wear lifejackets within three meters of the water. He would be aware of guidelines that recommend additional safeguards. That teacher would know that there is a lifeguard on duty. He would have warned the students of the drop off and positioned himself and the other adult trip leader at one part of the drop off with instructions not to go past them. The conduct in issue is that of allowing Jeremiah, a 15-year-old novice swimmer to swim without a lifejacket in that context.
[412] I have concluded that a reasonable teacher in these circumstances would have foreseen the risk of a student drowning. The swim site boundaries were unmarked and there were seven to eight students to watch. The swimming ability of Jeremiah was known to some extent, but his experience in the open water was not well known. The presence of a lifeguard enhanced safety, but the lifeguard could not watch everyone at all times.
[414] If this was a case of civil negligence, the test would be met. This is a criminal case. It is not enough for the Crown to prove that Mr. Mills fell below the standard. The Crown must prove beyond a reasonable doubt that the failure to foresee the risk and take steps to avoid it, if possible, was a marked and substantial departure from the standard of care expected of a reasonable person in the same circumstances. As I have said earlier in these reasons, this is a matter of degree. The conduct must show “wanton and reckless disregard” for the lives or safety of others.
[415] Justice Cromwell, in R. v. Roy,[23] said:
Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty, 2008 SCC 5, [2008] 1 SCR 49 (SCC), at para. 34, ‘If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.’ Giving careful attention to the fault element of the offense is essential if we are to avoid making criminals out of the merely careless.
[416] I cannot conclude that the Crown has proven beyond a reasonable doubt that the conduct of Mr. Mills was a marked and substantial departure from the standard of care of a reasonable person in the same circumstances. As I have said, Mr. Mills made individual decisions that were justifiable such as permitting weak and non-swimmers to attend the trip and permitting students to swim without lifejackets. His conduct fell below the standard when he failed to reassess risk at the July 4th swim site where the steep drop-off to deep water added to the cumulative circumstances to increase the risk and make the situation unsafe for Jeremiah Perry. Mr. Mills’ failure to reassess the risk was an error in judgment that occurred within a time period of about one hour during which time the decision was made to allow swimming, the swim site was chosen, and the students entered the water.
[417] The degree of departure from the standard does not reach the significant level of wanton and reckless disregard or a marked and substantial departure from the standard of care of a reasonable person in the same circumstances. It does not reach the level of moral blameworthiness necessary for criminal liability. I do not find that Mr. Mills made a series of unreasonable decisions culminating in the death of Jeremiah. His decisions up to July 4th did not meet the standard of “perfection or even optimum”, but they were reasonable and fell within the standard of care. At the point of the July 4th swim, he ought to have revisited his decision to allow Jeremiah in the water without a lifejacket and he failed to do so. This failure brought his conduct to the level of carelessness described by Justice Cromwell in Roy and it resulted in the tragic death of 15-year-old Jeremiah Perry. The conduct did not approach the level of departure from the standard of care required for a criminal conviction.
[418] I therefore find Mr. Mills not guilty.
R v Wilson, 2021 ONSC 6663
[October 13, 2021] Principled Exception to Hearsay: Statement of Alternate Suspect [Gareau J.]
AUTHOR’S NOTE: This case provides a good example of a threshold exclusion of an important statement for the Crown due to concerns with the inability to cross-examine the declarant. Here the declarant happened to be a fairly good alternate suspect for the actual offence and the statement was his custodial interrogation by the police before the let him go.
Overview
[2] A voir dire was held near the end of the trial on the application of the Crown to have a statement given by Shawn Seymour to the Ontario Provincial Police introduced as evidence at the trial proper on the basis of the principled exception to the hearsay rule. This was necessitated by the fact that Shawn Seymour could not be located by police authorities and therefore unavailable to give viva voce evidence at the trial of this matter.
Summary of the Facts
[4] The factual background is set out in my written reasons in the trial proper and I adopt this and do not intend to repeat the facts in detail. In summary, in the morning hours of January 25, 2019, the home at Unit 11, 141 Front Street, Spanish, Ontario, occupied by Teddy Seymour and Dawn Martel was broken into by two masked intruders, and Ms. Martel and Mr. Seymour were beaten and badly injured. The son of Teddy Seymour, Shawn Seymour, was residing at the time at Unit 5, 141 Front Street, in close proximity, with Jammie Lynn Sherwin, who was previously involved in a relationship with Teddy Seymour. Both Shawn Seymour and Jammie Lynn Sherwin were arrested on January 25, 2019 and charged with criminal offences relating to the break in and assault. After further investigation they were subsequently released from custody with the charges against them being dropped.
[5] While he was detained in custody, Shawn Seymour provided an audio/videotaped statement to the Ontario Provincial Police. This statement was given to Detective Sgt. Mike Laxton of the Ontario Provincial Police. During the course of the voir dire, the audio/video recording was played for the court and entered as Exhibit V-1. The transcript of this statement made by Shawn Seymour was entered as Exhibit V-2 on the voir dire.
[8] As set out in my reasons on the trial proper, Shawn Seymour as an alternate suspect looms large in the trial of this matter and it was in fact Shawn Seymour who was first arrested for the criminal offences committed against his father, Teddy Seymour. The trial evidence was applied to the voir dire. From that evidence the court is aware that there is much animus between Shawn Seymour and his father. Shawn Seymour had been kicked out of his father’s home and there was no contact between them at the time of the incident. Days prior to the January 25, 2019 incident, Shawn Seymour was observed outside the residence where he was residing, swinging a bat and threatening to kill his father. Teddy Seymour was in fact assaulted with a bat in his home on the morning of January 25, 2019.
[9] As to why Shawn Seymour was initially arrested by the Ontario Provincial Police for the break and entry, assault and theft at Unit 11, 141 Front Street, Officer Timmermans of the OPP summarized in his evidence that there was a blood-like substance outside Unit 5, that Shawn Seymour did not respond to requests by the police to leave his home and surrender to the police, and that there was a “history” between Shawn Seymour and his father.
Analysis
[10] Although I am satisfied that diligent efforts were made by police authorities to locate Shawn Seymour to enable him to testify at the trial, ... There was no information available that would assist the court or police authorities for that matter in locating Shawn Seymour.... The test of necessity was clearly met in the case at bar.
[11] The decision on the voir dire reduced itself to the issue of the threshold reliability ...
[13] As noted in paragraph 53 of R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity.
[15] The dangers of hearsay evidence were identified by the court in K.G.B. as the absence of an oath, presence (essentially whether there is a record such as videotaping) and contemporaneous cross-examination. As noted in paragraph 171 of the K.G.B. decision, “the videotaping of the statement provides such a complete record not only of the questions posed and the answers given, but of the demeanour of the witness throughout the interview that little can be said to warrant its exclusion based on the inability to assess the demeanour of the witness when the statement was given.”
[16] In the case at bar the element of “presence”, one of the indicia guaranteeing reliability, is met in that the statement given by Shawn Seymour was video and audio recorded.
[17] The other two indicia guaranteeing reliability, namely, the statement being under oath and contemporaneous cross-examination, are absent in Mr. Seymour’s statement to the police.
[18] As noted in the headnote in R. v. Khelawon 2006 SCC 57 (CanLII), 2006 Carswell Ont. 7825 (SCC), “In determining admissibility of hearsay under the principled approach, all relevant factors should be considered. Under the circumstances, S’s unavailability for cross-examination posed significant limitations on the accused’s ability to test evidence and on the trier of fact’s ability to assess it.”
[19] Given the evidence received at trial applied to the voir dire, including Shawn Seymour’s relationship with his father, the circumstances surrounding his arrest, his conduct just days prior to the incident where he was seen swinging a bat threatening to kill his father, what he knew about the money his father had in his home, and the anger he had toward his father concerning Jammie Lynn Sherwin and his 16-year-old girlfriend who his father befriended, the court has serious concerns about the absence of an oath or the inability to cross-examine Shawn Seymour on the statement that he gave. As noted in R. v. Bradshaw, 2017 Carswell B.C. 1743 (SCC) at paragraph 31, in order for the court not to be concerned about the absence of cross-examination in assessing the threshold issue of reliability, the court must be satisfied that the statement is so reliable that contemporaneous cross-examination would be of no benefit, essentially that it would add little or nothing to the process. In assessing all of the evidence, this court cannot reach that conclusion regarding the statement given by Shawn Seymour to the Ontario Provincial Police. [Emphasis by PM]
[20] The circumstances in which Mr. Seymour was providing his statement to the police are that he was charged with the attempted murder of his father, Teddy Seymour. He is not at the police station as an independent witness, volunteering assistance to the police. Rather, he is at the police station as a person under arrest. Shawn Seymour benefits from fabricating the truth in an attempt to secure his release from custody. On the facts before the court, it cannot be concluded that the absence of an oath or contemporaneous cross-examination, safeguards to ensure reliability, can be overcome by the fact that Mr. Seymour’s statement is so reliable that it could not be that he is not telling the truth. The inability to test the reliability of the statement given by Shawn Seymour to the OPP is, in my view, a real concern in the absence of the oath and cross-examination.
[21] On the facts of this case and the circumstances of this case, Shawn Seymour’s unavailability for cross-examination on the statement poses significant limitations on the trier of facts ability to assess the ultimate reliability of the statement and therefore the statement should not be received into evidence.
R v Wilson, 2021 ONSC 6599
[October 13, 2021] Circumstantial Evidence and The Alternative Suspect [Gareau J.]
AUTHOR’S NOTE: The reasons on the trial of this matter provide a good example of the application of the principles of reasonable doubt in a circumstantial case where there is a viable alternative suspect. It might seem obvious, but the more viable the alternate suspect, the more there is a reasonable alternative to the guilt of the accused. Hence, mounting a positive defence aimed at showing that someone else may have committed the offence can be sufficient to defend the accused. This case shows how the two concepts can be considered by the jurist deciding the case.
Overview
[1] The accused, Shaun Phillip Wilson, is charged with seven offences as set out in the indictment dated June 1, 2020. The indictment reads as follows: ...
2. Shaun Phillip Wilson stands further charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did break and enter a certain place, to wit: 141 Front Street, Unit #11, Spanish,
3. Shaun Phillip Wilson stands charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did rob Marvin Edward Seymour of a sum of monies and personal property contrary to section 344 of the Criminal Code of Canada, and
4. Shaun Phillip Wilson stands further charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did wound, maim, disfigure or endanger the life of Marvin Edward Seymour, thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada, and ...
[2] The accused entered pleas of not guilty to all the charges.
[3] During the Crown submissions, it was conceded that based on the evidence the court should be left with a reasonable doubt with respect to count 1, namely, the charge of attempt murder, contrary to section 239(1)(b) of the Criminal Code of Canada. The Crown acknowledged that an intent to kill was not established on the facts.
Factual Background
[6] In the early morning hours of January 25, 2019, two masked males entered the home of Teddy Seymour at Unit 11 and attacked Dawn Martel and Teddy Seymour. It is alleged that certain items of property, such as a safe, cash, a watch and drugs were removed by the assailants from the home of Teddy Seymour. Dawn Martel and Teddy Seymour were assaulted by the assailants, in the case of Mr. Seymour, viciously with a bat. ...
[7] ... The medical evidence received by the court indicates that Mr. Seymour had a significant closed head injury, spine fractures, a collapsed lung, injury to his diaphragm, and rib fractures. ... Mr. Seymour was described by neurosurgeon Dr. Ryan DeMarchi as “severely neurologically injured”. Dawn Martel required surgical intervention to remove pressure on her brain and remove bone fragments in her skull.
[8] Exhibit 1 (Crown’s photobook) depicts the close proximity between Units 5 and 11 at 141 Front Street. It also shows a blood trail leading from Unit 11 to Unit 5 and an ATV parked in front of Unit 5. As a result of police investigation, the son of Teddy Seymour, Shawn Seymour, and Jammie Lynn Sherwin were initially charged with criminal offences arising from the assault of Dawn Martel and Teddy Seymour. They were arrested on January 25, 2019 at 7:26 a.m. at Unit 5, and after further investigation were subsequently released from custody with the charges against them being dropped.
[9] Jason Gamble and Shaun Wilson were arrested on January 29, 2019 at 12:41 p.m. A subsequent search of their respective residences was carried out and evidence linking Jason Gamble to the crime was located at 7 Beckett Boulevard in Elliot Lake, Ontario. Jason Gamble acknowledged his involvement in the break and enter and assault of Seymour and Martel and entered pleas of guilt and was sentenced by the court for his involvement.
[10] The issue before the court is that of identity and whether the accused Shaun Wilson was with Jason Gamble on January 25, 2019 at Unit 11, 141 Front Street, Spanish, Ontario. Was he the other assailant?
[11] Considering the totality of the evidence the court can make the following findings of fact:
(a) There was a blood trail leading from Unit 11 to Unit 5, 141 Front Street, which was the unit occupied by Jammie Lynn Sherwin and Shawn Seymour.
(b) That there was traffic from a smaller vehicle, possibly an ATV vehicle during the morning hours on January 25, 2019 heading from Elliot Lake toward Spanish and back from Spanish toward Elliot Lake. Two such vehicles were travelling toward Spanish and one such vehicle travelled from Spanish toward Elliot Lake.
(c) The accused Shawn Wilson’s ATV was parked in front of Unit 5, 141 Front Street when the paramedics and police arrived at Unit 11, 141 Front Street in the morning of January 25, 2019.
(d) When police authorities surrounded Unit 5, 141 Front Street demanding that the occupants exit the residence, Jammie Lynn Sherwin and Shawn Seymour remained in that residence from 4:30 a.m. when the demand was made until 7:26 a.m. when they came out of the residence and were arrested by police.
(e) Jason Gamble and Shaun Wilson were arrested for the crimes at Unit 11, 141 Front Street on January 29, 2019 at 12:41 p.m. while outside of their residences on Beckett Boulevard, Elliot Lake, Ontario.
(f) There was much animus between the victim Teddy Seymour and his son Shawn Seymour. Two days prior to the incident, Shawn Seymour was observed at the front of Unit 5 swinging a bat and threatening to kill his father....
(g) There was an ongoing relationship between Jason Gamble and the accused Shaun Wilson who was seen to visit each others’ homes and interact with each other.
(h) The accused Shaun Wilson was at the home of Jammie Lynn Sherwin at Unit 5, 141 Front Street, on the morning of January 25, 2019 prior to Teddy Seymour and Dawn Martel being assaulted. The totality of the evidence places the accused in the area where the assault took place. The real issue is whether there is evidence to place the accused at Unit 11, 141 Front Street to satisfy this court beyond a reasonable doubt that he was the assailant, along with Jason Gamble, who was in that home the morning of January 25, 2019.
Analysis
[36] As to the comings and goings of Jason Gamble and Shaun Wilson from Unit 5, 141 Front Street, Spanish, Ontario, during the evening of January 24, 2019 and morning on January 25, 2019, it would be dangerous for the court to put any reliance on any of the evidence of Jammie Lynn Sherwin given her state of intoxication from alcohol and drugs at the time and given her admission that “my whole time in Spanish is a blur, really”. Although the evidence of Jammie Lynn Sherwin places the accused Shaun Wilson at Unit 5 on the morning of January 25, 2019, there is no evidence from Ms. Sherwin that the court can rely on which places Shaun Wilson at Unit 11, 141 Front Street, Spanish, Ontario on the morning of January 25, 2019.
[37] The Crown has pointed to the fact that items belonging to Teddy Seymour, namely, old currency and his son’s wristwatch, which were found in the jacket pocket of the accused’s jacket located in the Sebring vehicle as evidence pointing to the accused’s involvement in the incident at Unit 11, 141 Front Street. There is no evidence as to how the jacket got into the trunk of the Sebring vehicle or who put it there. The evidence indicated that Shaun Wilson did not have the exclusive use of the Sebring vehicle and although there is evidence that he was a passenger in the vehicle, there is no evidence that he drove the vehicle. It is curious that the currency and watch were found in the accused’s pocket, but this does not conclusively point to his involvement in the assault or the robbery at Unit 11, 141 Front Street. There are other plausible explanations such as these items might have been placed in Mr. Wilson’s jacket by someone else or may have been given to him by Jason Gamble, who we know was his friend and who we know was involved in the incident, since he has acknowledged and admitted his involvement. There is also the question raised by the defence as to whether the court can be satisfied that the currency and watch were in fact in Teddy Seymour’s home and did in fact belong to him.
[38] It is clear in the evidence that Teddy Seymour did not take an inventory of what was in his home prior to the incident or what was taken from his home after the incident. As Teddy Seymour acknowledged in his evidence, he had no real opportunity to return to his home after January 25, 2019 and therefore had no opportunity to take stock of what was missing from it.... When pressed in cross-examination at the trial with respect to the watch, Mr. Seymour testified that “it looks like Shawn’s”, but in the end was unable to say whether or not the watch was his son’s or not. With respect to the currency, Teddy Seymour testified that he does not know what other money was taken from his home, but he knows that the money he was shown and was found in Shaun Wilson’s jacket was his.
Alternate Suspect
[40] The issue of an alternate suspect, namely, Shawn Seymour, looms large in this case. ...
[41] Suffice it to say that there is a viable, real, and reasonable possibility that Shawn Seymour was the other, smaller and more slightly built individual, who was with Jason Gamble on the morning of January 25, 2019 at Unit 11, 141 Front Street in Spanish, Ontario. The alternate suspect theory advanced by the defence has an air of reality to it based on the totality of the evidence led at the trial and it must be considered by the court in its overall assessment of whether I am satisfied beyond a reasonable doubt that it was Shaun Wilson with Jason Gamble at Teddy Seymour’s residence the morning of January 25, 2019.
Conclusion
[43] In the case at bar, an examination of the totality of the evidence results in inferences other than the guilt of Shaun Wilson. The evidence in this case points the finger of guilt to the victim’s son, Shawn Seymour, as much as it does to the accused, Shaun Wilson. Shawn Seymour had the motive and the opportunity to commit the offence against Teddy Seymour. That fact, combined with the lack of forensic evidence connecting the accused in any way to the crime scene and the very poor quality and frailties with the evidence of the Crown’s main witnesses on the issue of identity, lead this court to the inescapable conclusion that the Crown has not proven the guilt of Shaun Wilson beyond a reasonable doubt. The Crown has raised suspicions but only suspicions which can be explained by reasonable inferences drawn from the evidence adduced at the trial. In my view, where there is a plausible and reasonable alternate suspect as there is in the case at bar, it is dangerous for the court to convict in a circumstantial case. ... [Emphasis by PM]
[Accused was found not guilty on all charges at para 44]
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