Criminal Law

Powerful interpretation of accepted facts leads to acquittal

By Randy O’Donnell, Associate Editor

Building a persuasive defence around a potentially damaging set of facts can be a tricky but effective strategy, says Toronto criminal lawyer Tyler Smith, who recently helped a client gain acquittal on three serious weapons charges.

“You’ve got to be able to paint the right picture that demonstrates that something that seems from the evidence to be unlikely, actually happened,” Smith, partner with Hicks Adams LLP, tells

“In this case, while the Crown and the defence accepted the same evidence, there were very different interpretations of what the accused person knew and their level of involvement.”

The case centred around a shooting that sent a male victim to hospital with a wound to his right leg.

Court documents show that on the evening of Aug. 20, 2016, Smith’s client and her male acquaintance went to eat at a Danforth Avenue restaurant in Toronto.

While there, the man got into an argument with a group of men. He then returned to his table, “and in a stern voice,” told the woman they had to leave.

As they walked away from the restaurant, the pair noticed a group of men following them. Glancing back, Smith’s client recognized the group as the men from the restaurant and sped ahead of her male companion.

At that point, gunshots rang out, and the woman “ran down an alleyway, which she knew would eventually lead her home,” court documents state.

Within minutes she and her companion ran into one another at a nearby school parking lot.

Smith’s client testified that the man was “agitated, tense, and angry” and asked her where she had been. She told the court that he put a satchel on her shoulder, removed a shirt from it and put it on.

Seeing squad cars in the area, he grabbed her hand and led her in the direction of the police. He testified that he thought walking towards the officers hand-in-hand would divert suspicion from him. He also told the court that he thought it unlikely police would search his companion.

While three officers attended to the man, another officer took Smith’s client by the arm and discovered a firearm in the bag. Smith’s client testified that it was then that she learned a weapon was in the satchel.

The Crown and defence agreed to the following facts at trial:

  • The firearm seized from the bag Smith’s client was carrying had been discharged during the Danforth Avenue shooting.
  • Three fired cartridges and two damaged bullets recovered by police near the scene of the shooting were fired from that firearm.
  • The firearm was a prohibited weapon, and Smith’s client did not have an authorization, licence, or a registration certificate for it.
  • Although not formally admitted, it was not contested that in January 2017, the woman’s companion was convicted on a number of charges related to the shooting, including discharging a firearm with intent to wound.

“It was a case I knew was going to be difficult because when you are present for a shooting and wind up with the shooter’s satchel on your person, it’s easy to jump to the conclusion that you knew what had just happened, and that you knowingly came into possession of the bag,” Smith says.

“In this matter, what we did to distinguish why that wasn’t the case was to dig down into the minute details to paint a picture for the judge that demonstrated that the client could be believed or at least the judge could have reasonable doubt about what the Crown alleged happened,” he says.

While the Crown contended the woman knew about the shooting and concealed the weapon to help the shooter avoid arrest, Smith argued his client had no knowledge of the firearm until it was discovered in the satchel by police. He also told the court the woman never intended to hold the weapon in order to help her companion escape officers.

The defence strategy included calling the shooter, now serving a 10-year sentence related to the incident, to testify.

“What made him such a good witness was that he was able to corroborate my client’s story. He was able to fill in the blanks — testify to things my client couldn’t because she was moving away from the shooting,” Smith says.

“I think the crucial part of the evidence was this, the shooter said, ‘I stopped, put my hand in the satchel, pulled out my gun and started walking toward the group as I was firing.’ He doesn’t know exactly where my client is, but he knows that she’s walking at a fast pace in the other direction.

“That was consistent with my client’s testimony. She’s laser-focused on getting out of there. She doesn’t know the person beside her has stopped. She’s so scared that she just starts to run in abject terror, not knowing who is shooting, or what direction the bullets are coming from. So despite the fact that she’s then found with the gun on her person a few minutes later, the judge found that it was plausible that the woman did not know the firearm was in the bag or was ‘wilfully blind to the fact,’’’ he says.

In her decision, Ontario Superior Court Justice Katherine B. Corrick wrote the testimony of the shooter and Smith’s client was consistent, coherent and mutually supportive. More importantly, their evidence was “largely uncontradicted by other evidence in the trial.”

Corrick said while there was “some degree of improbability” that the pair just happened to encounter each other in a school parking lot, she conceded that it “may be reasonably true.”

“The defence evidence has raised a reasonable doubt that [Smith’s client] knew or was wilfully blind to the fact that there was a firearm in the bag that (the shooter) placed on her shoulder,” she wrote.

“But more than that, even if I were satisfied that [she] knew that there was a firearm in the bag, I am not satisfied beyond a reasonable doubt that she intended to exercise control of the bag and its content,” Corrick said.

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