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| John L. Hill |
The newspaper reported that the woman was leaving a high-rise building just before 1:30 p.m. on Aug. 18, 2019, when she was confronted by a masked man armed with a semi-automatic handgun. The man fired multiple shots at her, causing serious injuries to her torso and foot. The man then fled the area in an unidentified vehicle. The woman was taken to the hospital for surgery.
The man who was arrested was Marvin Hernandez-Viera of Toronto. He faced 16 charges, including attempted murder, aggravated assault, disguise with intent to commit a crime and occupying a motor vehicle with a firearm. He chose to have his trial in the Superior Court of Justice. The main issue to be decided at trial
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Justice P. Andras Schreck heard that Taya Amankwah was shot in the abdomen by a hooded man whose face was covered with a bandana. Counsel for Hernandez-Viera applied to exclude the recognition evidence of Amankwah and the identification evidence of the woman who rented the vehicle, arguing that the probative value of the evidence was outweighed by its prejudicial effect. The parties agreed that the evidence relevant to this application could be combined with the evidence at trial.
Amankwah had known Hernandez-Viera and borrowed $300 from him but failed to pay him back. She believed she was shot because of her debt. She only saw white skin on his forehead and brown eyes. The rest of the man who shot her was covered.
Justice Schreck concluded that the prejudicial effect of the identification evidence did not outweigh its probative value. Still, he determined that the recognition evidence of Amankwah should be given no weight and that of the other witness should be given little weight. That other witness identified Hernandez-Viera from a photo lineup as the man who had rented the car shown in a video of the shooting. However, based on the other circumstantial evidence (primarily timestamped surveillance footage), the judge was satisfied beyond a reasonable doubt that Hernandez-Viera was the person who shot Amankwah and that he did so with the intent to kill her. Consequently, he was guilty on all counts (R. v. Hernandez-Viera, 2022 ONSC 289). Hernandez-Viera appealed.
In a very brief written decision (12 paragraphs), the Ontario Court of Appeal dismissed the appeal (R. v. Hernandez-Viera, 2025 ONCA 626). Although the trial judge did not accept the identification evidence presented by the victim, the conviction was upheld because Justice Schreck believed that the witness’s evidence through the photo lineup indicated that the shooter resembled Hernandez-Viera.
During the appeal argument, it was argued that the trial judge erred in law by relying on outdated case law (Nicholas v. Penny, [1950] 2 K.B. 466 and Regina v. Bland, (1975), 6 O.R. (2d) 54). These cases permit a judge to accept measurements taken by instruments they are designed to measure as prima facie proof of what was measured. In this case, timestamps on surveillance video should not be relied upon without evidence of the accuracy of the measurement system.
This argument failed because the Appeal Court accepted that the timestamps recorded on two security videos were generally consistent with each other and definitely within the timeframe of the vehicle’s arrival at the apartment complex where the shooting occurred, as recorded by GPS, a time conceded to be accurate.
As a warning to future litigants, the Court of Appeal added this caution: “To be sure, we would caution against a mechanistic treatment of the Nicholas v. Penny line of authority. It does not hold anything more than that readings captured by measuring devices in common usage can be treated as some evidence of what they display, where there is a factual foundation for finding the measurements they display to be reliable.”
It is not uncommon for timing devices not to be perfectly synchronized. The circumstantial evidence in this case, taken as a whole, drove the conclusion that Hernandez-Viera had arrived in the suspect vehicle. The person who rented it shared his initials, and his appearance was not inconsistent with that of Hernandez-Viera. The car came directly from the shooting of a person who owed money to Hernandez-Viera, and then was parked on a street near Hernandez-Viera’s friend’s house in timeframes consistent with the appellant’s being at the crime scene.
Furthermore, Hernandez-Viera’s DNA was discovered on a water bottle inside the vehicle, suggesting he was likely present in that very vehicle. Security cameras near his friend’s house captured images of Hernandez-Viera during the same timeframe. The only way to interpret this web of corroborating evidence is to conclude that Hernandez-Viera was the shooter and that the recorded times are approximate rather than exact.
The victim’s identification of the shooter was unnecessary. In accordance with R. v. Villaroman, 2016 SCC 33, circumstantial evidence can be used to assess guilt if that is the only reasonable conclusion on the totality of the evidence. The trial judge, in finding Hernandez-Viera guilty, reached this conclusion.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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