Overview
Judge found that the accused deliberately shot [REDACTED]. He did so because he was angry at [REDACTED], a youth who had shown complete disrespect to both himself and his friends, by waving a gun at them in a threatening manner. However, the crown could not prove intention that the accused wanted to murder [REDACTED], so that charge was dismissed.
R v [REDACTED], [2017] OJ No 184
COUNSEL
[REDACTED], for the Crown
[REDACTED], for the Defendant.
REASONS FOR JUDGMENT
[REDACTED]
I. INTRODUCTION
1 On 16 August 2013, [REDACTED], the accused, was seated on two L-shaped benches in a gazebo outside the apartment building located at [REDACTED] in Toronto. He was in the company of his friend, [REDACTED], and his brother, [REDACTED]. They had agreed to meet there, a regular place of socialising, to chat and drink beer. They were joined by another friend they called [REDACTED]. All were engaged in conversation and consuming alcohol.
2 At some point during this social event, they saw two males walking north along Jane Street towards the nearby Jane Finch Mall. One of these two men, [REDACTED], was known to both the accused, [REDACTED] and [REDACTED].
3 Sometime prior, maybe a week or a month before, [REDACTED] and some of his friends had encountered the accused, [REDACTED] and [REDACTED], at the same location and got into an argument with [REDACTED]. [REDACTED] had approached [REDACTED] and torn off a chain that he had been wearing. When challenged by [REDACTED] and his friends, [REDACTED] had pulled out a gun and pointed it at the group, which included the accused, after which [REDACTED] and his friends left.
4 On 16 August 2013, [REDACTED] was accompanied by [REDACTED]. Upon seeing these men, [REDACTED], presumably remembering the earlier conflict, left the gazebo. The others remained. [REDACTED] and [REDACTED] disappeared into an area of townhouses, but were seen again shortly afterwards crossing Jane Street and entering the front area of the apartment building. Their destination was the gazebo in which the accused and his friends sat. As he approached, [REDACTED] uttered the words "Is it a thing? Is it a thing?"
5 What happened next forms the crux of this case and determines its result. The only undisputed fact is that during the course of the next few minutes, [REDACTED] was shot through the lower abdomen.
6 The Crown alleges that the accused, [REDACTED], was the shooter and intentionally shot [REDACTED] after a fractious encounter with [REDACTED]. The accused denies the allegations. He submits that the shot that hit [REDACTED] was an accident occurring after the accused had been threatened at gunpoint by [REDACTED] and that he acted in self-defence.
II. THE PRIOR INCONSISTENT STATEMENT APPLICATION
7 The court heard from four witnesses who were present at the gazebo on 16 August 2013: [REDACTED], [REDACTED], [REDACTED], and the accused. Two of these witnesses, [REDACTED] and [REDACTED], had been interviewed by the police in the aftermath of the incident. [REDACTED] told the police he had stumbled upon the encounter between two unknown parties and had been shot in the process. [REDACTED], however, provided a detailed statement implicating [REDACTED] as [REDACTED] assailant.
8 At trial, both men disavowed their earlier statements, [REDACTED] in part and [REDACTED] in whole. As a result, [REDACTED], Crown counsel, asked that their earlier statements be admitted into evidence for the truth of their contents pursuant to the principles set out in R. v. Khelawon, 2006 SCC 57 and R. v. B (K.G), [1993] S.C.J. No. 22 [K.G.B.].
9 After hearing argument, I informed counsel that [REDACTED]'s statement was admissible for the truth of its contents but [REDACTED]'s statement was not. I indicated that full reasons would be given at the end of the trial. These are those reasons.
Legal Principles
10 The use of a prior inconsistent statement is generally prohibited under the rules of evidence.
11 In order to succeed in such an application, the applicant must demonstrate that the previous out-of-court statement is both necessary and reliable to warrant admission. In this case, [REDACTED], opposing the application, takes no issue with the necessity requirement in light of each witness's recantation. His objection is grounded in the reliability aspect of the prior statements.
12 Reliability in K.G.B. cases requires the presence of adequate substitutes for the safeguards normally relied upon when assessing trial testimony, such as: the taking of an oath or affirmation, the ability to observe the witness, and the opportunity to cross-examine the witness on any previous statement.
13 As was recognized in Khelawon, at para. 76, one of the most important factors in determining admission of the prior statement is the availability of the declarant. As Charron J. noted, at para. 76:
Unlike the situation in Khan, [1990] 2 S.C.R. 531 or Smith, [1992] 2 S.C.R. 915 the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross-examined on his or her prior inconsistent statement. The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination.
14 In Trieu (2005), 74 O.R. (3d) 481, a pre-Khelawon case, the Court of Appeal for Ontario reviewed the post K.G.B. jurisprudence and concluded, at para. 76, that a videotape of the making of the statement and the availability of the declarant for cross-examination would "go virtually 'all the way'" in meeting the reliability requirement. The court in Khelawon, at para. 66, also agreed that "the availability of the declarant for cross-examination goes a long way to satisfying the requirement."
Is [REDACTED]'s Statement Admissible?
15 Although I accept that [REDACTED]'s statement was recorded and he was available for cross-examination at trial, I am unable to find that the circumstances surrounding the taking of his statement meet the threshold test for reliability.
16 In his first statement, made at Sunnybrook Hospital, [REDACTED] gave the first version of how he came to be shot. He did not know the identity of the shooter, but was able to tell the police that the person who shot him deliberately pointed the gun at him prior to firing. According to [REDACTED], he attended by himself to visit his sister. No mention was ever made of [REDACTED]'s presence at the scene of the shooting until [REDACTED] testified at trial and described seeing [REDACTED] holding and pointing a gun at others.
17 Both parties agree that [REDACTED] was the central figure in the events of 16 August 2013. His absence casts an ecliptic shadow over [REDACTED]'s prior statements in light of the fact that he knew [REDACTED] and all of the evidence indicates that [REDACTED] came to [REDACTED] in his company.
18 [REDACTED] acknowledges this gaping hole in [REDACTED]'s account and all of the other shortcomings of [REDACTED]'s pre-trial statement. However, she presses the point that under Trieu and Khelawon, [REDACTED]'s availability for cross-examination is enough to warrant the admission of the statement at the trial proper. [REDACTED] candidly concedes that the Crown seeks the use of only one item emanating from the statement: that the person holding the gun deliberately shot [REDACTED].
19 The difficulty with this submission is that it is almost impossible to separate fact from fiction when reviewing [REDACTED]'s pre-trial evidence.
20 The driving force behind the duplicity of his police statement is that, from the outset, [REDACTED] decided to falsify the facts surrounding his shooting to protect [REDACTED]. That motivation moulded all of his initial statements to the police. As Mr. [REDACTED] says, this is not a case where a witness tried to tell the truth and recanted, but rather a systematic deception which produced a lie from start to finish. Although I am cognisant that the ultimate truth of the statement is to be decided when determining the accused's guilt or innocence, a statement so filled with lies from the moment it left the lips of its maker could hardly be described as possessing circumstantial guarantees of trustworthiness.
21 In Khelawon, at para. 92, Charron J. identified two routes of admissibility. The first involved an examination of the circumstances surrounding the taking of the statement. If these were sufficient to permit assessment of the truth of the statement, the reliability requirement would be satisfied. Where reliability was dependent on the inherent trustworthiness of the statement, however, the court could consider extrinsic evidence tending to show whether the statement is true or not.
22 Turning to the extrinsic evidence, I find that [REDACTED]'s statement is contradicted by virtually all of the other evidence. For example, in his first statement, he claimed that he was alone in the area to visit his sister. All the witnesses and the video put him in [REDACTED]'s company. [REDACTED] further claimed that he stumbled upon a "commotion" but did not know what it was about or who was involved. This was clearly untrue as he was friends with [REDACTED], accompanied him to the scene, and saw the action unfold from the beginning. [REDACTED]'s explanation of the shooting in his police statement was that he saw the shooter "draw" the gun from his belt and fire a "couple of shots," the last of which hit him. This version of events is refuted by all of the other witnesses.
23 I agree with [REDACTED] that [REDACTED]'s lies "jump off the page" on which they are written. I am mindful of the fact that, at this stage, I am only concerned with threshold reliability and the admission of the statement as evidence at trial. However, the strict lines between threshold reliability and ultimate reliability have become blurred: Khelawon, at para. 52.
24 In R. v. Hamilton, 2011 ONCA 399, the Court of Appeal of Ontario was faced with the argument that in dealing with an allegation that a prior statement sought to be admitted was the subject of coercion, the test for common law voluntariness applied. In rejecting this argument, the court stated, at para. 153:
In short, post-Khelawon, the emphasis appears to have shifted away from potential unreliability and is now more focused on actual reliability -- something the confessions rule does not concern itself with.
The court added at paras. 155, 157:
Khelawon, in our view, requires trial judges to ask two questions in deciding whether a witness statement should be admitted for its truth:
1.On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?
2.If the answer to question one is "yes", are there overriding policy considerations that would prevent the statement from being admitted for its truth?
With respect to the second question -- policy concerns -- if the police were to engage in misconduct such as beating a witness to obtain a statement, or conduct that would otherwise bring the administration of justice into disrepute, such as posing as a priest in a confessional, the statement would almost certainly be rejected as evidence of the truth of its contents: see K.G.B., at p. 299 and R. v. Rothman (1981), 59 C.C.C. (2d) 30 (S.C.C.), at p. 74. Another example would be where the probative value of the statement is outweighed by its prejudicial effect: see Khelawon, at para. 49.
25 In my view, the admission of [REDACTED]'s statement would certainly fall within the second heading. A statement made to deceive the authorities from the outset and conceal critical facts is not one that should be admitted under the Khelawon/K.G.B. rule.
Is [REDACTED]'s Statement Admissible?
26 [REDACTED]'s statement was made to the police on 13 September 2013, after he had been charged as being an accessory after the fact.
27 [REDACTED]'s testimony in court was not an outright recantation of his police statement. In both versions, he gave a consistent account of the lead up to the confrontation between the accused and [REDACTED], including: the location of the offence, the prior incident with [REDACTED], and [REDACTED]'s return to the gazebo on 16 August 2013.
28 The meaningful divergence began when [REDACTED] described [REDACTED]'s approach to the gazebo.
29 In his police statement, [REDACTED] indicated that the group was sitting under the gazebo when the accused recognised [REDACTED] walking along Jane Street with a male that both parties agree was [REDACTED]. The two walked to the lights and went into the Price Chopper store in the Jane Finch Mall. [REDACTED] left to go around the side of the building. Shortly afterwards, [REDACTED] and [REDACTED] re-emerged from the store and began to walk down Jane Street on the opposite side. Approximately five minutes later, they crossed the street and headed towards the gazebo.
30 According to [REDACTED], the accused believed that the two men had gone to get a gun. [REDACTED] and [REDACTED] came through the entrance gate and began to walk towards the gazebo, with [REDACTED] uttering the words "Is it a thing? Is it a thing?" [REDACTED] interpreted this as [REDACTED] asking the group if there was a problem between them.
31 After a brief conversation, the accused reminded [REDACTED] that there were cameras in the area to which [REDACTED] replied that he "don't give a fuck." [REDACTED] then produced a gun from his waistband and [REDACTED] jumped to the back of the gazebo. The accused, who had been sitting beside [REDACTED], never moved even though [REDACTED] was in front of him. [REDACTED] waved the gun around and then put it back in his waistband before walking off the gazebo and away from the group. He was approximately five feet from the gazebo when the accused tackled him from behind and knocked him to the floor.
32 At this point, [REDACTED] charged towards the two men. In [REDACTED]'s view, he was trying to assist [REDACTED]. [REDACTED] and [REDACTED] joined the fray and a mêlée ensued. [REDACTED] told the police that there was a struggle to get the gun which was in [REDACTED]'s waistband and that the accused, at some point, removed it.
33 Things were now moving fast: [REDACTED] saw the accused shoot [REDACTED] whilst everyone was close together. [REDACTED] fled the scene and was pursued by [REDACTED]. After being outpaced, [REDACTED] returned to the building complex to find an injured [REDACTED]. [REDACTED] also returned and was told by [REDACTED] to call an ambulance so that [REDACTED] could get help.
34 [REDACTED] and [REDACTED] walked to the mall where they met a police officer who questioned them about the event. [REDACTED] told the officer that he did not know what had happened. Entering the mall, he encountered a shoeless accused wearing a white tank top. [REDACTED] assisted the accused in buying slippers from a store inside the mall. They left soon after.
35 At trial, [REDACTED] diverged from his police statement in the following ways:
*At trial: When [REDACTED] removed the gun from his waistband, he pointed it at the group.
*Police statement: [REDACTED] explicitly told the police that [REDACTED] did not point the gun.
*At trial: When [REDACTED] turned to leave the gazebo, [REDACTED] did not see what [REDACTED] did with the gun.
*Police statement: [REDACTED] was clear that [REDACTED] had returned the gun to his waistband.
*At trial: When [REDACTED] turned to leave the gazebo, he took one step off the gazebo.
*Police statement: [REDACTED] told the police that [REDACTED] had walked approximately five feet away from the gazebo.
*At trial: [REDACTED] could not remember whether the struggle with [REDACTED] took place on grass or concrete.
*Police statement: [REDACTED] insisted that it was on the pavement.
*At trial: [REDACTED] indicated that [REDACTED] knew what [REDACTED] was going to do.
*Police statement: [REDACTED] told the officers that [REDACTED] did not know what was going on.
36 Most significantly, and in direct contrast to what he had earlier told the police, [REDACTED] testified that he had no memory of what had happened to the gun after [REDACTED] was taken down by the accused. [REDACTED] testified that he did not see the accused point the gun at [REDACTED] or shoot him. [REDACTED] was insistent that he never saw the accused with the gun until he saw him running behind the building after the fight had ended. Even then, [REDACTED] said he could not be sure that the accused had possession of the firearm.
37 [REDACTED]'s police statement complied with all of the traditional K.G.B. requirements: it was made under oath and videotaped, [REDACTED] was cautioned and warned that he was a potential witness at trial, and he was explicitly told that there would be criminal consequences if he made a false statement.
38 [REDACTED] rightly concedes that the traditional requirements of threshold reliability exist, but argues that the threshold has not been met because of the ambiguities that exist in the statement. He cites examples such as Gray telling the police he did not know when [REDACTED] got shot or where he got shot.
39 Whilst I agree that some arguable ambiguities exist, I do not take the view that their existence affects the admissibility result for the simple reason that [REDACTED]'s presence at trial provides a means of testing and resolving them. The court's sentiments in Trieu resonate very strongly in response to [REDACTED]'s concerns. Indeed, the ambiguities were cross-examined upon and clarified by [REDACTED] at trial, in many cases to the accused's benefit. Their ultimate truthfulness is a matter to be decided upon at the conclusion of the trial rather than at this stage of the proceedings.
40 For these reasons, I find that [REDACTED]'s police statement satisfies the Khelawon test for threshold reliability and it is admitted for the truth of its contents.
III. THE EDGAR APPLICATION
41 [REDACTED] sought to lead an utterance made by the accused to [REDACTED] pursuant to the principles in R. v. Edgar, 2010 ONCA 529. Again, in order to ensure a smooth flow to the trial, I gave brief oral reasons dismissing the application with written reasons to follow.
42 The gist of the application concerns the accused's response to a question asked by [REDACTED] when the two met for a drink at a bar shortly after the incident. [REDACTED] asked the accused why so many shots had been fired to which the accused replied that the gun had fired by itself.
43 [REDACTED] seeks the admission of this out-of-court utterance to demonstrate the accused's reaction when first confronted with the allegation of the offence.
44 In Edgar, the Court of Appeal for Ontario changed course from the centuries old rule that an accused's out-of-court statement could, in general, only be tendered by the Crown as part of its case. Otherwise, such statements would be deemed self-serving and inadmissible: R. v. Rojas, 2008 SCC 56, at para. 36; R. v. Simpson, [1988] 1 S.C.R. 3, at p. 22.
45 The court in Edgar held that an accused's prior statement to the police was admissible as evidence of reaction and consistency, provided it was a spontaneous utterance made upon arrest or when first confronted with an accusation. Before such an utterance could be tendered into evidence, the accused had to testify and subject themselves to cross-examination.
46 It was originally thought that Edgar applied only to utterances made to a person in authority. However, in R. v. Liard, 2015 ONCA 414, at para. 55, the Court of Appeal of Ontario expressly indicated that the initial confrontation could also involve civilians.
47 Despite this, the accused's application under Edgar fails for the simple reason that it fails to meet the key requirement since Gray's question was not an accusation, but an enquiry. In Liard, at para. 56, Laskin J.A. wrote:
But the confrontation must include an accusation of a crime. Statements by civilians -- even confrontations -- which are not accusatory, will not affect the spontaneity of an accused's reaction to a later police accusation of a crime.
48 [REDACTED]'s evidence was simply a question asked to clarify the number of shots fired by the accused whilst at the gazebo and nothing more. As such, the accused's out-of-court statement is inadmissible and, accordingly, the application is dismissed.
49 By way of footnote to the application, although the accused testified that the conversation with [REDACTED] was the first time he spoke about the gun firing by itself, [REDACTED] testified that the accused told him the same thing outside the washroom at the Jane Finch Mall. Since the accused's evidence contradicts that of [REDACTED], I find Edgar to be inapplicable to [REDACTED]'s evidence.
IV. SELF-DEFENCE
50 In dealing with the issue of whether the Crown has proven the case against [REDACTED] beyond a reasonable doubt, I remind myself of the procedure set out in R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 11, which guides the court to determine its verdict by approaching its analysis in the following manner:
(1) If I believe the evidence of the accused, I must acquit.
(2) Even if I do not believe the evidence of the accused but I find that it raises a reasonable doubt, I must acquit.
(3) Even if the evidence does not leave me with a reasonable doubt, I must turn to the balance of the evidence that I do accept to determine whether the Crown has proven its case beyond a reasonable doubt.
51 The accused raises the defences of accident and self-defence based on [REDACTED]'s conduct and the unintentional firing of the gun.
52 Section 34 of the Criminal Code, R.S.C., 1985, c. C-46 reads as follows:
34 (1) A person is not guilty of an offence if:
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g)the nature and proportionality of the person's response to the use or threat of force; and
(h)whether the act committed was in response to a use or threat of force that the person knew was lawful.
53 The defence of self-defence has three components. The first is subjective: did the accused reasonably believe that force was being used against him? The second is also subjective: were the accused's actions committed for the purpose of defending himself? Finally, the third component is objective: were the accused's actions reasonable?
The Accused's Version of Events
54 The accused testified that his conduct was a response to perceived threats made by [REDACTED] and [REDACTED].
55 I agree that the accused's testimony gives rise to an air of reality to both self-defence and accident.
56 There is little dispute that the incident giving rise to the allegations in the indictment were preceded by another similar incident, the exact date of which is unknown. According to [REDACTED], it occurred a month prior although the accused recalled it as taking place a week before. Not much turns on the timing of the previous incident other than the fact that it proved to be the catalyst for what happened on 16 August 2013.
57 On that previous occasion, an altercation arose at [REDACTED], where [REDACTED] forcibly removed a chain hanging round [REDACTED]'s neck. When [REDACTED] attempted to retrieve the chain, [REDACTED] brandished a gun from his waistband and, according to [REDACTED], pointed it at the whole group. The accused testified that he "pulled it [the gun] back" before showing it to everyone and then leaving.
58 On 16 August 2013, the accused noticed [REDACTED] and [REDACTED] walking north on the west side of Jane Street whilst seated within the gazebo. Remembering the events of the previous week, the accused turned to the others and said "He's probably going to get his thing," signifying his belief that [REDACTED] had gone into the nearby townhouse complex to pick up his gun. [REDACTED] promptly departed but the others, including the accused, remained at the gazebo.
59 [REDACTED], [REDACTED], and a third person reappeared crossing Jane Street and entering the [REDACTED]premises. The accused was the only witness to testify about a third person accompanying [REDACTED] and [REDACTED]. Both [REDACTED] and [REDACTED] testified that only [REDACTED] and [REDACTED]entered onto the [REDACTED] property together.
60 As they approached the gazebo, [REDACTED] was in a belligerent mood, shouting "Is it a thing? Is it a thing?" at the group. The accused interpreted [REDACTED]'s words as asking if there was a problem between himself and those on the gazebo. [REDACTED], at this point, was approximately fifteen to twenty feet behind him. [REDACTED] stepped onto the gazebo and stood approximately one foot from the edge, repeating the words "Is it a thing?" [REDACTED] and the accused asked [REDACTED] what his concerns were. At this point, [REDACTED] removed a gun from his waistband and made a sliding motion indicating that he had cocked the gun so that it was ready to fire.
61 The accused retreated, stepping out of the gazebo (near Marker 8 or 9 in the photos tendered as exhibits), and heard [REDACTED] warn [REDACTED] that there were cameras "all over the place." [REDACTED] replied that he "didn't give a fuck" and pointed the gun at the accused and [REDACTED].
62 The accused testified that he was scared that he was about to die. At this point, one of [REDACTED]'s companions - the accused could not remember whether it was [REDACTED] or the third person - muttered something to [REDACTED] causing him to turn his head in their direction. At that moment, the accused ran at [REDACTED] who was holding the gun at his side. The accused hugged him around his lower body. The two men ended up on the ground at the area where the grass met asphalt. A struggle ensued in which [REDACTED] lay on his back holding the gun in his right hand with the accused straddling him, his left knee on the ground. The accused held [REDACTED]'s right hand and shook him by the shirt. During the struggle, the gun began to fire although he could not tell whether [REDACTED] had pulled the trigger. The gun faced downwards and he guessed that there were four or five shots fired all facing downwards.
63 During his struggle with [REDACTED], [REDACTED] entered the fray and either kicked or punched the accused in the head. [REDACTED], however, managed to pull him away. As [REDACTED] fell to the ground, [REDACTED] and [REDACTED] began to kick him.
64 The accused managed to gain hold of the gun and [REDACTED] fled. The third person had already left the scene when the trouble started. As the accused got to his feet, he pointed the gun at [REDACTED] because he was unsure whether [REDACTED] was in possession of a weapon that he might use against him. The accused testified that he thought [REDACTED] was going to pull out a weapon and shoot him. The accused also testified that he had no experience with guns and held them by the trigger because that was how he had seen it done in the movies and television.
65 Inexplicably, the gun went off even though the accused testified that he had not pulled the trigger and had never meant to fire the gun. At this point, the accused's memory appeared to fail him. A surveillance video camera affixed to [REDACTED]captured video showing the accused chasing [REDACTED] after he had been shot. The video depicted [REDACTED] falling and the accused striking downwards at him as he lay on the ground. The accused was unable to explain his pursuit of [REDACTED] or his subsequent assaultive actions.
66 The accused did remember, however, that he heard [REDACTED] yell "cut" and that [REDACTED] told him he had been shot.
67 The accused was extremely distrustful of the police because of his past experiences with law enforcement. Fearing that the police would not believe his side of the story, he decided to flee the scene. He ran back to get his keys and a flip flop that had come off during the struggle with [REDACTED]. Bending down to retrieve these items, he testified the gun that he was still holding went off again, unintentionally. The accused ran off to the back of [REDACTED] and jumped over a fence into a residential backyard in order to get to the nearby Jane Finch Mall. En route, he threw the gun into a storage shed.
68 Entering the mall, he went to a washroom to clean off blood from his left knee which he scraped on the ground whilst struggling with [REDACTED]. On his way in, he met an acquaintance, [REDACTED], and told him not to go to [REDACTED] because of "the nonsense."
69 Inside the washroom, the accused wiped clean his knee and then exited to encounter [REDACTED] and [REDACTED]. Both told him that they had spoken to an officer who was looking for someone with a blue shirt involved in the incident. They advised the accused to remove the shirt he was wearing to avoid detection. He did so by throwing the shirt and a black thermal that he was wearing underneath into the garbage.
70 Heading to a store inside the mall, he and [REDACTED] bought new flip flops and then left through a McDonalds.
Did the Accused Act in Self-Defence?
71 The Crown must disprove the defence of self-defence beyond a reasonable doubt. The accused bears no burden in proving a defence other than establishing an air of reality. In the recent case of R. v. Constantine, 2015 ONCA 330, at para. 19, Hoy A.C.J.O. summarised the test:
The air of reality test is whether there is evidence on which, if believed, a properly instructed jury acting reasonably could acquit: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49, 60. It must be applied to each component of the defence: Cinous, at para. 95. In applying this test, the trial judge identifies the evidence most favourable to the accused and assumes it to be true, regardless of whether it was adduced or mentioned by the accused: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 25. The test "requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence": Cinous, at para. 86. However, the trial judge does not determine the credibility of witnesses, weigh the evidence, make findings of fact or draw determinative factual inferences: Cinous, at paras. 54, 87. That is the role of the jury.
72 In the circumstances of the evidence given by the accused, I find that the air of reality test has been met. If the accused's evidence is believed, a trier of fact could find that, faced with the fear of being shot by [REDACTED], the accused took pre-emptive action to disarm [REDACTED] and pointed the gun at [REDACTED] to protect himself from a further perceived threat.
73 When assessing the evidence of self-defence I do not have to believe the accused's version of events for the defence to succeed. If the evidence raises a reasonable doubt, the accused must be acquitted.
(a)Was [REDACTED] Walking Away?
74 In assessing the question of self-defence, I turn first to the issue of the accused's evidence that he was forced to attack [REDACTED] after he had pointed the firearm at him. Although self-defence is to be determined when the accused shot at [REDACTED], that event cannot be viewed in isolation. The wider question of whether the accused reasonably believed that force was being used against him and responded for the purpose of defending himself must take into account [REDACTED]'s actions.
75 One of the critical issues, therefore, is whether [REDACTED] had put the gun away and left the gazebo when the accused charged at him.
76 Determination of this issue is important because if [REDACTED] was walking away from the accused, any threat or danger had passed: there was no need for the accused to attack [REDACTED] to defend himself. If, on the other hand, [REDACTED] was facing the accused and holding him at gunpoint, there was every justification for the accused to charge at [REDACTED] under s. 34 of the Code.
77 The accused placed [REDACTED] one foot inside the gazebo facing him with his head turned just before he attacked. [REDACTED] put [REDACTED] even further inside the gazebo, at its centre. However, [REDACTED], in his police statement, described [REDACTED] as walking away from the accused and approximately five feet from the gazebo. At trial, [REDACTED] changed his evidence but still placed [REDACTED] one step off the gazebo with his back to the accused.
78 For the following reasons, I reject the account given by the accused and [REDACTED] and find that [REDACTED] 's statement to the police was the truth.
79 First, [REDACTED] and the accused were good friends. When [REDACTED] gave his statement to the police, there was every reason for him to minimise and protect the accused. [REDACTED] did the opposite.
80 Secondly, both parties, for differing reasons, place the location of the struggle between the accused and [REDACTED] at the edge of the gazebo where the grass meets an asphalt surface. That location appears to be confirmed by two excerpts of the accused's testimony: that he had to clean blood from his knee where it had scraped against the ground during the attack and that he was banging [REDACTED]'s head against "the ground" as he struggled with him over the gun. This location is several feet away from gazebo. For the accused's evidence to be true, he would have had to have charged with such force that the collision catapulted both men several feet. That was not his evidence, however, as he told the court that he ran at [REDACTED] and bear hugged him, after which both of them fell down somewhere between the grass and pavement area.
81 [REDACTED] 's evidence makes even less sense. He placed [REDACTED] at the centre of the gazebo and told the court that the accused placed [REDACTED] in a bear hug and then "slammed him down." In cross-examination, however, when confronted with the somewhat unlikely scenario that the accused would then have had had to lift [REDACTED] up and walk the distance from the centre of the gazebo to the location of the struggle carrying [REDACTED], [REDACTED] appeared to equivocate and could not explain how both men had travelled this distance. [REDACTED], in my view, was a biased witness who testified with one motive in mind: assisting the accused.
82 [REDACTED] 's police statement - that [REDACTED] was already well off the gazebo before being knocked down by the accused - is the account most consistent with where the struggle took place.
83 Thirdly, I disbelieve the accused's testimony that he charged at [REDACTED] whilst he was holding a gun and facing him. By the accused's own testimony, he was not on the gazebo when [REDACTED] allegedly turned his head to converse with one of his friends. It would make little sense for the accused, who was terrified that he was about to be shot, to run at distance directly at [REDACTED] who would be able to shoot him point blank. It should be noted that even when recanting at trial, [REDACTED] had [REDACTED] walking off the gazebo with his back to the accused when attacked.
84 For the above reasons, I find that [REDACTED] had left the gazebo and was walking away from the accused when he was attacked from behind.
(b)Was [REDACTED] Holding the Gun?
85 In dealing with this issue, it is also important to recall the evidence of whether [REDACTED] was actually holding the gun when the accused attacked him. The accused's insistence that the gun was in [REDACTED] 's hand is contradicted by Nicholas Gray's statement to the police that [REDACTED] had put the gun into his waistband whilst walking away from the accused. In addition, [REDACTED] told the police that during the struggle it remained in [REDACTED] 's waistband until the accused removed it. At trial, [REDACTED] recanted that portion of his statement, claiming that he did not recall what happened and that he was guessing the gun was in [REDACTED] 's waistband. [REDACTED] testified that during the struggle, he could not see the accused's hands.
86 In my view, the accused's evidence does not accord with the evidence given by either [REDACTED] in his police statement or [REDACTED] in his testimony at trial. If [REDACTED] had been holding the gun in his hand, [REDACTED], a witness who was not unfriendly to the accused, would have seen it.
87 There is also a discrepancy over when the shots were fired. The accused testified that at least three shots went off whilst he was struggling with [REDACTED], who had the gun in his hand. [REDACTED] heard the shots but did not see the gun or who had fired them. [REDACTED] testified that he heard one shot and then [REDACTED] fled the scene. [REDACTED] heard the remaining shots during his pursuit of [REDACTED]. In his police statement, [REDACTED] indicated that the accused had fired all of the shots after [REDACTED] had fled. Although much was made of the sequence of shots, this trial does not require the exact sequence of shots to be determined precisely. I find, however, that if [REDACTED] had been holding the gun, both [REDACTED] and [REDACTED] would have seen it and they did not.
88 Finally, the bullet marks found at the scene indicate that the bullets were fired towards Jane Street. The accused's evidence was that he and [REDACTED] were facing away from Jane Street, with their heads closest to Jane Street rather than the building at [REDACTED]. According to the accused, [REDACTED] 's arm was by his side. That being the case, if the accused's account was true, the bullet marks would be in direction of the apartment building, not Jane Street.
89 I find that [REDACTED] had the gun in his waistband and, that being the case, there was no reason for the accused to pursue and attack him. Any danger presented by [REDACTED] had passed by the time he left the gazebo. I find that [REDACTED]'s police statement reveals the true nature of the accused's actions: "the whole taking, [REDACTED] taking them down was to prevent it in happening in the future."
(c)Did the Accused Shoot [REDACTED] in Self-defence?
90 My finding that the accused attacked [REDACTED] from behind when the danger had passed does not end the question of whether the accused acted in self-defence as I must determine whether the accused shot [REDACTED] in self-defence.
91 Even if I believed the accused's account of the struggle with [REDACTED] - which I do not - I would have to hold that [REDACTED] 's shooting was the result of self-defence. In other words, that the accused reasonably believed, after taking the gun from [REDACTED] and pointing it at [REDACTED], that there was still a threat of force against him and he fired the gun for protection.
92 According to the accused, he was terrified and scared after his struggle with [REDACTED]. He pointed the gun at [REDACTED] because he thought [REDACTED] was going to pull out a weapon and shoot him. The accused testified that he had no intention of shooting or harming anyone.
93 I find this explanation makes no sense. There was no reason for the accused to think that [REDACTED] had a gun or any other weapon. There was no evidence that [REDACTED] possessed or produced any type of weapon prior to the accused's scuffle with [REDACTED] or when he was attacked by [REDACTED] and [REDACTED]. Certainly if [REDACTED] had been in possession of a weapon, that would have been the time to use it.
94 [REDACTED] was also unequivocal in his police statement that the accused purposely pointed the gun at both [REDACTED] and [REDACTED] before shooting.
95 I also find the accused's testimony that he did not intend to harm [REDACTED], or anyone else that day, to be false.
96 The video from the [REDACTED] camera capturing the end of the incident is critical in a number of respects in this case: the accused is seen pursuing an injured [REDACTED] and striking out at him after he has fallen to the ground. This scene fatally undermines any claim that the accused did not intend violence.
97 The evidence I have already referred to shows that the accused was motivated to make sure that he and his group were not to be treated the way they had been by [REDACTED] or any of his friends again.
98 For the above reasons, I disbelieve the accused's account that he acted in self-defence and find that the evidence does not raise a reasonable doubt on this point.
V. ACCIDENT
99 [REDACTED]'s second argument is that even though the accused pointed the firearm at [REDACTED], he did not fire the gun intentionally.
100 According to the accused, the majority of the shots were discharged during the struggle when [REDACTED] was holding the gun. Only two shots were fired once he gained possession of the gun. The first was after [REDACTED] had fled and the accused was getting up off the ground. This was the shot that struck [REDACTED]. The second shot was fired when the accused returned to the gazebo to pick up his keys and abandoned flip flop.
101 Both occasions, says the accused, were accidental gunfire. He did not pull the trigger and had no intention of firing the gun. In his words, he did not "intend to harm anyone."
102 [REDACTED] posits two scenarios that should leave this court with a reasonable doubt. First, he submits that the gun was defective and misfired by accident. Second, he argues that, irrespective of the condition of the gun, the stress and tension experienced by the accused caused him to unintentionally fire the gun.
Did the Firearm Discharge Accidentally?
103 In a criminal context, "accident" means an unintended act or unintended consequences: R. v. Mathisen, 2008 ONCA 747, at para. 70. I deal first with the accused's argument that the act was unintended by the accused and the result of a faulty gun.
104 As the firearm was never recovered, its actual working condition is the subject of some speculation. Both the Crown and defence called expert opinion evidence on the issue of whether the firearm accidentally discharged when held by the accused.
105 [REDACTED], from the Centre of Forensic Sciences, told the court that the bullet found at the scene was fired from a .38 calibre class firearm. The cartridge cases found at the scene of the offence were possibly fired by "but not limited to, a firearm marketed by Glock or Smith and Wesson Sigma, among others." Working from this premise, [REDACTED] told the court that this type of gun was not defined as a "light trigger" with little force needed to pull it into a discharge position. According to her analysis, approximately 4.5 to 5.5 lbs of pressure on the trigger would be required to cause it to fire. This figure was calculated by attaching incremental weights to the trigger of the same type of gun.
106 [REDACTED] also testified that a misfiring firearm required three internal safety mechanisms to be compromised. First, the trigger safety, a lever incorporated into the trigger which prevents it from moving rearward, would have to be depressed at the same time as the trigger; second, the safety plunger would have to be missing or not pulled back to the "safe" position; and finally, the drop safety, at the rear of the gun, would have to be disengaged.
107 [REDACTED], called on behalf of the accused, agreed with much of [REDACTED]'s evidence, as well as her finding that approximately 4.5 to 5.5 lbs of pressure would be required to pull a trigger of this type. At first, he likened the action required to produce such pressure as akin to the flicking of a light switch, but in cross-examination, he agreed with [REDACTED] that a "better" analogy would be the pressure used in an electronic drill.
108 The accused also called [REDACTED], who trained police officers in the use of force. His evidence was of limited value. Common sense dictates that someone who is tense and nervous might unintentionally pull the trigger of a firearm. I was unimpressed by [REDACTED]'s attempt to provide an opinion in areas outside his sphere of expertise. For example, his opinion that a Glock was a "light trigger" firearm was contradicted by both witnesses who were experts in this area, including [REDACTED] who was called by the accused.
109 For the following reasons, I find it highly unlikely that the firearm fired unintentionally due to a defect.
110 Both [REDACTED] and [REDACTED] agreed that, ideally, the gun used in the shooting would be examined to determine the existence of faults. Both experts also agreed that all three safety systems had to fail before the gun could unintentionally discharge. [REDACTED] indicated that [REDACTED] and this class of firearm were regarded as "safe" guns.
111 I find it extremely unlikely that all three safety systems failed simultaneously. Even if that occurred, it is not clear what the effect would be.
112 [REDACTED] cross-examined [REDACTED] on a number of "recalls" issued by Glock and Smith and Wesson; only five of those "recalls" had any application to the case at bar because the others did not apply to the firearm suggested by the cartridge cases found at the scene. With respect to the applicable "recalls," [REDACTED] testified that none of the malfunctions would cause the firearm to actually fire a bullet from the chamber; the defects would simply render the gun inoperable.
113 [REDACTED] testified, however, that it was possible that a defective gun could discharge in cases where force was applied, such as the gun striking the ground. I have already indicated that I disbelieve the accused's account of a struggle with [REDACTED] holding the gun. However, even if the accused's account were true, the accidental discharge of the gun would be confined to the struggle with [REDACTED]. [REDACTED's opinion does not explain why the gun misfired when pointed at [REDACTED].
Did the Firearm Discharge Unintentionally?
114 [REDACTED]'s second scenario is based on the effect of the tense situation on the accused, who, nervous and scared, unintentionally pulled the trigger after taking the gun from [REDACTED].
115 Although no one could deny that this was a tense confrontation, [REDACTED] 's able argument fails to survive a number of evidentiary obstacles.
116 First, the accused steadfastly denied pulling the trigger. In light of the evidence given by both experts on the amount of pressure required to fully depress the trigger, it is inconceivable that the accused would not realise he had done so on at least two occasions.
117 Secondly, it would not explain the unintentional discharge that occurred when the accused was simply bending down to retrieve his belongings. By that time, any danger had passed. It is also hard to understand why, at this point, the accused was actually still holding the gun: [REDACTED] had fled the scene and [REDACTED] was laying on the ground, shot. In other words, there was no danger and no reason to hold the gun.
118 Thirdly, the accused has very little credibility on this issue. In denying that he fired the gun, the accused repeatedly proclaimed that he did not intend to hurt anyone that day. As previously described, his evidence is seriously undermined by the surveillance video capturing the end of the incident which shows the accused pursuing an already wounded [REDACTED], circling him after he has fallen, and then striking down at him with venomous intent. If one thing is clear from the video, it is that the accused wanted to hurt [REDACTED] and to hurt him badly.
119 Then there is the matter of the accused's disposal of the gun. The first question that springs to mind is, why would the accused take a defective gun that did not belong to him from the scene? The accused's explanation was that he took the gun with him and later threw the gun away because he did not want to be seen with it. Why then did he simply not leave it at the scene? By taking the gun, he made it more likely that he would be found and seen with it.
120 There were only two reasons to leave with the gun: (1) to keep it as a form of insurance to prove that it was defective in case he was questioned by the police; or (2) to dispose of it because it was incriminating evidence.
121 In other words, if the accused's version of events were true, there would be every reason to save the gun. The accused did the reverse and discarded it in a manner that ensured it was never found.
122 The accused's explanation for getting rid of the gun is further weakened by the evidence that he knew video cameras were stationed around the building. Knowing this, the accused should have been confident that these cameras would prove his version of events, including the unintentional discharge, giving him further reason to keep the gun safe.
123 In my view, the accused disposed of the gun because there was nothing wrong with it and he knew it constituted evidence that would incriminate him in the shooting of [REDACTED].
124 For the above reasons, I reject the accused's testimony that he acted in self-defence and that the gun discharged unintentionally. Not only do I disbelieve the accused, the evidence fails to raise a reasonable doubt.
VI. HAS THE CROWN PROVEN THE CASE AGAINST [REDACTED]?
[REDACTED]'s Police Statement
125 The only direct evidence that the accused shot [REDACTED] comes from [REDACTED] s police statement made on 30 September 2013. As noted, [REDACTED]’s police statement is powerful evidence that the accused pursued [REDACTED] from the gazebo when any threat to himself had evaporated. The implication of [REDACTED]'s statement is that the accused followed and tackled [REDACTED] to take possession of the gun. He was angry at [REDACTED] 's behaviour and was determined that such actions would not happen again. As a result, he ended up shooting [REDACTED] and [REDACTED] escaped.
126 Ms. [REDACTED] asks me to accept the contents of that statement as the truth and reject the conflicting parts of [REDACTED]’s viva voce testimony which would have the effect of exonerating the accused.
127 Further to my ruling, this statement is admissible for the truth of its contents. However, as with any witness whose prior inconsistent statement has been admitted under the Khelawon/K.G.B. rules, one might ask why this court should prefer [REDACTED]'s police statement to his testimony in court as [REDACTED] urges me to do?
128 As previously described, [REDACTED]'s trial testimony was not an outright recantation of his previous statement. In many ways, his viva voce evidence matched the account given earlier in his police interview. The two versions diverged when [REDACTED] testified about evidence incriminating the accused. For example, in his police statement, [REDACTED] had walked approximately five feet from the gazebo before the accused tackled him from behind. In his evidence in court, [REDACTED] testified that [REDACTED] only took one step off the gazebo. [REDACTED]'s trial testimony with respect to [REDACTED] made it appear that [REDACTED] was part of the incident from the outset, whilst in his police statement he was explicit in telling [REDACTED] that [REDACTED] "didn't know what was going on." Most significantly, [REDACTED] could not remember seeing the accused with [REDACTED]'s gun until he saw the accused running behind the building with it. In his police statement, he was clear that the accused removed the gun from [REDACTED]'s waistband and shot [REDACTED] whilst aiming at him and [REDACTED].
129 [REDACTED] asks me to find that [REDACTED]’s testimony was the product of a desire to assist both the accused and himself in evading criminal liability. I agree.
130 In evaluating [REDACTED]'s police statement, however, the same considerations that applied in its admissibility become relevant in assessing its credibility. I also remind myself that, at the time he spoke to police, [REDACTED] had been charged as an accessory after the fact to attempted murder. As such, I must caution myself in accordance with the principles set out in R. v. Vetrovec, [1982] 1 SCR 811 when considering [REDACTED]'s evidence. It would be dangerous to convict the accused solely on [REDACTED]'s evidence without some form of confirmatory material which gives comfort that [REDACTED] can be trusted: R. v. Khela, 2009 SCC 4, at para. 42.
131 [REDACTED]'s status as a suspect in this case ironically enhances the reliability of his interview with the police. [REDACTED] was not being charged as the shooter but as an accessory after the fact. It did not assist [REDACTED] to identify the accused as the perpetrator; by contrast, [REDACTED] had every incentive to divert the police from the notion that the accused was the shooter. By doing so, he could hope to extricate himself from his own criminal charges.
132 As well, the accused and [REDACTED] were friends, giving [REDACTED] even less reason to implicate the accused.
133 However, as we know, [REDACTED] explicitly told police that the accused shot [REDACTED].
134 Nor was [REDACTED]'s statement one that had to be coerced. [REDACTED] was more than willing to provide a detailed account of what had happened, at times enthusiastically providing physical demonstrations of what had occurred, such as: [REDACTED] placing the gun back into his waistband before leaving the gazebo, [REDACTED] s hand movements when first confronting [REDACTED] at the gazebo, and how [REDACTED]fell to the ground after being shot.
135 [REDACTED]'s police statement is also confirmed in a number of different but important respects.
136 First, his repeated assertions that [REDACTED] was walking away from the group on the gazebo is supported by the location in which the cartridges were found and is a far more credible account of how the accused and [REDACTED] ended up there.
137 Secondly, [REDACTED]'s account that the accused was only wearing a white tank top after he exited the washroom is confirmed by the video footage. [REDACTED]'s account directly contradicts that of the accused and his explanation as to why he removed his outer clothing, discussed later. Moreover, [REDACTED] told the police that after he met the accused at the mall, they shopped for a shirt and footwear. This, too, is confirmed by the video evidence.
138 Finally, when asked whether the accused said anything whilst he was shooting, [REDACTED] told the police that "[h]e just looked pissed off." This was in direct contrast to the accused's evidence that he did not intend to harm anyone. Once again, I return to the video footage that captured the end of events. The accused's animus and hostility towards [REDACTED] could not be clearer as he chases and strikes out at [REDACTED]. A review of that footage more than confirms [REDACTED]'s statement that the accused was angry.
139 Moreover, [REDACTED]'s viva voce testimony was internally inconsistent. For example, initially he testified that [REDACTED] took out his gun on the gazebo he started "waving" it around before placing it back in his waistband when told by [REDACTED] that there were cameras about. He later changed that evidence to say that [REDACTED] had pointed the gun at the accused and himself. In another series of questions, when asked by [REDACTED] whether he knew [REDACTED] had a gun when he approached the gazebo, [REDACTED] said he was not sure and only suspected that he might because [REDACTED] would need something to defend himself with when going to speak to the group. In cross-examination by [REDACTED], [REDACTED] changed his evidence, telling the court that he knew [REDACTED] was in possession of a gun when he saw him approach because he was holding his waistband.
140 [REDACTED] sought to explain away many of the contradictions between his trial testimony and police statement by citing his nervousness when first interviewed by the police. He also claimed that his statement was "forced." Having reviewed the video recording of the interview, I find that [REDACTED] showed no signs of nerves and appeared eager to tell his story, demonstrating actions of the various players without prompting from the police. There is no evidence of any coercion or pressure.
141 For the above reasons, I find [REDACTED]'s statement to the police to be the truth.
Post-Offence Conduct
142 [REDACTED]'s statement does not stand alone. [REDACTED] asks this court to consider the accused's subsequent actions as evidence of his culpability.
143 In R. v. White, 2011 SCC 13, at para. 22, the Supreme Court of Canada re-affirmed the principle that post-offence conduct may be probative circumstantial evidence of guilt. Its worth is contextual and in some cases it may be "highly incriminating, while in others it might play only a minor corroborative role:" R. v. White, [1998] 2 S.C.R. 72, at para. 21. The evidence in question must be relevant to an issue and not subject to an exclusionary rule. It may also be excluded if its probative value is outweighed by its prejudicial effect.
144 Post-offence conduct must, of course, be used cautiously. It is incumbent upon the trier of fact to consider any alternative explanations for the post-offence conduct sought to be used by the Crown as evidence of guilt: White (1998), at para. 57. It may well be that if an accused's post-offence conduct may be equally explained by or consistent with two or more offences, it has no probative value: R. v. Arcangioli, [1994] 1 S.C.R. 129, at pp. 145, 147; White (1998), at para. 28.
145 Flight, for instance, a commonly used example of post-offence conduct, may in many cases be useful in deciding a perpetrator's identity but not culpability between two levels of offences where the accused admits the act: for example, murder as opposed to manslaughter: White, at para. 39. However, post-offence conduct need not point to only one reasonable inference to be useful and admissible to prove a fact in issue: R. v. Rodgerson, 2014 ONCA 366, at para. 51, aff'd 2015 SCC 38. It is for the trier of fact to decide on the totality of the evidence whether the post-offence conduct is related to the offence or is innocuous: R. v. Carrington, 2017 ONCA 2, at para. 41.
146 The inferences sought by the Crown in this case are similar to those tendered in R. v. Nicholson, 2017 ONCA 3. There, the court, at para. 15, held that disposal of a weapon and a change of clothing were available for consideration even though other inferences were available to explain the accused's actions.
147 In the circumstances of this case, [REDACTED] suggests that the accused's rapid departure from the scene was caused by his concern that he might be blamed for the shooting even though he was acting in self-defence. The accused testified that he left because [REDACTED] yelled "cut" indicating that he should leave. If flight was the only after-the -fact conduct relied upon by [REDACTED], [REDACTED]’s argument might have traction.
148 However, the post-offence conduct in this case goes further, as in Nicholson. Not only does the accused flee the scene, he takes calculated steps to dispose of incriminating evidence. I have already referred to the fact that there was little reason to leave with the gun. The accused, however, went to some lengths to discard it before going to the mall to dispose of his upper body clothing -- his blue shirt and a black waffle knit shirt worn underneath - which was later found by the police. Gun shot residue was located on the black shirt.
149 The accused's justification for getting rid of his upper body garments was that he had been told by [REDACTED] and [REDACTED] to do so after he emerged from the mall washroom. According to the accused, they told him that, moments earlier, they had spoken to an officer looking for someone in a blue shirt. Hearing this, and acting out of fear, the accused claimed that he returned to the washroom and discarded his shirts. Unfortunately for him, almost all of the evidence contradicts his explanation.
150 [REDACTED] testified that no such conversation occurred when they met the accused outside the washroom. At trial, [REDACTED] could not remember what he said to [REDACTED] but in his statement, as discussed previously, he told the police that the accused had emerged from the washroom wearing a only white tank top on his upper body when they met. Decisively, the video footage confirms this account: when [REDACTED] and [REDACTED] first enter the mall, they walk straight past the washroom and have no contact with the accused. When they do encounter him shortly afterwards, he has already removed his shirt and is wearing a white tank top as described by [REDACTED].
151 Standing alone, flight from the scene may be characterised as ambiguous evidence. Coupled with the disposal of the gun and his clothing, the totality of the evidence constitutes powerful circumstantial evidence that the accused committed the offence and deliberately attempted to destroy the incriminating evidence to avoid being caught.
The Video Footage
152 Finally, I return to the video footage which, in my view, comprises one of the most important pieces of evidence in this case. As previously discussed, the video impacts the accused's credibility and provides confirmation of part of [REDACTED]'s police statement.
153 It is also, in its own right, evidence that demonstrates that what happened on 16 August 2013 was a deliberate act of aggression committed by an angry [REDACTED].
154 It is not without significance that the accused, who appeared to have no difficulty in remembering almost all of the incident of 16 August 2013, has no memory or explanation for why he chased [REDACTED] and struck out at him whilst he lay on the ground. I agree with [REDACTED] l that the reason for the accused's memory lapse is that he simply cannot explain away the unexplainable.
Conclusion
155 I find that [REDACTED] deliberately shot [REDACTED]. He did so because he was angry at [REDACTED], a youth who had shown complete disrespect to both himself and his friends, by waving a gun at them in a threatening manner.
156 [REDACTED] had been involved in an altercation a month or so earlier with [REDACTED], one of [REDACTED]'s friends, and returned to the gazebo for a further confrontation, waving about a gun to impress and intimidate the accused and his friends. The accused, angry at the bravado and disrespect shown by the much younger [REDACTED], was determined that this type of thing would not happen again.
157 When [REDACTED] left the gazebo area, the accused pursued him and tackled him from behind, intent on taking the gun from him. When he retrieved it from [REDACTED]'s waistband, he began shooting at [REDACTED] and the man who had accompanied him, [REDACTED]. The accused's inexperience with the gun led to him firing a number of shots with only one hitting its target: the bullet that entered [REDACTED] through his lower abdomen. [REDACTED] fled the scene and an injured [REDACTED] sought to get away but fell as he was being pursued by a "pissed" [REDACTED], who struck out at him as he lay on the ground. [REDACTED], realising that he would be held liable for the shooting, left the scene with the gun and made sure it would not be found by discarding it. He then went to the nearby shopping mall to change clothes to avoid detection.
158 [REDACTED] conceded that the Crown is unable to make out the requisite intention for attempted murder, as specified in R. v. Ancio, [1984] 1 SCR 225, and that count is dismissed.
159 With respect to count 4 on the indictment, possession of a loaded restricted firearm, the CFS report written by [REDACTED] specified that the cartridge cases "were possibly fired in, but not limited to, a firearm marketed by Glock or Smith and Wesson Sigma, among others." Even though there is the very strong likelihood that it was a restricted firearm, in the absence of the actual gun used or other testimonial evidence, I cannot say that the Crown has proven that fact -- its own specific particularization - beyond a reasonable doubt. Accordingly, that count is also dismissed.
160 On the remaining counts, I find that the Crown has proven the counts of discharging a firearm with intent to wound [REDACTED], aggravated assault, and using a firearm whilst committing the offence of aggravated assault beyond a reasonable doubt. Convictions will be entered on those counts.
[REDACTED] J.
