Court File and Parties
Court File No.: Brampton/13-000410 Date: 2014-12-16 Ontario Court of Justice
Between:
Her Majesty the Queen
- and -
Naqash Abbasi
Reasons for Judgment
Heard on: September 4, 5, 15, October 4, 2014
Reasons released on: December 16, 2014
Counsel:
- R. Alexander Cornelius, for the Crown
- Robert Christie, for the Accused
Justice: Stribopoulos, J.
I. Introduction
1At approximately 1:00 a.m. on Thursday, February 9, 2012, the Dos Santos family was awakened by the sounds of gunfire and breaking glass. The family's two-storey suburban home, located at 3 Tullamore Road in the City of Brampton, was being riddled with bullets.
2In total, someone fired between 8 and 10 shots into the home. The gunshots came from the direction of the street and cut through the glass of a bay window at the front of the house. The gunfire left a trail of destruction. The projectiles passed through furniture, a television, and interior walls on the main floor, with at least some of the bullets becoming lodged in the wall and the kitchen cabinets at the very back of the house.
3In February 2012, seven members of the immediate and extended Dos Santos family were living in the home. At the time of the shooting, all of the residents were asleep in their beds on the second floor. Thankfully, despite the destructive force of the gunfire, nobody was killed or injured.
4Based on an agreed statement of facts, as well as forensic ballistics reports that were admitted on consent, there is no issue between the parties that the person who fired into the Dos Santos home did so using a restricted firearm that belonged to the accused: a .22 calibre, Norinco, semi-automatic rifle.
5It is further agreed that the accused lawfully purchased that rifle from a licensed firearms dealer on January 31, 2012, and picked it up on February 3, 2012. At the time, the accused was the holder of a valid firearms license that included authorization to purchase and possess restricted firearms.
6It was also agreed that on May 21, 2012, the rifle used in the shooting was surrendered by the accused's mother at 22 Division of the Peel Regional Police Service, in order to comply with the terms of a recognizance of bail that the accused had entered into on that day in relation to some unrelated charges.[1]
7The key issue in this case is whether the Crown has established beyond a reasonable doubt that the accused was the person who fired the rifle into the Dos Santos family home on the morning of February 9, 2012.
8No one apparently saw the person who fired the rifle. The case against the accused is entirely circumstantial, turning on his connection both to the person who had an apparent motive to intimidate and/or harm members of the Dos Santos family and to the firearm used in the shooting.
9The accused testified in his defence. He denied being involved in the shooting or having any knowledge of who perpetrated the crime. Although he did not directly implicate his younger brother, Danish Abbasi, in the shooting, his testimony, if accepted, suggests that Danish had a motive to carry out the attack and also had access to the firearm used.
10The accused is charged with a variety of offences relating to the shooting at the Dos Santos home. He elected to be tried before me. Before the trial commenced, the Crown withdrew one of the counts charged (count seven, alleging careless storage of a firearm, contrary to section 86(1) of the Criminal Code). At the completion of the Crown's case, the defence moved for a directed verdict on count ten, which charged the accused with being the occupant of a vehicle in which there was a firearm without the required authorization, contrary to section 94(1) of the Criminal Code. Given the absence of any evidence that a vehicle was involved in the shooting, the Crown did not resist that application; and a verdict of not guilty was directed with respect to count ten. These are my reasons for judgment with respect to the remaining eight charges against the accused.
II. The Evidence at Trial
11Much of the Crown's case was the subject of an agreed statement of facts and is detailed above. To the extent that the Crown elicited evidence at the trial, it was focussed mainly on two issues: first, the potential motive for the shooting; and, second, control and access to the firearm used. I will detail the evidence adduced by the Crown relevant to these two issues, before summarizing the evidence of the accused; who was the only witness for the defence.
A. Potential Motive for the Shooting
12In February 2012, Emaly Dos Santos was living at 3 Tullamore Road, in the City of Brampton, along with her parents, her older brother, her aunt and her two cousins. Like everyone in the household, she was asleep at the time of the shooting and awakened by it.
13During the first half of 2010, when she was fifteen years old, Emaly dated a young man named Z.A.[2] According to Emaly, she broke off the relationship after about six months. Z.A. apparently responded badly to the break up. Emaly testified that he refused to accept that they were broken up. For a long time after the break up, Z.A. continued to contact Emaly. She testified that he repeatedly called her, sent her text messages, and messaged her via Facebook and MSN messenger.
14Beyond a pattern of persistent and unwanted communications, Emaly also described two separate unsettling incidents involving Z.A. attending at her family's home. On one occasion, the family discovered Z.A. trying to break into their house. She also testified about a second incident involving her discovering Z.A. inside her bedroom closet.
15Emaly testified that Z.A. had also made threats to hurt people she cared about if she failed to answer his phone calls. The threats were directed at both her brother and her new boyfriend, Alexis Guerra. Alexis also testified that after he started getting close to Emaly he began receiving telephone calls from someone who said his name was "Z". During these initial calls Z.A. would inquire about his intentions towards Emaly. According to Alexis, after he started dating Emaly in April of 2011, the calls grew more frequent and became more menacing.
16Near the end of 2011, Alexis Guerra testified that, during a telephone conversation, Z.A. threatened that if he touched Emaly again "he would be dead". Soon thereafter, Emaly and Alexis reported Z.A. to the police. This apparently led police to arrest and charge him.[3] After the police became involved, the unwanted contact, communications and threats finally stopped. Emaly's father, Michael Dos Santos, testified that Z.A. was arrested about two or three weeks before the night of the shooting at the family's residence.
17The evidence established that there is a longstanding friendship between the family of the accused and the family of Z.A. The accused's mother, Shireen Abbasi, testified that the two families met in 2003 soon after her family immigrated to Canada from Pakistan. The families are sufficiently close that Mrs. Abbasi testified that she knew about it when Z.A. was in jail. According to Mrs. Abbasi, although Z.A. knows both the accused and her oldest son, he is closest with her youngest son, Danish. Mrs. Abbasi testified that Z.A. and Danish are about the same age, they attended school together and they are best of friends.
18It was an agreed fact that on January 21, 2012 the accused visited Z.A. at the Roy McMurtry Youth Centre, where he was apparently being detained. A copy of the facility's sign-in sheet for visitors ultimately became an exhibit at the trial. It confirms that the accused visited with Z.A. that day, along with "A.A." who is Z.A.'s brother. There was no evidence at the trial regarding whether or not Danish also visited Z.A. Although Mrs. Abbasi testified that she thought Danish and Z.A. were talking on the telephone during this period, she could not say for certain.
19Finally, it was also an agreed fact that Z.A. was still in custody on February 9, 2012, the day of the shooting.
B. Control and Access to the Firearm
20As noted above, the parties were agreed that the accused came into lawful possession of the firearm used in the shooting on February 3, 2013, six days prior to the shooting at the Dos Santos' home on February 9, 2013. In an effort to establish that the accused had exclusive control over the firearm, the Crown relied upon the evidence of his mother and a statement he made to police following his arrest.
21Shireen Abassi testified that her family consists of her, her husband, Muhammad, and her three sons, Waqas, age 26, the accused, Naqash, age 24, and Danish, age 21. In February of 2012, the family was living in a four-bedroom house in Mississauga, which meant that each of her sons had his own bedroom. There was no one beyond the immediate family living in the home at that time.
22The family moved into its current home in 2011. According to Mrs. Abassi, the accused brought a firearm home some time after that. She testified that he had a firearms license, which she had seen. According to Mrs. Abassi, neither Waqas nor Danish had such a license. Although she never asked the accused why he needed a firearm, she assumed it stemmed from his interest in joining the Canadian Armed Forces.
23Mrs. Abbasi testified that the accused kept his firearm inside a green safe that was located in his bedroom. The safe was secured with a key lock. Although there was also a lock on the accused's bedroom door, it could only be engaged from the inside. Mrs. Abbasi testified that she had never seen the firearm; the accused never removed it from the safe and showed it to her. Similarly, although she testified that the accused had friends visit him at home, she had never seen him showing the firearm to any of his visitors. That said, Mrs. Abbasi conceded that she has no idea as to the activities of her sons when she and her husband are away from home.
24On May 21, 2012, the accused was in bail court in relation to some charges that are unrelated to this matter. He was ordered released, with his father as a named surety. The recognizance included a condition that he not possess any firearms. It would appear that during the bail proceedings the court was made aware of the fact that the accused owned a firearm. Before the accused could be released, the presiding Justice of the Peace directed that "proof must be brought to court that the weapon in the home as indicated by father has been removed".
25Mrs. Abassi was in court on May 21, 2012, along with her husband, when the accused was ordered released on bail and the condition of his release relating to the firearm's surrender was read aloud. At the time, although the couple knew that the accused's firearm was inside the safe in his bedroom, they did not know where the key for the safe was located. Mrs. Abassi testified that they learned of the location of the key for the safe from the accused's lawyer, who apparently asked the accused and then shared this information with his parents.
26Mrs. Abassi was uncertain as to who else might have been in court that day. When specifically asked whether Danish was present, she initially replied, "I think so" before qualifying that response by saying, "I'm not sure … I'm not sure." When asked, "do you think Danish might have been but you're not sure?" she replied, "I don't know right now". She was similarly unable to remember whether or not her eldest son, Waqas, was present at the time. Mrs. Abbasi did not know whether Danish was aware of the location of the key for the gun safe.
27After leaving court on May 21, 2012, the accused's parents went to their home. They found the key for the gun safe where the accused apparently had advised it would be, in the drawer of a dresser located in his bedroom. When the drawer was opened, the key was in plain sight. After opening the safe with the key, they removed the firearm, which was in a black case, as well as a box of bullets. There was nothing left in the gun safe at that point. Later that morning, they delivered the firearm and ammunition to 22 Division of the Peel Regional Police Service.
28Police interrogated the accused following his arrest on January 10, 2013. The defence conceded the voluntariness of his statement to police and also agreed to the admission of the following excerpt from it:
Constable Cook: Did you ever take your brother shooting?
Naqash Abbasi: No.
Constable Cook: Is it possible your brothers took your gun?
Naqash Abbasi: No.
Constable Cook: Parents?
Naqash Abbasi: No.
C. Evidence of the Accused
29The accused testified in his defence. In short, he denied being involved in the shooting at 3 Tullamore Road, in the City of Brampton, on the morning of February 9, 2012. He also denied having any direct knowledge of who might have used his rifle to carry out the attack on the Dos Santos home. Nevertheless, his evidence, if accepted, is somewhat supportive of an inference that the actual perpetrator was his younger brother, Danish.
30The accused is twenty-five years of age. He immigrated to Canada from Pakistan in 2003, along with his parents and his two brothers. He attended middle school and then high school in Canada, before attending (but not completing) a program in Customs and International Transportation at Seneca College.
31The accused is currently employed. He works for Robert Transportation as a dispatcher. He has been in this position for about six months. Prior to that, the accused worked for Chrysler at their assembly plant in Brampton for two years. During cross-examination, when asked where he was working in February 2012, the accused said a transportation company called Urban Express.
32The accused testified that he has a criminal record for "driving under the influence", which I took to mean impaired driving. He has no other criminal convictions.
33The accused testified that he has known Z.A. since 2003. After the accused's family immigrated to Canada, they met and became friends with Z.A.'s family. The accused described Z.A. as, "just a family friend". He would only see him when the two families socialized together, just once a year, or once every couple of years. The accused could not remember the last time the two families had gotten together. Nor could he remember where Z.A.'s family was living in 2012; the last time he had visited with them they were living in Brampton, but he was unable to say whether they had moved since then. The accused testified that he never spoke with Z.A. on the phone or hung out with him. In contrast, he testified that his brother Danish and Z.A. were very close friends, "like brothers".
34The accused gave evidence regarding how he came to visit Z.A. in jail. He testified that he bumped into Z.A.'s older brother, A.A., "somewhere outside". When pressed during cross-examination regarding the location of this chance meeting he said, "I don't really recall where I ran into him … it would have been probably in a store or gas station or something like that". According to the accused, in the course of inquiring about each other's families, A.A. mentioned that Z.A. was being incarcerated at a juvenile facility in Brampton. The accused testified that this was the first he learned that Z.A. was in custody. During this conversation, the accused testified that A.A. mentioned that he was planning on visiting Z.A. and suggested that the accused come along. The accused agreed to do so.
35In terms of the timing between the chance encounter with Z.A.'s brother and the visit to the Roy McMurtry Youth Centre, the accused was unable to say how much time elapsed beyond indicating it was "around the same month". The clear implication of his evidence was that the visit was on a different day than the chance encounter with Z.A.'s brother. The accused remembered that he drove to the youth facility and that he met Z.A.'s brother there.
36The accused explained his decision to visit Z.A. at the youth facility by citing the fact that he had known him since he was very young, had known his family for a long time, and felt a sense of obligation to visit him and see how he was doing. The thrust of the accused's evidence was that he had visited Z.A. in order to offer him morale support. In cross-examination, the accused was questioned regarding what was discussed during his visit with Z.A. He testified that he did not recall the details of their conversation, but suggested that he had asked him how he was doing, told him to hold on, and also told him to pray. The accused was unable to provide an estimate of how long the visit had lasted.
37According to the accused, he first discussed Z.A.'s situation with his brother Danish after his visit to the youth facility. According to the accused, his brother already knew about it. The accused testified that Danish was angry about Z.A. being incarcerated, he talked about the situation loudly, claimed that Z.A. was innocent, and said that Z.A.'s girlfriend was a "bitch," that she had "screwed him over" and "F'd him up". Nevertheless, the accused denied that Danish ever threatened to do anything about the situation. The accused testified that Danish and Z.A. spoke regularly after Z.A. was incarcerated.
38The accused explained his interest in guns as beginning while he was studying customs in college. He had been thinking about going into law enforcement, potentially either applying to become a customs officer or joining the Canadian military. He understood that having a firearm's license was a precondition to either type of employment, which is why he took the training and then obtained his firearm's license. He obtained his license in 2011.
39The accused testified that the first firearm he purchased was a .22 calibre Remington AR15 rifle, which is a semi-automatic. He testified that he purchased this firearm soon after he obtained his firearm's license, sometime in late 2011, from Ellwood Epps Sporting Goods, in Orillia. (A copy of the invoice from the store was made an exhibit; it was dated November 11, 2011.) The accused testified that the Remington rifle looked similar to the Norinco semi-automatic rifle (that firearm was an exhibit at trial); a photograph of a Remington AR15 rifle was also made an exhibit at trial.
40The accused testified that the second firearm he purchased was a Czechoslovakian CZ, a semi-automatic that he described as looking like an "AK-47". A photograph of a rifle apparently of this type was also made an exhibit at trial. The accused testified that he bought this firearm in St. Catharines, from a store affiliated with a firing range.
41The accused testified that he owned both of these rifles in January of 2012. However, he testified that he sold the Czechoslovakian CZ rifle at the end of March or beginning of April, 2012. Unlike the Norinco, the CZ was not a restricted firearm. As a result, after the elimination of the firearms registry in 2012, the accused testified that he could sell it without registering the sale. The accused testified that he sold the CZ to a private gun owner, but he could not remember the purchaser's name.
42The accused testified that he kept his firearms inside his gun safe. He described it as a "cheap" safe that he had purchased from Canadian Tire and then assembled in his bedroom. The safe was accessed using a key lock. The key was always kept in a drawer next to the gun safe.
43According to the accused, he had showed his guns to both of his brothers. He testified that his older brother did not have much of an interest in guns. However, he testified that his younger brother, Danish, "was into guns". In fact, he testified that Danish was with him when he bought the Norinco rifle and influenced his purchasing decision. The accused testified that he had wanted a pistol, given that he already had two rifles. However, Danish liked the Norinco rifle because of "the shape and the look of it" and convinced him to purchase it. Although a representative from the store testified at trial, he simply produced some invoices relating to the accused's purchases. He had no dealings with the accused, and he therefore did not give any evidence regarding the circumstances surrounding the purchase of the rifle. The invoices reveal that the accused traded in the Remington rifle when he picked up the Norinco rifle on February 3, 2012.
44The accused testified that he handled his guns a fair bit inside his bedroom while his brother Danish was present. He testified that he cleaned his firearms regularly, something he understood as being necessary if the guns were fired or simply as part of routine monthly maintenance. In addition, he described assembling and disassembling the guns, as well as loading and unloading them. He could not, however, recall how many times he did this. He testified that he did these things in his bedroom, often with Danish present. According to the accused, Danish had also been present when he put the key to the gun safe in his drawer and he therefore knew where the key was located.
45The accused testified that he had only ever fired the CZ rifle. He indicated that he had done so only once, when he purchased the gun, given that a firing range was connected to the store where he bought the gun. He testified that he had never fired the Norinco rifle because it was a restricted firearm and he had never had the opportunity to obtain the required certificate to transport it to a range in order to fire it.
46During cross-examination, the accused testified that he was required to take a course in order to obtain his firearm's license. He acknowledged that the storage of firearms was a topic covered during the course. In that regard, he understood from his training the importance of ensuring that his firearms were stored so that no one could get at them. This is why he had purchased the gun safe. The accused also acknowledged understanding that the security of the key was important to ensuring that his firearms remained secure. Finally, the accused testified that he tried to comply with the licensing requirements. The accused testified that he felt no need to do anything further with the key beyond placing it in his drawer. He testified that only his family would have access to it and he trusted them.
47On February 9, 2012, the accused's older brother was in Pakistan. The accused testified that it was only him, his parents and Danish who were then living at the family's home. When specifically asked during his evidence-in-chief if he knew if his brother Danish was responsible for the shooting, he responded: "Honestly like, no one in the house had access to my gun except – my parents knew where the gun was and where I kept it but the only person who can use a gun in my house other than me is my younger brother, so, I don't know, like I said."
48The accused testified that Danish had experience with guns as a result of his visits back to Pakistan. According to the accused, the family comes from a rural and mountainous region of Pakistan where firearms of all types are very common, including AK47s, assault rifles, and pistols. The visits to Pakistan were mainly for the purpose of attending weddings. According to the accused, it is common practice to fire guns in celebration at weddings where the family comes from in Pakistan. The accused reported that Danish had told him he had done this very thing.
49The accused described his state of mind when police questioned him, following his arrest on January 10, 2013. He testified that he was in "shock" at the time, that he was not "thinking right", and that his "head was all over the place". Although the police advised the accused regarding the results of forensic testing on his rifle, he testified that he did not believe what the police were telling him (i.e. that his rifle had been used to shoot up a home).
50Following his arrest, the accused was held for a bail hearing, which took place on January 16, 2013. He testified that his entire family was in court that day: his two parents and his two brothers. During the bail hearing, the allegations against the accused that he had fired 8 to 10 shots into a family's home were read aloud. The accused was ordered released on very strict conditions, including house arrest (albeit with an exception to attend work) after which, he went home along with his parents and his brothers. During cross-examination, the accused denied that there was any discussion between him and the members of his family regarding the charges he was facing. He explained that his lawyer had told him not to discuss the charges with anyone, and he maintained that he did not do so.
51The accused acknowledged that his parents were distressed by the charges against him; especially his mother. However, he denied ever speaking to them about the allegations. He maintained that they did not ask him questions because they knew he was not permitted to answer any questions on the advice of his lawyer. Further, the accused insisted that he never overheard his family members talking about the allegations against him.
52During cross-examination, the accused acknowledged that he wanted to know who had taken his gun and used it to shoot up the Dos Santos home. Despite this, he maintained that even though Danish was interested in guns, knew the location of the key for the gun safe, and was close friends with Z.A., he never asked him if he had taken his gun. The accused testified that he never confronted his brother with this question because he took his lawyer's advice seriously that he should not discuss the charges with anyone. He maintained this position despite acknowledging that he was suspicious of his brother, given that his brother had a motive and also had access to his gun. He insisted that even though he was innocent of any wrongdoing, was subject to house arrest, and was living in the same house as Danish who he suspected of being responsible, he never broached the topic with him.
53Finally, the accused was cross-examined about the circumstances that led his counsel to indicate, during his opening statement, that he anticipated that Danish Abbasi would testify and take responsibility for the offences charged.[4] He maintained that counsel's representation did not result from information shared by him that he obtained as a result of any conversation with his younger brother. Rather, it was simply the result of a process of elimination; if the accused was innocent, then Danish must be the guilty party.
III. Law, Analysis and Findings
54The Crown is required to prove the charges against the accused beyond a reasonable doubt.[5] In this case, the accused testified and denied any role in the crimes charged. Mindful of the paramount importance of never shifting the burden of proof to an accused person, in deciding whether or not the Crown has discharged its burden, I intend to follow the analytical framework supplied by the Supreme Court of Canada in R. v. W.(D.).[6]
55As a result, I will begin by considering the accused's evidence. In accordance with W.(D.), if I believe his evidence, I am required to return a verdict of not guilty with respect to each of the charges he is facing. Alternatively, even if I do not believe him, I must still consider whether his evidence leaves me with a reasonable doubt. If it does, I must of course find him not guilty. Finally, even if I entirely reject the accused's evidence and it does not leave me with a reasonable doubt, I must still go on to consider whether or not on the whole of the evidence that I do accept, I am satisfied of the accused's guilt beyond a reasonable doubt. Before turning to a consideration of the accused's evidence, some words of caution are necessary with respect to a few matters.
56First, the evidence disclosed that the accused has a criminal record. In addition, in the context of explaining how the Norinco rifle came to be in the possession of the police the recognizance that required the surrender of the firearm became an exhibit at trial. It reveals that at least in May of 2012 the accused was facing charges of assault causing bodily harm and assault with a weapon.
57Beginning with the accused's criminal record, although strictly speaking it is relevant to his character and therefore, by implication, his credibility, given the nature of his prior conviction I do not place any weight on in it. I simply do not think that a prior conviction for impaired driving is of much probative value with respect to a witness' propensity to testify truthfully while under oath.[7]
58In addition, I recognize that the unproven charges for which the accused received bail are not at all relevant when assessing his evidence in this case. To the extent that knowledge of these charges or their nature could engender moral prejudice, I specifically caution myself to be vigilant in guarding against prohibited propensity reasoning.
59Finally, a word of caution is necessary regarding the failure of the accused to call his brother Danish Abbasi as a witness. It will be recalled that during his opening statement defence counsel, Mr. Christie, had indicated that he anticipated that as part of the defence case Danish Abbasi would testify and take responsibility for the crimes charged against the accused. In the end, however, the defence chose not to call Danish as a witness.
60In jury trials, the case law makes it clear that a judge must proceed with caution before giving an instruction regarding the potential probative value of a party's failure to call a particular witness. This is because there are many reasons why counsel may decide against calling a witness.[8] In cases where such an instruction is warranted, for example where the defence fails to call a potential witness whose evidence could corroborate or contradict an accused's testimony on some material point, the judge who alerts the jury to this must also instruct them, "that there is no obligation on the defence to call a particular witness and there may have been a perfectly valid reason for not calling the witness."[9] Further, the judge must also make clear to the jury that there is no obligation on an accused, "to produce corroborative evidence of the accused's testimony and that the inference that may be drawn from the failure to call a witness is not the guilt of the accused, but, rather, that if the witnesses were called, their testimony would be unfavourable to the defence."[10]
61Frankly, I am of the view that many of the decisions providing guidance on how to manage a party's failure to call a witness are of limited utility in the unique circumstances of this case. Most of the cases involve situations where an accused offers an exculpatory account and references a potential witness who could corroborate their claim but then inexplicably fails to call that witness. Typically, the exculpatory effect of the potential testimony does not require the witness to implicate himself in the crime. Given the defence advanced here, which served to point the finger directly at the accused's brother Danish as the perpetrator, I can imagine a host of reasons why neither side decided to call him to testify. Given this, despite Mr. Christie's comments during his opening statement, I think it would be dangerous for me to draw any inference from the failure of the defence to call Danish as a witness. As a result, the failure to call him will be given absolutely no weight by me in my assessment of the accused's testimony.
62With these cautionary words in mind, I turn next to a consideration of the accused's evidence in this case.
63The accused testified that he was not responsible for firing his Norinco rifle into the Dos Santos family home on the morning of February 9, 2012. He claimed that his purpose in visiting Z.A. at the Roy McMurtry Centre on January 21, 2012 was entirely innocent; undertaken out of a sense of obligation to a family friend in order to offer morale support. His acquisition of the Norinco rifle just six days prior to its use in the shooting was not part of a criminal plot. Rather, the accused testified that he wanted to purchase a pistol because he already had two rifles. However, his brother Danish, who happened to be with him, managed to convince him to buy the Norinco rifle because of its shape and appearance. Further, the accused maintained that at the time of the shooting he owned two rifles, the Norinco and a Czechoslovakian CZ. At the end of March or beginning of April, 2012 he sold the CZ. Had he known that the Norinco was used in a crime, why would he not have sold it and kept the CZ instead? The fact that he held on to the Norinco rifle is consistent with him being unaware of the fact that it was used to shoot up the Dos Santos home. The accused also disavows the reliability of his statement to police in which he denied that anyone else in his family could have taken his gun. He explains that at the time he was not in a proper frame of mind and essentially did not know what he was saying. Further, the accused maintained that his brother, Danish, who is close friends with Z.A., felt his friend's incarceration was unjust and harboured much hostility towards Z.A.'s girlfriend. In addition, he testified that Danish was familiar with firearms and knew the location of the key for his gun locker. If accepted, the accused's evidence supports an inference that Danish had both a motive to commit the crimes charged and the means to do so.
64I watched the accused closely and listened to him carefully as he testified. Even more importantly, I have also carefully considered the substance of his evidence. In the end, I have concluded that I do not believe him. Nor does his evidence leave me in a state of reasonable doubt. Let me briefly explain why.
65First, in my view, the accused's evidence was internally inconsistent in a number of materials respects. In that regard, I am referring to aspects of the accused's testimony on important points that did not hold together as a matter of logic and common sense. I will make reference to the internal inconsistencies that concern me. The first relates to the accused's evidence regarding the circumstances leading up to and surrounding his visiting Z.A. at the Roy McMurtry Youth Centre.
66In effect, the accused testified that his connection to Z.A. was somewhat tenuous. In the words of the accused, he was "just a family friend". The accused emphasized the remoteness of their relationship by noting that the two families socialized infrequently, at most once per year and even once every couple of years. According to the accused, it was his brother who was close friends with Z.A; not him. The accused testified he never spoke to Z.A. on the phone and did not hang out with him. Given this, I have difficulty understanding why the accused would have felt obliged to visit Z.A. at the Roy McMurtry Youth Centre after his arrest.
67Closely related, the accused described a chance encounter with Z.A.'s older brother as being the catalyst for the visit to the youth detention centre. Yet, despite the fact that it was this meeting that propelled the accused to take the time and to make the effort to visit a family friend in jail, a person with whom he was not especially close, he had no real recollection as to where this encounter had taken place. It is fair to assume that it was not an everyday occurrence for the accused to bump into a long-time family friend who shares with him the unfortunate news that his younger sibling has been charged with a crime and is being held in custody. One would expect the details of such a meeting to be seared into the accused's memory. The absence of any meaningful recollection by the accused of where this meeting took place strikes me as curious.
68Other aspects of the accused's testimony regarding visiting Z.A. were also puzzling. For example, he was unable to provide even an estimate of how much time elapsed between his chance meeting with Z.A.'s older brother and the visit to the youth detention facility. Did the visit take place on the same day of the meeting with Z.A.'s brother, a day later, or a week later? The accused was unable to provide much insight into this, despite the fact that the visit to the youth detention centre would have required effort and coordination. Similarly, when it came to the visit itself the accused had difficulty sharing any meaningful details. For example, he was unable to provide any estimate of how long the visit lasted or describe the conversation that took place in anything more than somewhat empty generalities.
69Of course, if the accused regularly visited with friends who were being held in custody, it would be understandable why many of the details leading up to and surrounding his visit would slip from his memory with the passage of time. After all, by the time the accused testified, over 2½ years had passed since he visited Z.A. in custody. However, there was simply no suggestion by the accused that detention centre visits were part of his routine. To the contrary, the accused portrayed the visit as something he undertook out of a sense of obligation in order to provide morale support to Z.A. If true, I would expect the special nature of the occasion to have given the events a firmer place in the accused's memory despite the passage of time.
70In my view, a second area of internal inconsistency with respect to the accused's testimony relates to the circumstances surrounding the purchase of the Norinco rifle used in the shooting. According to the accused, in January 2012 he already owned two rifles, a Remington and a CZ. As a result, he testified that when he went to the gun store at the end of January 2012 his intention was to purchase a pistol, as he already owned two rifles. Despite this, he testified that Danish, who was with him, convinced him to purchase the Norinco because he liked the shape and the look of it. The accused did so, even though the Norinco came with added complications. As a restricted firearm, special authorization would be required to lawfully transport it. In addition, the Norinco was not inexpensive; it was $719.00. Factoring in the cost of accessories, ammunition and tax, even after the accused traded in his Remington rifle, the purchase left him $820.00 out of pocket. I find it difficult to believe that the accused would have made such a substantial expenditure to purchase an item he did not need or want in order to placate the desires of his younger brother who did not even have his own firearms license.
71A final area of internal inconsistency with respect to the accused's evidence relates to his description of what transpired after he was arrested and released on bail with respect to the current charges. The accused was arrested on January 10, 2013. On that date, the police told him that forensic testing had connected his rifle to the shooting at the Dos Santos family home. On January 16, 2013 the allegations were repeated in detail at the accused's bail hearing. The accused's entire family was present in court that day. Despite claiming that he played no role in the shooting and that his younger brother Danish is the only person who would have a motive to commit the crime and also had access to his firearms, the accused denied ever discussing the case with his parents or confronting his younger brother about his role. He claims this, despite spending nearly two years under virtual house arrest under the same roof as his parents and his two brothers. The accused explains this remarkable restraint as a result of him strictly following his lawyer's advice not to discuss his case with anybody and his entire family also respecting this instruction. Quite frankly, I find this claim impossible to believe. If the accused is innocent, as he claims, and his brother Danish is the responsible party, as he clearly insinuates, I cannot imagine a lawyer's advice squelching discussion within the accused's seemingly close-knit family. If true, there would have undoubtedly been many, many, heated discussions about Danish doing the right thing, rather than the conspicuous silence that the accused claimed in his evidence.
72Finally, the evidence of the accused on a material issue was completely at odds with what he told police. The accused testified that his younger brother Danish was intimately familiar with his firearms and knew exactly where the key to his gun safe was located. However, shortly after his arrest, when specifically asked by Constable Cook, "Is it possible your brothers took your gun?", the accused did not equivocate; he gave a straightforward and simple answer; he said, "No."
73The accused attempted to explain away this admission by noting that he was in "shock" at the time, that he was not "thinking right" and that his "head was all over the place". He also attempted to explain his response as somehow connected to the fact that he did not believe what police were telling him about his rifle being connected to shooting up a home. Quite frankly, I do not accept any of the accused's explanations for why his admission to police should be disregarded. The question posed by Constable Cook was uncomplicated: "Is it possible your brothers took your gun?" If Danish had been in the accused's bedroom on numerous occasions when the accused was handing his guns and knew precisely where the key to his gun safe was located, there would have been only one obvious answer to the question posed; the accused would have said, "Yes." He may have qualified that response by explaining that he did not think his brother could do such thing, but he would have had no reason whatsoever to erroneously report to the police officer that he essentially had exclusive control over his firearms. The only reason he would have done so, in my view, was because this was the truth and he spoke to the officer before he had an opportunity to consider the Crown's case against him and craft a response to it.
74For all of these reasons, I have rejected the accused's evidence. I simply do not believe him, nor does his evidence leave me in a state of reasonable doubt. With the accused's evidence pushed off the evidentiary table, I must still consider whether or not the remaining evidence serves to establish his guilt beyond a reasonable doubt. As I mentioned before, the evidence against the accused is circumstantial. Therefore, in order to return guilty verdicts I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.[11]
75The Crown's case against the accused depends on his connection to the person who had an apparent motive to intimidate and/or harm members of the Dos Santos family and to his connection to the firearm used in the shooting. I will briefly analyze the evidence relevant to both aspects of the Crown's case before turning to an assessment of the totality of the evidence.
76In terms of an apparent motive for the shooting at the Dos Santos residence, the evidence supports a conclusion that the attack was directly connected to the arrest and incarceration of Z.A. The evidence establishes that Z.A. dated Emaly Dos Santos and that after she broke up with him his behaviour towards her grew increasingly menacing and ultimately threatening. Things came to a head when Z.A. threatened the life of Emaly's new boyfriend, which led to his arrest and incarceration in January 2012. The attack on the Dos Santos family home came a few weeks after Z.A. was arrested. There was no one else with whom the Dos Santos family had any apparent difficulties during the period preceding the attack on their home. Finally, the forensic evidence conclusively establishes that the accused's rifle was used in the shooting. There is only one known link between the accused and the Dos Santos family; Z.A. Hence, the evidence supports an irresistible inference that the attack on the Dos Santos family home was intended as either an act of vengeance and/or intimidation against Emaly Dos Santos for reporting Z.A. to the police.
77The evidence also establishes that the accused visited Z.A. at the Roy McMurtry Youth Centre on January 21, 2012, just 2 ½ weeks before the attack on the Dos Santos home. Quite obviously, this visit would have afforded Z.A. an opportunity to catalogue his grievances against Emaly Dos Santos and explain the circumstances that led to his arrest from his perspective. Further, the evidence clearly established that Z.A. knew where the Dos Santos family lived.
78It is also clear from the evidence that there is a longstanding friendship between the family of the accused and the family of Z.A. The accused's family met Z.A.'s family soon after they immigrated to Canada from Pakistan in 2003. The two families were sufficiently close that the accused's mother knew about Z.A.'s arrest. I accept that amongst the accused's siblings, Danish is closest with Z.A. However, the longstanding friendship between the families, coupled with the fact that the accused took the time and made the effort to visit Z.A. in custody convinces me that he is much closer to Z.A. than he cares to admit.
79Although the accused testified that he only spoke to Danish about Z.A.'s arrest after he visited with him in custody, I think it far more likely that the two brothers would have spoken about the arrest as soon as Danish became aware of it. Rather than a chance encounter between the accused and Z.A.'s older brother leading the accused to visit Z.A. in custody, it seems far more likely to me that a discussion between Danish and the accused is what led the accused to reach out to Z.A.'s brother in order to coordinate a visit. (To me, this makes much more sense and serves to explain the infirmities identified above with respect to the accused's testimony regarding the events that precipitated and led up to the visit at the youth detention centre.)
80The next relevant event in the sequence is the acquisition of the Norinco rifle by the accused. It was purchased on January 31, 2012, ten days after the accused visited with Z.A. at the youth detention centre, and picked up on February 3 2012, a mere six days before it was used in the attack on the Dos Santos home. I have carefully examined the Norincio rifle, which was made an exhibit at trial. To me, it appears somewhat more compact than the rifles that the accused owned at the time. (That said, I only had the benefit of photographs of the other rifles and there was no scale on them.) The Norincio rifle is also a more intimidating firearm in terms of its appearance. I note that the representative from the gun store where the rifle was purchased referenced the rifle's appearance as the reason it is listed as a restricted firearm despite only being a semi-automatic. The Remington and the CZ that the accused owned were also semi-automatic rifles, but neither is a restricted firearm.
81The final thread in the Crown's circumstantial case against the accused is the fact that he enjoyed exclusive control over the Norinco rifle. There are two pieces of evidence that combine to support this conclusion.
82First, there is the evidence of the accused's mother that when he was ordered released on bail on May 21, 2012 and the presiding Justice of the Peace directed that his rifle be removed from the family's home, his parents had to ask him where the key to the gun safe was located. Given Mrs. Abbasi's initial reaction when asked if Danish was in court that day, I strongly suspect that he was also present. If he was and nevertheless the accused's parents had to ask the accused's lawyer where the key to the gun safe was located, then this would support an inference that the accused enjoyed exclusive control over the gun safe and the Norinco rifle contained inside that was used in the attack on the Dos Santos home. However, Mrs. Abbasi's ultimately equivocated on whether or not Danish was present in court that day.
83Beyond Mrs. Abbasi's evidence, however, there is also the accused's statement to Constable Cook. When the accused confirmed that his brothers could not have taken his gun, he essentially acknowledged that only he knew of the location of the key to the gun safe. When the accused's admission is combined with his mother's evidence, the result is an irresistible inference that he enjoyed exclusive control over the firearm that was used in the attack on the Dos Santos family home.
84The power of circumstantial evidence is often derived from "inherent probabilities" and "inherent improbabilities", and "not infrequently, eliminating the unlikelihood of 'coincidence'."[12] Here, for example, when one considers the combined effect of all of the evidence, including:
- The fact that the only apparent motive for an attack on the Dos Santos home was Z.A.'s arrest and incarceration;
- The close relationship between the accused and his family, and Z.A. and his family;
- The fact that the accused visited Z.A. in custody shortly after his arrest, and less than three weeks prior to the attack on the Dos Santos home;
- The fact that the accused acquired the firearm used only six days prior to the attack on the Dos Santos home; and
- The fact that the accused enjoyed exclusive control over the firearm used in the attack.
It would seem to be entirely improbable that anyone other than the accused could be the person responsible for the attack that forms the subject matter of the charges.
85There would only appear to be one potentially incongruent fact: that being the accused's decision after the attack to get rid of the CZ rifle rather than the Norinco rifle. If the accused knew that the Norinco rifle was used to commit a crime why would he hold on to it? In my view, there is a simple answer to that question. The accused liked the Norinco rifle, that is why he carefully selected it for use in committing this crime and spent over $800 to acquire it. The accused simply never imagined that his connection to the attack on the Dos Santos home would be discovered. But for the accused's arrest on unrelated charges and some remarkably diligent police work, it is indeed likely that the accused would have escaped responsibility for his crimes. As a result, I think it obvious that the accused did not dispose of the Norinco rifle because he did not think he would get caught and he was especially fond of that firearm.
86For all of these reasons, I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from all of the evidence in this case is that the accused fired 8 to 10 bullets into the Dos Santos home from his Norinco rifle on the early morning of February 9, 2012.
87In my view, although my findings should result in guilty verdicts with respect to many of the charges the accused is facing, they do not lead inexorably to a finding of guilt with respect to each of the counts charged. I will briefly consider each of the charges in light of my findings.
88Count one charges the accused with intimidating a justice system participant contrary to section 423.1(3) of the Criminal Code. As my findings above make apparent, the clear intention of this attack was to intimidate Emaly Dos Santos. Using the language of section 423.1, I am satisfied beyond a reasonable doubt that by shooting a firearm into Emaly's home the accused destroyed and damaged her property with the intention of provoking a state of fear in her in order to impede her in the performance of her duties as a justice system participant. As a prospective witness in a criminal case, Emaly qualified as a "justice system participant" as that term is defined in section 2 of the Code. In terms of her duty, it was to testify as a witness against Z.A. I am satisfied that this attack was intended, at least in part, to intimidate her and to thereby dissuade her from testifying. As a result, I am satisfied that the accused is guilty of this offence beyond a reasonable doubt.
89Count two charges the accused with attempting to obstruct justice contrary section 139 of the Criminal Code. Through his actions, the accused unlawfully and wilfully attempted to intimidate Emaly Dos Santos in order to dissuade her from testifying as a witness in a criminal prosecution. If successful, this would obviously have served to obstruct the course of justice. As a result, the Crown has established beyond a reasonable doubt that the accused is guilty of attempting to obstruct justice.
90Count three charges the accused with mischief endangering life contrary to section 430(2) of the Criminal Code. By repeatedly firing a powerful rifle into a family home in the middle of the night, the accused not only intentionally damaged and destroyed property, he did so in a manner that endangered the lives of the residents of that home. It is pure happenstance that nobody in the Dos Santos family was injured or killed as a result of the accused's actions. If a member of the family had been asleep on the sofa in the living room or getting a drink from the kitchen when the shooting took place, they could very likely have been killed. The Crown has established beyond a reasonable doubt that the accused is guilty of mischief endangering life.
91Count four charges the accused with assaulting Emaly Dos Santos with a weapon (the Norincio rifle) contrary to section 267 (a) of the Criminal Code. I am mindful of the various ways in which assault can be committed under section 265(1) of the Code. However, although I am satisfied beyond a reasonable doubt that the accused intentionally fired into the Dos Santos family home, given the time of day chosen for the attack, I am far from convinced that he actually intended to strike any of the occupants. Consequently, I am obliged to find him not guilty of that charge.
92Count five charges the accused with weapons dangerous in relation to his possession of the Norinco rifle on February 9, 2012, contrary to section 88(1) of the Criminal Code. The definition of a "weapon" found in s. 2 of the Code includes a "firearm". Given my findings, it follows that the accused possessed a weapon for a purpose dangerous to the public peace. Accordingly, the Crown has established his guilt with respect to that charge beyond a reasonable doubt.
93Count six charges the accused with using a firearm (the Norinco rifle) during the commission of an indictable offence (intimidating a justice system participant) contrary to section 85(1) (a) of the Criminal Code. Given my conclusion that the accused is guilty of the offence charged in count one, combined with the finding that he used the Norinco rifle (which is clearly a "firearm") in committing that offence, it follows that the Crown has also proven this charge beyond a reasonable doubt.
94Count eight charges the accused with being the holder of an authorization under which he was entitled to posses a firearm (the Norinco rifle), that he did possess the firearm at a time and place (February 9, 2012, 3 Tullamore Road in the City of Brampton) where he was not entitled to possess it under the terms of his authorization, contrary to section 93(1) (b) of the Criminal Code. It is clear from the evidence that although the accused was entitled to possess the Norinco rifle at his home, he did not have authority to take it to the Dos Santos residence on the morning of the shooting. Accordingly, the Crown has established that the accused is guilty of the offence charged in count eight beyond a reasonable doubt.
95Finally, count nine charges the accused with possession of a loaded restricted firearm contrary to section 95(1) of the Criminal Code. This offence is made out where an accused possesses a loaded restricted firearm in a particular place without authorization to do so. Again, although the evidence established that the accused was authorized to possess his Norinco rifle at his home, he was clearly not authorized to possess that firearm when loaded at 3 Tullamore Road on February 9, 2012. Accordingly, the Crown has also established that the accused is guilty of the offence charged in count nine beyond a reasonable doubt.
IV. Conclusion
96In summary, the accused is found guilty of counts one, two, three, five, six, eight and nine. With respect to count four, the accused is found not guilty.
Released: December 16, 2014
Justice James Stribopoulos
Footnotes
1It was also an agreed-upon fact that about a month later, on June 22, 2012, the Peel Regional Police obtained a warrant to seize the rifle from their evidence locker and examine it as part of their investigation into the shooting at the Dos Santos home.
2As discussed below, Z.A. was ultimately charged as a young person. Accordingly, in order to comply with section 110(1) of the Youth Criminal Justice Act, S.C. 2002, c.1, as amended, it is necessary to use only his initials in order not to identify him.
3Apparently, the charges against Z.A. were eventually dismissed.
4I note that the defence did not ultimately call Danish Abbasi. The accused testified on the morning of September 15, 2014. That day, after the lunch recess, Mr. Christie advised: "Over the lunch hour I've had some thinking and some discussions with my client, Your Honour, and after much thinking, I don't think that we are going to be calling any further evidence." And, with that, the defence closed its case.
5See generally R. v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 39 and R. v Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144 at para. 242.
6R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
7See generally R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.
8See generally R. v. Koffman (1985), 1985 CanLII 3640 (ON CA), 20 C.C.C. (3d) 232 at 237 (Ont.C.A.); R. v. Zehr (1980), 1980 CanLII 2519 (ON CA), 54 C.C.C. (2d) 65 at 68 (Ont.C.A.); R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 200 C.C.C. (3d) 179 at paras. 44-49 (Ont.C.A.), leave to appeal ref'd [2006] 2 S.C.R. iv.
9Koffman, supra, at pp. 237.
10Marshall, supra, at para. 47 (citing Marshall, supra, at pp. 237-38).
11See R. v. Griffin, 2009 SCC 28 (CanLII), [2009] 2 S.C.R. 42 at para. 33.
12See The Hon. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., (Toronto: Canada Law Book, 2013) at 31:50.
