Ontario Court of Justice
(East Region)
Her Majesty the Queen
v.
Everton Ambrose
Before: Justice David M. Paciocco – Ottawa, ON
Reasons for Decision
Released: December 21, 2015
Counsel
Mr. R. Thomson …………………………………………………………….. for the Crown
Mr. P. Beach …………………………………………………………….. for Mr. Everton Ambrose
Paciocco J.
I. Introduction
1Everton Ambrose is charged with 11 firearm-related offences arising from an incident that occurred on November 27, 2014 at the Soleil Des I'sles restaurant on Mary St. in the city of Ottawa.
2The fact that the alleged event occurred, is not in dispute. The suspect pointed what appeared to be a firearm at one or more persons inside the restaurant. A number of men, who had been inside, fled out the front door. The suspect followed them and pointed the firearm at two of the men who were running down the road, before entering a waiting motor vehicle and fleeing.
3What is in issue is whether the Crown has met its imposing burden of proving beyond a reasonable doubt that the suspect was Mr. Ambrose; that the object that was brandished was a firearm, a replica firearm or merely an imitation firearm, and whether the facts I will find meet the technical requirements of each of the charges laid.
II. Analysis of the Identification Evidence
a. The Legal Principles
4The law is cautious with identification evidence, particularly when, as here, it is offered by strangers to the person being identified. Mistaken identification is known to have caused wrongful convictions and so decision-makers are required to exercise great care before acting on eyewitness opinions that the accused is the perpetrator: R. v. Goran 2008 ONCA 195; R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.), and see R. v. Bigsky (2006), 2006 SKCA 145, 45 C.R. (6th) 69 (Sask C.A.). In dealing with identification evidence, it is imperative that judges not focus solely or unduly on the credibility of identification witnesses, since neither their honesty nor confidence ensures accuracy: R. v. Candir 2009 ONCA 915, [2009] O.J. No. 5485. Most inaccurate identifications occur because honest identification witnesses are wrong. The reliability of identification evidence is therefore of deep concern, and deserves emphasis: R. v. Oliffe 2015 ONCA 242. A judge must recognize and allow for the fact that case-specific problems with the opportunity to observe the identified individual, as well as variable limits in the ability of witnesses to discriminate between individuals, or to recall details, contribute together to the risk that honest identification witnesses will be mistaken: R. v. Jack (2013) 2013 ONCA 80, 294 C.C.C. (3d) 163 (Ont. C.A), Peter DeCarteret Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001). In addition, the quality of description of the suspect by the witness requires attention: R. v. Jack, supra at para 14. If there are notable dissimilarities between features of the description and the accused, the identification will have no probative value without other evidential support: R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 19 C.R. (6th) 109 (Ont. C.A.), leave to appeal to S.C.C. refused, 2004 CarswellOnt 1325. These principles are at the forefront of my deliberations about whether the Crown has proved that Everton Ambrose is the suspect.
5The foundation for the Crown's case on identification is the testimony of Sheyna Antoine, the only eye witness to identify Mr. Ambrose as the man with the "gun." Ms. Antoine identified Mr. Ambrose when viewing a photographic lineup prepared for the investigation, and she did so again in court. The Crown does not rely on her evidence alone, and that is appropriate. For the reasons I am about to describe, the identification evidence offered by Ms. Ambrose is incapable on its own of supporting a finding of guilt beyond a reasonable doubt. The issue before me is therefore whether a connection between Mr. Ambrose and a suspect vehicle, and Twitter messages posted publicly by a Twitter user the Crown contends is Mr. Ambrose, provide sufficient support for Ms. Antoine's identification of Mr. Ambrose to accept that identification beyond a reasonable doubt.
6I will address Ms. Antoine's identification testimony first, and then the evidence relied upon by the Crown as confirmatory.
7Before I do so I want to make clear that I am not drawing adverse inferences against the Crown because of evidence the Crown did not call. There is no foundation for doing so in this case. My challenge is to examine the adequacy of the evidence that is before me.
8The only "absent evidence" submission offered by the defence that resonated is that while the evidence shows Mr. Ambrose to have been connected to one of the vehicle licence plates described by witnesses Melanie Huntley and her sister Ashley Samson, there is no evidence that the other alternative licence plates offered by these women did not match vehicles similar to the one described by these witnesses. I will return to this point below.
b. The Eye Witness Identification of Sheyna Antoine
9Ms. Samson testified that it was around 8:00 p.m. when Ms. Antoine entered the Haitian restaurant, owned by Ms. Antoine's father.
10Ms. Antoine testified that she was there to pick up food for herself, Ms. Samson and Ms. Huntley. Ms. Antoine said that she had called ahead for the food, but it was not ready. While waiting for it at the restaurant counter, there was a group of black men clustered together a few metres down the counter, closer to the front door than she was. Ms. Antoine testified that, as she was on her phone waiting, she noticed a young black man, mid-20s, no older than 32, walk towards her from a couple of metres away. He appeared to have been in that group. He faced her as he walked, for the few seconds that took, and then stood beside her. When he was standing beside her Ms. Antoine said she could see his face from a profile angle.
11Shortly after, Ms. Antione said she noticed this man's arm come up, and then his hand. She said inside his hand he was holding a silver gun with a brown plaque on the side, above the handle. He pointed it in the direction of one or more of the men in the group of black men. His arm was shaking as if it was unsteady.
12Ms. Antione said that once she saw the gun, her attention fixated on the weapon, and she yelled "gun." This caused some of the group of black men to run out of the front door. She chose to run towards the back, but not before seeing the man with the gun leave by the front door as well.
13It was after the man left Ms. Antoine's sight that Ms. Samson and Ms. Huntley witnessed a black man with a silver gun exit behind two men who had run out of the restaurant and who were heading towards the Vanier Parkway in such a hurry that one of the men dropped, and then left, a cellphone. The man with the gun pointed it at the running men, and then crossed the road in front of them and hurried into a car that was across the road.
14Ms. Samson and Ms. Huntley described the man as wearing a jacket with fur trim, a description that is consistent with what Ms. Antoine saw the suspect to be wearing. It is not contested that the man inside with the silver gun that Ms. Antoine saw, is the same man Ms. Samson and Ms. Huntley also saw with a silver gun.
15Ms. Samson and Ms. Huntley tried to observe the licence plate of the fleeing vehicle as it drove past the car they had arrived in, and they each gave information about the plate and the vehicle to investigating officers.
16On December 4, 2014, Ms. Antoine viewed a photographic lineup at the Ottawa Police Station, and selected a photograph of Mr. Ambrose, after examining it momentarily before signalling "yes." She identified Mr. Ambrose again in court, although Mr. Ambrose was in the prisoner's dock at the time, the only black male in the courtroom in the age range of the suspect.
17In evaluating Ms. Antoine's evidence the issues that warrant concern relate primarily to the reliability of what she says, not with her credibility. With good reason, Ms. Ambrose was not materially challenged on the honesty of her evidence. No evidence of dishonest character was presented, and she gave clear, straight-forward, plausible and un-contradicted evidence.
18The only criticism Mr. Beach, who represents Mr. Ambrose, made related to Ms. Antoine's credibility is that, in his view, she became more certain in her identification as she testified, which he attributes to defensiveness at having the accuracy of her evidence being challenged. I disagree with the suggestion that Ms. Antoine was defensive. She made concessions when she believed that they were called for. To be sure, Ms. Antoine was assertive and insistent, and I am aware that her confidence that she is right about Mr. Ambrose does nothing to enhance the reliability of her identification evidence. Neither is it an indication, however, that she was exaggerating to fight off challenges to what she had to say. I have no doubt that Ms. Antoine honestly believes in the identification. The question is whether her identification evidence is reliable enough, in all the circumstances to warrant the confidence of the Court.
19I will begin with her opportunity to observe the suspect, a stranger to her at the material time. There were distractions that must be accounted for, including that she was on the phone when she saw the suspect, and that she did not study his face, having only a brief chance to see his full face in the fleeting seconds as he walked only a few metres towards her, and while he stood beside her in profile. Ms. Antoine also readily admits that once she observed the gun, the gun was her preoccupation.
20Still, in my view Ms. Antoine had a sufficient opportunity to see the suspect's face to enable her to offer a responsible opinion about who she saw. Ms. Antoine viewed the suspect in close proximity initially face-on, and in good light. She insisted that she attended to his face for the short time she observed it because the suspect was walking towards her. I believe her when she says this. While Mr. Beach may be correct in his suggestion that ordinarily people do not pay attention to the strangers around them until reason to do so arises, I accept Ms. Antoine's testimony that she looked at the suspect because he was coming her way, and then because he had moved to within arm's length to her. There is nothing implausible in that.
21As indicated, Ms. Antoine identified Mr. Ambrose both in court and in a photographic lineup. In evaluating her evidence I place no positive weight on the in court identification. Although it would have harmed the Crown case had Ms. Antoine said that she did not recognize the suspect in court, the in court identification was made under such suggestive circumstances that it does not give any added strength to the reliability of her opinion that Mr. Ambrose is the man who had the gun.
22The photographic lineup in which Ms. Antoine identified Mr. Ambrose was conducted entirely fairly by Det. Wereley. No criticism can be made of the quality or sample of photographs used, or the manner in which they were presented. The protocol designed to ensure the integrity of any selection that might occur, drawn from the recommendations made in The Inquiry Regarding Thomas Sophonow, was carefully followed by Det. Werelely.
23I did, however, question the wisdom of Det. Sabourin telling Ms. Antoine in the meeting immediately before that line-up procedure that "[t]he information I've been able to obtain thus far has led me to get a few people, or persons sorry that I believe may be responsible for it. So we generate a line-up." It strikes me as counter-productive for the officer showing the lineup to tell a witness as part of the pre-lineup instructions that the person responsible for the crime may not be in the line-up, after the investigating officer has confirmed the expectation that the persons he believes to be responsible, after investigation, are in the line-up.
24I take Mr. Thomson's point, for the Crown. A witness being called to a line-up procedure is likely to expect that the police believe the suspect to be there, in any event. Still, the ameliorating effect of telling a witness who has come to the line-up with this kind of expectation that the suspect may not be in there is apt to be blunted entirely by confirming that the police believe after investigation that the suspect is there to be found. I will bear this suggestive influence in mind in evaluating the identification evidence.
25In his submissions Mr. Beach placed emphasis on the delay that occurred after Ms. Antoine opened Mr. Ambrose's picture before Ms. Antoine communicated her "yes," to Det. Wereley. He suggests that this hesitation betrays uncertainty and not only contradicts the confidence she expressed while testifying, it casts doubt on her identification. In my view Mr. Beach makes too much of this. Ms. Antoine paused over every picture, taking her time to number and to date them as instructed, before recording her reaction. In my view, her pause over Mr. Ambrose's picture was not materially different in kind. Moreover, Ms. Antoine, who confessed her fear when the interview began, was being asked to identify a man with a gun. I accept her testimony that any pause that occurred was linked to her reliving the memory of a traumatizing event and not the result of uncertainty.
26The primary difficulties with Ms. Antoine's evidence begin, in my view, with the uncertainty she expressed during her police interview about whether the suspect was wearing glasses or a hat. These are easily observed, prominent features. Her failure to discern whether the suspect was wearing glasses or a hat raises questions about how much reliance can be placed on her observational capacity or her memory.
27Mr. Beach also pointed out, with good reason, that Ms. Antoine's description of the suspect does not include reference to any facial features, such as his eyebrows, or the shape or size of his nose, mouth or chin. In her description Ms. Antione gave a gender, height, age, body-type and race consistent with Mr. Ambrose, as well as a vague description of the suspect's hair ("It did not look like he had much hair") that could describe the short haircut Mr. Ambrose sports in both his police lineup photo and the Twitter page photo I am about to describe. The descriptions Ms. Antoine offered that bear on the suspect's face are that the suspect had "peach fuzz," and that he looked Haitian, and not African, an observation that was not explored in detail.
28It is true that the failure of a witness to reference characteristics that permit a purported identification can undermine that identification. Still, while Ms. Antoine's identification is not long on supporting facial details, her description is not bereft of similarities to Mr. Ambrose, a point I will return to below. While the lack of facial detail does weaken the identification, it does not destroy it.
29Moreover, while courts should not accept an assertion that the accused is the suspect where that assertion is bald, or unsupported by any characteristics, courts have to be realistic in the degree of description that can be supplied. The reason lay witnesses are permitted to provide a conclusion about identification is that the human capacity for recognition, while imperfect, outstrips the human ability to describe what has been observed. Not only is language inadequate to articulate and communicate ordinary facial observations in a discriminating way, the human memory can capture details unconsciously that can appropriately inform conclusions, including about identification: R. v. Graat 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. I can faithfully recognize my wife, but I would be incompetent to describe her with sufficient precision to enable someone who does not know her, to picture her well enough to identify her on a random citing. I am not suggesting that a court's confidence in a particular identification should not be more guarded in the absence of a detailed facial description, but I am explaining why identification evidence is not defeated by incomplete or imprecise facial descriptions alone.
30In this case, the description that Ms. Antoine offered of the suspect is entirely consistent with Mr. Ambrose. There are no discrepancies. As indicated, he is of the age, race and stature of the suspect, and although it could not be said at the time of trial that he did not have much hair, the photographic evidence referred to shows that he has sported short hair. The photo, conceded by the defence to be of Mr. Ambrose found in the Twitter page admitted as exhibit 7 also depicts Mr. Ambrose with modest facial hair that could be described as "peach fuzz." And his face is thin enough to be consistent with the "skinny lean" body type described.
31Finally, Ms. Antoine is a black Haitian, and based on the Twitter documents I am about to describe, Mr. Ambrose, a black man, is from neighbouring St. Lucia. No issues of cross-racial identification arise in her case.
32While none of this is sufficient alone to give confidence in Ms. Antoine's identification, particularly not in the face of her abridged opportunity to observe, her uncertainty about the glasses and hat, and the suggestive influence she was subjected to, it does provide a platform that can enable a finding that Mr. Ambrose is the suspect, provided that identification is sufficiently supported by other evidence. Indeed, as a matter of law even with no "reference to characteristics which can be described by the witness" to support an identification, identification evidence should not be dismissed out of hand as "little more than speculative opinion or unsubstantiated conjecture" unless that identification is "unsupported and alone": R. v. Smith (1952), 1952 CanLII 116 (ON CA), 103 C.C.C. 58 (Ont.C.A.). It is to be evaluated, in context, for its sufficiency.
33In this case, then, the Crown is effectively asking this court to rely upon an identification made under acceptable but not ideal conditions, that is modestly supported by a description consistent with the offender, and that was made by a witness who is uncertain about matters one would expect her to have more confidence about, namely whether the suspect wore glasses or a hat. It is asking the Court to do so, however, based not on that identification opinion alone, but on that and what the Crown contends is evidence supportive enough to remove all doubt that Ms. Antoine was reliably describing Mr. Ambrose, as she believes she was.
c. Support from the Car Coincidence
34The first item of confirming evidence the Crown relies upon is a link between Mr. Ambrose and the suspect vehicle.
35After the suspect pointed the "gun" at the fleeing men, Ms. Huntley and Ms. Samson observed the suspect enter as the passenger in a vehicle driven by an unidentified large blonde woman. Ms. Huntley said it was a 4 door car. Ms. Samson said that the vehicle that the suspect fled in was a silver or gold "2000ish" Mazda 4 door. During cross-examination she allowed for the possibility that the vehicle could have been a Nissan.
36Ms. Huntley and Ms. Samson tried to capture the licence number. Ms. Huntley offered three possible licence numbers for the fleeing vehicle to the attending officers, BETW 427, BTWE 427, and BTEW 424. She expressed uncertainty about the order of the letters and the last number. Ms. Samson offered two numbers, BTEW 427 and BTWE 427. She said that she repeated the licence number three times in her head as the vehicle was leaving, and noted it in her phone's "notes."[1]
37The Crown did not call evidence to show whether the police followed up with each of the offered licence plates. It did, however, prove that a vehicle registration search was done on at least the licence number that was commonly reported by the two sisters, BTWE 427.
38As evidenced in Exhibit 3, the licence number, BTWE 427, showed the registered owner to be Ms. Vanessa Kassongo. That vehicle was registered as a beige 2003 Mazda 4 door Sedan.
39To link Mr. Ambrose to this vehicle, the Crown relies on the admitted fact that Mr. Ambrose had been operating that motor vehicle on May 19, 2014, some 6 months before the crime. Moreover, Mr Ambrose was stopped twice in the spring of 2014 inside another vehicle owned by Ms. Kassongo, licenced BTWE 139.
40The Crown contention is that the unlikelihood that during the police lineup, Ms. Antoine would mistakenly pick a man associated to the vehicle bearing the licence plate reported both by Ms. Huntley and Ms. Samson, supports the correctness of that identification. Mr. Beach urges that this connection is of much less significance than the Crown would give it, particularly given that there is no evidence whether the other licence plate numbers offered by Ms. Huntley and Ms. Samson were attached to similar vehicles.
41I agree that the Crown's point could have been reinforced by proof that the police ruled out the possibility that the other numbers yielded different vehicles matching the description of the suspect vehicle. Still, I am confident that it was Ms. Kassongo's car that Ms. Samson and Ms. Huntley saw.
42Specifically, the licence number used to find Ms. Kassongo's car was the only commonly reported number offered by the two witnesses and one of only two offered by Ms. Samson, who took immediate steps to record the plate she had seen. Moreover, that number led police to an older Mazda 4 door car, the primary model being looked for. While the registered colour of the vehicle is not "gold" or "silver," "beige" can be sufficiently similar to gold to allow for the difference in description. In my view, the coincidence between the suspect vehicle description and licence plate, and the man who was selected by Ms. Antoine, is impressive.
d. Support from the Twitter Messages
43The Crown also contends that Ms. Antoine's identification of Mr. Ambrose is confirmed by tweets it claims were sent by Mr. Ambrose.
44The Crown is referring to a series of out-going "tweets" found on a Twitter page at Exhibit 7 that I admitted in an oral judgment made after conducting an admissibility voir dire. I found that the contents of those authenticated tweets were admissible as statements by an opposing party litigant, Everton Ambrose, because the Crown had demonstrated during the voir dire that, on the balance of probabilities, he authored them.
45Supporting evidence included that Mr. Ambrose's photograph was posted in one of the "tweets" on the Twitter page. More importantly, there is a link posted on the Twitter page identified as "MY NEW SINGLE HAS EVERYBODY BUMPIN." Mr. Ambrose is the lead rapper in the music video on that link. The combination of the claim made on the Twitter page that the single is "mine," and the appearance of Mr. Ambrose as the lead singer in that single, goes a long way, in my view, to show that the Twitter page is also his.
46In addition, the music video is labelled "Strike Sheen Official Video." The handle or twitter account name is "@goldenstrikepenis." Mr. Ambrose is known to the police by the street name "Strike."
47Mr. Beach, for Mr. Ambrose, urged that I give Exhibit 7 little weight, in part because, while Mr. Ambrose is linked in some way to this Twitter account, it is not certain that it is his account, and that even if it is, it is possible for someone other than the account holder to send tweets from the account. In spite of Mr. Beach's able arguments I disagree.
48I am confident that the Twitter page is in fact Mr. Ambrose's, for the reasons given. In addition, the tweets recorded as having been posted include other references to "Strike." There is also a tweet, "TOMMORROW AM DROPPING A VIDDEEOO," which is circumstantial evidence identifying the person who is tweeting from the account as connected to videos. Together the evidence available in the Twitter documents confirms that this is Mr. Ambrose' account.
49I am also persuaded that the tweets or messages exhibited in Exhibit 17 are his.
50I will start with the proposition that it is entirely reasonable for users of Twitter and similar applications to treat messages on a particular account as if they were posted by the owner of that account. That is because, by design, Twitter accounts and similar applications are vehicles intended to permit account holders to post or send their message, as their messages. These applications would not perform their intended role unless users could generally have confidence that messages sent from, or posted on, an account are sent or posted by the accountholder. Simply put, ordinary business practice provides a receptive platform for ultimately inferring, even in court, that messages sent from an account, or postings made on an account, tend to have been sent or posted by the accountholder.
51This necessary, wide-spread faith that messages are generally attributable to the accountholder is not misplaced. Like other similar applications, the evidence before me shows that Twitter accounts can be entered only by password. Moreover, a Twitter account is not like an email account that someone else might want to borrow to use to post or send messages of their own. A Twitter account, like a Facebook account, purports to contain posting by the account holder. While this does not affect the possibility of hacking, or someone sabotaging someone else's account, it reduces the risk of anyone sharing the messaging system.
52Against this background it is safe, in my view, to infer that the accountholder has authored a message posted on or sent from that account unless there is an air of reality on the record that this may not be so. In this case, there is no evidence before me that anyone else may have been using the account, to ground the insecurity that Mr. Beach wishes to sew. There is no logical foundation, only rank speculation, for the apprehension that perhaps the account holder did not send the material messages. I will not act on rank speculation because it would be legally improper to do so.
53Fortunately, logic and sound policy arrive at the same place. If courts refused to rely upon electronic messages because of the universal reality that electronic messaging accounts can be used by anyone knowing the password, even in the absence of any evidentiary air of reality to the possibility of tampering, the law would be closing its eyes to a ubiquitous method of communication. This would not only be a wasteful outcome. It would harm the credibility of the administration of justice.
54What I am left with, then, is a strong circumstantial case that this is Mr. Ambrose' Twitter account, obviously intended to be used by him, coupled with logical inferences that he would have been the user offered in the absence of any foundation for fearing that his account may have been used by others. I am therefore persuaded that Mr. Ambrose wrote the messages the Crown is relying upon.
55There is also dependable evidence before me that Tweets in a Twitter account are posted sequentially, with the most recent at the top, relegating prior messages down the list. Det. Wereley, a user of Twitter, recognized this pattern, which is commensurate with logic, based on his experience with the system. Moreover, he testified that when someone is viewing postings on a Twitter account, the system records how long ago the posting was made, and discloses this in the post. Det. Sabourin testified that he tested the manner in which lapsed time is recorded on Twitter by posting a message, and then checking it after a timed period to see if the time recording matched the time that had passed, and it did.
56In my view, this information relating to the sequence and lapsed timing of messages does not require expertise to present. This is not "special knowledge or experience" that is "beyond the ken [or understanding] of the ordinary juror": R. v. Beland 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398 at 415; R. v. Lavallee 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 at para. 35. The sequencing and lapsed time features of Twitter are readily apparent to users through simple operation and observation, as testified to by Det. Wereley and Det. Sabourin. This is not a situation, as with date and time stamps, where information about the calibration between the information on the computer and the calendar and official time in the region may be needed. Moreover, no evidence of the technical programming is required to demonstrate this simple feature of the Twitter application. I am therefore prepared to rely and to derive information about the relative timing of messages, based on the sequencing and lapsed times revealed in Exhibit 7.
57The Crown, of course, is relying on the Tweets in Mr. Ambose' Twitter account, including the sequencing and lapsed time since posting, to support the identification of Mr. Ambrose as the suspect.
58Specifically, the Crown referenced a number of messages which it says provide a narrative of what was happening. Those messages show that Mr. Ambrose was in an ongoing dispute with a Haitian individual with the alias of "Pdips," and that Mr. Ambrose was surprised to meet Pdips and associates at a restaurant, but made them run by brandishing a gun.
59Mr. Thomson, for the Crown, noted first that all of the tweets are posted under the reference, "PdipsBestie@GoldpenisStrike," which, on the evidence before me, enables those tweets to be seen on the Twitter account of "PdipsBestie," as well as on Mr. Ambrose' Twitter page by those who "follow" his account.
60Second, Mr. Thomson referred to the following relevant messages to set that narrative.
61The first message, posted 22 hours prior to Det. Werely visiting the Twitter postings at 7:05 p.m. on November 28th, 2014, says, "LOOOOOOOOOL I KNOW MY NIGGA PDIP HAS IT RIGHT NOW." Based on when the Soleil Des I'sles incident occurred, around 8:00 p.m. on November 27th, 2014, this Twitter message would have been posted within an hour or so of the event happening.
62An hour later the author, who I am satisfied for the reason mentioned was Mr. Ambrose, tweeted, "Bruh ur only lucky i was on camera n dont wanna go to jail," "BRUH P-DIP MET JET LI TODAYYYYYYYY," "ASK PDIP ABOUT JET LI … HE WILL TELL U THAT BITCH IS NO JOKE".
63An hour later, the tweets say, "PDIP MOVES LIKE A REAL FUCCIN NIGGA" "Brrrruuuhhhhh P-Dipppp chhhheeessseeeeddddd" and "1<3 P-Dip," "NIGGAS GETN CAUGHT SLIPPIN AT RESTAURANTS (followed by 5 crying emoticons)."
64Approximately six to seven hours after the incident at the Soleil Des I'sles restaurant, Mr. Ambrose posted the key message the Crown is relying upon, "Went to eat … Thank God i had my banger on me." He continued "It aint safe in da streets… cuz errybody strap" and "HOP OUT THE CAAARRRR IT'S A SHOOTOUUUTTT."
65Mr. Beach contests the meaning of the tweets the Crown has offered. He urges that it is evident that much of what is written is street slang, bearing little resemblance to the Queen's English. Mr. Beach, for Mr. Ambrose, urges that they cannot be understood.
66Moreover, it is not contested that some electronic conversations occurred during the tweets, using Twitter. The other side of these communications is not included in Exhibit 7, presenting the risk that tweets may be taken out of context.
67I agree with Mr. Beach that many of the tweets contained in Exhibit 7 are inscrutable, and I have cautioned myself that what is before me are posted public messages that do not include all Twitter communications that took place during the period when they were posted. I am confident, however, that the salient messages can be understood in context, by applying nothing more than common sense.
68Even using conventional, notorious slang, let alone the sub-cultured Hip Hop or Rap language that appears to be used, it is obvious that the first and second packages of messages taunt "Pdip." He has met "Jet Li," an allusion to a heroic movie fighter, and he now "has it right" or knows that "Jet Li" is no joke.
69The third package of messages, again using common knowledge in the context of all that is said in the messages, clearly refer to "Pdip" moving, or running and being angry or "cheesed," after slipping up by being caught at a restaurant, and how it was one against three.
70The last package of messages tells the balance of the story. "Went to eat … Thank God i had my banger on me." "It aint safe in da streets… cuz errybody strap" and "HOP OUT THE CAAARRRR IT'S A SHOOTOUUUTTT."
71I accept Mr. Beach's criticism that the online "Urban Dictionary" consulted by Det. Sabourin to validate his interpretation of the messages is created by user-postings like Wikipedia is, and is not reliable in a court of law. I also know that, in any event, the "Urban Dictionary" suggests that a "banger" is not only a gun, but a lot of things including a "spectacular pair of breasts." I am also aware that the usual acceptation of "banger" where Mr. Beach hails from is a sausage. And I am mindful that it is common for the Crown to qualify police officers as expert witnesses to interpret drug-trade slang, for example, and that since this was not done here I should not treat the opinions of the officers who testified before me as expert information.
72I am of the view, however, that Det. Wereley had it right when he defended his opinion that a banger is a reference to gun. He said, without any pretense to expertise, "A gun goes bang." It does. And it is obvious, relying on common sense alone in the context of all that is being said, that Mr. Ambrose was glad he had his "banger" or gun with him when he went to eat.
e. Conclusions on the Identification Evidence
73In all of the circumstances, I have every confidence in finding beyond a reasonable doubt that despite the frailties in her identification evidence, Ms. Antoine had it right. The link between Mr. Ambrose and the suspect vehicle, as well as the indiscretion of Mr. Ambrose in posting the restaurant saga publicly online in his Twitter account, are, in opinion, simply too much confirmation to leave any reasonable trier of fact in doubt about whether he is the man with the gun. I know I have no doubt at all.
III. Is it a Firearm if it "smells like a gun"
74The remaining question is what offences Mr. Ambrose will be found guilty of. That depends, in part, on whether the Crown has proved beyond a reasonable doubt that the silver "gun" in his hand was really a "firearm," ("a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious personal injury…") within the meaning of section 2 of the Criminal Code, or whether there is a reasonable doubt about whether it is a "replica" ("any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm…"), or merely an "imitation" firearm ("anything that imitates a firearm, including a replica firearm") within the meaning of section 84(1) of the Criminal Code.
75This matters because some of the offences, such as pointing a firearm contrary to section 87(2) alleged in Counts 2 and 3, require that the thing be a real firearm.
76Counts 7-10, which allege that Mr. Ambrose possessed a "firearm, or an imitation firearm," contrary to orders made under four different firearm prohibition orders, in fact require that the thing be either a real firearm or a replica firearm. This is because prohibition orders made under the authority of these sections capture both firearms and "prohibited devices," and a "replica firearm" is included within the definition of prohibited device in section 84(1) of the Criminal Code. Those orders do not, however, extend to imitation firearms, so the reference to imitation firearms in Counts 7-10 is superfluous and ineffective in law.
77All of the other offences alleged can be committed with a real firearm, a "replica," or an "imitation" firearm, with the exception of Count 5, the concealed weapons charge. This offence can be committed using a real firearm, which is a weapon, or a replica or imitation firearm but only if the replica or imitation meets the definition of "weapon" in section 2 by being carried for the purpose of intimidation.
78The ideal for the Crown is to recover the thing they claim to be a firearm so that it can be field tested to see if it complies, or, alternatively, exhibited to show it is at least a "replica." Yet it is appropriate based on cumulative circumstantial evidence for firearms charges to be laid, and sustained, without their recovery: R. v. Wills 2014 ONCA 178, [2014] O.J. No. 1069 at para 50 (Ont. C.A.).
79This can be done by evidence the thing was actually fired (R. v. Covin 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725) but this is not always necessary: R. v. Campbell [2015] O.J. No. 1753 (Ont. S.C.J.); R. v. Robbie (1989), 1989 ABCA 182, 68 Alta. L.R. (2d) 386 (C.A.). Where a thing resembles a firearm sufficiently to raise the issue, the question is whether, given the description of the thing, the use to which it has been put, admissible conversation about it, expert evidence and/or any other relevant circumstances including access by the accused to firearms, the Crown has proved beyond a reasonable doubt that the thing is indeed a firearm: R. v. Argueta 2011 ONCJ 576, [2011] O.J. No. 5195 (Ont. C.J), and see the decisions cited in that case. If not, does the description offered or does other evidence show it to be a replica beyond a reasonable doubt?
80On the evidence before me, I have no reasonable doubt that what Mr. Ambrose possessed was a handgun "firearm," within the meaning of the Criminal Code.
81Although Ms. Huntley and Ms. Samson did not have the same opportunity to observe the item that Ms. Antione did, all three women believe that what they saw was a real gun. Ms. Antoine, while allowing for the possibility it was not, defended her belief by saying "It looks like a gun, smells like a gun it was a gun to me."
82Of course, these opinions can carry the Crown only so far. First, the women did not have direct familiarity with handguns, relying on the depictions of weapons in broadcasted shows. Second, a replica firearm is designed to resemble a real firearm so closely that it will appear to be a real firearm, even to an experienced witness getting a close and studied look at the item. A trier of fact must bear this in mind (R. v. Wills, supra at para 51), and I have done so.
83The important point about the observations of these three witnesses, then, is that the descriptions and impressions they offer are entirely consistent with the thing being a real firearm. Two of the witnesses, Ms. Samson and Ms. Antoine, saw the item closely enough to rule out that it had a revolving barrel, instead appearing similar in structure to the kind of gun police officers use. Always bearing in mind that it is for the Crown to prove that the apparent gun is a firearm, the evidence of these witnesses provides no evidentiary basis for raising a doubt suggesting that what they saw was nothing more than a replica or imitation firearm, and it leaves open the possibility that the gun they saw was a firearm.
84There are cases where a tell-tale factor is the use to which the thing is put. The readiness of an accused person to brandish, point or threaten to shoot others with the item can be circumstantial evidence it is a firearm: R. v. Carlson [2002] O.J. No. 1884 (Ont. C.A.); R. v. Richards 2001 CanLII 21219 (ON CA), [2001] O.J, No. 2286 (Ont. C.A.). The inference may be, for example, that a person who does not have a real weapon is unlikely to place themselves at risk of their bluff being called by acting as provocatively with a fake gun as they did.
85In this case, on the evidence before me, for example, Mr. Ambrose, who was outnumbered and in close quarters to those he targeted, not only confronted but chased the men with his weapon. I say "weapon" advisedly because he clearly was using the instrument to intimidate or threaten. It is unlikely, in my view, that Mr. Ambrose would have escalated the risk he was under by brandishing a fake gun in so aggressive a fashion against people his Twitter posts depict as rivals. As he said in a Twitter post relating to the event, "It aint safe in da streets… cuz errybody strap," and "HOP OUT THE CAAARRRR IT'S A SHOOTOUUUTTT."
86I need not decide whether the use to which the apparent gun was put by Mr. Ambrose is enough in this case when coupled with the description offered, even though this kind of information has been enough for other courts: R. v. Charnboneau 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 (Ont. C.A.). I also have an admission before me by Mr. Ambrose that he was glad he had his banger with him. It is untenable to suggest that a real or even a wannabe gangster, as Mr. Ambrose portrayed himself, would be glad he had a fake gun with him, or would refer to a fake gun as a "banger."
87The item looked like a gun, was used like a gun, and was referred to by Mr. Ambrose as if it was a gun. I am therefore left in no doubt that it was a firearm within the meaning of the Criminal Code.
IV. Conclusion
88For the reasons provided, I am therefore convinced, beyond a reasonable doubt, that Mr. Ambrose handled a real firearm in an obviously careless manner contrary to Count 1, and he pointed a real firearm at other people both inside and outside the restaurant contrary to Counts 2 and 3.
89I am also convinced that he possessed a weapon, the firearm, for a purpose dangerous to the public peace contrary to Count 4. Although there is no evidence of why he had the firearm with him, his ready use of it coupled with his admission that he was glad he had it on him when "Pdips" was "caught slippin" is sufficient to show that he had the gun to be used aggressively if required.
90There is also evidence proving beyond a reasonable doubt that he occupied a motor vehicle knowing that the firearm was in the motor vehicle contrary to Count 6, and that he possessed a firearm in breach of the four prohibition orders admitted to have been in force against him, contrary to Counts 7, 8, 9 and 10.
91By committing any or all of these acts he breached his probation term to keep the peace and be of good behaviour, as alleged in Count 11.
92The only remaining Count is carrying a concealed weapon contrary to section 90(2) of the Criminal Code. Mr. Beach urges that Ms. Antoine did not see where Mr. Ambrose had the firearm before he raised it, leaving a reasonable doubt about whether it had previously been concealed.
93In spite of this, I have no reasonable doubt but that the handgun was concealed. This is not a case where a gunslinger ran into the premises causing mayhem on the way in, which would suggest that the weapon was never concealed. Mr. Ambrose was inside a restaurant for a time while others were waiting for food before the gun showed itself. Moreover, Ms. Antoine watched him walk towards her, and did not see the gun. I appreciate that things can be missed, but this is nonetheless some evidence that Mr. Ambrose did not have the gun out at the time. More importantly, Mr. Ambrose, in his own tweets, said he went to the restaurant to eat. As a matter of common sense, people who carry firearms when they go to a restaurant do not usually walk in with the thing in their hand. They conceal it.
94I understand the value in affirmative proof, but I also respect the power of what is obvious, based on what is known about the way the universe typically unfolds. The way this event unfolded leaves me utterly persuaded beyond any doubt that Mr. Ambrose had the firearm concealed when he entered the Soleil Des I'sles restaurant.
95I am therefore convicting Mr. Ambrose of all of the offences tried before me.
Dated this 21st day of December 2015
_______________________________
Justice David M. Paciocco
Footnote
1I believe Ms. Samson that she did so. Even though Ms. Samson was a difficult witness for Mr. Beach, she was not an enthusiastic Crown witness either. She was reluctant to testify. Her evidence that she recorded the number on her phone was presented naturally in response to a direct question from Mr. Beach, and it is entirely plausible that a person, endeavouring to remember a licence number, would take this step. The fact that the police did not inquire or note that Ms. Samson had recorded the licence number, as they should have, does not shake my confidence in her testimony.
