ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ELIJAH SMITH
Before Justice Joseph Hanna
Heard on November 3 & 5, 2025
Reasons for Judgment released on December 9, 2025
B. Hart counsel for the Crown
D. Heath……………………………………………………………..counsel for the accused
HANNA J.:
Introduction
1Elijah Smith discharged a single round from a handgun in the direction of patrons who had followed him outside of a restaurant.
2As a result of this event, he is charged with the following Criminal Code offences:
intentionally discharging a firearm into or at a place knowing or being reckless as to whether another person was present in that place, contrary to s. 244.2(1)(a);
carrying a concealed weapon, contrary to s. 90(1);
carrying a weapon for a purpose dangerous to the public peace, contrary to s. 88(1); and
unauthorized possession of a loaded firearm, namely a handgun, contrary to s. 95(1).
3The Crown’s case consisted of an agreed statement of facts, scene of crime photographs, and three video clips. Mr. Smith’s testified in his own defence.
4The defence made no submissions in response to counts 2 – 4. With respect to count 1, the main issue I need to decide is whether the Crown has disproven self-defence beyond a reasonable doubt.
The Onus of Proof and W.D. in the Context of a Self-Defence Case
5Mr. Smith is presumed innocent. It is the Crown’s onus to prove his guilt of the offences charged beyond a reasonable doubt. It is not enough that the Crown prove that Mr. Smith is probably guilty. While proof to an absolute certainty is not required, proof beyond a reasonable doubt falls much closer to an absolute certainty than to proof on a balance of probabilities. A reasonable doubt can arise from the evidence or from the absence of evidence.
6Given that Mr. Smith claims he acted in self-defence, it is appropriate to apply a modified W.D. analysis to properly consider the objective and subjective components of lawful self-defence: R. v. Reid, 2003 CanLII 14779 (ONCA) at para. 72; R. v. Brown, 2020 ONCA 462, at para. 47.
7First, if I accept Mr. Smith’s evidence and, on the basis of it, I believe or have a reasonable doubt that he was acting in self-defence, I will find Mr. Smith not guilty on count 1.
8Second, even if I do not accept Mr. Smith’s evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence, I will find Mr. Smith not guilty on count 1.
9Third, even if the unaccepted evidence does not raise a reasonable doubt, the Crown still bears the burden of proving that Mr. Smith was not acting in lawful defence beyond a reasonable doubt based upon the whole of the accepted evidence: R. v. Martin, 2020 ONSC 4779 at para. 8; R. v. Berman, 2024 ONSC 3304 at paras. 44–45; Brown, 2020 ONCA 462, at paras. 45 -55.
10In assessing the accused’s evidence, I must do so by considering it in the context of all the evidence led at trial, including the Crown’s evidence: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5; R . v. Hoohing, 2007 ONCA 577 at para. 15
The Video Evidence and the Agreed Facts
11On June 29, 2024, Mr. Smith attended the Mansion Kitchen and Bar located at 1294 Kingston Road, in Pickering. What follows is a review of the video evidence, the forensic investigation conducted, and other facts agreed to by the parties.
The interior video
12The interior video depicts Mr. Smith near the bar area of the restaurant between 00:35:17 and 00:36:05. During this time, he appears to have had a brief interaction with two males. Mr. Smith was wearing dark clothing, a medical mask positioned below his mouth, and carrying a satchel with a red strap. One of the males was wearing a grey jacket, and the other was wearing a blue t-shirt and a cap.
13At 00:35:17, Mr. Smith was positioned approximately one to two feet from the male wearing the grey jacket. That male nodded and appeared to be speaking.
14At 00:35:18, Mr. Smith took a step back from the male in the grey jacket. Between 00:35:18 and 00:35:30, the male in the grey jacket spoke with the male in the blue shirt, while Mr. Smith walked behind them and moved to the side of the bar.
15Between 00:35:30 and 00:35:42, Mr. Smith was at the side of the bar interacting with another individual. During this time, the male in the grey jacket and the male in the blue shirt continued to interact.
16At 00:35:46, Mr. Smith approached the left side of the male in the blue t-shirt, who was looking at his phone. The male in the grey jacket was positioned to that male’s right. At this point, both males had their backs to the camera. At 00:35:47, the male in the blue shirt lifted his head to look at Mr. Smith, then quickly turned his attention back to his phone within two seconds. By 00:35:50, Mr. Smith had turned his back to both males. Between 00:35:47 and 00:35:52, the male in the grey jacket was approximately six feet away from Mr. Smith and nodded his head.
17Between 00:35:53 and 00:36:02, the male in the blue shirt approached a male who appeared to be an employee of the establishment and interacted with him. The male in the grey jacket interacted with a woman. Mr. Smith walked behind the male in the grey jacket and stood a few feet behind him. Mr. Smith and the male in the grey jacket remained in this position until 00:36:05, at which point the video clip ended.
The Entry Video
18The entrance to the establishment consists of a single glass door leading from the restaurant into a small vestibule area, followed by two additional glass doors that open onto a porch and a set of stairs outside. The entry video clip is 32 seconds long.
19At 00:52:50, Mr. Smith opened the door from the restaurant and entered the vestibule. He was followed by the male in the grey jacket, and then by the male in the blue shirt. At 00:52:51, Mr. Smith reached the double glass doors. At that point, the male in the grey jacket had begun opening the single glass door from the restaurant.
20Between 00:52:52 and 00:52:54, Mr. Smith opened one of the double glass doors and exited onto the porch. At 00:52:54, the male in the grey jacket stood inside the vestibule, directly in front of the double glass doors. At the same time, the male in the blue shirt entered the vestibule from the restaurant.
21At 00:52:55, the male in the grey jacket stood in the doorway of the double glass doors, holding one of the doors open. The male in the blue shirt was holding the single glass door to enter the vestibule. Mr. Smith had walked down the stairs and was no longer visible on camera.
22Between 00:52:55 and 00:53:01, the male in the grey jacket stood on the porch at the top of the stairs, holding one of the glass doors with his left hand. He appeared to gesture toward himself approximately five times with his right hand. His left hand then released the door as the male in the blue shirt walked through the doorway.
23At 00:53:02, the male in the grey jacket was standing at the top of the stairs. The male in the blue shirt stood behind him, holding one of the double glass doors with his left hand. His right hand was down by his side, a few inches from his body. A cellphone holster was visible on his right hip. He was not holding anything in either of his hands.
24Still at 00:53:02, the male in the blue shirt released the door and stepped closer to the male in the grey jacket. At that moment, the glass door directly behind both males shattered from a gunshot.
25At 00:53:03, the male in the blue shirt entered through the undamaged glass door, which had not yet fully closed. He was crouched down at the time. He and the male in the grey jacket then ran through the vestibule and back into the restaurant, arriving there by 00:53:06. As they entered through the single glass door, the video shows that it also had been shattered by the gunshot.
Exterior Video
26The exterior video shows that between 00:52:55 and 00:52:56, Mr. Smith walked from the porch down the steps. Six individuals were standing at the bottom of the steps at that time. Upon reaching the ground, Mr. Smith walked approximately six paces and turned to face the entrance of the establishment at 00:52:58.
27At 00:53:02, Mr. Smith retrieved a handgun and pointed it in the direction of the establishment’s entrance. At 00:53:03, smoke or a flash is visible coming from the handgun, and the individuals near the stairs began to scatter. Mr. Smith also began to run away.
28By 00:53:06, Mr. Smith was no longer visible on camera. The individuals who had scattered returned to the staircase. The video ends at 00:53:17.
Police Investigation
29Scene of crime photographs demonstrate that there are six steps from ground level to the porch outside the entrance to the Mansion Kitchen + Bar. Police recovered a .45 calibre shell casing near the location of the discharge.
30The projectile fired by Mr. Smith passed through both glass entry doors, struck the interior of the restaurant, and came to rest on the interior stairs. At the time of the shooting, there were patrons inside the restaurant.
31Police investigation revealed that Mr. Smith had purchased two shots of Hennessy using his RBC credit card.
32The two males who followed Mr. Smith outside fled immediately after the shot was fired. Police were unable to locate or identify them.
33Police investigation further revealed that in 2021, Mr. Smith had been the victim of a “discharge firearm with intent incident”. He was dropped off at a hospital with a gunshot wound to his leg.
Mr. Smith’s Evidence
34Mr. Smith testified that he attended the Mansion Kitchen and Bar to conduct a drug deal. He acknowledged that he brought a gun with him, which was in his satchel.
35He explained that he carried a gun for protection because he had been traumatized after being shot in 2021 in a case of mistaken identity and because he was involved in selling drugs. He stated that everyone in that business carried a gun. He said he was fearful that something could happen during the meeting and, more generally.
36He described his recovery process following the shooting and indicated that as of June 2024 he still had mobility difficulties.
37Regarding his first interaction with the two males depicted on the interior video, Mr. Smith testified that one of them asked if he remembered him and said he looked familiar. Mr. Smith responded that the person must be mistaken. He said one of the males said something further to him, but he disregarded it. He then went to the bar to get his bill, stating that he felt there was obvious tension. He advised that the males were “mean mugging him,” meaning they were giving him menacing looks. He said the interaction triggered a panic attack and that he wanted to leave as quickly as possible. He agreed in cross-examination that he did not leave for more than 10 minutes after receiving his bill. He explained that he did not want to leave right away because he was concerned the males would follow him, which is what ended up happening. He stated that he had no further interactions with the males until he was leaving.
38He described a second interaction with the two males as he was leaving, which occurred outside the establishment.
39Mr. Smith testified that he entered a crowd of people and was heading to his car. He said the male in the grey jacket asked him where he was going and whether he remembered him. Mr. Smith responded that he neither remembered nor knew the males. He said things became heated at that point and that both males were conversing with him as he walked away. When shown the entry video depicting the male in the grey jacket near the entrance doors, Mr. Smith testified that this male was repeatedly asking if he remembered him, pointing aggressively, and raising his voice. Mr. Smith said he responded that he did not remember him.
40Mr. Smith testified that he was panicking and having a panic attack. He said the male in the grey jacket had something on his waist. In cross-examination, he mentioned that he observed a bulge by the male’s waist and that the male was grabbing for something. He also added that the male, or they, said “I have it” or “they have it”, which he explained was a street term. That was when he believed they had a gun. Around the same time, he said he observed the male in the blue shirt come through the door, quickly and aggressively. He stated that it appeared as though this male had a gun or something in his hand. He said the interaction was quick, so he did not clearly see, but it looked to him as though the male had something in his hand when he rushed out behind the male in the grey jacket. Mr. Smith maintained that he believed the male in the blue shirt had a gun. In cross-examination, he indicated that his view was obstructed by the male in the grey jacket. He also said it appeared to him that the male in the blue shirt was reaching for something.
41Mr. Smith explained that he fired his gun because he did not want to get shot. He indicated this was to defend himself and that he did not believe he had an alternative. He emphasized that he had previously been the victim of gun violence.
42He indicated that he did not know what the two males’ motive was in antagonizing him.
Assessment of Mr. Smith’s Credibility and Reliability
43There were several problems with Mr. Smith’s evidence that adversely affected my assessment of his credibility and reliability.
44First, while in possession of a loaded firearm, Mr. Smith implausibly claimed that he experienced a panic attack in response to a brief and relatively innocuous encounter with strangers.
45Second, although Mr. Smith claimed he was in a state of panic and wished to leave the establishment as quickly as possible, his actions were inconsistent with that assertion. He remained at the location for over ten minutes after receiving his bill, which undermines the credibility of his claim that he was urgently trying to exit due to panic.
46Third, Mr. Smith’s testimony that the individual in the grey jacket had a bulge near his waist is not credible. I am not concerned by the difference between his evidence in chief, where he said the male had something at his waist, and his evidence in cross‑examination, where he referred to a bulge. I do not consider this to be a significant inconsistency. I reject his evidence on this point for other reasons. A review of the video evidence—examined closely and even zoomed in—reveals no such bulge. Furthermore, the individual was wearing a loose black shirt, making it implausible that Mr. Smith could have observed any concealed object.
47Fourth, Mr. Smith’s testimony during cross-examination that the male in the grey shirt told him either he or they “had it” while standing on the porch of the establishment was neither reliable nor credible. He failed to mention this alleged statement during his examination-in-chief, despite later presenting it as a significant reason for believing the two males were armed. His explanation for this omission was not that he simply forgot to mention it, but that his memory was “foggy”, and he only recalled the detail upon viewing the video in court. This explanation lacked credibility, and I do not accept this aspect of his testimony as reliable.
48Fifth, Mr. Smith’s claim that he believed he observed a firearm in the person in the blue shirt’s hand was problematic for two reasons. First, the video evidence clearly establishes that there was no item in this person’s hand. Second, when testifying about this subject Mr. Smith acknowledged that he did not have a clear view and that the person in the grey jacket was partially blocking his line of sight. It is patently unbelievable that Mr. Smith saw what was not there and what was obscured. At most, Mr. Smith may have had a speculative and paranoid fear of a firearm.
49Sixth, Mr. Smith’s description of the actions of the male in the blue shirt as he exited the door is inconsistent with the video evidence. Mr. Smith claimed that the male came out quickly and aggressively and that he believed this male reached for something. The entry video, however, shows the male in the blue shirt walking through the door at a normal pace, making no aggressive gestures, and not reaching for anything.
50Seventh, Mr. Smith testified that his intention upon exiting the establishment was to go to his vehicle. However, his explanation—that he did not continue because he feared the two males would follow him—was not credible. Upon reaching the bottom of the stairs, he took six paces before turning to face the two males who, according to him, had triggered a panic attack during their initial interaction. These individuals made no attempt to descend the stairs. Had Mr. Smith continued walking and had they pursued him, his explanation might have had some plausibility. But that is not what occurred.
51Overall, I do not find Mr. Smith to be a credible or reliable witness. As I will elaborate, his evidence does not cause me to believe he acted in self‑defence, nor does it leave me with, or contribute to, a reasonable doubt on that issue.
The Law of Self-Defence
52There are three essential elements to the defence of use of force: (1) the accused must have reasonably apprehended a threat of harm to himself (the catalyst); (2) the force used by the accused was in response to the perceived threat or harm (the motive); and (3) the force used was reasonable in the circumstances (the response): Criminal Code, section 34; R. v. Khill, 2021 SCC 37, at paras. 51-52, 59, 62; R. v. Suthakaran, 2024 ONCA 50, at para. 20. The reasonableness of the response is to be assessed having regard to the non-exhaustive list of factors in section 34 subsection (2).
53The catalyst focuses on the accused's state of mind and asks whether the accused subjectively believed on objectively reasonable grounds that force was being used or threatened against them or another person. The motive asks whether the accused did something for the subjective purpose of defending or protecting themself or another. The response asks whether the conduct of the accused was reasonable in the circumstances, again having regard to the non-exhaustive list of factors in section 34 subsection (2).
Assessment of Self-Defence in this Case
The Catalyst
54Mr. Smith testified that he feared for his life prior to discharging his firearm.
55I do not accept Mr. Smith’s evidence, nor do I have a reasonable doubt, that he reasonably apprehended harm to himself.
56The interaction in the interior bar area was brief and relatively innocuous. I reject Mr. Smith’s assertion that it triggered a panic attack. His claim that he wanted to leave immediately is contradicted by his decision to remain for more than 10 minutes. There is no evidence that either of the two males he interacted with touched him, threatened him, or displayed any weapons during this initial encounter.
57As for the interaction outside, I begin by noting that Mr. Smith was positioned 10 to 15 feet away from the two males when he fired his weapon, and that neither male made any attempt to descend the stairs.
58For the reasons previously stated, I reject Mr. Smith’s claim that he observed a bulge at the waist of the male in the grey jacket. I also reject his assertion that anyone said, “I have it” or “they have it”. Even if I were to accept that he observed a bulge—which I do not—he never indicated that he saw a firearm on the individual’s waist, let alone in his hand. Nor did he mention the male lifting his shirt to display any item. The video shows the male in the grey jacket merely lowering his hand momentarily in front of his body before raising it again, with nothing in it, just prior to the glass shattering. Even had Mr. Smith perceived a bulge, which again I reject, there would still be no reasonable basis for him to believe the man was armed and about to use a firearm against him.
59The video evidence clearly shows that the male in the blue shirt was not holding a firearm or any other object in his hands prior to Mr. Smith firing his weapon. Furthermore, this male did not make any aggressive gestures towards Mr. Smith, nor did he reach for anything.
60I have considered that Mr. Smith was previously shot and that this experience had a significant impact on his life. I have also considered that the male in the blue shirt wore a cell phone holster on his waist, and that his hand was positioned a few inches from it prior to the shooting.
61In Khill, the Court stated at para. 56:
Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures (Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396, at p. 405; Cinous, at paras. 129–30; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 98)…
The question is not what the accused personally thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive (Pilon, at para. 74). The law also recognizes that an honest but mistaken belief can still be reasonable and does not automatically preclude a claim of self-defence (Lavallee, at p. 874; Pétel, at p. 13; R. v. Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285, at para. 9; R. v. Robinson, 2019 ABQB 889, at para. 23; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 8).
See also: R. v. Younus, 2022 ONSC 2078, at para. 119.
62I do not accept, nor do I have a reasonable doubt, that Mr. Smith perceived a firearm in the hand of the male in the blue shirt. At most, Mr. Smith may have experienced an irrational paranoia that the individual might be armed, but any such impression was not reasonably grounded. Even if Mr. Smith worried that the individual might possess a firearm, that concern was not reasonable given the circumstances.
63Having carefully considered Mr. Smith’s testimony in the context of all the evidence, I find that he did not reasonably apprehend harm when he discharged his firearm. Nor do I have any reasonable doubt on this issue. His evidence, viewed alongside the other evidence, does not leave me in a reasonable doubt. Based on the evidence I accept—namely, the agreed statement of facts, the video recordings, and the photographs—I am satisfied beyond a reasonable doubt that Mr. Smith did not believe, on reasonable grounds, that force was being used against him or that a threat of force was being made at the time he fired his gun.
64In coming to this conclusion, I have been mindful that reviewing video evidence carries the risk of creating a misleading impression of how events were perceived in real time by those present. See: R. v. E.J., 2025 ONSC 6016, at para. 82. In the circumstances of this case, the sequence of events does not support an inference that Mr. Smith reasonably apprehended harm.
65The Crown has disproven the first element of self-defence beyond a reasonable doubt. The defence therefore fails: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, at para. 25; Khill, at para. 231.
The Motive
66Given my finding on the catalyst element of the defence of use of force, I need not address whether Mr. Smith fired his firearm for the subjective purpose of defending or protecting himself. The Crown submits that Mr. Smith’s motive was solely to harm the individuals he fired toward. I need not determine this. It is sufficient to note that, even if Mr. Smith had a subjectively defensive motive for firing his gun, it was based on an irrational and unreasonable fear.
The Response
67The final element of self‑defence concerns whether the accused’s conduct was reasonable in the circumstances. The starting point is that reasonableness is measured against “the relevant circumstances of the person, the other parties and the act”: Khill, at para. 64).
68While factors relating to the accused are relevant, the focus remains on what a reasonable person would have done in comparable circumstances, not on what the particular accused thought at the time: Khill, at para. 65.
69In assessing whether Mr. Smith’s conduct was reasonable, I must consider the non‑exhaustive list of factors set out in s. 34(2)(a)–(h) of the Criminal Code.
70In weighing these factors, I have assessed Mr. Smith’s evidence in accordance with the modified W.(D.) approach outlined above. I have also adopted a holistic approach as directed in Khill. See: R. v. Alphonse, 2024 BCSC 572, at para. 237. My earlier analysis of the catalyst element, together with my related findings of fact, naturally informs my analysis of the response element. I will not repeat those reasons, but rather apply my findings of fact in assessing the factors relevant to the response element.
(a) The nature of the force or threat
71As I have explained, there was no force used against Mr. Smith, nor was there any threat of force.
(b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force
72There was no imminent use of force, given that there was neither force nor any threat of force. Furthermore, Mr. Smith could have easily walked away. Neither the male in the blue shirt nor the male in the grey jacket descended the stairs toward him.
(c) The person’s role in the incident
73In assessing this factor, the court must evaluate how the accused’s role impacts the “equities of the situation” and the extent to which the accused bears responsibility for the confrontation: Khill, at paras. 85–86. “Society is more likely to view the accused's ultimate act as wrongful or inexcusable where their conduct was rash, reckless, negligent or unreasonable”: Khill, at para. 105.
74The two males followed Mr. Smith as he left the establishment, though neither one of them descended the stairs from the porch. Mr. Smith brought a loaded firearm to a busy establishment. He brandished it and fired it without reasonable grounds to believe that force or a threat of force was being used against him.
(d) Whether any party to the incident used or threatened to use a weapon
75Mr. Smith was the only person involved in the incident who possessed or used a weapon.
(e) The size, age, gender and physical capabilities of the parties to the incident
76The parties were all male and appeared similarly aged. There were two males interacting with Mr. Smith, and both appeared to have a larger build than him.
(f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat, and (f.1) any history of interaction or communication between the parties to the incident
77The only evidence of prior interaction between the parties is the brief exchange captured on the interior video and described by Mr. Smith. This interaction did not involve any violence or threats of violence. At its highest, Mr. Smith described receiving menacing looks from the males and them mistaking him for someone else.
(g) The nature and proportionality of the person’s response to the use or threat of force
78Mr. Smith firing a gun toward two men and into an occupied establishment was manifestly disproportionate in the circumstances, given that no force was used against him and there was no reasonable basis for him to fear that it would be.
(h) Whether the act committed was in response to a use or threat of force that the person knew was lawful
79This factor is not relevant to this case.
Balancing the various factors
80Having considered all of the factors together in a holistic manner, I am satisfied beyond a reasonable doubt that Mr. Smith’s conduct was unreasonable in the circumstances. Accordingly, the Crown has also disproven this element of self-defence beyond a reasonable doubt.
Conclusion
81I am satisfied beyond a reasonable doubt that Mr. Smith intentionally discharged a firearm into or at a place, knowing or being reckless as to whether another person was present. The evidence in support of this charge is overwhelming. The only issue raised at trial in relation to this count was self‑defence. For the reasons given, I am satisfied beyond a reasonable doubt that the defence has been disproven.
82The firearm carried by Mr. Smith is, by definition, a weapon. He clearly intended to conceal it in his satchel. Furthermore, Mr. Smith admitted he carried a loaded firearm for two purposes: to have it available while conducting a drug deal and to protect himself based on a generalized fear rather than an imminent threat. These purposes were obviously dangerous to the public peace. I am satisfied beyond a reasonable doubt that Counts 2 and 3, the charges of carrying a concealed weapon and possessing a weapon dangerous to the public peace, have been proven.
83Mr. Smith acknowledged that he was in possession of a prohibited firearm. The defence conceded that he did not have authorization to possess the gun. The only reasonable inference is that he was aware the gun he carried and chose to fire was loaded. Consequently, the Crown has also established Count 4, possession of a loaded prohibited firearm, beyond a reasonable doubt.
84The Crown has proven the essential elements of each offence charged beyond a reasonable doubt. I therefore find Mr. Smith guilty on all counts.
Released: December 9, 2025
Signed: Justice Joseph Hanna