Court File and Parties
Ontario Court of Justice Date: 2024 02 07 Court File No.: Central West Region (Brampton) 998 19 2021
Between: HIS MAJESTY THE KING
— AND —
Shem Bent
Before: Justice J. De Filippis
Heard on: December 4 – 7, 2023 Reasons for Judgment released on: February 7, 2024
Counsel: Mr. P. Maund, for the Crown Mr. G. Batasar, for the accused
De Filippis, J.:
Introduction
[1] The defendant was charged with discharging a firearm with intent to wound Tonika Charles on Jan 19, 2019, at the City of Brampton, contrary to s. 244(1) of the Criminal Code.
[2] The events in question commenced at a bar called “The Spot”. A dispute within the tavern continued outside in the parking lot. The complainant, Ms. Charles, and her partner, Mr. Ingram, were in the bar. They were not involved in the dispute and decided to leave when it began. They entered a motor vehicle, a white Hyundai, driven by the complainant. A man confronted them. The complainant accelerated away. In doing so, she stuck a car parked beside her, a white Acura. A man came out of the bar and saw the damage to the Acura. He entered this vehicle and pursued the complainant. The complainant lost control of her car and collided into a tree in a nearby residential neighborhood. Shots were fired at the vehicle. One bullet was found in the door of the complainant’s car.
[3] The events summarized above are established by video records from several surveillance cameras, forensic evidence, and the testimony of five witnesses, including the complainant and her companion, Mr. Alexander Ingram. As the trial unfolded, it became clear that much of the prosecution evidence is not controversial. It became evident during cross-examination by the Defence that there is little dispute that the defendant was the man in the Acura who pursued the complainant in the Hyundai and that he was present at the scene of the shooting. This fact was confirmed at the outset of Defence submissions. [1] Accordingly, the factual issue in this case is a narrow one; has the Crown proven beyond a reasonable doubt that the defendant was the person who discharged the firearm?
[4] Apart from the narrow issue in question, these reasons will present the case in narrative form, without including factors that would otherwise have impacted on truth and accuracy. Indeed, it is primarily with respect to the complainant and Mr. Ingram that the parties are at odds. The Defence asserts that I cannot conclude the defendant was the shooter and relies heavily on the testimony of Mr. Ingram, while calling into question the credibility and reliability of the complainant. The Crown argues the opposite. The parties are also in disagreement about the meaning of messages extracted from a phone seized from the defendant.
[5] These reasons explain why I find the defendant guilty.
Evidence
[6] Ms. Kulwinder Ghag was the owner of The Spot. It is in a plaza with other businesses. She identified the location of surveillance cameras in the plaza. On the day in question, at about 1:40 AM, a fight in the bar, involving 20 to 30 people, was taken outside. The altercation was captured on camera, including a man being hit over the head with a glass bottle and then punched and kicked as he fell to the ground. As several people wandered around the parking lot a few cars left the area. Ms. Ghag identified one of the people involved in the confrontation as “Shem” and confirmed that he is the man captured on camera departing in a white Acura.
[7] DC Michael Taylor is a 20-year veteran of the Peel Police Service and currently part of the Forensic Identification Service. He attended the area of Bramalea Road and North Park Drive and saw that a white Hyundai motor vehicle had gone off the road and collided with a tree. He photographed the scene, including exhibits located by other officers.
[8] The testimony of the officer, and the photographs, reveal that the front end of the white Hyundai was damaged, both front tires deflated, and the air bags had been activated. There was a bullet hole in the lower portion of the rear passenger door. The bullet had penetrated the outer panel, but not the inner panel and was found at the bottom of the door. Shell casings were on the roadway. All were 9 mm. Some were silver coloured; others were gold coloured.
[9] PC Kevin Gagne is the officer in charge of this case. He obtained the video record from the surveillance cameras at The Spot and at the scene where the complainant’s motor vehicle collided with a tree. The latter was obtained from a camera at a nearby private residence. These video records were played to the Court. The camera outside The Spot depicts the following:
The complainant and Mr. Ingram left The Spot as the unknown man was hit in the head with a bottle. They entered the white Hyundai, with the complainant in the driver’s seat. She appeared to be looking at her cell phone. Another unknown man unsuccessfully tried to open the driver’s door. He then moved away and put his hand in his pocket. The complainant accelerated out her parking spot. In so doing, she collided with a white Acura parked beside her. She stopped at the end of the parking lot. The defendant approached the car that was hit by the complainant and saw the damage. He entered the Acura and followed the complainant’s vehicle out of the parking lot. The complainant made an abrupt U-turn at the first intersection. The defendant did the same. After this, both cars were out of the range of the cameras in the plaza. They are captured on camera again at the scene of the collision.
[10] Several weeks later, on February 22, PC Gagne conducted surveillance at The Spot bar in reference to a fed Kia motor vehicle. At 2:58 AM he conducted a traffic stop of this car. Other officers arrested the defendant. The defendant was in possession of a white iPhone, which police took custody of. This phone was taken to Peel Police’s Digital Forensic Services (DFS) unit. The contents of the phone were downloaded by DFS pursuant to judicial authorization. The resulting download was provided to the officer-in-charge Kevin Gagne. Also, seized from the defendant was key fob.
[11] The police became aware that the defendant occasionally stayed at 4 Lockridge Street, Brampton. During a warranted search of that house, officers found a student identification card in the name of the defendant, in one of the home's bedrooms.
[12] On February 23, 2019, Peel Police conducted a judicially authorized search of the white Acura TL parked in the driveway of 4 Lockridge Street. The key fob previously seized from the defendant successfully accessed this vehicle. A 9mm Luger shell casing was found on the driver’s side front windshield of the Acura TL, just below where the VIN number was visible and tucked under the car’s hood near the windshield wipers. Damage to the vehicle was no longer visible.
[13] PC Gagne also extracted a record of conversations from the cell phone seized from the defendant on his arrest. The Whatsapp number is associated to “SHEM DOGG”. Excerpts were presented in evidence.
[14] On January 20, 20219, the day after the events in question, a person named Kass, sent a message to SHEM DOGG. This is part of their text discussion:
Kass: You ok? SHEM DOGG: Ye I’m home now K: OK S: Shorty called me n goes the girl made a report K: Does she kno what she said S: Ye she said that the man waving a strizY around and he started chasing me were u was scared for my life and then she hit the tree
[15] The Crown and Defence agree that “strizY” means a firearm.
[16] The next day, January 21, there was a conversation from an unknown person and SHEM DOGG that included the following exchange:
Unknown Person: That was real dumb tho. You have to leave…they called the girl SHEM DPGG: India told me…she went in U: So who did she say had the car? S: No plates her bredjin a fed. I seen red yu dint e wn know. U: Then y would they have it under investigation but they neva got the plates? S: N ima drive my car to the shop. Caz she went to 21 division. Caz she crashed U: I’m confused…she crashed her own car? S: ye. She hit a pole
[17] The Crown and Defence agree that “bredjin a fed” means a police officer. This text exchange also includes a voice file in which SHEM DOGG stated that, “They hit my car parked. I was going home, and I bumped the car on them and …. they crashed”.
[18] Defence counsel noted that the person communicating with SHEM DOGG on January 21, 2019, had a telephone number with an area code “876”. PC Gagne could not say if this area code is associated with Jamaica. He did agree that the conversation between the parties also referenced the fact that SHEM DOGG took a vehicle to be repaired and get a new bumper. The officer did not agree that it is common practice for the police to contact body shops after an incident like this and could not comment on whether the conversation shows that SHEM DOGG was unconcerned about such investigative initiatives.
[19] Ms. Charles is 27 years old. At the time of these events, she was dating Mr. Ingram. They were going to meet a friend. On arrival at The Spot, she ordered a drink and food. The complainant did not finish the drink as there was commotion among people at a large party. She and Mr. Ingram bagged their food and left.
[20] The complainant acknowledged the scene outside the bar as depicted in the video record. She identified herself and Mr. Ingram entering her white Hyundai as the commotion inside the bar spilled into fighting outside. Once inside her vehicle she tried to call her friend to tell her they would not meet her at the bar. She heard a man shouting at her to stop recording the fighting. The complainant panicked and accelerated out of the parking spot. She testified that she did not realize she had struck the car parked beside her.
[21] When the complainant reached the end of the parking lot, she stopped to program her destination into her GPS to calculate her route home. While doing so, the defendant pulled up beside her in the white Acura. She observed something in his hand. Fearing it was a gun, she drove away. The defendant followed. At the next intersection, she made an abrupt U-turn. The defendant followed and pulled his car beside her. The complainant stopped driving.
[22] The defendant told the complainant that she had damaged his car. The latter offered to exchange insurance. The defendant rejected this and demanded cash. The complainant saw something that appeared to be a gun. She accelerated away from the scene. The defendant followed.
[23] The complainant described what happened next as follows:
Alex [Ingram] was freaking out. I think he dropped his phone [in the car]. I was screaming. We both were. I was [driving] in and out of streets. I was lost. The white car was following. I got back onto a main street and made a quick right turn at a green light at a big intersection. I spun out and ended up on the opposite side of the road. I ended up hitting a tree. I hit my head and fell back in my seat. There lots of dust and smoke and the smell of gas. We rant from the car on a back street behind somebody’s house. When I crashed into the tree he started shooting with his gun. I could hear it – pop, pop, pop. I heard gunshots while in the car. I was born and raised in Scarborough, one thing I know is gun shots.
[24] The complainant was shown a photograph taken from a security camera on a nearby residential home that depicts a white car after it collided with a tree. She confirmed this was her car as described above. Other photographs show shell casings on the roadway. As noted, a bullet pierced the outer panel of the complainant’s car door.
[25] In cross-examination, the complainant was questioned about why she would stop and to talk to the defendant if he had previously waived a gun. She replied that the defendant had not waived a gun before the abrupt U-turn. Defence counsel pressed her on this contradiction with her testimony in chief and whether, in any event, she ever actually saw a gun. The complainant insisted that the first time she saw a gun in the defendant’s hand was after they had stopped to discuss the damage to his car and after she had refused to give him money. She said that the object in the defendant’s hand was black, and he was waving it and added, “it could have been a replica gun, it could have been anything”.
[26] The complainant said there was nobody in the front passenger seat of the defendant’s car. She could not say if there was anybody in the rear seats. Defence counsel reminded the complainant that in testimony in chief she had used the word “they” in describing the encounter with the defendant. She explained that “I just used this pronoun”. She insisted she did not see anyone other than the defendant in her encounter with him.
[27] Mr. Ingram is 26 years old. In his examination in chief, he confirmed the evidence given by Ms. Charles about the fight outside the bar, the unknown man who yelled at them after they entered the motor vehicle, and the pursuit by the defendant. He added these details: The man who yelled at them in the parking lot, tried to open the door to their car, appeared to be drunk and looked like he was waiving a gun. The complainant was driving fast as they were being chased. When they collided into the tree, the airbags were deployed. At this time, the defendant’s vehicle was on the other side of the road and Mr. Ingram heard “probably six” gunshots. He added that “We ran into a back alley or something, walked onto a street, waited, then went back [to the car] for the phone and called the police”.
[28] In cross-examination, the defendant was asked if he ever saw the defendant waiving a gun. He said that he had not seen the defendant waive a gun, and then continued as follows: “And there may have been someone in the back seat [of the defendant’s car]”.
[29] In response to further questions by Defence counsel, Mr. Ingram added these details:
I did not see anybody in the back seat, but I saw a reflection. I saw a body move through the glass at a time the [Acura] was driving. There was more than one person in the car, in the back seat. It happened fast. The [defendant] was arguing with [the complainant] while the two cars were beside each other. This is when I saw somebody in the back seat moving.
[30] In re-direct examination, the Crown was granted leave to cross-examine Mr. Ingram pursuant to s. 9(2) of the Canada Evidence Act.
[31] Mr. Ingram confirmed when interviewed by the police that he understood they were investigating a serious crime and that he was an important witness. He also understood the need to be clear and truthful as best he can recall and not to guess. The witness confirmed that he previously reported the following to the police: “I’m pretty sure the driver [defendant] is only person [in the car that pulled up beside them] cause his thing was down, right so you can kind of see and I couldn’t see anybody else in the car, so its him, it’s only him”.
[32] When pressed to explain the discrepancy between his prior statement to police and his evidence in cross-examination, Mr. Ingram replied as follows: “I was in shock. I thought I saw a body move but wasn’t too sure, I knew I seen the driver and a body in the back seat. I can’t recall why he didn’t tell the police this”. When pressed further, the witness agreed that he provided the police with many details about the events on the night in question but omitted to say to tell them there may have been more than one person in the Acura.
Submissions
[33] Crown counsel began submissions by reviewing the evidence he said proved that the defendant was the driver of the Acura that pursued the complainant. Since Defence counsel subsequently conceded this fact, I will restrict myself to what the Crown had to say about the identity of the person who discharged the firearm.
[34] The Crown points to the extracted messages from the defendant’s phone as evidence of guilt. It is clear he discussed the events in question and his subsequent actions to have his vehicle repaired. It is also clear that he was at the scene where the complainant’s car collided with a tree. Counsel argues that when the defendant said, “ I seen red yu dint e wn know”, he meant “that is how mad I was” that the complainant had damaged his car. This, it is argued, is why he chased the complainant. The shooting is his response to her refusal to give him cash in compensation.
[35] The Crown urges me to reject the testimony by Mr. Ingram about one or more other people being present in the back seat of the defendant’s vehicle. This evidence was given, for the first time, five years after the event and is inconsistent with Mr. Ingram’s statement to the police at the time and his testimony in chief at this trial. Moreover, the video record shows only the defendant entering the white Acura when he pursued the complainant’s car from the tavern parking lot. In any event, counsel asks, “why would someone else have motive to shoot at the complainant’s car”.
[36] As already noted, the Defence does not challenge the narrative of events set out above. Rather, it is the position of the Defence that the Crown has failed to prove that the defendant is the person who discharged the firearm. In this regard, counsel adds that it is not known if another person was already in the defendant’s vehicle before he entered it and followed the complainant, or if he picked up anyone on the way out of the parking lot.
[37] The Defence submits that the complainant should not be believed or trusted. She testified that during the pursuit and discussion about paying for the damage to the car, the defendant had something in his hand that could have been a gun. Counsel claims this is “a post construction of the events to try to indicate that Mr. Bent was a person with a gun but there’s zero evidence that he had a gun”. Moreover, it makes no sense that “she stops on the side of the road after being threatened with a gun to have a discussion with a man to inspect the damage...”.
[38] The complainant testified that when she refused to pay cash to the defendant, “they were not happy with the conversation” and that “they wanted money”. When it was suggested to her that this meant there was more than one person, the complainant replied that this was a pronoun of choice and insisted only the defendant was present. Defence counsel argues that this explanation “is ridiculous and not worthy of belief”.
[39] Mr. Ingram did not see the defendant with a gun at any time. Defence counsel described his evidence about a second person as follows:
He was interested in the conversation that was taking place and he says they were arguing. He does say that he saw people in the backseat, when the light reflected on the vehicle that reflection revealed that there was movement in the backseat. That’s a crucial piece of evidence in this case, the most crucial piece of evidence. He saw people in the back seat. He told Tonika to take off. The fact of the matter is the shooter who was involved in the incident was in the backseat of the vehicle and decided to open fire for reasons only known to them. Was it one person or two? The evidence suggested it is possibly two as the bullet casings are different, one gold colour and the other nickel coloured.
[40] There is no DNA or fingerprint evidence in this case. The Defence claims the presence of the shell casing on the windshield of the Acura by PC Gagne supports the innocence of the defendant; “The reality is if Mr. Bent was the shooter, the first thing he would do is go and search his vehicle for any bullet casings...Presumably, when you walk out of your house every day, its’ on your car you would see it, but this is not a concern form Mr. Bent, because he did not shoot anybody”.
[41] The Defence submits that the conversations extracted from the defendant’s phone point to innocence, not guilt. In this regard, counsel noted that the defendant referred to himself in the first person except when talking about the shooting.
Analysis
[42] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W.D., 1991 SCC 93).
[43] Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.
[44] As noted, it is not disputed that after the complainant and Mr. Ingram left The Spot, the complainant struck the defendant’s car as she drove out of the parking lot. The defendant entered his motor vehicle and pursued her. The parties stopped to discuss compensation for the damage caused. With this issue unresolved, the complainant sped away, pursued again by the defendant. The complainant lost control of her vehicle and collided with a tree in a residential area in the early morning hours. The defendant arrived at this scene. Shots were fired at her vehicle. One bullet penetrated the outer panel of the rear door on the driver’s side of the complainant’s car. Shell casings were located on the roadway. A shell casing was later found on the windshield of the defendant’s car. After the shots were fired, the complainant and Mr. Ingram fled on foot. It is not in dispute that conversations extracted from the defendant’s cell phone show that in the following two days he discussed these events with two people. The defendant recounted that a woman had gone to the police after her car collided with a pole and had reported that a man had waved a gun. He added that he was going to repair damage to his own car. In this regard, the defendant added that “I seen red yu dint e wn know”. Crown counsel’s assertion that this means ‘that is how mad I was’ was not challenged, and, in any event, I accept it. I also accept that the defendant was angry at the complainant for damaging his car.
[45] This narrative of events leads irresistibly to the conclusion that the defendant discharged the firearm after the chase had come to an end. In coming to this conclusion, I am mindful of two points primarily emphasized by the Defence in challenging the complainant. I am not troubled by either point. Before addressing these points, I note that with respect to most of the narrative, the complaint’s credibility and reliability is not in issue. Indeed, it is confirmed by other evidence, including video and photo records.
[46] I accept the Defence submission that it is improbable the complainant would stop her car and discuss the damage caused to the defendant’s car if the latter had previously waved a gun while pursuing her. However, the complainant clarified this in cross-examination. She said the gun, or something that looked like one, was produced after they had stopped and after she had refused to give cash to the defendant, rather than exchange insurance information. I believe her.
[47] The second point raised by the Defence is the fact the complainant, at one point in her testimony, used the word “they’ to describe her assailant(s). When asked about this, she explained that “I just used this pronoun”. The use of a word that once signified only plural to mean singular can be is confusing in a legal proceeding such as this one, where identity is in issue. However, such gender-neutral pronouns are now common and accepted. I believe the complainant’s explanation; she was referring to one person.
[48] In concluding that the evidence proves the defendant discharged the firearm, I am not troubled by the fact that the ammunition found is not the same colour. All ammunition was 9mm Luger. Moreover, I do not accept the Defence suggestion that the defendant referred to a third party in his subsequent conversation about the events. What the defendant said, after being asked if he was aware what the complainant had told police, is that she had reported that “the man” had a gun. This is not “evidence of innocence”.
[49] The only evidence that could undermine the conclusion I have reached is the testimony of Mr. Ingram. He pointed to one or more other person(s) in the defendant’s car. The Defence argues that this must raise a doubt about the defendant’s guilt as the firearm could have been discharged by someone else.
[50] This information was not disclosed to the police when interviewed by them at the time, or weeks later when he picked the defendant out of the photo lineup. Mr. Ingram did not mention it in the testimony in-chief at this trial. Indeed, his statement to police and testimony in chief referred specifically to seeing only the defendant in the white Acura. He added this information for the first time, in cross-examination, five years after the event. Assuming the sincerity of this testimony, it is inherently unreliable. In addition, there are other reasons to reject the evidence.
[51] For a second, or third, person to be in the car, they would have had to be there when the defendant entered it at the plaza where the events began. That is, before the complainant hit the defendant’s car. The video record does not show anyone exiting the defendant's car after it was hit. It does not show anyone other than the defendant entering the vehicle right after it was hit and before the chase began. The only other way for these people to be in the vehicle is, as submitted by Defence counsel, if the defendant, during a hot pursuit, stopped and picked up the person(s). Moreover, there is nothing in evidence to explain why the person(s) happened to be on the route of an unexpected pursuit, with a firearm, and a motive to shoot at the complainant's vehicle. There is no air of reality to this scenario.
[52] To find a doubt based on the unexpected part of Mr. Ingram’s testimony would not be based on common sense or logic. Such a doubt would be unreasonable.
Conclusion
[53] The Crown has met its high burden of proof. The defendant is found guilty.
Released: February 7, 2024 Signed: Justice J. De Filippis
[1] This concession by Defence counsel is more than reasonable; proof of identity included eyewitness testimony, a photo lineup, a video record as well as distinctive clothing and neck chain.