Court File and Parties

Court File No.: CR-21-10000081 Date: 2023-04-03 Ontario Superior Court of Justice

Between: His Majesty The King And: Jamal Fogah-Pierre, Defendant

Counsel: J. Flaherty, for the Crown J. Yeun, for the Defendant

Heard: March 23, 24, 27, 28, 2023

Before: G. Roberts, J.

Reasons for Judgment

[1] In the early hours of December 18, 2017, a man emerged from the emergency exit at the south-west corner of the apartment building at 1884 Davenport Road, walked west, past two women, got on his knee and fired five times in the direction of a man in red pants fleeing across Davenport Road in a south-west direction. Police found shell casings on the sidewalk in the area where the gunman fired, and bullet holes in two cars parked across the street, plus a bullet inside the front driver’s side tire of one of them, and a bullet hole in the front window of 1897 Davenport Road, and a bullet lodged inside a wall divider in the front living room of that house. The handgun used in the shooting was found six months later, on June 16, 2018, hidden behind a wall pipe access panel at the back of the sink vanity of unit 724 of 1884 Davenport Road.

[2] Jamal Fogah-Pierre stands charged with a series of offences relating to firing the gun on December 18, 2017. He was also charged with a series of offences relating to being in possession of the gun found on June 16, 2018, but I granted a directed verdict application in relation to those latter charges at the close of the Crown’s case.

[3] The essential issue at trial was identity: did the Crown prove beyond a reasonable doubt that Mr. Fogah-Pierre was the man who fired the gun on December 18, 2017?

The Crown's Case

[4] The Crown’s case consisted of:

• Google maps and photographs of the area of the shooting and the location of surveillance video of the shooting and the people involved;
• surveillance video of the shooting;
• surveillance video of the events leading up to the shooting;
• surveillance video of two men entering the lobby area of 1884 Davenport Road in the 26 hours leading up to the shooting;
• a document comparing police photographs of the two men entering the lobby with stills from the surveillance video;
• an extensive agreed statement of facts, which included an admission that Majed Haj was the tenant of unit 724 at 1884 Davenport Road on June 16, 2018.

[5] Mr. Fogah-Pierre did not testify or call any evidence.

[6] I will not review the evidence in detail. None of it was controversial. Rather, I will explain the factual findings I draw from it below. Before doing that, however, I will describe what the surveillance video captured.

Surveillance Video Evidence

[7] The events of the shooting, and events in the approximately 19-minute period leading up to the shooting, were captured from four different surveillance cameras:

• A camera located at the south-west entrance door of 1884 Davenport Road. The approximately 18-minute clip played in court was made exhibit 3. It was agreed that the time stamp was correct.
• Two cameras located along the walkway just west of the south-west entrance to 1884 Davenport Road, one at the north end of the walkway pointing south towards Davenport Road, the other at the south end of the walk way pointing west along the Davenport Road. The approximately 19-minute clip (a short 1 minute 20 second segment followed by a longer 18 minute segment) showing both cameras in split screen was played in court and made exhibit 4. It was agreed that the time stamp was just over 3 minutes fast.
• A camera located at 1905 Davenport Road (across the street and west of 1884 Davenport Road). The approximately 17-minute clip was played in court and made exhibit 5. It was agreed that this camera was 50 minutes and 20 seconds fast.

[8] In addition, surveillance video was provided of two men entering 1884 Davenport Road, culled from the approximately 26-hour period leading up the shooting. The entrance was covered by three surveillance cameras: in the foyer, through the foyer and in the lobby by the mailboxes, and near the elevators.

[9] On consent, the Crown tendered exhibits which compared stills of the two men entering 1884 Davenport Road with police photographs of Mr. Fogah-Pierre and Mr. Haj (exhibits 21 and 22 related to Mr. Fogah-Pierre, and exhibits 23 and 24 related to Mr. Haj).

[10] On consent, the Crown tendered an exhibit which put stills from all the surveillance video in chronological order (exhibit 20). In summary, this footage showed:

• On December 16, 2017 at 10:21 pm two young black men enter the lobby at 1884 Davenport Road and get on the elevator. One is dressed all in black with a black jacket with the hood up. He is wearing a white or light hoody underneath and the white or light edge can be seen at the edge of the hoody. He is wearing black running shoes with white soles. It is the Crown’s position this is Mr. Haj (the tenant of unit 724 at the time of the search on June 16, 2018). For ease of reference, I will refer to this man as X. X’s face is visible quite clearly at points and consistent with the arrest photographs of Majed Haj. The other man is wearing a hip-length black coat with a hood with a fur trim, blue jeans that are rolled up, black running shoes with something shiny in the lace area of the front of each shoe. He has thick hair in corn rows. His face is narrow; he has high cheek bones. His nose is broad at the bottom. His eyebrow on the left side of his face goes up in an upside down V, thick going up and then fading out going down. He has a distinct hairline, and sideburns, particularly on the right side of his face. The Crown alleges this is Mr. Fogah-Pierre. For ease of reference, I will refer to this man as Y. X walks into the lobby first, followed by Y.
• On December 17 at 10:17 pm, Y enters the lobby at 1884 Davenport Road. He punches something into the keypad and waits. He is wearing the same black coat with a fur lined hood, dark blue jeans rolled up, black running shoes with something shiny on the front of each shoe in the lace area, and a grey/light blue hoody (his jacket is undone). Y keeps his back to the surveillance video, turning his head to the side and down when he uses the keypad, which is located in direct sight of the surveillance camera. But at points his hairline, from the top and left profile, is clearly visible. As is his nose and left profile. A pizza delivery man entered the lobby while Y was waiting. At a certain point, Y lowered his hood. His cornrows are brushed out and his hair is back in a ponytail. When the delivery man is buzzed in, Y holds the door open, and follows the deliver person inside. The two men get into the same elevator and the elevator door closes. About 20 seconds later the elevator door opens again and Y gets off and walks out of the building. He pulls up the grey/light blue hood of his hoody followed by the hood of his coat before going outside.
• On December 17 at 10:22 pm, just over a minute after leaving, Y comes back into the foyer of 1884 Davenport Road, now holding a sandwich or some kind of food in his left hand, an dagain uses the keypad and waits. He is not turning his back to the camera this time and his face can be seen quite clearly, particularly the left side. He enters the lobby after about a minute and gets on the elevator.
• On December 18 at midnight a young black man enters the foyer. He is wearing a shiny black puffer jacket with a silvery decal on the left shoulder and left arm around the bicep area, light coloured blue jeans, a light greyish-green hoody, and light greyish running shoes with white soles. He is wearing his hair in corn rows. He enters almost immediately and gets on the elevator.
• On December 18 beginning at 12:31:14 am a young black man and a young white woman leave 1884 Davenport Road out of the exterior emergency exit at the south-west corner of the building. The man is not wearing a coat, just a light grey hoody with the hood pulled up, jeans rolled up, black shoes with shiny decal on the front of each shoe in the lace area. His hair line at the top and right side is visible. As is his nose. The young women has fair hair pulled up in a high bun or ponytail. She is wearing a black jacket, grey balloon type sweatpants, shoes with white at front and white soles. They walk west, then j-walk across Davenport Road in a south-west direction.
• On December 18 at 12:33 am someone walks south down the alley just west of the 1884 Davenport Road. The person has the hood of something like a hoody up, but the fur-lined hood of their black jacket down. (This person does not appear related to the shooting: his jacket is open, and there is a patch on the left arm, opposite to the jacket worn by the shooter. The tall black man armed with a knife and the man in red pants, who shortly after attack the man in the grey hoody, walk past this person with no reaction.)
• On December 18 at 12:33:17 am two figures, can be seen on the south side of Davenport Road further west, approaching the area of 1905 Davenport Road. They appear to be the woman and the man who looks like and is dressed like Y. They appear to walk south on the north-south alley east of 1905 Davenport Road.
• A minute or so later, around 12:34:19 am, a number of people can be seen around 1905 Davenport Road: a figure in black walking west; a figure in black walking east; a person wearing red jeans and a black top with a hood stands on the street looking north-east towards 1884 Davenport Road.
• At 12:35:26 am, a man in black pants and a black coat is walking east on the north side of Davenport Road approaching the south west corner of 1884 Davenport Road. He walks to the emergency exit and stands close to the door, facing the building, and appears to urinate. He is wearing black running shoes with a white swoosh on the outside. When he turns back toward Davenport Road he lifts his jacket and pulls a shiny silver object up from his waistband. It is the Crown position that this is a knife, and this is what it looks like to me. He is wearing a black scarf or neck warmer or something like that pulled up over his nose so just his eyes are visible. He speaks to another man wearing a black top with a prominent zipper, with a hood pulled in tight around his face, and red pants, who approached from the west.
• At the same time, 12:35:26 am, the woman with grey ballon type sweatpants and her hair high in a bun stands in front of 1905 Davenport Road looking back east toward 1884 Davenport Road. Less than a minute later, at 12:35:51 am, the man in the grey hoody and dark pants can be seen in front of 1905 Davenport Road walking east. His hairline and right profile is visible, but the image is not clear. Shortly after, at 12:36:07 am, the woman can be seen walking east.
• At 12:36:33 am a group of four people can be seen on the south side of Davenport Road cross the street in the area of 1892 Davenport Road, and then run east toward 1884 Davenport Road. The camera at the south end of the walkway captures the same scene from the opposite angle (180 degrees different). At 12:36:36 am the four can be seen crossing Davenport Road from south to north, walking in a north-east direction toward 1884 Davenport Road, in the following order: Y, the woman in the bun, the tall man all in black, the man in red pants. Y and the woman arrive at the point they begin to cross Davenport Road from the west. The tall man all in black and the man in red pants arrive from the east, converging on Y. The tall man all in black begins to quicken his pace and Y takes off running. The woman blocks the man in black, and he has to run around her to get at Y.
• At 12:36:40 am the man in front is running, travelling up the walkway to the west of 1884 Davenport Road, followed by the man in black, the man in the red pants, and the woman with the grey balloon type sweatpants. The man in black appears to be holding something in his right hand, pointed down, as he chases Y up the walkway.
• At 12:37:07 am, a man resembling Y runs south down the driveway on the east side of 1884 Davenport Road. His hood is off and his head and right profile are visible, though the image is blurry. His hair is pulled back in a thick ponytail. His hairline is visible. He pulls on the emergency door on the east side but it is locked and he continues to run south.
• Around the same time, at 12:37:12 am the man all in black walks back south down the walkway on the west side of 1884 Davenport Road, followed by the man in red pants, and the woman in the balloon grey track pants. The man in red pants pushes the woman into the snow and wall and walks past her.
• Just over a second later, at 12:38:35 am, a man wearing a grey hoody can be seen to jump from a roof top west of 1884 Davenport Road, cross the top of the west driveway and walk behind the 1884 Davenport Road. At 12:39:42 am, he walks south down the walkway on the east side of the building. When he emerges at the front of the building the front of his right shoe is visible, showing something shiny in the lace area (like the shoes Y was wearing earlier). The pants appear rolled up. His right profile is visible, including the top of his hairline. He walks to the locked fire exit at the south-west corner, reaches to the top of the door and appears to open the door and walk inside.
• Around the same time, at 12:38:57 am, the man in red pants, followed by the man in all black, and the woman in grey sweatpants, can be seen walking west on Davenport Road on the south side, around the area of 1905 Davenport Road.
• At 12:47:53 am, the woman in grey pants, the man in red pants, and a woman in light pants and a hip length black coat are walking west and north toward 1884 Davenport Road.
• At 12:48:10 am, two men emerge from the fire door at the southwest corner of 1884 Davenport Road. The first is in light pants, light shoes and a dark jacket with a hood. The second is in dark pants rolled up, dark shoes with a silvery decal in the lace area (like Y was wearing), and a black jacket with a fur lined hood, shorter than the one Y was wearing earlier in the evening. The hood of the jacket is pulled up, but at one point the man’s nose and eyes are visible, though the image is not clear. The two walk west on the north side of Davenport Road approaching the three individuals who had been walking east toward 1884 Davenport Road (the man in red pants, the woman in grey sweat pants, and the woman in light pants and a dark coat). The man in red pants turns and run back in the direction he came (i.e. south back across Davenport Road and west). The women do not move. The man in the black jacket and fur lined hood continues west, gets down on one knee and fires a gun in the direction of the fleeing man (south west).
• At 12:49:53 am, the man in the black jacket and fur lined hood walks north up the alley to the west of 1884 Davenport Road.
• At 12:50:23 am, the man in the red pants can be seen standing on the south sidewalk in the area of 1905 Davenport Road.

Relevant Legal Principles

[11] Identification evidence is notoriously dangerous evidence. Where identification is an issue in a jury trial, clear and specific instructions are required about the need for caution, and the reasons why. I am not going to repeat the helpful language to this effect in the various model charges. Rather I am going to list the particular reasons I must be cautious about the identification evidence in this case:

• Not only is Mr. Fogah-Pierre a stranger to me, but he is of a different race. Cross-racial identification may be particularly difficult and particularly unreliable.
• The crucial images of the shooter are fleeting and of poor quality.
• Resemblance is not identification. Regardless of the number of similar characteristics between the perpetrator and the accused, if there is a clear dissimilarity and no supporting evidence, there is no identification.
• It is dangerous to act on identification evidence alone.

[12] The burden of proof rests with the Crown to prove beyond a reasonable doubt that Mr. Fogah-Pierre was the shooter. The Supreme Court of Canada has explained what that concept means in R. v. Lifchus, [1997] 3 S.C.R. 320. I will not repeat Justice Cory’s words, but I have them firmly in mind. I am acutely conscious that I must be sure that Mr. Fogah-Pierre was the shooter in order to find him guilty. While sure does not mean absolute certainty, it is much closer to absolute certainty than to probable guilt.

[13] A reasonable doubt can arise from evidence or, the absence of evidence.

[14] The standard of proof beyond a reasonable doubt does not apply to individual items of evidence or the separate pieces of evidence that make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt.

[15] Where the Crown relies on circumstantial evidence to prove an essential issue such as identity, the trier must be satisfied beyond a reasonable doubt that the Crown’s position on the issue is the only reasonable conclusion or inference that can be drawn in all the circumstances, including the absence of evidence. In deciding what inferences may reasonably be drawn, a trier must be mindful of the following:

• The danger of unconsciously “filling the blanks” or “bridging the gaps” in the circumstantial evidence, and jumping to unwarranted conclusions. It is human nature to look for stories to explain an event. It is necessary to be careful that gaps are not being filled in doing so.
• All the evidence must be considered in determining what inferences may reasonably be drawn. The fact that a piece of evidence, considered alone, is open to an innocent explanation, is not determinative, and not the proper approach. An individual item of circumstantial evidence is a building block, “not the final product”. All the evidence must be considered, together, including its cumulative effect: R. v. Uhrig, 2012 ONCA 470, at para.13; R. v. Hudson, 2021 ONCA 772 at para.70.
• A reasonable doubt may arise from the evidence, or the absence of evidence.
• Alternative inferences must be reasonable, not merely conceivable or possible.

Analysis

[16] Identification is the key issue in this case. Both counsel referred to R. v. Nikolovsky, [1996] 3 S.C.R. 1197, and agree that it is open to me to carefully examine all the surveillance video played in court, and made an exhibit at trial, and make determinations from it, including comparisons with the accused in court. I want to be clear at the outset that I cannot conclude from the surveillance video of the actual shooting that the man firing the gun is Mr. Fogah-Pierre. Thus, the question I must address is whether the Crown has satisfied me beyond a reasonable doubt that the only reasonable inference I can draw in all the circumstances is that Mr. Fogah-Pierre is the shooter. In other words, does the circumstantial evidence, assessed logically, in light of human experience, exclude any other reasonable alternative other than guilt? If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33.

[17] Given that the case turns on circumstantial evidence, I will begin by making factual findings. I will then consider what inferences can be drawn from these findings and whether the Crown has satisfied its onus of proving that the only reasonable inference that I can draw is that the shooter is Mr. Fogah-Pierre.

[18] I am satisfied that the man I refer to as Y above is Mr. Fogah-Pierre. The three surveillance cameras at the main entrance to 1884 Davenport Road provide relatively clear images of X and Y. Mr. Fogah-Pierre sat almost directly in front of me in a well-lit court room over 4 days. The images of Y and Mr. Fogah-Pierre’s appearance match in significant ways:

• both have well defined bone structure with a prominent chin and high cheek bones, the nose is narrow at the top and wider at the bottom;
• both have eyebrows that come to a peak in a reverse V, thick going up away from the nose and thin to point of fading out on the way down toward the ears;
• both have distinct hair lines;
• both have rather patchy facial hair on the side of the face and under the chin, with the patchiness appearing very similar.

[19] The comparison exhibit, comparing stills from the entrance cameras with Mr. Fogah-Pierre’s police photograph, front and right and left profiles, serves to confirm the observations I made of Mr. Fogah-Pierre in court, and of Y in the surveillance video.

[20] The man I refer to as X above is Majed Haj. Mr. Haj was not present in court, but I have two clear police photographs of him, taken in June, 2018, from face on, and his left profile. The surveillance video of X entering 1884 Davenport Road provides a number of relatively clear views of his face. I also rely on the police comparison exhibit.

[21] X and Y are laughing together and appear very comfortable and friendly with each other. I find that they were friends.

[22] The man wearing a grey hoody, who exits the emergency exit at the south-west corner of the building with the woman in grey sweat pants at 12:31:14 am on December 18, strongly resembles Mr. Fogah-Pierre. He appears to have the same height, weight, skin colour and hair as Mr. Fogah-Pierre. At points his face is visible and his profile, hairline, and hair (which becomes visible when he is running south down the east side of the building after being attacked) appear the same as Mr. Fogah-Pierre earlier that evening. His clothing also appears to be the same: the grey/light blue hoody, the jeans rolled up, and the black shoes with a shiny decal or object on the front of both laces. I see no dissimilar feature, and no dissimilarity or inconsistency has been suggested to me.

[23] Around 12:36 am, the man in the grey hoody is attacked by two young black men: a tall man dressed in black with a large knife tucked in his waist band, and a smaller man wearing red pants and black north face jacket zipped up and the hood pulled tight around his face. The attack is visible from two angles, 180 degrees apart – the camera at 1905 Davenport Road pointing north east, and the camera at the south end of the walkway west of 1884 Davenport Road pointing south west. The surveillance footage shows the man in the grey hoody walking east on the south side of Davenport. He is then approached by the man in red pants from the south, and the taller man in all black with the knife from the east. The man in the grey hoody cuts north, across Davenport Road. The woman in the grey sweatpants runs to catch him and walks next to him, putting herself between him and the two men who are converging on him from the south and the east. The tall man in black with a knife quickens his pace, pulls something from his waist band and the man in the grey hoody takes off running, eventually running north up the walkway west of 1884 Davenport Road. The woman in the grey sweatpants uses her body to block the tall man in black with the knife from immediately reaching the man in the grey hoody, causing him to have to run around her to chase the man in the grey hoody. The tall man in black follows the man in the grey hoody up the walkway. The man in red pants follows, running as soon as he can cross the street, followed by the woman.

[24] Both the tall man in black with the knife and the man in red pants were involved in the attack. They are together, before, during and after, and appear to be working in tandem. Just prior to the attack they are positioned south and east of the man in the grey hoody, and simultaneously converge on him as he crosses north to avoid them. This would have been obvious to the man in the grey hoody; he had to avoid both of them. Defence counsel argued that only the tall man in black with the knife attacked, noting that the man in red pants did not initially chase Mr. Fogah-Pierre. But this was because he had to pause on the south side of Davenport Road because an eastbound car was coming. As soon as the car passed, he joined the chase, sprinting past the woman in grey sweatpants and up the walkway to the west of 1884 Davenport Road. After the attack, when the tall man in black, the man in red pants, and the woman in grey sweatpants walk back south down the walkway, the man in red pants, gives the woman a hip check, and pushes past her then turns back to her as if to say something. His actions and body language suggest he was angry with her; she had of course just blocked the tall man in black with the knife and prevented him from immediately reaching the man in the grey hoody, buying him the second or so he needed to get away.

[25] After the attack, the man in the grey hoody tries to get into 1884 Davenport Road through the emergency exit on the east side, but the door is locked. He then circles north into the houses and can be seen to jump down off a roof, disappear behind 1884 Davenport Road, then immediately re-appear walking south down the western walkway and he reaches up and is able to open the emergency exit at the southwest corner.

[26] Just under 10 minutes later, two men emerge from the emergency exit at the southwest corner of 1884 Davenport Road. The second one out resembles Mr. Fogah-Pierre. He is the same height and build. He is wearing jeans with the cuffs rolled up, and black shoes with a shiny decal in the lace area of the front of each shoe. He is wearing a black jacket, with a fur lined hood. There is no dispute that this jacket is different than the jacket Y (Mr. Fogah-Pierre based on my finding above) was wearing when he entered 1884 Davenport Road earlier in the evening. It is shorter, and the hood appears to pull tighter in around the face. Apart from this jacket, which is easily changed, this man has no feature dissimilar to Mr. Fogah-Pierre, though in fairness his face cannot be seen. This man walks out to Davenport, west toward the man in red pants, kneels and fires five shots at the man in red pants as he flees southwest across Davenport Road. Before doing this, the man walks past two women standing on the sidewalk, including the woman in the grey sweatpants. The man in red pants immediately flees upon seeing the man. The women do not run or even appear to react to the man, apart from one of them (not the woman with the man in the grey hoody earlier) looking away. This suggests to me that these women knew the man with the gun.

[27] Six months after the shooting, the gun used in the shooting was found hidden in Mr. Haj’s apartment at 1884 Davenport Road.

[28] The Crown relies on the attack as providing a powerful motive for the shooter. Defence counsel argues that the motive only relates to the tall man in black with the knife. I disagree, as I have just explained; the man with the red pants was clearly working with the tall man in black with the knife. However, I am mindful that motive only comes into play as a piece of circumstantial evidence if I accept that the man in the grey hoody was Mr. Fogah-Pierre. The evidence of motive does not exist apart from the events we see on the surveillance video. Although the outside surveillance video is not clear, given the confined geography and time over which the events leading up to the shooting occur (approximately 19 minutes in the area close to 1884 Davenport Road), the overlapping points of view, and the numerous points of correspondence between the man in the grey hoody and Mr. Fogah-Pierre, both in terms of clothing (top, pants, shoes) and physical appearance (profile, hair line, hair – cornrows combed out and pulled back in a ponytail, just as Mr. Fogah-Pierre’s hair was when he entered 1884 Davenport Road earlier that night, the same broad smile can be visible for a moment with he exits with the woman in grey sweat pants at 12:31 as can be seen when he enters 1884 Davenport Road on December 16 with Mr. Haj), and the absence of any dissimilarity, I find that man in the grey hoody was Mr. Fogah-Pierre. This finding permits me to consider the evidence of motive as a piece of circumstantial evidence relating to the identity of the shooter.

[29] Defence counsel relied on R. v. M.W., 2023 ONCJ 78, in which an experienced judge concluded that he could not be satisfied beyond a reasonable doubt of the identity of a stabber based on video evidence. In particular, defence counsel argues that just as there was a break or gap in “the chain of identification” in the video evidence in MW, there is a break here, as the shooter is wearing a different coat than Mr. Fogah-Pierre, and the points of correspondence are limited to the shoes and the pants. I do not find MW helpful. Not only does every case turn on its own unique circumstances, but the case is distinguishable because it appears to have been a straight identification case. In contrast, the instant case turns on circumstantial evidence.

[30] When I consider all of the evidence together, as I must, I am satisfied that the only reasonable inference I can draw in the circumstances is that Mr. Fogah-Pierre was the man who fired the shots on Davenport Road on December 18, 2017. In addition to the evidence of resemblance (height, build, pants, shoes, and no dissimilarity apart from the jacket which I have found to be of no moment), he had opportunity (he was at 1884 Davenport Road that night), and he was linked to the gun used in the shooting (it was found six months later hidden in his friend’s apartment at 1884 Davenport Road). He also had a powerful motive: he had just been attacked by the man in red pants together with the tall black man with the knife, and the man in red pants was still lurking just outside 1884 Davenport Road, ten minutes after the attack.

[31] I am satisfied that the only reasonable inference I can draw in all the circumstances is that Mr. Fogah-Pierre was the man who fired the shots.

[32] I find him guilty of counts one to five on the indictment. Many of these counts overlap and I would like submissions on the Kineapple principle at sentencing.

G. ROBERTS, J. Released: April 3, 2023