COURT FILE NO.: CR-22-87-00 DATE: 2023-04-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Jason Clouston and James Little, for the Crown
- and -
Antonio Manzo
Brennan Sacevich, for the Accused
Accused
HEARD: March 6-8, 2023, at Kenora, Ontario
Mr. Justice F. B. Fitzpatrick
TRIAL JUDGMENT
[1] I have rendered my decision in this case in writing. By the end of today I will provide the parties a copy of these final written reasons for decision as I have read them. This final version, which reflects what I am about to read out loud to all of you, will be entered as the next Exhibit at this trial.
[2] Antonio Manzo is charged with four firearms related counts in respect of an alleged incident that occurred on May 6, 2020. He has pleaded not guilty to all four charges. The parties agree that on May 6, 2020 in the Kenora district Glen Mackey (Glen) owned a Toyota Tundra motor vehicle (the Tundra) that was shot several times. The matter was reported to the police on that same date. The amount of the damage sustained to the Tundra because of the shooting was $6,224.82.
THE LAW
[3] The Crown acknowledges the case against Mr. Manzo is based on circumstantial evidence. The law of circumstantial evidence was recently summarized by my colleague Nieckarz J. in a Thunder Bay case from the Superior Court of Justice R v. O’Keese, 2022 ONSC 1282. Nieckarz J. stated at paragraphs 52-57:
[52] Circumstantial evidence is evidence of another fact that could lead to the conclusion or inference that the accused is guilty. It is evidence that implies a person committed the crime they are charged with. See: R. v. Cinous, 2002 SCC 29, at para. 89.
[53] The words and actions of an accused after a crime has been committed may provide circumstantial evidence of his guilt with respect to that crime: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106.
[54] For an accused person to be found guilty on the basis of circumstantial evidence, it must be that their guilt is the only reasonable inference to be drawn from the whole of the circumstantial evidence, based on reason and common sense. See: R. v. Villaroman, 2016 SCC 33 at paras. 35, 36 and 41.
[55] The Court is required to consider other plausible theories and reasonable possibilities that are inconsistent with guilt. If there are reasonable inferences to be drawn from the evidence, or lack of evidence, other than the guilt of the accused, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt, and the Crown has not met its burden of proof. See: R. v. Villaroman, at paras. 35, 37 and 41; and R. v. Tutiven, 2022 ONCA 98, at paras. 73 and 76.
[56] The Supreme Court of Canada at para. 37 of R. v. Villaroman, clarified that while “other reasonable possibilities” inconsistent with guilt must be considered, the Crown need not “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.”
[57] The alternative inferences to be considered must also be reasonable, and not just possible. They do not have to arise from proven facts but they do need to be based on logic and experience applied to the evidence or lack of evidence, and not merely on speculation. See: R. v. Villaroman, at paras. 35, 37 and 41.
THE EVIDENCE
[4] The Crown called fourteen witnesses at this trial. Four civilians, eight police officers and two expert witnesses. There was an order excluding witnesses. I will first discuss the evidence of the four civilian witnesses.
[5] Brent Mackey (Brent) and Tom Parker (Tom) were called as witnesses for the Crown. On May 6, 2020 Brent and Tom were employed by Glen Mackey Welding and Fabrication. That business is owned by Glen. Brent is Glen’s brother. On May 6, the two men were tasked with hooking up a dock and boat ramp at a rural camp property owned by Doug McKenzie on Blindfold Lake about 20 to 30 minutes southeast of Kenora. The property has road access. Neither witness could recall if they attended any other properties prior to arriving at the McKenzie property sometime after lunch on May 6. The men drove there in the Tundra owned by Glen.
[6] The property has a rural route number 240 Birch Grove Road. Birch Grove Road comes off the main highway 71. When the men arrived at the property, they found the gate on the driveway leading into the camp was locked. Brent was driving. Brent parked the Tundra nose into the gate as close as possible. The two men exited the Tundra, grabbed their tools and headed toward the lakefront portion of the McKenzie property. It was a very windy day but it was sunny and clear.
[7] During the course of working on the dock, Tom dropped a bolt in the lake. He needed to get a new one. He headed back to the Tundra. Both men estimated the Tundra was parked about 100 yards from the waterfront area where they were working. There was no direct line of sight from the waterfront to where the Tundra was parked because of the topography.
[8] While Tom was gone, Brent heard a sound which he described as being like hearing an empty metal trailer being pulled behind a vehicle and bouncing along a washboard road. It was a “bang bang bang” type of sound. Brent did not describe the sound as being gunshots. Brent has hunted in his life and is familiar with the sound of a rifle being fired in the distance in the bush.
[9] Tom heard the sound as well. He could not recall if it happened on his way up to or back from the Tundra.
[10] Tom did not see anybody on foot when he arrived at the Tundra. He recalls a propane truck and two other vehicles passing by when he was at the Tundra getting a new bolt. He grabbed a new bolt by walking down the passenger side of the Tundra.
[11] Tom returned to Brent and the men finished their work. They went back to the Tundra and headed back to their employer’s office site. On the way back Brent was driving again. He noticed the “check tire light” was illuminated on the dashboard of the Tundra. Brent kept driving with no issues. When the pair arrived at the office, they were surprised to find three bullet holes on the driver’s side of the truck forward of the cabin. The driver’s front tire had gone flat. The police were called. Brent and Tom had no idea there was any damage to the Tundra until they arrived back at the office. Brent was shown photographs of the Tundra taken on May 6, 2020 and confirmed the bullet holes he saw in the Tundra.
[12] I will now discuss the evidence of two other civilian witnesses.
[13] On May 6, 2020, Reynold Shouldice (Reynold) was at home. He has lived for the last 40 years or so at 400 Birch Grove Road. His property is located at the end of this road. The road dead ends in front of his property. His property is 3 kilometers in from the main highway, Highway 71. His property is on Blindfold Lake. His property has a semi-circular driveway which he shares with his neighbor Ian Clark (Ian).
[14] Reynold is a semi-retired welder. On May 6, 2020 in the afternoon he was working in his garage shop. He saw a white GMC vehicle pull into his driveway. At first, he thought it was a Chevrolet Suburban but later determined it was a GMC Yukon. The vehicle he saw was a large SUV. Reynold observed a dog in the Yukon. Reynold observed the driver exit the vehicle. Reynold described the driver as male, between 40 and 50 years old, bald, with facial hair. He was wearing a sleeveless shirt. He believes the man had a tattoo on one of his arms.
[15] Ian was outside of his home at the same time. Reynold observed the two men exchanging words. Reynold asked the driver words to the effect “who are you looking for”. The driver said “never mind”, twice, and got back in the Yukon and drove out of the driveway and back along Birch Grove Road.
[16] The driver appeared to be nervous and in a hurry. According to Reynold he acted as if he expected someone else to be at the property.
[17] In May 2020 Reynold was concerned that “undesirables” had been present in the area of his property. He was concerned people had been stealing things in his neighborhood. Accordingly, he took note of the licence of the Yukon. He got only a part of the licence, the letters CLFF.
[18] Reynold’s son is an OPP officer with the Kenora detachment. On May 6, 2020, Reynold reported the licence to his son in his capacity as an OPP officer.
[19] The next day on May 7, 2020, Reynold was interviewed by Constable Gilbertson of the Kenora OPP. At the time of the interview Reynold had already reported the partial plate and the description of the white Yukon that he had observed the previous day at this home.
[20] During the interview, Reynold could hear the police radio being carried by Constable Gilbertson. During the interview, and after a time that Reynold had reported the partial plate to the police, he heard that a White Yukon vehicle bearing plate number CLFF-522 had been located. Reynold told the officer this was “the guy who was in my yard”.
[21] Reynold is familiar with the McKenzie property at 240 Birch Grove Road.
[22] Ian was also called as a witness for the Crown. Ian lives beside Reynold. His address is 402 Birch Grove Road. He was outside on his porch talking to someone on his phone, when he observed a White Yukon pull into the driveway he shares with Reynold. He saw a person exit the vehicle. Ian described the person as male, medium height, bald, having a large tattoo, elbow to shoulder on his right arm. He was wearing a green muscle shirt. The male asked about a gravel pit, a lumber yard and a guy named Mike. Ian told the man he was on the wrong road. Ian observed Reynold at the time as well.
[23] Ian observed the man appeared to be in a hurry. The only person named “Mike” that Ian knows who lives in the vicinity lives about 30 kilometers away from Ian’s house. The man drove away.
[24] I will now discuss the evidence of the police witnesses. The defence took issue with continuity of certain pieces of physical evidence. The events at issue took place over several days. Accordingly, I will discuss the evidence I heard from police witnesses in a framework of a chronology of events.
EVENTS OF MAY 6, 2020
[25] Constable Gilbertson of the Kenora OPP was dispatched to Glen’s business at about 15:45 on the afternoon of May 6. She was shown the Tundra with the bullet holes in the side. She was told where Tom and Brent had been that day. She called for the assistance of another officer, Constable Poperechny, who was the canine handler for the Kenora OPP detachment. She then drove to the McKenzie property.
[26] At about 16:28 on May 6, another officer attended at Glen Mackey’s business. Constable D. Smith is a forensic identification officer with the Kenora OPP detachment. She took photos of the Tundra. The photos of the Tundra clearly show the flat front driver’s side tire and the three bullet holes in the body of the truck forward of the cab. Constable Smith then drove to the McKenzie property to join Constables Gilbertson and Poperechny.
[27] When at the McKenzie property location, Constables Gilbertson, Smith and Poperechny searched for evidence of spent shell casings. Two OPP dogs were also deployed. The officers did not locate any shell casings. Constable Smith photographed the location with the gate evident in the photograph.
[28] Constable Gilbertson then interviewed several persons who lived in the vicinity of 240 Birch Grove Road. She left the area of the McKenzie property at about 18:38.
EVENTS OF MAY 7, 2020
[29] In the morning of May 7, 2020, Constable Savage of the Kenora OPP detachment was on general patrol. At 10:55 he received a “serious incident” email. He was directed to be on the lookout for a white GMC Yukon driven by a male suspect who was possibly armed. Constable Savage took a position road-side of Highway 17 near the junction of Highway 71 on Longbow Lake Road. He was driving a marked OPP SUV. At 11:33 he observed a white GMC Yukon traveling westbound on Highway 17. He followed the vehicle. He observed the vehicle’s rear licence. It was Ontario CLFF-552. He called the plate in. It returned as registered to Mr. Manzo.
[30] Mr. Manzo pulled off the highway at a snowplow turnaround/commercial trucker rest stop area just west of the intersection of Highway 17 and Highway 17A.
[31] Upon pulling in behind Mr. Manzo’s SUV, Constable Savage deployed his emergency lights. Constable Savage then conducted a “gun point” arrest. He used his C-8 service rifle. He did so because of concerns he had from the serious incident email he obtained earlier.
[32] Mr. Manzo was compliant. He was handcuffed and placed in the back of the OPP SUV. Constable Savage recognized Mr. Manzo as the result of a previous interaction.
[33] Other officers had been summoned to the scene.
[34] Constable Poperechny arrived shortly after Mr. Manzo was placed under arrest. Incident to that arrest he looked in the windows of the Yukon. In plain sight he saw a black .22 rifle and a shotgun. Constable Poperechny seized both firearms. Trigger locks were on both firearms. They were not loaded. Constable Poperechny removed the trigger locks and sealed the breach of the .22 rifle to make it inoperable. Constable Poperechny put the firearms on the hood of the Yukon.
[35] As noted previously, shortly before Mr. Manzo was arrested Constable Gilbertson had traveled out to Birch Grove Road to interview Reynold. She went together to that property with another officer who did not testify at this trial. The interview was conducted inside Reynold’s garage as it was very windy that day.
[36] In the middle of the interview Constable Gilbertson heard on her police radio a general call for assistance with an arrest involving a person driving a white Yukon vehicle. The stop was in progress near the intersection of Highway 17 and Highway 17A.
[37] The location was about a 10-minute drive away from Reynold’s place. Constable Gilbertson drove to the location. There she saw a white GMC Yukon bearing Ontario plates CLFF-522. She saw a 12-gauge shotgun and a black .22 rifle sitting on the hood of the Yukon. She assisted other officers in searching the vehicle.
[38] At the scene of the arrest on the highway, Constable Smith received from Constable Poperechny a black Ruger semi-automatic .22 rifle bearing serial number 259-29967 (the Ruger) that she first saw sitting on the hood of the Yukon. She placed an OPP identification tag on the firearm A72394. Constable Poperechny gave Constable Smith Mr. Manzo’s personal acquisition licence in respect of the Ruger. Constable Smith returned to the Kenora OPP detachment with the items given to her by Constable Poperechny. Constable Smith photographed a full ten round magazine for the Ruger in one of the pockets of the gun case where the firearm was located. She also photographed the Ruger with the OPP tag on it as well as a close up of the tag. She placed the Ruger and the magazine in a secure evidence locker.
EVENTS OF MAY 8, 2020
[39] On May 8, 2020, Kenora detachment OPP Forensic Identification Officer Engstrom went to examine the Tundra. He took photos of the bullet holes. He took photos of the tire that had gone flat. He located one hole in the vehicle that had a projectile lodged in it. He located another projectile under the insulation covering on the floor of the cab of the Tundra on the driver’s side. The projectiles were seized.
[40] In May 2020, Constable Jodi Jenner was the evidence vault manager for the Kenora OPP. She has been doing this job for a long time. On May 8, at 15:20 she took the Ruger and another firearm out of the locked evidence locker at the Kenora OPP detachment. She then walked these two items to a secure building next door where the Kenora OPP forensic unit has its office in a separate building. She gave the firearms to Constable Engstrom. Constable Engstrom is an identification officer with the Kenora OPP. Constable Engstrom secured the Ruger in a firearms locker in the Forensic Units office.
EVENTS OF MAY 12, 2020
[41] Detective Constable Jackson was involved with the investigation of Mr. Manzo. He attended the McKenzie property on May 12, 2020, together with OPP Constable Frankcom. Using a metal detector the officers searched the area where they understood the Tundra had been parked. After about an hour Detective Constable Jackson located eight shell casings on the road. Constable Frankcom took photos of the area and the location where the shell casings were found. The casings were found in close proximity to the gate to the McKenzie property.
[42] Constable Frankcom put the eight shell casings in an OPP paper evidence bag. He sealed it with OPP label AA226620. When he returned to his office in the secure forensic unit building of the Kenora OPP he put the bag on Constable Engstrom’s desk. Constable Engstrom was the lead forensic investigator on Mr. Manzo’s file. Constable Engstrom added the bag to his property vault that day.
EVENTS OF MAY 16, 2020
[43] Constable Engstrom took the Ruger from the secure vault. He moved it to another vault used to secure firearms.
EVENTS OF JUNE 9, 2020
[44] Constable Engstrom took the Ruger and the bag with the eight shell casings from the evidence vault to prepare them for shipment to the Centre for Forensic Science (CFS) in Toronto. The items were shipped to the CFS by the OPP admin staff at Kenora. The Ruger was received by the CFS on June 17, 2020.
THE EXPERT EVIDENCE
[45] On consent, the expert evidence report of OPP Constable Rebertz was admitted into evidence at this trial. Constable Rebertz is a firearms analyst for the East Region Firearms analysis & verification unit of the OPP. He opined that a black Ruger 10/22 .22 caliber semi-automatic rifle bearing serial number 259-29967 was a firearm within the meaning of the Criminal Code and was:
- In firing condition and was test fired;
- Functioned as designed;
- A barreled weapon capable of discharging projectiles that are capable of causing serious bodily injury or death to a person.
[46] The Crown called a second expert. Shane Staniek is a forensic scientist, firearms and toolmarks who works for the CFS in Toronto. I found he was qualified to give expert opinion evidence to the court with respect to identification and comparison of fired ammunition components to suspect firearms.
[47] Mr. Staniek testified as to the accepted scientific research that has demonstrated that an individual firearm produces unique identifiable microscopic characteristic on the casings of projectiles fired from the gun. For example, two of the same brand of rifle produced one after another by a particular manufacturer will each make unique and different microscopic markings on the casings of bullets fired from each rifle. This is the science of Firearms/Toolmark Identification. This empirical science relies on objective observations and subjective interpretation of the microscopic markings on spent shell casings.
[48] The Ruger was test fired by a technician. The test firing produced shell casings. Mr. Staniek compared the test fired casings to the shell casings that CFS had received from the Kenora OPP. Mr. Staniek opined that one of the shell casings received from the Kenora OPP had been fired by the Ruger.
DISPOSITION
[49] Despite the able and skillful cross examinations conducted by counsel for Mr. Manzo, I find that all the Crown witnesses gave their evidence in a forthright and credible fashion. I find all the Crown evidence in this matter to be reliable. None of the Crown witnesses were shaken in any material way from their testimony in chief during cross examination.
[50] In my view the only reasonable inferences that can be drawn from the evidence in this matter is that on May 6, 2020:
a) Mr. Manzo had the Ruger, a firearm, in his possession; b) Mr. Manzo possessed the Ruger for a purpose dangerous to the public; c) Mr. Manzo committed mischief by using the Ruger; d) Mr. Manzo without lawful excuse used the Ruger in a careless manner; e) Mr. Manzo willfully damaged the Tundra without lawful excuse in an amount in excess of $5,000.00.
[51] I make those findings for the following reasons.
[52] The parties agree the Tundra suffered bullet damage on May 6, 2020 that cost more than $5,000.00 to repair. I further find that as a matter of common sense the bullet damage was caused by a person using a firearm to discharge the bullets into the Tundra.
[53] The evidence of Tom and Brent leaves me with no doubt that the Tundra was shot at and damaged during the time while they were at the McKenzie property. Brent heard a distinct sound that in my view was consistent with a rifle being fired. He described it as “bang bang bang” sound. It was a windy day. I know sounds can be muffled or distorted from a distance when there are high winds. Despite the fact that neither Tom nor Brent described the sounds as “gunfire”, I find this is not determinative that they did not hear the sound of the Ruger being fired. They had no reason to expect to hear rifle fire in the middle of the day. It was May. It was not deer or moose season. I appreciate hearing rifle fire in the bush is something that can happen year-round but it is more usual at some times than others. Also, they had no reason to connect the sound to what happened to the Tundra until they had returned to the office about an hour or so after it happened.
[54] The fact they did not notice the bullet holes until they returned to the office is consistent with the shots being fired when they were not in the vehicle. Constable Engstrom testified about trajectory rods he used on the Tundra. A photo of one of the rods in the vicinity of the brake and accelerator pedal of the Tundra was introduced into evidence. A projectile was located at the end of that trajectory rod in the cab in the proximity of the accelerator pedal. I find from this evidence that this particular bullet that punctured the Tundra did so in such a way that demonstrates when it was fired when no one was driving. This is because of the angle of the trajectory rod and the hole that is shown immediately below the accelerator. I find from this evidence that had Brent, or anyone, been operating the vehicle and it was in motion when the bullet was fired, the projectile would have entered the bottom of the driver’s foot near the heal. One would notice something like this when driving. Brent did not report this occurring.
[55] I find from the photographs of the Tundra tire that the tire was damaged as the result of the Tundra being shot at. Also, the fact that the tire was not immediately flat when Brent and Tom headed back to the office indicates to me the damage to the tire was not direct. Common sense tells me that a bullet fired directly into a tire would have flattened it immediately. Brent reported the “check tire” light only came on when they were driving back to the office. This indicates to me, however the tire was expressly damaged, whether by being grazed by a bullet or some shrapnel being thrown off by the bullets as they entered the body of the car in an area near the tire, the leak was slow. I find this damage to the tire did not occur prior to the men arriving at the McKenzie property sometime after lunch. This is because the “check tire” light only came on after they left the McKenzie property and only after they had been there for some time. I conclude the only reasonable inference from this evidence is a conclusion that the bullets were fired into the Tundra while it was parked in front of the gate at the McKenzie property at a time when Tom and Brent were away from the vehicle working on the McKenzie’s dock.
[56] The evidence of Reynold and Ian is relevant to the issue of Mr. Manzo’s whereabouts during daylight hours on May 6, 2020. These witnesses live in a remote rural area. They live at the end of a rural road. In a rural Northwest Ontario context, their properties are in relative proximity to the place where I find the Tundra received bullet damage.
[57] The summer season had not yet begun as of May 6, 2020. It was the beginning of the COVID pandemic. Not a lot of people were travelling around in May 2020. People turning around in Ian and Reynold’s driveway was admitted by these men to have occurred but was not a common occurrence. Both witnesses described the person that they saw pull up in a large white SUV on May 6, 2020 as being male, bald, and between 40 and 50 years old. I observed Mr. Manzo in the courtroom. He is male. He is bald. I know his date of birth from court records to be February 7, 1975. His age as of May 6, 2020 was 45.
[58] The quality and probative value of this identification evidence is assisted by the observations both men made of the vehicle the person they interacted with was driving. Both described the vehicle as a white GMC Yukon. It is a large vehicle. Both men observed the vehicle at close quarters.
[59] Further Reynold took down a partial licence plate for the vehicle being driven by the person he spoke to on that day. The letters matched the plate letters CLFF for the white GMC Yukon Mr. Manzo was observed driving the next day by Constable Savage. A white GMC Yukon bearing Ontario plates CLFF-522 was confirmed to be registered to Mr. Manzo by Constable Savage.
[60] In my view the only reasonable conclusion from this evidence of Reynold and Ian as to the identity of the person the witnesses interacted with that day is that it was Mr. Manzo.
[61] I conclude Mr. Manzo was in close proximity of the McKenzie property on May 6, 2020. I further conclude that the only way a vehicle could get to or leave Reynold’s and Ian’s properties is for it to drive past the immediate driveway leading into the McKenzie property.
[62] When Mr. Manzo was arrested on May 7, 2020, the Ruger was found in the white GMC Yukon he was driving which was registered to him. I rely on the expert opinion of Constable Rebertz to conclude the Ruger is a firearm within the meaning of sections 2 of the Criminal Code. I find that the location of the Ruger on May 7, 2020 leads to a conclusion beyond a reasonable doubt that Mr. Manzo had the Ruger in his personal possession on May 7, 2020.
[63] I accept the expert opinion evidence of Mr. Staniek that one of the shell casings sent to him for analysis by the Kenora OPP was fired by the Ruger. I have no reason to doubt that the one casing upon which Mr. Staniek opined was located by OPP officers on May 12, 2020 near the gate of the McKenzie property at 240 Birch Grove Road. I do not accept the arguments of the defence that the Crown has not proven the appropriate continuity of the Ruger and the shell casings. In my view the Crown has demonstrated an appropriate chain of the physical evidence that leads the items uninterrupted from where they were seized by Kenora OPP officers to the experts who gave opinion evidence about the connection between the firearm and the casing.
[64] The relative proximity of the spent casings to the gate area can be deduced from photographs in evidence at Exhibit 2.3, photos 0082, 0083, 0084 and 0087. I find that the close proximity of the shell casings to the area where the Tundra was parked allows the only reasonable conclusion to be drawn that the casings were from bullets fired into the Tundra.
[65] The Ruger was found the next day in the possession of Mr. Manzo in his truck. I find the Crown has demonstrated beyond a reasonable doubt Mr. Manzo driving his truck in the vicinity of the Tundra on May 6, 2020. It was a rural area. It was not like Mr. Manzo was seen at Yonge and Bloor in Toronto and a shooting occurred at College Park. The area at issue is not full of many people. In my view it was not coincidence that Reynold and Ian observed a man who looked strikingly similar to the person who was before me in Court for two and a half days. It was because Mr Manzo was driving on Birch Grove Road on May 6, 2020 and interacted with Reynold and Ian.
[66] The Ruger rifle was found the next day in the possession of Mr. Manzo. It was found in the same white Yukon I find he was driving on Birch Grove Road on May 6, 2020. A shell casing fired from the Ruger was found in proximity of where the Tundra received more than $5,000.00 of damages from bullets. In my view it was not a coincidence it was there. I find there is no other reasonable explanation for the presence of the casing other than it came from a firing of the Ruger. I therefore find it was shots from the Ruger that caused the damage to the Tundra. I find this because I connect the possession of the Ruger by Mr. Manzo on May 7, 2020 to a finding that shell casings from the Ruger were found in close proximity to where the Tundra was shot up on May 6, 2020. I add this to my finding that Mr. Manzo was in the area of 240 Birch Grove Road on that date. From this I draw the only reasonable conclusion from the evidence that:
a) Mr. Manzo had the Ruger, a firearm, in his possession on May 6, 2020; b) Mr. Manzo possessed the Ruger for a purpose dangerous to the public because he used it to shoot the Tundra on May 6, 2020; c) Mr. Manzo committed mischief by using the Ruger in a public, albeit rural area on May 6, 2020; d) Mr. Manzo without lawful excuse used the Ruger in a careless manner on May 6, 2020 because shooting the property of others with a rifle in a public place is patently careless behaviour; and e) Mr. Manzo willfully damaged the Tundra without lawful excuse in an amount in excess of $5,000.00 on May 6, 2020 because he fired the Ruger while it was pointed for at least three rounds at the Tundra.
[67] The fact that the shell casings were not located on May 7 when the police first looked for them does not raise a reasonable doubt that they were there on May 6, 2020. From the photographs and in particular 0087, the casings were found on a gravel road. They were under blue marker paper in the photograph. I understand from the evidence that the shell casings could not be easily seen. The casings are relatively small. It took the police using a metal detector to locate them. However, they did find them within a time frame reasonably close to the date the Crown alleges, and I find has proven, the shots were fired on May 6, 2020.
[68] I also find this because I find Mr. Manzo has been proven by the Crown beyond a reasonable doubt to have been in the vicinity where the Tundra was parked on May 6, 2020. I further say this because a shell casing from a firearm that was in his possession the next day was found proximate to where the Tundra was parked when it was shot up on May 6, 2020. This leads me to find that the only reasonable conclusion from all the evidence introduced in this trial is that Mr. Manzo fired the Ruger at the Tundra causing damage to it on May 6, 2020.
[69] For these reasons I find:
On or about the 6th day of May in the year 2020 at the Township KIRKUP in the Kenora Region, Antonio Manzo did have in his possession a weapon, to wit a firearm, for a purpose dangerous to the public peace contrary to Section 88(1) of the Criminal Code. Accordingly on count 1 of the indictment before the Court I find Mr. Manzo guilty.
That Antonio Manzo on or about the 6th day of May in the year 2020 at the Township KIRKUP in the Kenora Region, did use a firearm, to wit a semi-automatic rifle, while committing the indictable offence of mischief, contrary to Section 85(1)(a) of the Criminal Code. Accordingly on count 2 of the indictment before the Court I find Mr. Manzo guilty.
That Antonio Manzo on or about the 6th day of May in the year 2020 at the Township KIRKUP in the Kenora Region, did without lawful excuse, use a firearm, to wit a semi-automatic rifle, in a careless manner contrary to Section 86(1) of the Criminal Code. Accordingly on count 3 of the indictment before the Court I find Mr. Manzo guilty.
That Antonio Manzo on or about the 6th day of May in the year 2020 at the Township KIRKUP in the Kenora Region, did commit mischief by willfully damaging without legal justification or excuse and without colour of right property, to wit a Toyota Tundra motor vehicle of Glen MACKEY, the value of which exceeded five thousand dollars contrary to Section 430(3)(a) of the Criminal Code. Accordingly on count 4 of the indictment before the Court I find Mr. Manzo guilty.
[70] Counsel could you please address a date for sentencing submissions.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: April 21, 2023
Corrigendum
COURT FILE NO.: CR-22-87-00 DATE: 2023-07-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Jason Clouston and James Little, for the Crown
- and -
Antonio Manzo
Brennan Sacevich, for the Accused
Accused
HEARD: March 6-8, 2023, at Kenora, Ontario
Paragraph 69(4) of my Trial Judgment released April 21, 2023, is amended to read:
That Antonio Manzo on or about the 6th day of May in the year 2020 at the Township KIRKUP in the Kenora Region, did commit mischief by willfully damaging without legal justification or excuse and without colour of right property, to wit a Toyota Tundra motor vehicle of Glen MACKEY, the value of which exceeded five thousand dollars contrary to Section 430(1)(a) of the Criminal Code.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
July 12, 2023
