COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Cortez, 2023 ONCA 636
DATE: 20230926
DOCKET: COA-22-CR-0271
Doherty, Rouleau and Zarnett JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Ivan Cortez
Appellant
Dan Stein, for the appellant
Andreea Baiasu, for the respondent
Heard: September 22, 2023
On appeal from the conviction entered on June 15, 2022, and the sentence imposed on October 7, 2022, by Justice Jennifer D. Strasberg of the Ontario Court of Justice.
REASONS FOR DECISION
[1] At the conclusion of the hearing, this appeal was dismissed with reasons to follow. These are those reasons. The appellant appeals against his conviction and sentence. He and his co-accused, Shakur Clarke, were convicted of several offences, including discharging a firearm and unauthorized possession of a loaded prohibited firearm in a motor vehicle. The appellant does not challenge his conviction for possession, but alleges that the conviction for discharging a firearm was unreasonable given the trial judge’s finding that Mr. Clarke was the driver of the vehicle and the person who discharged the firearm.
[2] The appellant’s sentence appeal is based on the premise that his conviction for discharge of a firearm being set aside would warrant a reduction of his sentences of four years for possession of a loaded prohibited firearm and three years for unauthorized possession of a firearm in a motor vehicle.
Facts
[3] The facts surrounding the commission of the offences were largely unchallenged.
[4] The shooting took place just before midnight on August 5th, 2020, in the Warden and Lawrence area in the city of Toronto. Simone Zoomer was on her way home when she saw a gun extend from the driver’s window of a lime green Kia. It was pointed in the direction of a white Mazda when three or four shots were fired. The two vehicles then sped off, with the Kia in pursuit of the Mazda. Five or six minutes later, Ms. Zoomer arrived home, and her mother called 911.
[5] Ahamed Ajmeer testified that, shortly after hearing shots being fired, he saw a white Mazda racing down the street followed by a green Kia. The cars were travelling at approximately 100 to 120 km/hour. He then called the police. He recognised the Kia, having seen it earlier that day “going in circle around the neighbourhood … It was going up and down our street. It was going on our neighbouring streets within the neighbourhood. Cross street. At a steady pace, I thought”.
[6] The police responded promptly. At approximately 12:15 a.m., Detective Cheung spotted the green Kia on Victoria Park Avenue with its headlights off. Detective Cheung and several other police cars converged to box the Kia in. The Kia made deliberate contact with Detective Cheung’s car and was ultimately immobilized. Mr. Clarke was pulled from the driver’s seat and resisted arrest, requiring the intervention of several officers. The appellant fled from the rear passenger seat and escaped arrest.
[7] Police determined that the Kia had been rented by Susan Batchelor, who resided at 47 Yardley Avenue. When the police officers arrived at that address about 15 minutes later, they observed the appellant exiting the residence. He was then arrested.
[8] The police found a cell phone behind the driver’s seat of the Kia, with missed notifications for a Facetime call and text message sent shortly after midnight by Ms. Batchelor’s daughter, Alexandria. The appellant, Alexandria, and their child, all lived with Ms. Batchelor at the time.
[9] Ms. Batchelor testified that she had rented the Kia for Alexandria and herself, and that, on August 5th, they had both used the car. She believed that Alexandria was the last person to use the vehicle at around 6 p.m.
[10] Forensic analysis of the firearm confirmed the presence of the appellant’s DNA on the grip and slide of the gun. The forensic analysis also confirmed that the six shell casings found at the scene had been fired from the gun seized in the Kia.
Analysis
[11] The appellant maintains that, to attribute party liability on the discharge of a firearm offence pursuant to s. 21(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, the Crown had to prove beyond a reasonable doubt that the appellant knew that Mr. Clarke was going to discharge the firearm and that the appellant intended to assist Mr. Clarke in doing so. In the appellant‘s submission, there was no evidence of a plan to commit the shooting. The existence of a plan and the appellant’s knowledge of it did not flow logically and reasonably from the evidence at trial. In his submission, the evidence simply disclosed that the appellant’s DNA was on the firearm, that he was present in the back seat of the Kia, and that he fled from the scene. This proved only that he was present at the scene of a crime committed by Mr. Clarke.
[12] The appellant argues that, in concluding that the shooting had been part of a plan and that the appellant was a party to it, the trial judge committed two errors, rendering the verdict unreasonable.
[13] First, in relying on the Kia being seen in the area earlier in the day as indicative of planning, the trial judge failed to consider Ms. Batchelor’s evidence. This, in the appellant’s submission, led the trial judge into error.
[14] Ms. Batchelor testified that she had rented the Kia primarily for her use and that of Alexandria’s, and that they had used the car on the day in question. As a result, little could be made of Mr. Ajmeer observing the Kia going up and down his street that afternoon. There was simply no evidence that the appellant was in the Kia prior to midnight on August 5th, 2020. In fact, at trial, the trial judge asked the Crown “isn’t that speculation for me to assume that he was in the car earlier?”.
[15] The second alleged error is the trial judge’s finding that the appellant’s flight from the scene was probative of his involvement in all of the offences charged. The appellant concedes that the trial judge went on to indicate that she would have found him guilty beyond a reasonable doubt even without this evidence. Nonetheless, the appellant raised it to show that this could not form an alternative basis for his conviction of being a party to the discharge of the firearm. The appellant’s flight from the scene was as consistent with having joint possession of a firearm, as it was with helping Clarke discharge the firearm. There was no basis for concluding that his flight from the scene was more consistent with liability for being party to the discharge of the firearm, than for having possession of the firearm.
[16] The appellant submits that, after correcting these two errors, there was insufficient evidence to support his liability as a party to the discharge, and that it would be speculation to conclude that the appellant knew of Mr. Clark’s plan to discharge the firearm and assisted in its commission.
[17] We do not agree. The trial judge properly concluded that the cumulative effect of the circumstantial evidence was that the appellant was acting in concert with his co-accused in planning and carrying out the shooting, and that this was the only reasonable conclusion available on the totality of the evidence. As stated in R. v. Carrington, 2017 ONCA 2, 346 C.C.C. (3d) 223, at para. 41, “[i]t is for the trier of fact to decide, on the basis of the evidence as a whole, if the post-offence conduct related to the offence, or something else”.
[18] The trial judge correctly cited the law regarding circumstantial evidence, party liability, possession offences, and post offence conduct evidence. As she explained:
While I must consider all reasonable inferences inconsistent with guilt, and they need not arise from proven fact, I must determine what is reasonable from the totality of the circumstantial evidence.
[19] Although the trial judge concluded that it was Mr. Clarke who had been driving and who fired the shot, she noted that it was ultimately unnecessary to determine which of the co-accused was the shooter, as the evidence in its totality supported a finding of guilt for both accused, regardless of which was the principal, and which was a party to the shooting. The record clearly established that both were acting in concert.
[20] The trial judge’s reasons began with an analysis of Mr. Clarke’s guilt, and his role in the event. She then turned to an analysis of the appellant’s role. Although she did not specifically stipulate this, it is apparent from a fair reading of her reasons that the facts she outlined in support of her finding of guilt with respect to Mr. Clarke’s applied equally to the appellant. Clearly, both were in the motor vehicle at the time of the shooting, when the car raced down the road passed Mr. Ajmeer, and then later at the time of arrest. Both remained in the car for some 19 minutes, knowing about the shooting and that there was a gun in the car. When first observed by the police, the car was travelling in the dark without its headlights on. When confronted by the police, both co-accused attempted to escape. Based on this evidence, the judge concluded that the only reasonable inference was that both knew exactly what was going to happen that evening. To suggest that the appellant would not have known what was going to take place was simply not logical. She further referenced the fact that it was the appellant who secured the Kia and that his DNA was found on the gun, indicating that he had handled the weapon.
[21] On these facts, the trial judge properly concluded that the cumulative effect of the circumstantial evidence was that the only reasonable inference was that the appellant was acting in concert with Mr. Clarke in planning and carrying out of the shooting. No other reasonable conclusion was available on the totality of the evidence.
[22] As for the trial judge’s alleged failure to consider the evidence of Ms. Batchelor, we do not consider that evidence to be incompatible with the appellant having used the car to drive around the neighbourhood earlier in the day. In any event, the trial judge reached the conclusion that the appellant and Mr. Clarke jointly planned and carried out the offences without referencing the evidence of Mr. Ajmeer.
[23] Turning to the appellant’s submission that the trial judge erred in her treatment of his post offence conduct, we agree that the appellant’s flight from police standing alone is not probative of his precise role in the offences. We are not, however, satisfied that this was the conclusion reached by the trial judge. The trial judge accepted the position of both counsel that the flight could not prove the appellant’s precise role in the offences or his level of culpability. She nonetheless explained that the evidence of his post offence conduct had to be considered together with the evidence outlined earlier of his presence in the Kia alongside Mr. Clarke.
Evidence of him fleeing from the vehicle and running back to 47 Yardley is probative of his involvement in these offences for which he is charged. He might have been scared, but given the totality of the evidence, an inference that he ran from the car just because he was scared is not a reasonable inference.
The appellant’s flight from the scene was simply part of the constellation of evidence supporting the inference that he knowingly acted in concert with Mr. Clarke in committing the various offences, including the shooting. In any event, as we have noted, the trial judge indicated that she did not have to rely on this post offence conduct to convict the appellant.
[24] The appellant’s sentence appeal relies on his conviction appeal being successful. As we have concluded that the conviction appeal is to be dismissed, the sentence appeal cannot succeed.
Conclusion
[25] For these reasons, the conviction appeal is dismissed. Leave to appeal sentence is allowed, but the sentence appeal is dismissed.
“Doherty J.A.”
“Paul Rouleau J.A.”
“B. Zarnett J.A.”