Court Information

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Jameal Johnson

Counsel:

• K. Sweeney for the Crown
• R. Nuttall for the Defendant

Heard: November 29 and 30 and December 3 and 21, 2012

Reasons for Judgement

Justice Melvyn Green

A. Introduction

[1] A Honda Civic was travelling eastbound on The Lakeshore in downtown Toronto in the mid-morning of May 30, 2012. Its occupants drew the attention of police officers in an unmarked van. A brief pursuit abruptly ended in stalled traffic partway up an on-ramp to the Gardiner Expressway. Jameal Johnson, the defendant, left the passenger side of the Honda and moved to guardrail. An object wrapped in a scarf was thrown over the same railing. Johnson was detained as he tried to escape the police. The scarf and a loaded handgun were found in close vicinity to each other on the ground under the railing.

[2] The defendant was charged with a number of firearms-related offences contrary to the Criminal Code, including:

• Being an occupant of a motor vehicle in which he knew there was a prohibited weapon (s. 94(1));
• Carrying, without lawful excuse, a prohibited weapon in a careless manner (s. 86(1));
• Storing, without lawful excuse, ammunition in a careless manner (s. 86(1));
• Possessing a loaded prohibited firearm without authorization or licence and firearm registration certificate (s. 95(1));
• Knowing unauthorized possession of a prohibited weapon (s. 92(2));
• Possessing a prohibited weapon while prohibited from such possession (s. 117.01(1));
• Possessing ammunition while prohibited from such possession (s. 117.01(1));
• Carrying a concealed weapon without authorization (s. 90(1)); and
• Possessing a weapon for a purpose dangerous to the public peace (s. 88(1)).

The defendant was also charged with assaulting a police officer, PC Francisco Jimenez, during the course of his arrest. And, finally, he was charged with failing to comply with a probation order that, among other terms, prohibited him from being in the front seat of any motor vehicle.

[3] Two occupants of a third vehicle testified to their observations of the events involving the police officers and the occupants of the Honda and, in particular, that they witnessed the defendant throw something over the guardrail. The two officers in the police van also testified, as did a third officer who maintained continuity of the gun and certain other exhibits. The cumulative effect of the Crown evidence, both direct and circumstantial, was that the defendant tossed the gun over the railing when he left the front passenger seat of the car.

[4] The defendant testified. He denied ever sitting in the front seat of the vehicle, touching the gun or throwing anything over the on-ramp guardrail. He also denied ever seeing or having any knowledge of the gun before he left the car. His account was directly supported by another occupant of the Honda who testified to having the gun and throwing it, wrapped in a scarf, over the railing from the front passenger window about the same time as the defendant got out of the backseat of the car; the defendant, he says, had no prior knowledge that there was a firearm in the vehicle. In short, the defence position is that the gun was jettisoned from the vehicle and over the guardrail at the same time as Johnson briefly stood by the side of the rail, and that the civilian witnesses' accounts of the defendant tossing the scarf containing the weapon over the railing reflect a mistaken perception given the temporal and physical coincidence of these events and the dynamic excitement that surrounded their occurrence.

[5] The case is largely fact-driven. Given the contrary nature of the Crown and defence accounts and the speed with which the unanticipated events unfolded, the primary issue, as in many trials, is one of credibility in the sense of both the honesty and reliability of the witnesses' accounts. As always, the burden of establishing the essential elements of all the offences faced by the defendant rests on the Crown on the venerable criminal standard of proof beyond reasonable doubt.

B. Evidence

(a) Introduction

[6] The critically contested facts occupy those very few minutes, if not mere seconds, between the time the defendant left the Honda and the time he was apprehended. The defence concedes that the seized weapon was prohibited and operable and that it meets the statutory definition of a firearm. Indeed, the weapon recovered on the boulevard below the on-ramp was a small Glock pistol with ten rounds in its magazine; it's barrel length was between four and four-and-a-half inches. A black and white checkered scarf and a small quantity of suspected drugs was located nearby, although the latter find did not subsequently "test" for narcotics. The police found bags of men's clothing in the trunk of the Honda, along with some paperwork in the name "Daniel Abreha". The defendant was, at the time, subject to court orders prohibiting him from possessing any weapons or ammunition and from occupying the front seat of a motor vehicle. There is no issue that the defendant was the man standing at the same on-ramp railing that the scarf and gun sailed over.

[7] The limited backstory to these events is advanced through the evidence of the defendant and the second passenger in the Honda, Daniel Abreha. I begin with an evidentiary review of their accounts.

(b) The Defence Account

[8] Abreha and the defendant have known each other for many years. They are close friends. Both are relatively young men (aged 31 and 30, respectively) and both have extensive criminal records beginning in their adolescence. The defendant's record encompasses crimes of violence (including four robberies), many failures to comply with court orders, two counts of obstructing the police, and multiple drugs- and firearms-related offences. But for a sexual assault conviction and a number of serious weapons-related offences replacing those directly attributable to firearms, Abreha's record is very similar to – although even longer than – the defendant's. Abreha had obtained independent legal advice before testifying. It was his understanding that his evidence could not be used against him at any subsequent proceeding and that, as a result, he had "nothing to lose" as a result of his testimony.

[9] The defendant had been living with a girlfriend, Ahriane Catanbay, in the months preceding his arrest. She had rented a car about a month before that date and drove it for the next several weeks. She intended to return it as she had bought a new BMW but Abreha asked the defendant to ask Catanbay to lend him the rental vehicle for the last few days of the contract and, later, to briefly extend the rental for him. The defendant conveyed Abreha's request to Catanbay who asked if Abreha had a driver's licence. Abreha did not have a licence but the defendant explained that Abreha's girlfriend did and, in effect, that she would do the driving. In the end, Catanbay agreed to lend the rental vehicle to Abreha and extend the contract.

[10] The defendant says Catanbay had taken possession of the BMW by her birthday on May 17th and likely lent the rental vehicle to Abreha a day or two after that. He and Catanbay then went to Wasaga Beach for the May 24th holiday weekend and, he says, Abreha, accompanied by his girlfriend, drove up to visit them in a car chauffeured by a second man. Abreha's recall is somewhat different. He testified that Catanbay drove him, his girlfriend and the defendant to Wasaga in her new BMW. Only a couple of days remained on the rental when they returned and Catanbay arranged to extend the rental and pass the keys to Abreha who met her around the corner from the agency and paid her a few hundred dollars for the favour. In all, says Abreha, he had the rental for about one to one-and-a-half weeks before May 30th. Despite having no licence, Abreha frequently drove the rental vehicle during that period.

[11] Catanbay had been bugging the defendant to have Abreha return the rental vehicle. Abreha finally agreed to do so on May 30th. He called the defendant that morning and arranged to pick him up at Lakeshore and Bathurst. The plan was to eventually meet Catanbay near the rental agency, pass her the keys and she would surrender the car. However, Abreha first had to drop off his clothes at some intermediate location as he and his girlfriend, at whose home he had been living, had recently broken up. Abreha's personal belonging were stuffed into the trunk of the rental and, indeed, were found there by the police sometime after the defendant's arrest.

[12] The defendant, as confirmed by Abreha, says he got into the rear of the Honda, behind Abreha who was seated in the front passenger seat. A third man – a friend of Abreha – was driving. The defendant had seen and "partied" with the man previously but did not know his name. Abreha knew him only as "Red" or "Reds"; he did not know his "real name". This third man was driving the Honda because there was a substantial amount of cocaine and a gun in the car and Reds, unlike Abreha, had a driver's licence.

[13] It was heavy stop-and-go traffic as they drove east on Lakeshore. At one point a van pulled up beside them and the defendant was able to identify its occupants as police officers. The driver of the Honda said, "They're pulling us over". Abreha shouted, "Don't stop" and the driver took off, accelerating up a ramp towards the eastbound Gardiner Expressway as the police van closely followed. Within ten seconds, and while still on the on-ramp, their progress was blocked by fresh traffic and the van had pulled up close to the Honda's driver's side. The defendant, says Abreha, was telling him and the driver to stop the car and Abreha responded by saying, "No way we're stopping. If you want to get out, get out now".

[14] Abreha had a firearm wrapped in a scarf in the pocket of his hoodie. He tossed the scarf and gun out of the front passenger window and over the guardrail. He describes the gun as a very small, black 9mm subcompact firearm with a barrel-length of only three to four inches. He identified the weapon the police found on the ground beneath the guardrail as the one he threw from the car, along with some white powder (located nearby by the police) used to dilute cocaine. The defendant, he says, did not know that there was a gun in the car before climbing out the rear passenger-side window. Reds then forced his way through the traffic, hitting several cars as he and Abreha escaped. They left the rented vehicle in a Canadian Tire parking lot and took off.

[15] The defendant believed he was the subject of outstanding warrants for serious charges and wanted to avoid arrest. He was also afraid of being shot by the police and of being falsely associated with whatever Abreha had just thrown from the car window. The Honda was parked so close to the southern railing or guardrail that he could not open the door wide enough to get out of the car. Instead, he dove headfirst out of the rear passenger window, ran a few steps east and grabbed onto the railing. He was about to jump over the guardrail when he realized he risked maiming himself. He briefly froze and then took a few further steps east before being tackled from behind by a black officer and punched in the eye. (The defendant identified his assailant as the black officer PC Kirk Blake.) The second officer in the van, PC Francisco Jimenez, is not black and, says the defendant, was not involved in his take-down. Abreha, too, says that the officer who pursued the defendant was black.

[16] The defendant was taken to the hospital following his arrest as a result of the injuries he suffered in his struggle with the police. He denied ever trying to get back into the Honda after his efforts to jump the ramp were frustrated. The defendant also denied throwing anything over the railing, or even suspecting there was anything unlawful in the Honda before he saw Abreha toss a white scarf from the car just before or as he, the defendant, launched himself through the window. He didn't know exactly what Abreha threw other than that it was "nothing good". He says the white officer, PC Jimenez, was by then standing outside the van screaming, "Get out of the car" while pointing a drawn gun in his direction. Abreha says the same officer was banging on the driver's window with a flashlight or a billy; Abreha does not mention a drawn gun. The defendant says he didn't know that a firearm had been thrown from the car until about 20 minutes after his arrest when he was charged with its possession.

[17] Abreha had been caught with a 32-calibre firearm near a club in downtown Toronto in mid-October 2012. He and the defendant shared the same range in a detention centre following his arrest at that time. He had also spoken to the defendant at the same centre following his arrest for an unrelated offence in late-June and, again, by phone once released and before his October arrest. They did not, he says, speak about "the evidence" pertaining to the May incident.

(c) The Civilians' Account

[18] Trevor and Rosemarie ("Rose") Shand, aged 52 and 50 respectively, were entering the on-ramp to the eastbound Gardiner Expressway from Lakeshore when a car forced their pick-up to the right side of the ramp. Their vehicle was cut off by a silver-coloured car that tried to squeeze by on their left as the on-ramp narrowed. Rose, who was driving, pulled over to the right as she saw a van with flashing lights approach from the rear. It came to a stop at the left rear bumper of the Shands' truck that was then parked, about one unobstructed car-length behind the silver vehicle. The passenger side of the latter car was a few steps from the guardrail on the right side of the ramp. Uniformed officers jumped out of the van and ran to the silver car as a black man jumped out of its passenger-side window ("the front window, not the back", Trevor testified in direct and cross-examination) and ran to the right-side guardrail. It appeared the man considered jumping over the railing, then changed his mind, pulled something from his midsection and threw it over the guardrail. Rose could not identify what was tossed, although she described and mimed the man's throwing motions at the railing. Her husband, Trevor, recalled "an object" wrapped in a white towel or cloth. The object appeared to be about twelve inches long. Trevor assumed it was a gun from the outline it created in its white covering. Neither of the Shands was asked to identify the man at the guardrail, but it is undisputed that he was the defendant. Both Trevor and Rose consistently repeated that whatever was thrown was thrown from the railing by the defendant and that nothing was ever thrown from the silver car.

[19] A black officer tackled the defendant at the guardrail. A second officer ran down the ramp to retrieve whatever had been thrown (according to Trevor) or engaged the silver car until it took off and then assisted his partner (according to Rose). The defendant briefly escaped the arresting officer's grasp. He was finally detained as he tried to run back to the silver car that took off as the on-ramp traffic began to move forward.

[20] There were two other men in the silver car, according to Trevor: the driver and a man seated behind the driver. Rose recalled a black male driver but, other than the defendant, she did not see any other occupants in that vehicle.

[21] Trevor and Rose Shand agreed that the events they witnessed were unexpected and that they unfolded in very quick succession. Each independently provided a statement to police officers on the scene within an hour of the incident. Trevor volunteered that he had a criminal record, but neither counsel inquired as to its contents.

(d) The Police Accounts

[22] PCs Blake and Jimenez were eastbound in busy traffic on the Lakeshore when, at about 9:49am, they pulled up to the left of a four-door silver-coloured Honda Civic with three occupants. Blake was driving the unmarked police van. He had dealings with the defendant in the past and recognized him in the front passenger seat. Another black man was driving the Honda and a third, says Blake, sat behind the driver in the rear seat. The car took off following some brief eye contact between the occupants of the two vehicles, driving in and out of traffic in an unsafe manner. Jimenez activated a set of flashing lights on the front of the van's windshield and Blake did his best to follow the Honda. Traffic congestion forced the car to a stop about one-third to halfway up an on-ramp to the Gardiner Expressway. Blake pulled up to the left of and at an angle to the Honda. The van's front bumper was approximately parallel to the car's front tire (according to Blake) or the driver's door (according to Jimenez). No more than 20 to 30 seconds had passed since Blake first recognized the defendant.

[23] As a result of the injuries suffered by the defendant during his arrest, both officers were immediately ordered to return to 52 Division to await a possible SIU investigation. They discussed their evidence on the way to the station where they were then placed in separate rooms. When the SIU declined involvement, the two officers were returned to one room where they prepared their notes close to 3pm, about five hours after the incident. Some variance in the police officers' testimonial accounts of the critical events warrants separate synopses of their evidence.

(i) PC Kirk Blake

[24] Blake saw the defendant leave the Honda but he could not say how. Jimenez, meantime, squeezed out of the van's passenger door and ran behind the Honda. Blake heard him yell, "Gun". Blake then put the van in park and stepped out of the driver's seat. He tried to prevent the Honda from moving forward but the traffic opened up and it took off. Blake then joined his partner Jimenez in his struggle with the defendant. The defendant refused the officers' oral commands and all three ended up on the ground before the police were able to force the defendant's hands behind his back. Jimenez then took off to retrieve the gun and Blake, left alone, had considerable difficulty finally cuffing the defendant. Arriving officers then helped escort the defendant to a police car. Blake did not see anything being thrown over the ramp's guardrail. Nor did he see the defendant endeavour to return to the Honda at any point.

[25] Prior to his arrest, Blake did not know that the defendant was prohibited from being in the front seat of a motor vehicle.

(ii) PC Francisco Jimenez

[26] PC Jimenez had never previously seen any of the occupants of the Honda. There were three black men in the car: the driver, a second man in the front and a third man seated in the rear behind the man in the front passenger seat. Jimenez was at the front passenger window of the van as it pulled up next to the Honda on the ramp. His window was down. He saw the defendant open and get out of the front passenger door. As the defendant stood up, Jimenez observed that he was carrying a white scarf. The defendant quickly took a few steps towards the guardrail on the right and threw the scarf over the railing. Jimenez immediately yelled "gun". He then got out of the van and chased the defendant who, he says, was running up the ramp by the side of the guardrail. The defendant turned around as Jimenez approached and swung at him without making contact. Jimenez then tackled the defendant and took him to the ground, with Blake assisting in the struggle that followed. After finally cuffing the defendant, Jimenez left him in Blake's custody and ran down the ramp to retrieve the gun. He located the firearm and left its safekeeping to other officers who had by then arrived. The defendant had already been escorted from the scene by the time Jimenez went back up the ramp to assist Blake. He never saw the defendant return to the Honda.

[27] Jimenez agreed that the Honda was parked "quite close" to the railing and that he suffered no injuries in his altercation. He did not agree that he saw something thrown out of that car.

C. Analysis

(a) Introduction: The Governing Law

[28] The central issues in the instant case are purely factual: Did the defendant throw the firearm over the guardrail? Was he seated in the front seat of the Honda? Did he assault PC Jimenez? Findings of guilt follow only if these questions can be affirmatively answered to a standard of proof beyond reasonable doubt. The defendant's account of the incident, as generally confirmed by his friend Abreha, affords a negative answer to each question. The direct and cumulative effect of the evidence advanced through the Crown witnesses supports positive answers to each of the same questions. The Crown- and defence-led narratives are, in short, fundamentally contradictory.

[29] As earlier noted, an assessment of the credibility of each of the witnesses – in terms of both their honesty and reliability – is critical to the disposition of this prosecution. (See, R. v. Thomas, 2012 ONSC 6653, at para. 13, for a recent review of the distinction between these two branches of credit-worthiness and the supporting authorities.) A proper determination in such cases is governed by the guidelines set out by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742. As explained in R. v. J.H.S., 2008 SCC 30, at para. 9, W.(D.) "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". (See also, R. v. C.L.Y., 2008 SCC 2, at para. 8.) Even where, as here, a case presents as a bald contest of credibility, the adjudicative focus must remain fixed on the standard of reasonable doubt. (See, for example, R. v. Avetysan, 2000 SCC 56, esp. at paras. 20-2; R. v. Minuskin, at 550; R. v. Rattray, 2007 ONCA 164.) Further, the W.(D.) formulation applies not only to the resolution of directly conflicting evidence between an accused and a prosecution witness but, as said by the Court of Appeal in R. v. B.D., 2011 ONCA 51, at para. 114, to "credibility findings … arising out of evidence favourable to the defence in the Crown's case". (See, also, R. v. Robinson, [2011] O.J. No. 4854, at para. 35.)

[30] Like any trier of fact I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S., 2008 SCC 30, at para. 10; R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Abdallah, at paras. 4-5. I can, where reasonable, also accord different weight to different parts of the evidence that I do accept: R. v. Howe, at para. 44. Further, where, as here, a defendant has testified, his evidence – like that of any witness – cannot be assessed in a vacuum. As said by Code J. in R. v. Humphrey, 2011 ONSC 3024, at para. 152, "the first and second stages of the W.(D.) framework for analysis can only be undertaken by weighing the accused's evidence together with the conflicting Crown evidence". (See, also, R. v. Newton, at para. 5; R. v. Hull, at para. 5; and R. v. Snider, 2006 ONCJ 65, at para. 37; R. v. Hoohing, 2007 ONCA 577, at para. 15.)

[31] The number of witnesses called by one side or the other plays no role in the determination of a correct verdict. Just as a basis for reasonable doubt may be found in any witness's testimony, so too a finding of guilt may be safely grounded on the evidence of a single witness if, of course, sufficiently credible and persuasive to meet the requisite standard: R. v. A.G., 2000 SCC 17, at 453-454; Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at 819. Finally, acceptance of a contradictory account may itself be a proper basis for rejecting a defendant's testimony: R. v. D. (J.J.R.), at para. 53; R. v. M. (R.E.), 2008 SCC 51, at para. 66; and R. v. Thomas, at para. 26.

(b) Applying the Law

[32] The defendant and Abreha's accounts of the events of May 30th are coherent, closely consistent and, in the end, entirely exculpatory. They are also not free of concern. The criminal records of both witnesses demonstrate repeated disrespect for court orders. They are not independent witnesses but close and historical friends who had ample opportunity to consult with each other respecting their testimony at this trial. I cannot credit Abreha's assertion that despite being on the same range at the Don Jail on two occasions between May 30th and this trial, he and the defendant never spoke about the evidence. I also difficulty crediting his assertion that he knew no more of the driver than his street moniker despite being his friend and apparent criminal associate and despite trusting him with the driving when there were both drugs and a loaded firearm in the car. I am mindful, as well, that Abreha's testimonial assumption of culpability for the firearm was premised on his understanding (whether or not legally correct) that his evidence did not expose him to criminal jeopardy. I am also troubled by the inconsistency between Abreha's and the defendant's accounts of the means by which Abreha and his girlfriend made their way to Wasaga Beach on the May 24th weekend. Their conflicting recall of a mundane fact raises some doubt about the independence and, ultimately, credibility of what I take to be the more rehearsed portions of their evidence – those pertaining to the events of May 30th.

[33] These concerns are not sufficient, in themselves, to cause me to entirely reject the exculpatory narrative advanced by the defendant and Abreha. On their face and absent contextual assessment, their accounts of the events of May 30th might reasonably be true. However, I cannot find so in light of the directly contrary evidence I positively accept – that tendered through Trevor and Rose Shand. The Shands are clearly independent witnesses: they know none of the other actors: they have no personal interest in the outcome of these proceedings; their presence at the scene on May 30th was totally a product of accident. Indeed, there is no suggestion that their evidence is dishonest or insincere. The defence suggestion, rather, is that their evidence is unreliable: the result of quickly-moving, dramatic and unexpected events that caused each of the Shands to misperceive the scarf and gun sailing over the guardrail as a product of the defendant physically jettisoning these items when, in fact, what actually (or might reasonably have) occurred was the temporal coincidence of the defendant's hesitation at the railing with the passage of the Abreha-thrown scarf-clad gun from the window of the Honda.

[34] To be clear, I am confident that Trevor and Rose Shand were not mistaken in their evidence on this point; each saw and described the defendant throw something from the side of the railing after leaving the passenger side of the Honda. Their evidence is not perfectly consistent nor, given the dynamic nature of the events and their narrow window of observation, can one expect it to be. The Shands' evidence with respect to some of the events (for example, the location of the police van, the means by which the defendant exited the car, and whether he endeavoured to return to the Honda) is inconsistent with that tendered through the two police witnesses. Nonetheless, with respect to the defendant's conduct at the guardrail, I have no doubt that Trevor and Rose Shand each reported what they saw – and what did – occur: the defendant emerge from the car, appear to briefly consider and reject the thought of jumping from the guardrail, and then throw something over the railing and try to run away.

[35] The Shands were very close to the critical events as they transpired. They had an unobstructed view in the mid-morning of a clear day. There were no distractions. Their firm and independent rejection of alternative scenarios regarding the mechanism by which the items were thrown over the railing reinforces my faith in the integrity of their observations and recall, as does Jimenez's confirmatory account of the defendant's conduct at the guardrail. Further, even on the defence narrative the scarf-wrapped gun was thrown before the defendant left the Honda (or, at latest, as he crawled through the window), thus negativing, as I construe the evidence, any practical risk of misperception or misattribution by either Shand. Put otherwise: the defence evidence undermines the defence theory as the scarf and gun, on Abreha's and the defendant's accounts, were already over the guardrail before the defendant even got to it.

[36] I accept as well the unqualified evidence of Trevor Shand that the defendant exited the front passenger seat of the Honda, not the rear. Trevor's testimony regarding the defendant's location in the vehicle is consistent with that tendered by both police officers and, as I comprehend the latters' evidence, recorded at a time when neither was aware of the Shands' recall or that the defendant was subject to a probation conditions prohibiting him from being in the front seat of a motor vehicle. I appreciate that the evidence of the two officers varies on some arguably important matters (for example, whether Jimenez shouted "gun" before or after he left the van and whether the defendant was or was not cuffed before Jimenez ran down the ramp to retrieve the gun), but I accept the confirmatory value of their testimony as to the defendant's position in the Honda. I am also mindful that the Shands both testified (as did Abreha and the defendant) to the defendant climbing out the window rather than, as recounted in Jimenez's account, by opening the Honda's door. Although not an essential finding, given their more direct vantage point and the singularity of the defendant's method of egress, I accept the Shands' recall of how the defendant emerged from the car.

[37] I am not, however, convinced beyond reasonable doubt that the defendant assaulted Jimenez, as particularized in the relevant count. The defendant says his only physical involvement was with the black officer (Blake) and the evidence of the Shands (and contrary to that of the two policemen) is that Blake was the first officer to have contact with the defendant. In the end, I cannot say with certainty that the defendant assaulted PC Jimenez and he will be acquitted of this charge.

D. Conclusion

[38] For the reasons here set out, I find the defendant not guilty of assaulting a police officer but guilty of the ten other counts on which he was arraigned, including nine weapons-related offences and one count of failure to comply with the condition of a probation order.

[39] Before entering convictions, I invite submissions as to the application, if any, of the "Kienapple principle".

Released on January 15, 2013

Justice Melvyn Green