Court File and Parties
Ontario Court of Justice
Date: September 27, 2016
Court File No.: Ottawa 14-R2041-02
Between:
Her Majesty the Queen
— and —
Hussein Mohammad
Before: Justice Julie I. Bourgeois
Heard on: September 19, 2016
Reasons for Judgment released on: September 27, 2016
Counsel
Mr. P. Napier — counsel for the Crown
Mr. R. Addelman — for the defendant Hussein Mohammad
I. Introduction
[1] Mr. Mohammad was jointly charged with Mr. Fawaz Abdullah with a number of charges, including two counts of attempting to murder by discharging a firearm and a number of counts related to possessing, storing in a careless manner, pointing and using by discharging a firearm, breaches of firearms prohibition and possession of drugs on a 32 count Information. On day two of the trial, I was advised Mr. Abdullah wished to enter pleas to some counts and this was done in front of another judge and the trial for Mr. Mohammad alone resumed. At the end of the trial, the Crown advised it did not seek convictions on the attempted murder counts (1 and 2) and counts 20, 21, 22 related to possession of two firearms knowing they had been obtained by the commission of an offence and defacing the serial number on one of them; as well as counts 31 and 32 related to possession of marijuana for the purpose of trafficking and of proceeds of crime.
[2] The factual basis presented in evidence is not greatly controverted and can be summarized as follows:
[3] The victim, Mr. Hamzeh, was travelling in his white Mercedes with his girlfriend when the white Impala, driven by Mr. Mohammad, approached his location on Bank Street in Ottawa. One of the passengers lowered the window and took a shot, using a handgun, at the rear driver's side door and sped away. Coincidently, the OPS was already conducting surveillance on that vehicle and the airplane was able to follow it to an address on Southvale Road, where the Impala was left and the 3 male occupants were picked up by a Mustang and dropped off at respective residences. Ultimately, Mr. Mohammad was arrested later that evening in the Mustang and the key for the Impala, along with marijuana and cocaine, was located in the area of the car where he was sitting. The Impala was searched and 2 handguns were located in a hidden cavity behind the light knob in the dash on the driver's side. Both firearms were loaded.
[4] At the outset, some admissions were made, for example that the accused was not authorized to and did not have a license to possess any firearms and that in fact, he was prohibited to do so pursuant to a s. 109 order. It was also admitted that the firearms in question, the Taurus and the Smith & Wesson, were handguns and prohibited firearms and the forensic evidence was not in issue: DNA was identified on the Taurus to be of Mr. Abdullah and the bullet found in the victim's car could have been fired by the Taurus but not the Smith and Wesson.
II. The Issues
[5] In general terms, the central issue is whether the Crown established beyond a reasonable doubt, from the factual basis, that the accused had knowledge of what was going to happen and whether he is a party to the offences and in possession of the items located in the car, being the driver of the Impala at the time.
[6] More specifically, the issues were divided in 3:
Possession of the firearms: Was the accused in possession of the firearms found in the Impala?
Use of the firearms: Was the accused a party to the offences of use of the firearm?
Possession of drugs: Was the accused in possession of the drugs found in the Mustang upon his arrest?
III. Position of the Parties
[7] In relation to the possession of the firearms, counsel for Mr. Mohammad argues that there is no evidence, forensic or otherwise, linking his client to the firearms located in the Impala. In fact, he argues that other than driving that vehicle a few hours that evening, there is nothing else linking him to the vehicle or to indicate he would have known about that secret compartment. In summary, two handguns were found and there are two Abdullah brothers living in their father's home: these guns are theirs and that secret compartment is where they hide them.
[8] In relation to using the firearm as being a party to these offences, he argues that there is no evidence capable of assisting the Crown in discharging its burden. The Crown cannot establish beyond a reasonable doubt that Mr. Mohammad is a party to this incident simply by operating the motor vehicle at the time of the shooting.
[9] Finally, it is the defense position that the drugs located in the Mustang upon his arrest could very well have belonged to the other 2 occupants as all 3 occupants of the Mustang were charged with the possession of those drugs, but the charges were later withdrawn against the 2 other occupants with no explanation as to why. As none of those drugs were located on the accused's person, it is really unknown who they belong to.
[10] The Crown on the other hand argues that the totality of the evidence clearly establishes not only that the accused knew about that secret compartment at least that day but he also participated in the shooting by offering his assistance to the shooter in the manner of his driving and accepted to take part in the incident through his actions after the shooting.
[11] It is the Crown's position that the combination of the direct and circumstantial evidence establishes beyond a reasonable doubt that the accused, as the driver of that Impala that evening, had possession and control over the items located in it and he maintained that control after the shooting until his arrest later that evening.
[12] Finally, the Crown argues that the drugs located in the Mustang are the accused's as they were located in the immediate vicinity where he was seated and with his asthma puffer on top of the drugs located in the door pocket.
[13] I will address some of the more specific arguments related to the issues identified by the parties as I review the evidence in light of the applicable law to these issues.
IV. The Law
[14] Both parties agree with the state of the law in the issues identified but each argue the application of the evidence differently or that the evidence is lacking to support a conviction. Indeed a casebook was filed by the Crown and used by both parties in the course of their able submissions.
[15] I do not intend to review the applicable law in details but wish to summarize the more central aspects as it relates to the case at bar.
[16] On the issue of possession of firearms in the Impala, as stated by the Court of Appeal for Ontario in R. v. Swaby, [2001] O.J. No. 2390 at para. 17, the Crown needs to prove the coincidence of two essential elements: occupancy of the vehicle and knowledge of the presence of the weapons amounting to voluntary conduct of the appellant.
[17] At para. 19 and 20 the Court of Appeal further explained:
It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish.
[...] if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle.
[18] Justice Hill explained and summarized in R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377, the various areas of possession, at para 68 to 78. At para. 69, Hill, J reviewed the manners the Crown may use to prove either actual or personal possession or constructive or attributed possession (as per s. 4(3)(a) or (b). He added: "In order to constitute joint possession pursuant to s. 4(3)(b) there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession: R. v. Terrence, [1983] 1 S.C.R. 357 (S.C.C.), at 364."
[19] He also reviewed the partyship, common intent or concert possession of firearms as per s. 21 of the CCC at para. 70.
[20] At para. 71, he summarized a number of decisions from our Court of Appeal and our Supreme Court and explained:
In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence...it could be inferred from the surrounding circumstances". [...] Frequently then, such cases are proven by circumstantial evidence.
[21] He then summarized the self-instruction on circumstantial evidence as such, at para. 72:
[...] the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. (...) Circumstantial evidence must be viewed as a whole and not each piece individually. (...) "[T]he mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt".
[22] Referring to cases such as Arcuri, Cinous, Figueroa and Morrissey to name a few, he then explained an inference in those terms, at para. 73:
[...] an inference may reasonably and circumstantially be drawn from the primary facts – there exists an inferential gap between the primary fact and the fact to be proved. (...) Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense". (...) Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence. (...) A trier of fact "cannot be invited to draw speculative or unreasonable inferences" [...] "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess" (...)
[23] Finally, he reviewed a list of circumstances that have been considered in unlawful possession cases at para. 74:
Possession cases are fact-driven inquiries. Where proof is dependant upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant:
(1) the physical proximity of the firearm to the accused
(2) the degree of visibility of the firearm (...)
(3) the degree of communal use of a vehicle containing the firearm (...)
(4) the size, nature and number of weapons in a particular space (...)
(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control (...)
[24] He also warned us at para. 75 that "In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of proximity of the accused and the item."
V. The Evidence
[25] A total of 19 witnesses were heard, the majority viva voce but some through the filing of some form or another of agreed statements of facts. There were police officers involved in either the surveillance or the searches in this matter, 2 scientists from the Center of Forensic Sciences and one of the victim, Mr. Hamzeh.
[26] Credibility and reliability is not a central issue in this case and was not extensively argued but some reservation was cautioned in relation to Mr. Hamzeh given the Crown's application to cross-examine him on the statements he provided to the police shortly after the events and in relation to the evidence of Cst Jason Trevis as it relates to the finding of 2nd point of entry to access the secret compartment where the handguns and ammunitions were located. Defense counsel also pointed out a few errors or limitations noted during the surveillance, for example the number of persons gathered outside the garage on Triole Street or annotation of westbound on Bank as opposed to Walkley.
[27] I will only summarize the evidence as it relates specifically to the issues identified by the parties in this case.
[28] The Impala the accused was driving at the time of the shooting was owned by the father of Mr. Fawaz Abdullah but associated to Fawaz Abdullah as the user. However, on July 23, 2014, that vehicle is observed for the first time at 1836hrs by the surveillance team being driven by Mr. Hussein M. Mohammad.
[29] The surveillance team knew Mr. Mohammad to be associated to the Abdullah brothers but on that day they were targeting Mr. Fawaz Abdullah and his brother on an information-gathering mission. The surveillance team on the ground had the benefit of the assistance of Det. Turner in the airplane on that day.
[30] He is observed attending various locations in the east or south end of the city and at 1933hrs while he is conversing with a group of males at a garage located at 1550 Triole Street a male from the group walks to the Impala, opens the trunk and reaches inside the trunk. That male is observed closing the trunk and returning to the group where the accused is still standing. Five minutes later, Mr. Mohammad and 3 passengers leave that location. Through later observations, the male sitting in the front passenger seat is identified as Mr. Fawaz Abdullah.
[31] At 1952hrs one of the 2 rear passengers is dropped off at an apartment building located on Cedarwood Drive, leaving Mr. Mohammad as the driver, Mr. Abdullah as the front passenger and an unknown male as a rear passenger. After dropping off one passenger on Cedarwood Drive, the Impala continues southbound from Cedarwood onto Walkley Road, eastbound. However, it immediately turns left at the next intersection, back on Baycrest northbound, makes a U-turn on Baycrest and turns into a parking lot of a complex parallel to Walkley Road, returning to Cedarwood Drive and turning westbound on Walkley and then northbound on Bank Street. This part can be visually observed through the maps and traffic camera footage filed as Exhibits and followed through the evidence of Det. Turner, as he observed from the air.
[32] Mr. Hamzeh also testified that he noticed a white Impala for the first time driving fast through a parking lot of a neighbourhood apartment complex situated on his right. As he explained: "He did not think anything crazy" and he lost sight of it as he turned northbound onto Bank, until he was on Bank, passed Alta Vista Street and the vehicle pulled up beside him, at 1958hrs. He indicated he did not think he was stopped but had slowed down as he was considering turning into a small plaza to get food for him and his girlfriend. It was obvious he did not want to attend court or to testify (a material witness warrant had to be issued to ensure his attendance to court at the start of the trial) but ultimately he adopted the statements he provided to the officers. More specifically, he testified that he saw the passenger's side tinted window come down and was then able to observe that 2 passengers were inside the vehicle and he assumed there was a driver. He indicated he was not sure who shot at his car but thought it could be one of the Abdullah brothers (referred to as Caesar or EZ) as that vehicle is known to his brother to be driven by them, but he had never personally seen what type of vehicle the Abdullah brothers drove. He described the shooter as a Middle Eastern male with low cut hair, light facial hair and wearing a white t-shirt and dark sunglasses.
[33] Mr. Hamzeh explained the history between his twin brother and Fawaz's brother. Back in 2010, his twin brother testified in a matter accusing Abdulaziz Abdullah (referred to as EZ) of a criminal matter. He was acquitted and their fathers had met to resolve any outstanding issues between the families and therefore he was under the impression that this feud was all behind them.
[34] After the shot is fired from the Impala at the rear driver's side door, the Impala, positioned in the left lane, made a sharp right turn in front to the white Mercedes and the trajectory is represented on Exhibit 6, as observed by Det. Turner from the airplane, to its final destination on Southvale Crescent. However, at 2006hrs the Impala stopped on Tupper Avenue for a period of 30 seconds. No passenger exited the Impala and it continued on its way to its final destination.
[35] Once at the housing project located at 2570 Southvale Crescent, the 3 occupants of the Impala exit. Fawaz Abdullah is described as wearing a black short sleeve shirt while the unknown black man is described as possibly Somalian, over 6 feet tall, shiny build with short black hair and wearing a brown and white plaid buttoned up short sleeve shirt, with a white shirt underneath.
[36] At 2013hrs a silver convertible Mustang picked up the 3 males and drops off Fawaz Abdullah at his father's residence located at 42 Esson Street at 2016hrs; then the unknown male is dropped off at a housing project on Heatherington Road at 2034hrs; and finally the Mustang arrives into the driveway of 55 Patola Private, known to be a residence used by Mr. Mohammad at 2042hrs. It leaves again at 2105hrs and the Mustang is intercepted and the 3 occupants are arrested. Mr. Mohammad is sitting in the front passenger seat. In the door pocket, marijuana was located and seized as well as a clear plastic baggy containing 25 gr of compacted and powdered cocaine, on top of an asthma puffer prescribed to the accused. The key to the Impala with an athletic club tag ultimately belonging to the Abdulaziz Abdullah was located on the passenger side floor, along with a clear plastic baggie stuffed underneath the base of the plastic center console containing 1.1 gr of cocaine. A further baggy containing marijuana was located in the middle console. The marijuana weighed 2.3 and 1.8 gr but it is not specified which quantity was seized from which location. Finally, 2 cell phones were located on the front passenger seat.
[37] The Impala was searched initially on July 24, 2014 by Det Werekey and his Sargent. He testified that he knew these vehicles had a natural void inside the dash on the left hand side of the steering wheel. Using a flat head screwdriver he pried open or to use his expression to "pop out" the plastic panel at the end of the dash and discovered the firearms and the ammunitions. Photographs were taken of that cavity and of the items located and seized from inside that cavity (Photobook – Exhibit 7). He observed the grey metallic slide resting on the black metallic portion of a handgun later identified as a semi-automatic 9mm Smith & Wesson. It contained 5 bullets in a high capacity magazine of 16 rounds. This prohibited device was loaded. There was not ammunition in the chamber but a simple rack action, pulling the slide back would have brought one bullet into the chamber and make the handgun ready to fire.
[38] He also observed a white sock in that cavity and a second handgun was located inside the sock. It was identified as the semi-automatic handgun, the Taurus, and a 10 round magazine was loaded into the firearm. The magazine contained 8 rounds but no round in the chamber of the handgun.
[39] He explained that it is not unusual to find firearms hidden in this void through his work with the guns and gang unit of the Ottawa Police Service. He acquired knowledge of that cavity through training and as a previous owner of an Impala. He admitted not being aware of the possible entry to that void by the pulling of the light knob and therefore did not try to access that void in that fashion.
[40] On August 3, 2014, Cst Jason Trevis was asked if he could locate an access to firearms inside the Impala. He testified that there were no obvious compartments that he could see but when he pulled down on the light knob on the left side of the steering wheel, he was able to remove the light knob panel and it exposed the cavity where the handguns were located on July 24, 2014. He was able to insert his service pistol (a Glock 40 caliber, model 22) inside this cavity with the door of the car closed. Photographs are located in Exhibit 7 also.
[41] Ultimately, neither handgun was ever registered in Canada; Fawaz Abdullah's DNA was located on the Taurus mixed with the DNA of at least one additional person but that one was not suitable for comparison.
[42] The white Mercedes driven by the victim was also examined and photographed (see also Exhibit 7) and the fired bullet was recovered and sent for analysis along with the two handguns to the Center of Forensic Sciences. Both handguns were able to fire bullets. The recovered bullet could not have been fired by the Smith and Wesson handgun because of the difference in calibers. Even though the Taurus could have fired that type of bullet, there were not enough individualized characteristics for the expert to determine if the recovered bullet was indeed fired by that Taurus.
VI. Analysis
A. Analysis
[43] In considering the issue of possession of the firearms, I find the following elements particularly important in the context of the totality of the evidence heard at trial:
Occupancy of the vehicle: the accused was the driver since at least 1836hrs that day, during the shooting and after the shooting until he parked it in a visitor's parking spot at 2570 Southvale Cresc.
Knowledge of the presence of the firearms inside the car: if he did not know before, he certainly gained clear knowledge immediately before, during and after the shooting.
Conduct after the use of the firearm: his evasive driving after the shooting; stopping for 30 seconds on Tupper Ave where no one exited the car and no door was opened; parking the car and exiting with the other two occupants and all leaving that area in the Mustang; Mr. Abdullah being dropped off first, then the unknown black male and finally him and the driver of the Mustang at his residence; arrested later in that Mustang with an asthma puffer to his name on top of drugs but also with the key to the car at his feet.
[44] The two guns are located in a secret compartment, not visible to anyone but accessible from the driver's seat, without any tool, through the light knob. No tool was located inside the car, and the driver's door was not opened during the 30 second stop on Tupper Ave. None of the three individuals are observed entering or exiting the Impala with a handgun. It might have been that the handgun was originally in the trunk of the car and it was moved when parked on Triole Street but the evidence is not clear on this aspect. One of the guns located inside the Impala in the secret compartment was in a sock – the Taurus. This appears to have been done to conceal it when not in the secret compartment but in the trunk, for example, or to facilitate its transportation when stored in the secret compartment with another metallic handgun and conceal the possible clicking noise of metal on metal of those 2 handguns. In any event, I do not find this to be a critical element of the analysis.
[45] The Taurus is capable of firing the bullet that was recovered inside the Mercedes.
[46] I find that the only logical and reasonable inference is that it is Mr. Abdullah who used the Taurus to fire that recovered bullet into the Mercedes. The DNA and forensic evidence, even if not conclusive on their own, are still important factors to consider in the totality of the evidence, and that includes the location where it was fired in the context of the history between the families, the description of the shooter (I will return to this point later) and the absence of evidence that any of the occupants of the Impala were observed with a handgun on their person. On this last point, what is to be noted is that there is absolutely no evidence to give any reason to believe a third gun was ever in that Impala during this time; there is no evidence to allow a reasonable inference that the black unknown male was involved in any way or was anything more than a rear passenger during this specific event. If anything, it seems more as if he had been offered a ride somewhere from the garage on Triole, where he was when he first entered the rear passenger seat. He was not known by the surveillance team and was dropped off shortly after Mr. Abdullah and was not seen after that.
[47] If Mr. Mohammad did not know about the presence of handguns inside the car before the shooting, and there is no evidence that he had any knowledge of the presence of the handguns in the car earlier, he certainly acquired this knowledge moments before, during and after the shooting.
[48] I agree there could be a distinction between a driver with the owner as a passenger and a passenger in a car where contraband is located. But in this case, the evidence is that the accused continued to associate with the owner (or the regular user) of the car. He ought to have acted with appropriate dispatch to get himself at least out of the car. Instead, when the car stopped for 30 seconds on Tupper Ave, he stayed inside the car and continued his route to its final destination. It certainly appears in the context of the totality of the evidence that the handgun used to shoot at the Mercedes was stored in the secret compartment during this 30 second stop. As I indicated, no door was open and no tool was found. This secret compartment is easily accessible to the driver. Of course the light knob is not meant to be used as a door to this compartment but then again that compartment is not meant to be used as storage for contraband. I do not find anything at odds with the evidence of Cst Trevis. He was asked to find a place to store handguns inside that Impala and he did. This is not taking anything away from the evidence of Det Werekey. He knew of this natural void in the Impala and knew of one way to get at it. He did not try to see if there was another way to access this void but it does not mean there was not another access to it. Cst Trevis found another way through the light knob.
[49] That access through the light knob is easily maneuvered but indeed Mr. Mohammad would have had to know about it or be explained how to access that secret compartment and told to put the handgun into that compartment or have been handed the handgun after the shooting for that purpose. That period of 30 seconds stop on Tupper Ave certainly allows for this.
[50] Having placed the Taurus in the secret compartment, it can only follow that he acquired the requisite knowledge of the presence of the Smith & Wesson at that time. There is no evidence that he acquired that knowledge prior to that point and there is no evidence that this handgun was used or manipulated during this incident. It was loaded as the magazine was inserted in its location inside the firearm but there is no evidence that the capacity of the magazine was known to the accused and therefore that he had the specific knowledge that the magazine was of high capacity and therefore a prohibited device. There is no clear evidence allowing a conclusion that while the magazine is inserted into the handgun an observer could see the type of magazine inserted. There is no evidence either to conclude that the Smith & Wesson can only hold a high capacity magazine.
[51] There is no evidence that the accused was afraid of the passenger in possession of the handgun; to the contrary, he continued to associate with both passengers, including Mr. Abdullah. It is conceded that the driver of the Mustang was a friend of the accused. All 3 occupants of the Impala drove together in that Mustang, leaving the Impala behind. Indeed, it is not reasonable to conclude that Mr. Mohammad was afraid of the shooter. He is so close to Mr. Fawaz Abdullah that not only is he hanging out with him that day at the garage on Triole or associating with him to the point of leading the police to him on that day but he also drives him in the car that is usually used by him. It is in this context that the key to the Impala is located by his feet upon arrest.
[52] He was the last one of the three occupants in the Mustang. He also returned to the Mustang and the key to the Impala was located at his feet upon his arrest. He re-entered that Mustang at 2105hrs and stayed in that Mustang until his arrest at 2143hrs. He did not disassociate himself from that Impala, in fact he maintained control of the Impala. It is unreasonable to infer that he did not see the key upon entering the car or during the period of time he is seated, lying right at his feet. There is no evidence where each were seated in the Mustang, but if indeed it was a situation where Mr. Abdullah might have dropped the key when he was in the Mustang, Mr. Mohammad certainly did not take any steps to return the keys so Mr. Abdullah and did not act with appropriate dispatch to disassociate himself from that car, knowing what was inside it.
[53] In the end, the only logical inference available on the totality of the evidence, including:
his occupancy of the vehicle that afternoon and evening,
none of occupants were observed carrying a handgun upon entering or exiting that vehicle or the Mustang;
the 30 seconds stop while driving away from the location of the shooting;
no door was opened during that time and no tool was located inside the Impala during the search;
the secret compartment was accessible from the driver's seat without requiring any tool;
the compartment is small enough to easily allow to see the second handgun stored inside;
where and when the vehicle was left after the shooting;
the 3 occupants exiting together and embarking into the Mustang together and ultimately;
the accused arrest with the key of that vehicle at his feet is that the accused occupancy of the vehicle and knowledge of the presence of the handguns, coincided with the voluntary act of possession of those 2 loaded handguns.
[54] There is an absence of evidence to rebut the reasonable inference to be drawn from the circumstantial evidence to conclude to the continued possession and access to the vehicle until the time of his arrest.
[55] The facts in this case go far beyond mere coincidence and mere occupancy of the motor vehicle at the time it contained the firearms. Looking at the factors considered as guidelines by J. Hill in R. v. Anderson-Wilson, supra:
Physical proximity of the firearms to the accused: both firearms were in the same secret compartment, at arm's reach on the left side of the driver's seated position, and therefore not accessible to anyone else within the vehicle while it is occupied by a driver;
Degree of visibility of the firearms: while not visible once in the secret compartment, it was located in a compartment completely and solely accessible to the driver and easily observable once the light knob was pulled down;
Degree of communal use of the vehicle containing the firearms: it was not the accused's car but it was obviously used by him that afternoon or early evening, including while the owner (or the person known to be using it) was inside the car and maintaining control over it by keeping the key until his arrest;
Size, nature and number of the weapons in a particular space: 2 handguns in a hidden cavity behind the dashboard, accessible to the driver without reverting to the use of any tool and by simply pulling on the light knob;
Nature of other items located in proximity of the firearms capable of providing context to an inference of knowledge and control: the secret compartment only contained the handguns in question.
[56] There can be no doubt the accused acquired the knowledge of the firearms as seized at the time he was occupying the car as the driver at the time of the shooting, and he maintained the control of that car until his arrest.
[57] In analyzing the issue of the use of the firearm and the accused's role in it, I find the following elements particularly important in the context of the totality of the evidence heard at trial:
The Impala driven by the accused that afternoon was owned by Fawaz Abdullah's father but known to usually be used by Fawaz. The accused is a person known to be associated to Fawaz. Indeed, the officers followed that Impala once detected at 1836hrs and it did lead them to Fawaz, while the accused was still driving the Impala.
The accused was observed driving that Impala on various streets in the city of Ottawa and at times weaving through traffic for example on St-Laurent Street around 1858hrs. But it was specifically observed exiting a residential project after dropping off an unknown male at 1952hrs on Cedarwood Drive, going eastbound on Walkley and immediately returning to that residential project by turning into the next street, Baycrest, making a U-turn, driving fast through a parking lot parallel to Walkley and driving westbound on Walkley. This is at the time the white Mercedes was travelling westbound on Walkley. It is also at a time when Fawaz Abdullah was a passenger inside the Impala.
The accused, driving the Impala, caught up to the Mercedes on Bank Street. He maintained his speed and a shot was fired from the passenger's side onto the Mercedes' driver's side, at 1958hrs.
There is a history of conflict between the Abdulaziz Abdullah and Mr. Hamzeh's twin brother.
Mr. Hamzeh described the shooter as a Middle Eastern male amongst other characteristics, but certainly not as a black, possibly Somalian, male.
Mr. Mohammad quickly accelerated and cut through the traffic lane to turn right and drove away from the location of the shooting, making numerous turns into a residential area.
At 2006hrs, he stopped the Impala for a period of 30 seconds on Tupper Ave, no one exited the car and none of the doors to the Impala were opened.
At 2009hrs, the Impala parked in a visitors parking spot at 2570 Southvale Cresc. All 3 occupants left the Impala and entered a convertible Mustang at 2013hrs.
Mr. Abdullah is the first occupant to be dropped off at his residence and Mr. Mohammad is the last one to be dropped off. But he is back in that Mustang with its driver at 2105hrs and ultimately arrested while in that Mustang at 2143hrs, and the items referred to earlier, are located as described.
[58] The description of the shooter by Mr. Hamzeh, in the context of the history between the family members and observations of the surveillance team leave me with no doubt that Mr. Fawaz Abdullah was the shooter. The location of the bullet hole left in the driver's side passenger's door is a clear indication that Mr. Abdullah wanted to scare Mr. Hamzeh and/or his twin brother. Mr. Hamzeh clearly did not want to attend court and testify: a material witness warrant and a voir-dire to cross-examine him on his statements had to be sought by the Crown.
[59] The fact that Mr. Hamzeh described the shooter as wearing a white t-shirt does not minimize the strength of my conclusion as this is something that could have been changed in the car. But Middle Eastern traits or black skin cannot.
[60] I accept that this event was not planned ahead of time and as I indicated earlier, there is no evidence to conclude the accused knew of the presence of firearms much before the shooting. But it is certainly clear from the surveillance evidence of Det Turner, from the airplane, someone inside that Impala recognized the white Mercedes and that Mr. Mohammad turned the car around to catch up to it. What Mr. Mohammad thought at this point is unknown but it is clearly not a situation where he could have mistakenly thought that the Mercedes was the one used by Mr. Abdullah's brother. The contention that it is a reasonable alternative hypothesis that the accused made a U-turn because he may have recognized the Mercedes as possibly being Abdulaziz and caught up to it for a friendly chat as initially thought by Cst Turner, is only available for a short period of time when the Impala turns around and drives to catch up to the Mercedes. It is no longer an available rational inference that can be drawn in the face of the cumulative effect of the circumstances in this case and the body of evidence on this record once it caught up to it and the actions of the accused during and after the shooting.
[61] He caught up to the Mercedes, as the 2 vehicles were side by side, he drove slowly and steadily beside it. He cannot at this point still be under a mistaken impression that the occupant of the Mercedes is a member of the Abdullah's family. His driving allows Mr. Abdullah, from his position in the front passenger's seat, to take a handgun out, to lower his window, to put his arm or hand outside and to fire at that car. Nothing on this record could lead us to conclude or to draw any inference that he thought this was Abdulaziz Abdullah in that Mercedes and that his brother was shooting at his father's car.
[62] I do not accept that Mr. Mohammad was oblivious to what was going to happen moments before it did and that his driving away might have been to protect the victims inside the Mercedes. There is no evidence that Mr. Mohammad for example inquired about the victims' well-being after this incident or apologized to them or anything even remotely related to an attempt at protection. Mr. Abdullah is sitting right next to him, while he is driving slowly beside the Mercedes and while Mr. Abdullah is lowering the window before taking his hand out of the car and taking that shot. He drove away after the shooting in order to not be followed and detected by Mr. Hamzeh and ultimately the police.
[63] Under these circumstances, the accused knew what was going to happen at least moments before the shooting and he consented to it not only by maintaining control of the vehicle but also by assisting the shooter when changing the direction of travel of the vehicle he was driving to catch up to the victims' car, and most definitely by maintaining the speed of the Impala beside the Mercedes to allow Mr. Abdullah to fire the handgun at it, driving away from the location of the shooting, storing the handgun in the secret compartment accessible to him from his seat and maintaining control of the Impala by keeping the key to it until his arrest at 2143hrs.
[64] Similarly to the analysis of Justice Hill, at para. 62 and 63 of Her Majesty the Queen and Owen McIntosh dated 20030328, found at tab 2 of the Crown's Book of Authorities, or as per the analysis of our Court of Appeal in R. v. Pham, [2005] O.J. No. 5127, located at tab 6 of the Book of Authorities, Mr. Mohammad is in joint possession of the firearms and a party to the offences related to the use of this firearm in this context. He is in constructive and/or joint possession of the gun, the Taurus, through his actions prior, during and after the shooting.
[65] As noted by Justice J.S. Nadel in R. v. Badawi, [2015] O.J. No. 666, at para. 77, located at tab 8 of the Book of Authorities, possession cases are fact-driven inquiries and where the proof is dependent upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect here of the evidence, direct (such as the observations during the surveillance and of Mr. Hamzeh's evidence) as well as the circumstantial evidence as I have referred to earlier, that lead to the only rational inference that the accused had knowledge of the guns inside the car at the relevant time and exercised control over them. Moreover, he also played a role, participated and was a party to the offence of discharging a firearm, the Taurus, onto the vehicle operated by one of the victims in this case, Mr. Hamzeh.
[66] Finally, in relation to the issue of possession of drugs, I find these elements of particular relevance:
He was picked up from 2570 Southvale after parking the Impala in a visitor's spot and leaving the Impala there;
He attended his home with the driver of the Mustang at 2042hrs and left again with the driver of that Mustang, his friend, at 2105hrs;
When he was arrested at 2143hrs, he was seated in the front passenger's seat;
The drugs are located in the immediate proximity of his position in the Mustang upon his arrest;
His asthma puffer, prescribed to him is located amongst some of those drugs in the pocket of the passenger's door where he was sitting;
An attempt at quickly concealing some of the drugs underneath the plastic base of the console on his side of car, with part of the plastic bag still sticking out;
The key to the Impala is also located in that same vicinity, on the floor next to where his feet would have been positioned from his seat;
Nothing else was located in this specific area of the car.
[67] It certainly allows for the reasonable conclusion that, even with a driver and rear seat passenger in the car at that time, he was the one in possession of those drugs.
B. Conclusion
[68] There is ample basis on the body of evidence heard to draw a reasonable inference of not only knowledge but also control to constitute constructive and/or joint possession of the handguns found in the Impala.
[69] There is also ample basis to conclude that the accused was a party to the offences of using the handgun in this context.
[70] He was in possession of the drugs located upon his arrest.
[71] It is admitted that the accused did not possess the required authorizations to possess any of the items seized and that he was prohibited from possessing any weapon pursuant to s. 109 of the Criminal Code.
[72] There is no clear evidence however in relation specifically to the knowledge of the high capacity magazine in the context of this case.
[73] Therefore, the accused is found guilty of the following counts:
3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16, 17, 18, 19, 23, 24, 25, 28, 29 and 30.
[74] He is found not guilty of the following counts:
12 and 15.
[75] The Crown advised it was not seeking convictions on the following counts and therefore findings of not guilty will be marked on the following counts:
1, 2, 20, 21, 22, 31 and 32.
Released: September 27, 2016
Signed: Justice Julie I. Bourgeois