WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: June 2, 2017

Central West – Brampton

Court File No.: 012103

Parties

Between:

Her Majesty the Queen

— and —

Chaves Patten and Ohaje Taitt

Before the Court

Before: Justice P.T. O'Marra

Heard on: February 21, 22, 23, 24 and May 12, 2017

Reasons for Judgment released on: June 2, 2017

Counsel

Andrea Esson – Counsel for the Crown

Maurice Mattis – Counsel for the accused Chaves Patten

Allan Lobel – Counsel for the accused Ohaje Taitt

Judgment

P.T. O'Marra J.:

Introduction

[1] This is my judgment on the issue of committal.

[2] Both accused are jointly charged with ten (10) firearm related offences. Mr. Taitt has two additional charges of criminal negligence to wit: discharging a firearm causing bodily harm to his co-accused Chaves Patten and subsequently breaching his recognizance.

[3] At the conclusion of the preliminary hearing Ms. Esson for the Crown asked that Counts #1, 2, 3, 6, 7, 8, and 12 be withdrawn. The Crown seeks committal on the following charges for both accused:

(i) That Chaves Patten and Ohaje Taitt on or about the 26th day of April, 2016 in the City of Brampton, in the said region did possess a loaded prohibited (as amended) firearm, contrary to section 95(1) of the Criminal Code of Canada. (Count #4)

(ii) That Chaves Patten and Ohaje Taitt on or about the 26th day of April, 2016 in the City of Brampton, in the said region were occupants of a motor vehicle, to wit: a 2015 Ford Fusion in which they knew that there was at that time a firearm, contrary to section 94(1) of the Criminal Code of Canada. (Count #5)

(iii) That Chaves Patten and Ohaje Taitt on or about the 26th day of April, 2016 in the City of Brampton, in the said region with intent to wound Tanika Rodney did discharge a firearm to wit: a revolver style handgun at Tanika Rodney, contrary to section 244(1) of the Criminal Code of Canada. (Count #9)

(iv) That Chaves Patten and Ohaje Taitt on or about the 26th day of April, 2016 in the City of Brampton, in the said region with intent to wound Ramel Rodney did discharge a firearm to wit: a revolver style handgun at Ramel Rodney, contrary to section 244(1) of the Criminal Code of Canada. (Count #10)

(v) That Ohaje Taitt on or about the 26th day of April, 2016 at the City of Brampton in the said region did by criminal negligence to wit: discharging a firearm to cause bodily harm to Chaves Patten, contrary to section 221 of the Criminal Code of Canada. (Count #11)

The Approach to Evidence Tendered at a Preliminary Hearing

[4] It is a well-settled rule that a preliminary hearing judge must determine whether there is any admissible evidence in relation to each of the offence's essential elements to permit a properly instructed jury, acting reasonably, to convict. See: U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

[5] I am also guided by the decision in R. v. Martin, [2001] O.J. No. 4158 at para. 3 wherein the Court of Appeal has indicated that the test is satisfied even where there is nothing more than a scintilla of evidence.

[6] In assessing whether or not the Crown has tendered "sufficient" evidence in respect of each essential element, it must be borne in mind to what sufficiency refers. As noted by McLachlin J. in R. v. Charemski, [1998] S.C.J. No. 23 at para. 35:

First, "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[7] Direct and/or circumstantial evidence can support an order to stand trial. The evidence in this case is circumstantial. The Crown relies on police testimony, cell phone and cell tower analysis, and forensic experts' reports to prove the elements of possession, intent and negligence. Circumstantial evidence whether testimonial or real in nature, does not speak for itself. Instead one must apply logic, common sense and or human experience in determining whether a piece of circumstantial evidence on its own, or in combination with other evidence, is probative of a matter in issue. That application of logic, common sense and/or human experience may be summed up as "inference drawing".

[8] It is not within my purview as the preliminary hearing judge to assess the credibility or the reliability of the evidence before me. To do so would be to arrogate the function of the ultimate trier of fact. See Arcuri at para. 30.

[9] I am limited to a consideration of whether the evidence in question is capable of supporting or, to put it another way, could the evidence reasonably support, the inference sought by the Crown. See Arcuri at para. 30.

[10] My task is to assess the circumstantial evidence to determine that it supports the only possible inference to establish an element of the offence. I must be satisfied that the inference sought is a reasonable one. Such inferences cannot be based on speculation, no matter how seemingly reasonable: See R. v. Munoz, [2006] O.J. No. 446 (SCJ) at para. 22. In order for me to avoid engaging in speculation I must be mindful of two important points that the court articulated in Munoz at para. 26 and 28, the "first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. The second way in which inference drawing can become impermissible is when speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts".

[11] Although I may be tempted to make an educated guess from a primary fact, based on common sense and human experience, I must resist and rely upon the evidence. See: U.S.A. v. Huynh, [2005] O.J. No. 4074 (C.A.).

[12] It is also necessary for me to consider the cumulative effect of the evidence that points towards the guilt on the part of both accused. This is even more important when the Crown's case is premised wholly on circumstantial evidence and it is improper for me to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence. See: R. v. Coke, [1996] O.J. No. 808 (SCJ) at para. 9.

The Evidence

The Video Surveillance at Brampton Civic Hospital

[13] On April 26, 2016 at 2:58 am video surveillance from the Brampton Civic Hospital showed a dark coloured car driving over the sidewalk and then parked in the parking lot reserved for physicians. This person exited the car from the driver's side and walked quickly to the emergency department of the hospital. This person extended his arm towards the car and at this time the car lights flashed.

[14] While in the emergency triage area of the hospital, this person is observed on video surveillance from 3:00 am to 3:10 am. He is a young black male wearing a gold chest necklace, a black sweater with white writing on the front, and red pants.

[15] P.C. Oxley responded to a report that there was a gunshot victim at the hospital. Upon his arrival at the emergency department of the Brampton Civic Hospital he recognized the young male with the gunshot wound to his right hand as Chaves Patten from a previous arrest. He identified Mr. Patten in court. Entered as Exhibit #1 of this preliminary hearing was the Brampton Civic Hospital discharge summary for Chaves Patten that confirmed he was seen by Dr. Phalpher on April 26, 2016 and treated for a gunshot wound to his right hand.

The Ford Fusion

[16] P.C. Chaudhry was dispatched to the Brampton Civic Hospital at 3:22 am to investigate a gunshot injury. He spoke to Mr. Patten who advised that he had arrived in a rented black Ford.

[17] P.C. Chaudhry found a black Ford Fusion with licence plate BWWF025 parked near the emergency department entrance. He ran the plate and the car came back as a rental.

[18] P.C. Chaudhry looked into the car with his flashlight for "trauma" evidence. He found what he believed to be blood on the passenger side door and arm rest. He observed a jacket and belt inside the car. He also saw a black revolver "partially" concealed under the front passenger seat. The firearm appeared to be loaded as the rear of the bullets were visible.

[19] P.C. Chaudhry told P.C. Oxley about the firearm found in the Ford Fusion. P.C. Oxley was shown the location of the Ford Fusion. With his flashlight P.C. Oxley observed a "revolver style firearm" on the passenger side lying on the floor of the car. His notes reflected that he observed a "gun under the passenger seat, gold and rusty". He testified that he saw "gold coloured bullets". He later stated that the firearm was only two or three inches under the seat. He felt that the firearm was in plain view. He also observed blood on the center console of the car.

[20] P.C. Oxley marked the location of the firearm with an "X" on a photograph (Exhibit #2) of the interior of the car.

[21] At 4:54 am P.C. Oxley arrested Mr. Patten for possession of a firearm. A search incident to arrest revealed that Mr. Patten was in possession of some money, a gold chain, an iPhone and the Ford Fusion key fob.

[22] At 5:26 am P.C. Oxley attended to the Ford Fusion and opened up the passenger side door. He entered the car and proved the firearm safe.

[23] The Ford Fusion was eventually towed to the Peel Police Forensic Services garage. A search warrant was executed on the Ford Fusion. The firearm was seized and examined.

The DNA

[24] Peel Forensic Services officer P.C. Stanley an experienced firearms officer photographed and examined the Ford Fusion and the firearm. He found what appeared to be blood on the passenger side door armrest, the door frame, and the gear shift. DNA swabs were taken.

[25] A ripped fingernail was found embedded in the front right passenger side window sill. A T-Mobile phone was located on the driver's seat. Swabs were taken from the phone.

[26] A DNA warrant was executed to obtain a blood sample from Mr. Taitt. The sample from Mr. Taitt matched the fingernail, and to the swab of from the T-Mobile phone, and the handle of the revolver. The DNA report (Exhibit #9) also disclosed that the swab of the handle of the firearm had DNA from at least two other sources and the swab of the T-Mobile phone had at least one other contributing source.

The Firearm and Bullets

[27] The firearm found in the Ford Fusion was identified as a Colt .38 Special with a 102 millimetre barrel. It is by definition a prohibited firearm due to its barrel length.

[28] The firearm was capable of loading 6 .38 special bullets. One bullet had been misfired. Another bullet had not been fired. Four bullets had been fired.

[29] At approximately 1:30 pm on April 26, 2016 Peel Police Identification officers attended a residence located 33 Seaside Circle, Brampton to investigate shots that were fired into that residence. The examination of the residence revealed that there four bullet strikes to the front of the house. One bullet was recovered and sent to the Centre of Forensic Science for analysis.

[30] According to the Centre of Forensic Science ballistic report (Exhibit #6) the bullet was a damaged .38 calibre bullet fired from a "firearm barrel rifled with 6 lands and grooves left hand twist". The bullet could have been fired from 6 different firearms including but not limited to the .38 long Colt calibre revolver.

[31] Ballistic testing (Exhibit #7) of the round found at 33 Seaside and test fired bullets from the .38 Special seized from the Ford Fusion "neither be identified nor eliminated as having been fired by the same firearm".

The Cell Phones

[32] The SIM card contained within the IPhone seized incident to arrest from Chaves Patten was registered to "Junior Notes" a subscriber of Rogers, with a phone number of 416-302-0609. The T-Mobile phone seized from the driver's seat of the Ford Fusion was registered to "Jeffrey Matthews" a subscriber of Rogers, with the phone number 647-289-7797.

[33] No evidence was lead as to the identity of these subscribers, their addresses, whether or not these were aliases, or their relationship to Mr. Patten or Mr. Taitt.

[34] Records for these phones were obtained through a search warrant. Peel Police Crime Analyst Rasdeep Jassal used the records to triangulate the path of travel of both phones by using cell phone towers during April 26, 2016.

[35] Ms. Jassal's report (Exhibit #22) indicated that at midnight on April 26, 2016 the Taitt phone was near or at his home located at 10 Knightsbridge Road, in Brampton until approximately 12:15 am. From 12:32 am until 12:51 am the Taitt phone was near the area of highway 410 and Bovaird Road, or Dixie Road and Bovaird Road. This is particularly relevant as this area was close to the residence located at 33 Seaside Circle where the four bullets were fired. Both phones were tracked heading south into the City of Mississauga. After 1:16 am the Taitt phone was no longer active. Patten's phone was not active between 1:16 am and 1:42 am. At 1:51 am the Patten phone was at or near Dixie Road and North Park Drive, in Brampton and the Taitt phone was at or near Queen Street and Dixie Road, in Brampton.

The Surveillance Video at 58 Seaside Circle

[36] An exterior home security surveillance video located at 58 Seaside Circle, in Brampton was seized and reviewed by P.C. Paschalis (Exhibit #11). According to P.C. Paschalis's evidence the time stamp on the video is 14 minutes ahead of the actual time. This residence was located just down the street from 33 Seaside Circle, where the four bullets were fired into the house.

[37] At 1:54 am the video showed a small dark coloured car driving eastbound past 58 Seaside Circle. Shortly after the car was seen to turn around off camera and drove westbound past 58 Seaside Circle towards 33 Seaside Circle.

[38] P.C. Paschalis testified that based on his experience and familiarity with cars, this car was a 2015 Ford Fusion. Specifically, he based his opinion on the fact that he owns a Ford Edge, he has been in Ford Motor Company car show rooms, and the Peel Police Service have Ford Fusions in their car fleet. He testified that the Ford Fusion has a distinctive shaped body (not boxy), headlights and taillights that "wrap around".

The Surveillance Video at 10 Knightsbridge Road

[39] On April 26, 2016 Mr. Taitt resided at 10 Knightsbridge Road, in Brampton apartment #303. The video surveillance located in the east stairwell (camera #11) was seized (Exhibit #4). This stair well does not go to the main floor, but does have a door that exits out at the east side of the building. The stairs also go to the third floor. At 12:16 am two individuals were seen coming down the stairs and exiting through the ground level door which lead to the parking lot. I am satisfied that the two individuals were Mr. Patten and Mr. Taitt. P.C. Oxley has had previous interactions with Mr. Patten which include arresting Mr. Patten for criminal offences and a foot pursuit. Furthermore, Mr. Patten was more or less wearing the same clothing on the video that was seized after his arrest. Mr. Patten also has distinctive braided hair, which includes cornrows and two ponytails.

[40] No one was seen on video between 12:16 am and 2:33 am. At 2:33 am Mr. Patten was seen going up the stairs to the third level holding his injured right hand. There seemed to be a blood stain on his pants.

[41] At 2:36 am P.C. Oxley identified Mr. Taitt going up the stairs to the third level. Mr. Taitt was wearing a black puffy jacket with a hood and eye glasses. On the upper left chest of the jacket there was an unidentified logo. He was wearing white running shoes. A search warrant was subsequently executed on Mr. Taitt's apartment and the black puffy jacket with a logo and running shoes were seized. During the search police observed blood stains on the walls and doors.

[42] At 2:54 am Mr. Patten was observed going down the stairs, but this time his injured right hand was wrapped in a white towel. He was wearing the same clothes but had changed into red pants. Approximately four (4) minutes later, the video surveillance at Brampton Civic Hospital showed Mr. Patten arriving in the Ford Fusion.

Analysis

[43] I am bound to follow the four (4) stage process set out for preliminary hearing judges involved in a circumstantial evidence case as set out in R. v. Franks, 2003 SKCA 70. The preliminary inquiry judge needs first to identify and delineate the essential elements of the offence; (ii) the court then needs to consider each element separately and determine whether the Crown has led any evidence in relation to that element, and if it has, whether the evidence is direct or circumstantial; (iii) with respect to each element that the Crown has led circumstantial evidence and no direct evidence, the court needs to engage in the "limited weighing" described by McLachlin C.J.C., to determine whether a reasonable jury properly instructed could - not would - draw the required inference for the proof of that particular element; and (iv) the court then needs to coalesce and put together the results of the first three stages and decide "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty".

Count #4: Possession of a Loaded Prohibited Firearm

[44] Section 95(1) defines the offence of a loaded firearm as follows:

(1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of

• (a) an authorization or a licence under which the person may possess the firearm in that place; and

• (b) the registration certificate for the firearm.

(2) Every person who commits an offence under subsection (1)

• (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

• (i) in the case of a first offence, three years, and

• (ii) in the case of a second or subsequent offence, five years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

[45] The key elements of this offence are that the firearm was in the possession of either or both Mr. Patten and Mr. Taitt. In addition the firearm must meet the definition of a prohibited firearm as defined by the Code.

[46] Section 2 defines "firearm" as follows:

"firearm" means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

[47] Section 84(1) defines a prohibited firearm as follows:

"Prohibited firearm" means

(a) a handgun that:

• has a barrel equal to or less than 105 mm in length, or

• is designed or adapted to discharge a 25 or 32 calibre cartridge,

• but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,

(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,

• is less than 660 mm in length, or

• (ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,

(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or

(d) any firearm that is prescribed to be a prohibited firearm;

[48] It is clear from the firearms report (Exhibit #8) and P.C. Stanley's testimony that the Colt Army Special .38 seized from the floor of the Ford Fusion meets the legal definition of a prohibited firearm due to its barrel length. The barrel length is 101.3 millimetres. The evidence also supports that it was loaded with an unfired Winchester .38 Special cartridge.

[49] The legal concept of "possession" is defined in section 4(3) as follows:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

• has it in the actual possession or custody of another person, or

• has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[50] To constitute personal possession there must exist the following: 1) There is physical contact with the object. 2) Knowledge of what the object is and 3) there is a measure of control over the object. See R. v. Beaver, [1957] S.C.R. 531. In my view there is circumstantial evidence to suggest that all three ingredients have been met with respect to both Mr. Patten and Mr. Taitt. The handle of the firearm found in the Ford Fusion has Mr. Taitt's DNA. A cell phone found on the driver's seat has Mr. Taitt's DNA. His fingernail is found on the passenger side of the Ford Fusion.

[51] The limited weighing of the circumstantial evidence to determine a prime facie case of possession of the prohibited firearm comes down to this: Can I infer possession from the presence of Mr. Taitt's DNA on the handle of the firearm? There is no hard and fast rule in this regard but I must consider all of the circumstances of the case and the evidence deduced. See: R. v. Lepage, [1995] 1 S.C.R. at Para. 25. I believe that a jury properly instructed could draw a reasonable inference that Mr. Taitt had in his possession a loaded firearm. I also think that it is a reasonable inference to draw that Mr. Taitt was inside the Ford Focus since both his fingernail and the T-Mobile phone with his DNA was found on the driver's seat.

[52] Now turning to Mr. Patten. From the video surveillance at the Knightsbridge address, it is obvious that Mr. Patten and Mr. Taitt were together on April 26, 2016. They left Mr. Taitt's address at 12:16 am and neither appeared injured in any way. However, at 2:33 am Mr. Patten re-appears with an injured right hand. A few minutes after that he left and drove himself in the Ford Focus to the Brampton Civic Hospital to be treated for a gunshot wound to his hand. In weighing the evidence of P.C. Chaudhry and P.C. Oxley, I am satisfied that the firearm found on the passenger side of the Ford Fusion was in plain view to any occupant of the car.

[53] The defence argues that it is a relevant factor that there was no testing for gunshot residue or GSR. As well, there is no evidence to suggest who rented the Ford Fusion. They are correct in that regard however, I think the cumulative effect of the evidence of blood inside the car, Mr. Patten's injured hand by gunshot, and a firearm laying only a few feet away in a car driven by Mr. Patten is some evidence that points towards Mr. Patten having had knowledge and control over the prohibited firearm.

[54] Both Mr. Patten and Mr. Taitt are committed to stand trial on count #4.

Count #5: Being the Occupants of the Ford Fusion in Which They Knew There Was at That Time a Firearm

[55] Section 94(1) and (2) state the following:

(1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless

in the case of a prohibited firearm, a restricted firearm or a non-restricted firearm,

• the person or any other occupant of the motor vehicle is the holder of

• a licence under which the person or other occupant may possess the firearm, and

• in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,

• the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of

• a licence under which that other occupant may possess the firearm, and

• in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, or

• (iii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament; and

(b) in the case of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition,

• the person or any other occupant of the motor vehicle is the holder of an authorization or a licence under which the person or other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or

• the person had reasonable grounds to believe that any other occupant of the motor vehicle was

(a) the holder of an authorization or a licence under which the other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or

• (B) a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament.

(2) Every person who commits an offence under subsection (1)

• (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

[56] Having already found that the Crown has proven that the object seized by the police was a firearm, I am left to consider whether there is a "scintilla" of evidence that both or either were the occupants of the Ford Fusion and whether both or either had knowledge that the firearm was in the car at the time of its occupation?

[57] As I have already found that there is a reasonable inference that Mr. Patten had driven the Ford Focus to the Brampton Civic Hospital with the knowledge that the prohibited firearm was in the car I believe the Crown has made out a prime facie case.

[58] With respect to Mr. Taitt, I have already found that there is a reasonable inference from the circumstantial evidence that he was in possession of a firearm. I based my findings on the fact that his DNA was found on the firearm and the T-Mobile phone that was seized from inside the car. Does that mean necessarily both Mr. Taitt and the firearm were in the car at the same time?

[59] When I examine the timeline from when Mr. Taitt and Mr. Patten left 10 Knightsbridge Road at 12:16 am and returned more or less together with Mr. Patten with an injured hand is there a reasonable inference that they were together during this period of time? I believe so. The phone records disclose that both phones were in the vicinity of 33 Seaside Circle shortly before 2:00 am. It was explained by Ms. Jassal that although the phones signals are not linked to the same cell phone tower it does not mean that the phones are not in close proximity.

[60] It is also a reasonable inference that after leaving together at 12:16 am, Mr. Patten and Mr. Taitt travelled together in the Ford Fusion south to Mississauga then north to 33 Seaside Circle and fired four shots into the residence and fled. There is an evidentiary link between the firearm and bullet found at the residence as stated by the firearms examiner. The bullet found "could" have been fired from a Colt .38 Special. That is the same make of firearm found in the car with Mr. Taitt's DNA on the handle.

[61] For those reasons both Mr. Patten and Mr. Taitt are committed to stand trial on count #5.

Count #9 and #10: Discharging a Firearm with Intent to Wound Tanika Rodney and Ramel Rodney

[62] This offence is defined in section 224(1) as follows:

(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person - whether or not that person is the one at whom the firearm is discharged.

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

• (i) in the case of a first offence, five years, and

• (ii) in the case of a second or subsequent offence, seven years; and

(b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.

[63] This is a specific intent offence. An essential element of this offence is proof that the accused actually intended to wound the complainant and not scare or threaten him or her. It is not sufficient to have an intention to threaten, scare or frighten someone, nor is it sufficient to objectively foresee that there is a risk of harm. There must be proof of an actual intention to wound. See R. v. Macdonald, 82 C.C.C. 47 and R. v. Connop, 94 C.C.C. 349 (Ont. C.A.).

[64] I have found that it is a reasonable inference that during the time frame from 12:16 am to 2:33 am shots were fired into the residence by Mr. Taitt from the Ford Fusion. The Crown argues that the only consistent reason or explanation from the circumstantial evidence is that it was his intention to wound Tanika Rodney and Ramel Rodney or both. Furthermore, it is a reasonable inference that Mr. Patten travelled in the car with Mr. Taitt knowing that there was a loaded prohibited weapon in the car. There is no actual proof that a trier of fact could reasonably infer that the intent was to wound the complainants. The intent may have been to scare or frighten.

[65] Neither Tanika Rodney nor Ramel Rodney testified. I do not have any evidence before me that either individual was wounded. I have reviewed the numerous photographs of this residence. It was clearly a home that was lived in, however I have no evidence as to who had occupied 33 Seaside Circle on April 26, 2016. No evidence was lead as to the relationship between the Rodneys and Mr. Patten and Mr. Taitt. The Crown suggests that a jury could reasonably infer that people would have been in the residence at this time of the evening when the shots were fired. Common sense would suggest that it is reasonable for a jury to infer this possibility. But there is no evidentiary basis for this conclusion. To conclude otherwise would invite speculation and conjecture.

[66] There is no reasonable inference available to a trier of fact that Mr. Taitt and Mr. Patten had the intent to wound by discharging a firearm at both Tanika Rodney and Ramel Rodney. They are both discharged on counts #9 and #10.

Count #11: Criminal Negligence by Discharging a Firearm Causing Bodily Harm to Chaves Patten

[67] Section 221 defines the offence of causing bodily harm by criminal negligence as follows:

Everyone who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[68] Section 219 defines 'criminal negligence' as follows:

(1) Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, "duty" means a duty imposed by law.

[69] Section 2 defines 'bodily harm' as follows:

"bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature;

[70] Since I have found that Mr. Taitt discharged the firearm from his car and fired shots at 33 Seaside Circle, in my view that it is open to a jury to infer that Mr. Taitt showed wanton or reckless disregard for the lives and safety of other persons. It is also a reasonable inference that one of the bullets fired had struck Mr. Patten in the right hand while seated in the passenger seat. The Crown argues that a reasonable inference that a jury can draw is that Mr. Taitt was seated in the driver seat as the car was proceeding westbound on Seaside Circle (as seen in the 58 Seaside Circle video at 1:55 am) and he fired a across the car and struck Mr. Patten as he was seated in the passenger seat causing him bodily harm. The Brampton Civic Hospital discharge summary confirmed that Mr. Patten was treated approximately an hour later for a gunshot wound to his right hand.

[71] Therefore, Mr. Taitt is committed to stand trial on count #11.

Conclusion

[72] Mr. Taitt is committed to stand trial on counts 4, 5 and 11.

[73] Mr. Patten is committed to stand trial on counts 4 and 5.

Released: June 2, 2017

Signed: Justice P.T. O'Marra