Court File and Parties

Ontario Court of Justice

Date: May 18, 2018

Court File No.: Ottawa 18-A9667

Between:

Her Majesty the Queen

— and —

Houssine Ali

Before: Justice David A. Berg

Judgment released on: May 18, 2018

Counsel:

• Mr. Shawn Eagles, for the Crown
• Mr. Joseph Addelman, for the Defendant

Judgment

BERG J.:

Introduction

[1] The evidence and submissions in this trial were heard on May 2nd and 3rd. I rendered my verdict orally on May 18th and indicated to the parties that I would provide the present written reasons soon thereafter.

The Charges

[2] Mr. Ali is charged that on October 2nd, 2017 he committed three offences, namely:

• that on or about the 2nd day of October, 2017 at the City of Ottawa in the East Region he did, without lawful excuse, handle a firearm, namely a handgun, in a careless manner, contrary to Section 86(3) of the Criminal Code of Canada;

• that on or about the 2nd day of October, 2017 at the City of Ottawa in the East Region he did, without lawful excuse, possess a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a handgun, without being the holder of a licence permitting such possession, contrary to Section 91(3) of the Criminal Code of Canada; and

• that on or about the 2nd day of October, 2017 at the City of Ottawa in the East Region he did, without lawful excuse, possess a prohibited firearm, a restricted firearm or a non-restricted firearm, namely a handgun, while knowingly not being the holder of a licence permitting such possession, contrary to Section 92(3) of the Criminal Code of Canada.

[3] The Crown elected to proceed by way of indictment and Mr. Ali chose a trial at the Ontario Court of Justice. Evidence was heard over the course of two days. I note that at the end of the evidentiary portion of this trial, I was invited by the Crown to dismiss a fourth count (weapons dangerous) and did so. The following is my judgment on the three remaining counts.

The Incident

[4] The incident that led to the criminal charges against Mr. Ali occurred at a busy shopping mall in Ottawa. Roughly summarizing the evidence, I note that a fight broke out between two men at an entrance to the mall whereupon the impetus of the struggle quickly carried the two men well inside. The two men were Mr. Al-Enzi and Mr. Ismael. A few seconds after the fight broke out, two other men rushed inside the mall to Mr. Al-Enzi's aid. These other two men were the accused and an unidentified male who apparently has the street name "Fat Tony". They also became involved in the extremely violent struggle with Mr. Ismael. One of the four men, the evidence does not show which, produced a handgun and there appears to have been a struggle for control of that weapon. The pistol discharged a single round; the bullet fortunately did not hit any of the four men nor any of the bystanders in the mall. It seems that very soon after the single shot was fired, the shooter lost control of the weapon. Mr. Ali is seen rushing away from the group of fighting men and is ultimately seen picking up the pistol and taking it out of the mall whereupon he disposes of it by placing it under a car in the mall parking lot and then leaving it there. The present criminal charges arose because of the accused's alleged actions in removing the pistol from the mall and so disposing of it.

The Evidence

Defence Concessions

[5] The trial started with the defence conceding a significant portion of the Crown's case. Mr. Ali admitted that:

a. the weapon in question was a handgun;

b. the handgun was a firearm as defined by the Criminal Code;

c. the handgun was discharged once in the mall;

d. Mr. Ali did at one point have possession of the handgun in that he picked it up and left the shopping mall with it;

e. he continued being in possession of the handgun until he disposed of it;

f. the firearm was not registered;

g. Mr. Ali was not licenced to possess a firearm;

h. Mr. Al-Enzi and Mr. Ismael were the two men that are observed in the security videos involved in the physical altercation;

i. Mr. Al-Enzi and Mr. Ismael both ended up at the hospital within less than an hour of leaving the mall; Mr. Al-Enzi had a swollen knee, Mr. Ismael had seven stab wounds;

j. neither Mr. Al-Enzi nor Mr. Ismael would provide the police with a statement about the incident;

k. neither Mr. Al-Enzi nor Mr. Ismael were charged with criminal offences arising out of this incident;

l. the firearm was never recovered;

m. the palm-print recovered by the police from one of the doors at the mall entrance way is that of the accused; and

n. I note as well that the defence conceded the admissibility of the security videos that were adduced as evidence at this trial.

Crown Witnesses

Constable Sean O'Neill

[6] The first Crown witness was Constable Sean O'Neill of the Ottawa Police Service. As Investigating Officer, he introduced various Crown exhibits and, as well, provided explanations regarding some of the exhibit material.

[7] Exhibit 1 consists of two still photographs that were extracted from the security video-camera recordings of the incident. Constable O'Neill explained that Figure 1 depicts Mr. Ismael and Mr. Al-Enzi grappling with each other. Figure 2 is from several seconds later in the incident and shows Fat Tony and the accused running towards the two struggling men who have moved off camera. Mr. O'Neill used Exhibit 1 and Exhibit 2 to demonstrate how each of the four men was dressed. He also used these two exhibits to show that as he was running towards the fight, Fat Tony was opening a folding knife.

[8] I note here that the only charges faced by Mr. Ali are in regards to what he did with the pistol after he broke away from the fight. Furthermore, his identity as the man depicted in the video picking up the gun and running out of the mall is conceded. Thus, there is no need for me to review in any great detail the identification evidence.

[9] Exhibit 2 is a thumb drive with three video-recordings from the security cameras at the shopping mall. The three cameras in question are designated as C7 Entrance 2, C39 Entrance 3, and C5 Walmart Court.

[10] C7 Entrance 2 covers an entrance that is located some distance from where the fight occurred. After the fight, Mr. Ismael walked towards that entrance and was recorded leaving the mall through it. One can clearly discern a blood stain on his white T-shirt on or near his left shoulder. He appears to be jogging out of the building. I note that the time stamp for the point when we first see Mr. Ismael at this entrance as he leaves is 5:35:42. I am uncertain as to how accurate that time is, but I do not think that anything turns on this timing as the actions of Mr. Ali that form the actus reus of the allegations have already occurred by this point in time.

[11] C39 Entrance 3 is a camera inside the mall that is placed to cover people coming in and out of that entrance. As the entrance way is defined by two parallel sets of clear glass doors separated by a vestibule, the camera also records the area immediately outside of this entrance. It also covers the area immediately inside the mall; this is basically a wide short corridor leading to another much longer corridor that is set at a right angle to this corridor leading to Entrance 3. The two corridors form a T-junction, with Entrance 3 being at the base of the letter "T". If one is standing at the junction and looking towards Entrance 3, C39 would be immediately to your right. The third camera, C5 Walmart Court would be much further to your right down the longer corridor that forms the top of the "T". The third camera does not cover more than a couple of feet of the corridor forming the base of the "T", that corridor covered by C39 Entrance 3. As we will see, the fight occurs at the top of the T-junction along the wall defining upper limit of the letter "T". While C5 Walmart Court is at quite some distance from the site of the fight, the recordings include a close-up function that assists in their review to some extent.

[12] Returning to the recording from C39 Entrance 3. The recording starts at 5:33:27. At 5:33:53, we see Mr. Ismael in the corridor walking towards the door. He appears to be strolling calmly. Six seconds later, we see him open the first of the glass doors that he would have to go through in order to leave the mall. As he steps into the vestibule, we see Mr. Al-Enzi entering the vestibule from outside and walk immediately and directly over to Mr. Ismael who starts to back up. It does not seem that the two men saw each other through the glass doors before they both started to enter the vestibule. At 5:34:03, the fight starts in the inner doorway as the two men start to grapple with each other. The fight moves into the corridor covered by this camera (i.e., the upright of the "T") with both men still standing and basically moving around the corridor while grappling.

[13] At 5:34:21, we first see Fat Tony. He is just outside the entrance and seems to be walking calmly towards it. It is noteworthy that while Mr. Al-Enzi approached the entrance from the right, Fat Tony is coming from the left. In other words, they have approached the entrance from different directions. Two seconds later, when he is still outside, it seems that he notices the fight going on in the mall as there is a sudden change in his body language. At this point, we can only see Fat Tony from the shoulder down. As well, the frames of the doors partially block our view. However, we can see his hands and he does not use them to gesture to anyone at this point nor does he seem to turn to anyone. At the moment that his body language changes, we see him quickly pull open the door and run inside. To be clear, Fat Tony does not open the door, enter, and then come back out to signal to Mr. Ali. Indeed, he does not seem to signal to Mr. Ali at all.

[14] At 5:34:24, we first see Mr. Ali. Fat Tony is in the act of opening the exterior door. The accused is right behind him. The two men run in and join the fight. Before Fat Tony has come through the second of the two doors, Mr. Al-Enzi and Mr. Ismael have moved out of range of this camera (as we shall see, they move into the range of C5 Walmart Court) and end up against the wall at the top of the "T" intersection where eventually they are joined by Fat Tony and the accused.

[15] As Fat Tony and Mr. Ali are coming through the first of the doors (having approached from the left), we can see two men approaching the entrance outside from the right (i.e., from the same direction as Mr. Al-Enzi). The first of these unknown men is visible at 5:34:24, the second at 5:34:26. They come through the first set of doors as Fat Tony and the accused are going through the second set. These two unknown men are moving at a slower pace than Fat Tony and Mr. Ali who are running. The first unknown male pulls his hood up over his head in the vestibule prior to entering the corridor. The second unknown male does likewise as he passes through the second door. Both of these men are in the corridor when Fat Tony and the accused leave the range of C39 Entrance 3 at 5:34:30 by moving into the area covered by C5 Walmart Court.

[16] The two unknown men are observed on C39 Entrance 3 walking towards the fight until 5:34:35 when they both turn around and leave the mall in the direction from which they came; the first male is walking deliberately, the second is jogging. We can see the first male move into the parking lot. Neither is seen again in the recordings.

[17] The first of these unknown males appears to be a black male with short black hair wearing a dark coloured hooded jacket, three quarter length pants possibly made of blue denim, dark coloured running shoes with white low cut socks. The bottom of a white shirt is visible hanging beneath the hem of his jacket. The second unknown male's race cannot be determined from the video recording. He appears to have short dark coloured hair. He is wearing a red hooded jacket and full-length beige pants, and running shoes. Under the jacket, he seems to be wearing a black T-shirt with some sort of an emblem on the chest.

[18] As indicated earlier, the fight has moved out of the range of this camera and Fat Tony and the accused move off screen at 5:34:30. The two unknown men turn around and start to leave at 5:34:35. Nothing of relevance is seen after that until 5:35:00 when we suddenly see the pistol sliding across the floor towards the glass door. It appears to be coming from the general area of the fight at the top of the "T" intersection and is sliding down the upright portion of the "T" and ends up at the base of the letter.

[19] Less than a second after we see the pistol enter the recording, we see Mr. Ali basically running in the same direction as the pistol. At 5:35:01, the pistol comes to rest at the base of the interior glass exit door. While there is no evidence about the length of the corridor visible in C39-Entrance 3, I would estimate that we see the pistol cover a distance of roughly twenty-five feet in that second. It is clearly moving at some speed.

[20] At 5:35:03, Mr. Ali is observed picking up the pistol and starts to open the exit door one second later. He goes through the vestibule and the exterior door and then disappears off camera by 5:35:08. He is seen moving to the left of the doorway, in other words, the direction from which he originally came.

[21] At 5:35:31, Fat Tony and Mr. Al-Enzi re-enter this recording and are seen leaving the mall through those same doors. They are last seen outside moving in the same general direction that Mr. Ali had just taken. To be clear, this direction is not the same as was taken by the two unknown males.

[22] The third camera is C5 Walmart Court. I have described earlier where it is placed. I have been advised that the time stamp for this camera is not synchronized with the times on the recording for the other two cameras. I do not think much turns on that given that we see the beginning and the end on C39 Entrance 3. Therefore, I will refer only to relative time in regards to C5 Walmart Court.

[23] It is common ground that the four people whose images are captured as participants in the fight are Mr. Al-Enzi, Mr. Ismael, Fat Tony, and the accused. As Mr. Ali is not facing a charge of assault, and as the gun is never visible in the recording of the fight, I will not do a close analysis of all that I can observe in this recording.

[24] Early on in the recording from C5 Walmart Court, we see Mr. Ismael walking along the long corridor and then turn off camera to the right where, as we have seen, he is picked up by C39 Entrance 3. Approximately 30 seconds later, we briefly see part of the standing grappling portion of the fight in the small area that is covered by both C5 Walmart Court and C39 Entrance 3. Seven seconds later, Mr. Ismael and Mr. Al-Enzi have quickly crossed the width of the corridor covered by C5 Walmart Court and are wrestling on the ground up against the wall that forms the top of the "T" intersection. Four seconds later, we see Fat Tony enter the screen and run across the corridor to join the fight followed by Mr. Ali one second later. Fat Tony goes directly to the fight while Mr. Ali, who throughout the recordings seems to be having problems with his shoes on the floor surface, has some difficulty going directly to the fight. However, he has joined the action within five seconds of appearing on screen.

[25] It is very difficult to make out the actions of the individual fighters. The fight continues. People stop and watch. We see a witness, later identified as Daniel O'Reilly, walk over to the fight about eight seconds after Mr. Ali has joined in. We then see Mr. O'Reilly walk back into his store.

[26] While there is no sound component to the video recordings, and while we never see the gun in the midst of the fight or a muzzle flash, it is clear that the shot goes off about sixteen seconds after Mr. Ali has joined the fight; there is a marked, simultaneous physical reaction from the bystanders consistent with their having heard a sudden and loud noise. The fight then continues.

[27] Six seconds later, the accused can be discerned in the midst of the fight as he seems to ready himself to leave the group of fighting men. He stands and moves either through or around the group. He heads across the width of the corridor and we lose sight of him as he enters the corridor that describes the upright of the letter "T"; this is approximately ten seconds after the shot was fired. Just as we lose sight of him, he seems to trip and fall. He is then picked up by C39 Entrance 3 as is the pistol sliding across the floor.

[28] I have replayed many times that portion of the recording that covers the time from when Mr. Ali stands up to the point that he leaves the range of this particular camera. I have utilized the function that allows me to play the recording almost frame by frame. As well, I have used the magnification function that is part of the operating system that came with the recordings. I do not see Mr. Ali holding the pistol as he leaves the group of men nor do I see him drop the pistol as he is running across the width of the corridor or as he falls. That being said, I also do not see the pistol leave the group by any other means, for example by sliding across the floor or flying through the air. Therefore, I am unable to say from the video evidence how the pistol came to be recorded by C39 Entrance 3 sliding across the floor and ending up at the exit door where it was picked up by Mr. Ali.

[29] Exhibit 3 is a booklet consisting of a plan of the shopping mall, several photographs of Mr. Ismael's blood stained T-shirt, as well as a photograph of three bullet fragments that were recovered at the scene. Given the manner in which this trial proceeded, Exhibit 3 did not assist me to any great extent in coming to my conclusion. Once again, it is to be remembered that Mr. Ali is not charged with assaulting Mr. Ismael nor is he charged in relation to the discharge of the firearm.

[30] Exhibit 4 is a booklet consisting of fifty-three photographs. Many are general photos of the scene taken by the Ottawa Police during the course of their investigation. Others depict signs of the fight (e.g., objects left behind by the people involved in the fight, blood stains on a wall, the bullet fragments in situ) as well as the palm print left by Mr. Ali on the glass door. Then there are several still photographs that were taken from the security video recordings (including one showing Mr. Ali leaving his palm-print on the glass door as he stoops over to pick up the pistol). But given the live issues in this trial, Exhibit 4 was not of any great assistance to the Court.

[31] The Crown also tendered Exhibit 5, a ballistics report from the Centre of Forensic Sciences. There was no need in this trial to rely on this exhibit.

[32] Mr. Addelman cross-examined Constable O'Neill. As the accused is no longer facing a charge of weapons dangerous, there is no need for me to review all of the evidence that was adduced in the cross-examination. What is relevant to the issues before me is the following:

[33] It was Constable O'Neill's evidence that the accused was of middle-eastern extraction and not a member of the black race. He agreed that there was no evidence that Mr. Al-Enzi and Mr. Ismael knew that the other would be at the mall at that time. He agreed with the suggestion from defence counsel that there was no evidence of any connection between Mr. Al-Enzi and the accused. He stated that he did not know what ultimately happened to the firearm. He agreed that the accused's pants appeared to be white in the video and that he was wearing a dark long-sleeved sweater. The constable had no further information about two motor vehicles that a witness had indicated were involved in the incident. Finally, Mr. O'Neill testified that Mr. Ali surrendered himself to the police soon after being contacted by them in February of this year. I note that he has been in custody since February 14th.

[34] In re-direct, Mr. O'Neill testified that he was not aware of any incident report to suggest that the accused had turned the pistol into the Ottawa Police Service. Later in the trial, Mr. Ali did not suggest that he had indeed done so.

Mr. Daniel O'Reilly

[35] The Crown's next witness was Mr. Daniel O'Reilly. On October 2nd, 2017, he was employed by one of the stores in the mall. He heard noise and noticed the fight. He did not see how the fight broke out. It was his evidence that there were three people involved and that they were struggling on the floor. Mr. O'Reilly is observed in the security video approaching the fighting men. It is clear from my review of the video that there were four men fighting at that very point; at the end of the fight one can observe four men leaving. He described one of the men as having another in a headlock and punching him in the face. He referred to the struggle as a two-on-one. He told them to stop or he would call security. They did not stop and so he returned to his store to get a phone. He was about to make the phone call when he heard the shot and therefore decided to call 911. He then became involved in ushering customers to a safer place at the back of the store and securing the doors. He briefly saw three men leaving. He allowed that he was not presently able to identify any of the men that he saw.

[36] In cross-examination, Mr. O'Reilly conceded that he had told the police on the night in question that he remembered all the men in the fight as wearing dark clothing. One can determine from the video quite easily that two of the men are wearing white or very light coloured pants; the accused is one of those two men. In response to questions from Mr. Addelman, Mr. O'Reilly stated that he did not observe a weapon being used in the fight. As well, he testified that the person being struck in the face seemed to be more interested in something around his leg than he was in protecting his face. Mr. O'Reilly noticed that the man who was holding one of the other men in a headlock had long hair with braids.

[37] Mr. O'Reilly's evidence is illustrative of just how difficult it was to see what was going on during the fight. Mr. O'Reilly is seen in the video standing immediately beside the four men and yet he only notices three of them.

Ms. Stephanie Harris

[38] The next witness called by the Crown was Ms. Stephanie Harris who was shopping at the mall with her mother at the time of this incident. She was standing beside her mother's car in a parking lot close to the mall north of Exit 3. She testified that she observed three people come out of that exit. One appeared to have an injured right leg and was being supported by one of the others. The third person ran towards a car to open the doors. That car had four doors and was burgundy in colour. Ms. Harris observed what she believed to be a firearm fall and land under another motor vehicle. She testified that she observed the man who dropped the gun, the third man, dive underneath that other motor vehicle to retrieve it. She heard someone say "Come on let's get out of here" and then the screeching of tires. She observed the burgundy car speed off and leave the parking lot. It seemed to her that a second motor vehicle, white or silver in colour, and several rows away in the parking lot seemed to also be involved in that it left the parking lot with screeching tires in the same direction as the burgundy car.

[39] Ms. Harris specified that when she made her observations of the dropping and retrieving of the gun, she was about 40 feet away. She did not testify as to how much time the gun remained on the ground.

[40] In cross-examination, Ms. Harris indicated that she did not recognize the accused person in the courtroom. She further testified that she was not able to say that all three men exited the mall at the same time. Indeed, she initially did not associate the third man with the other two (the injured man and the man supporting him). While she saw the injured man and his helper come out of the mall, she was actually not quite sure where the third man came from. In describing him, she referred to "a third black guy, a little bit lighter and skinnier."

[41] Mr. Ali was in the courtroom for his trial and I had ample opportunity to observe him. He would not appear to me to be black. I think that most people would describe him as Middle-Eastern or Mediterranean in appearance. Nonetheless, when Mr. Addelman asked Ms. Harris whether she would describe his client as being black, as she had done in her written statement to the police, she responded in the affirmative to the effect that "I would describe the accused as a black guy on paper." An odd answer. At any rate, it seems apparent from the exhibits that Mr. Ali is lighter in complexion than Mr. Al-Enzi and Fat Tony. He is also very thin while neither of the other two men could be so described. This point was brought out by Mr. Eagles in his re-direct.

[42] Ms. Harris agreed with Mr. Addelman that she had described the third man as wearing jeans and a white T-shirt. She clarified that by 'jeans', she meant blue jeans and that indeed she had a present recollection that the third man had been wearing blue jeans. From my review of Exhibits 1, 2, and 4, it is clear that Mr. Ali cannot be described as wearing a white shirt of some sort nor blue jeans. He appears to be wearing a dark sweater or sweatshirt and white or very light coloured pants. Ms. Harris described the third man as having short hair and agreed that it was similar in length to the hair of defence counsel: one and a half inches in length.

[43] With the end of Ms. Harris' testimony, the Crown closed its case. Mr. Eagles quite properly invited me to dismiss the weapons dangerous count. We then broke for the day.

Defence Evidence

Mr. Houssine Ali

[44] Mr. Ali took the stand the next morning. He was the only witness called by the defence. To summarize, Mr. Ali testified in-chief that he came to the shopping mall by himself using public transportation. He was at the mall because he had an appointment to have his hair braided or re-braided. He stated that his hair at that time was of shoulder length with some braids. Upon his arrival his stylist told him that it would be fifteen minutes before she could start with him and so he went to Entrance 3 to wait. While waiting, he saw two men, AZ and Fat Tony parking a red four-door car. AZ is the nickname for Mr. Al-Enzi. Fat Tony is the nickname for the unknown male seen with a knife in the video. It was his evidence that he knew these men from the neighbourhood but didn't know them well. He testified that Mr. Al-Enzi casually greeted him and then went into the mall. Fat Tony came over to Mr. Ali and chatted with him. Fat Tony then went towards the mall and entered the first set of doors and then came back and yelled to Mr. Ali "Come Come" and gestured with his hands accordingly. Fat Tony started to run and the accused followed him. Upon entering the mall, Mr. Ali stated that he saw the two men on the ground fighting. He recognized Mr. Al-Enzi but had never seen Mr. Ismael before. Fat Tony ran towards them and he followed. He then entered the fray in order to help Mr. Al-Enzi who was screaming "Help Help". Mr. Ali started to kick Mr. Ismael and then fell down. He got Mr. Ismael into a headlock. Mr. Ali testified that at this point, the pistol was in Mr. Ismael's hand and Mr. Al-Enzi was trying to control that hand. When he saw the gun, Mr. Ali also tried to reach Mr. Ismael's hand. It was at this point that Fat Tony started to stab Mr. Ismael. As Mr. Ali was trying to push Mr. Ismael's hand and Mr. Al-Enzi was holding onto it, the gun went off. Mr. Al-Enzi had just said "Get the gun". Mr. Ali testified that he heard the shot and repeated numerous times in his testimony that the bullet nearly struck him.

[45] Mr. Ali described his reaction to the gun shot as being "too nervous" by which I take it he means that he was very upset by the gun going off; I note here that while Mr. Ali was born in Canada, he did not display native fluency in the English language. He further testified that he went into panic mode and didn't know what to do. At this point, he indicated, the pistol somehow went flying and he stood up and tried to run but found that he couldn't and fell down. The gun was now located near the exit door, he picked it up and ran outside. He picked the pistol up because he thought that that was the best thing to do as he did not want anyone to get shot.

[46] Once outside, Mr. Ali went to the car that he had seen Mr. Al-Enzi and Fat Tony arrive in and threw the gun under another car. I note here that Mr. Ali clarified in cross-examination that he had seen the two men arrive in that car. He then saw a light coloured pick-up truck that "came with them" (i.e., Mr. Al-Enzi and Fat Tony). He referred to the people in this third vehicle as being "partners" of Mr. Al-Enzi and Fat Tony and specified that they had waited for Mr. Al-Enzi and Fat Tony in that third vehicle. There were three men in it according to Mr. Ali.

[47] At that point, Fat Tony and Mr. Al-Enzi come out of the mall. Mr. Al-Enzi is screaming that he had been shot and Mr. Ali notices that Mr. Al-Enzi's leg is bleeding. One of the three men in the truck gets out at some point and helped Fat Tony with Mr. Al-Enzi. Mr. Ali testified that he did not know that man but knew the other two men as DJ and Ralo (if I heard the names correctly) and described them as being Somalis. He knew them as being associated with Fat Tony and Mr. Al-Enzi. DJ and Ralo asked Mr. Ali to come over to the truck and asked him what had happened. He explained and told them that he had thrown the pistol under a car. At the point that he is telling the two men what happened and what he did with the pistol, he is in the truck and the third man already has left the pick-up truck and is running towards Fat Tony and Mr. Al-Enzi. Mr. Ali's evidence is that the third man assists Fat Tony in getting Mr. Al-Enzi into the burgundy car, then went and retrieved the pistol, and returned to that car which then drove off quickly. The pick-up truck with Mr. Ali in it followed. Mr. Ali drew a diagram (Exhibit 6) showing the relative locations of the burgundy car and the pick-up truck and the routes they took to leave the parking lot.

[48] Mr. Ali testified that he last saw the gun under a car in the parking lot. He told the Court that after leaving it there, he did not look at it again. Mr. Ali did not provide the Court with any explanation as to how the third man knew the gun was under a car.

[49] Mr. Ali's evidence was that the pick-up truck followed the car to the hospital. He was dropped off there and told by DJ and Ralo to make sure that Mr. Al-Enzi was okay. They then drove off. The third man drove off, it seems, in the burgundy car; Mr. Ali referred to it here as "Fat Tony's car". Mr. Ali then helped Fat Tony take Mr. Al-Enzi into the hospital. He testified that he then left the hospital, walked for a while and then summoned an Uber and went home.

[50] Mr. Ali explained why he did not contact the police. Basically, he was afraid that the men in the two vehicles would harm him and his family if he did so. He told the Court that they know him. He also indicated that he was aware that they were involved in gang activities. He characterized them as "bad".

Cross-Examination of Mr. Ali

[51] Mr. Eagles then cross-examined Mr. Ali. Early on, the accused clearly agreed with the Crown that the entrance where the incident occurred (Entrance 3) was at the other end of the mall from the hair salon where his stylist worked. Mr. Eagles returned to this line of questioning towards the end of his cross-examination. At that point Mr. Ali indicated that Entrance 3 is the closest entrance to the hair salon and he denied having indicated otherwise earlier on in his testimony. The plan of the shopping mall that is on page 2 of Exhibit 3 shows that there are several entrances closer to the hair salon than Entrance 3.

[52] Mr. Eagles asked Mr. Ali about the moments before he entered the mall. He agreed that Fat Tony talked with him outside the mall after Mr. Al-Enzi had entered. He agreed that Fat Tony then opened the first door and took a few steps and then came out and called him. He denied having testified in-chief that Fat Tony had entered the mall. To pause for a second, I believe that Mr. Ali's testimony in-chief and originally in cross-examination was that Fat Tony had opened the first door and at least entered the vestibule leading to the mall interior. He reiterated in cross-examination that Fat Tony has called to and signaled to him with hand gestures. Mr. Eagles then had the accused watch that portion of Exhibit 2 that recorded the entrance of Fat Tony and the accused into the mall. The video clearly shows that contrary to the accused's testimony, Fat Tony did not enter the first set of doors and then signal to the accused to come.

[53] Having had this inconsistency pointed out to him, Mr. Ali changed his story. He suggested that maybe Fat Tony hadn't gestured to him to come (despite having said so during examination in-chief and earlier in the cross-examination) but had only called out. To be clear; there is no sound component to Exhibit 2.

[54] Mr. Eagles cross-examined Mr. Ali in regards to his testimony that Mr. Al-Enzi and Mr. Ismael are fighting on the ground when he entered the mall. From my review of the video-recordings, it seems to me that at the point in time that the accused enters, the two men are still upright but are on the ground within a very few seconds and before Mr. Ali reaches them. Likewise, Mr. Eagles pointed out that Fat Tony was not significantly ahead of Mr. Ali as they rushed towards the struggle and Mr. Ali accepted that that was what the video indicated. Given the speed with which everything happened and the frailties inherent in human observation, I do not find that these apparent inconsistencies are significant.

[55] During the cross-examination, certain further details about the physical struggle between the four men were clarified. Mr. Ali felt that he had to assist Mr. Al-Enzi as the latter was calling out for help. Early on in the sequence of events, Mr. Ali kicked Mr. Ismael a couple of times from a standing position. He became aware of the presence of the pistol at the point that he was on the ground and had Mr. Ismael in a headlock and Mr. Al-Enzi said words to the effect of "Get the gun". When he tried to take the gun out of Mr. Ismael's hand, it went off. It was Mr. Ali's recollection that he had been punching Mr. Ismael in the arm when he had him in the headlock, however, he allowed that he may have also punched him in the face once. After the shot went off, Mr. Al-Enzi hit Mr. Ismael's arm and the gun went flying. It was Mr. Ali's evidence that when the gun went flying a couple of seconds after the shot, he ran and then picked it up and took it outside. If I understood his evidence correctly, it is Mr. Ali's position that the pistol flew out of the group of men, and then slid along the floor without any physical assistance from him. In other words, he did not initially carry the pistol out of the fight and then drop it whereupon it slid across the floor. He ran outside and threw it under a car in the parking lot. He admitted that there were people in the parking lot. He specified that the gun was under the car for fifteen to twenty seconds before the third man retrieved it but it is unclear to me as to how he knew this given that in-chief, he had testified that he had not looked at the gun after abandoning it. Mr. Ali was not asked to resolve this issue in either examination in-chief or in cross-examination. Given the lack of clarity on this point, I do not give the apparent contradiction much weight.

[56] Mr. Ali was asked by Mr. Eagles why he threw the gun under the car given that there was no longer any danger. Mr. Ali responded that he had been "really nervous" after all that had happened and just wanted to get out of the situation. He picked up the gun because he didn't want the gun "to be used again". He denied that the reason he picked up the gun was to hide it from the police.

[57] Mr. Eagles had the accused look at that portion of the security video where the two unknown men enter the mall, pull up their hoods, and then turn around and leave without participating in the fight. Mr. Ali testified that he did not know either of these men and that neither were DJ or Ralo. However, he remembered that these two men, both unknown to him and who had nothing to do with the incident, and who are only seen in the video for seconds, had been outside the door smoking or talking.

[58] Mr. Ali confirmed for Mr. Eagles that he had no licence to possess a handgun nor had he the relevant registration.

[59] Ultimately, it was Mr. Ali's contention that he believed that he was helping some people whom he knew and had just bumped into at the mall after a fight broke out and his assistance was requested. He was surprised that a knife and a gun were brought into play. He did not know where the pistol came from.

Submissions

Defence Submissions

[60] Mr. Addelman submitted that as a result of the presence of the "without lawful excuse" clause in each of the three relevant charging sections of the Criminal Code, I should have a reasonable doubt that his client criminally possessed or handled the pistol. Mr. Ali picked it up on his way out of the shopping mall and discarded it seconds later out in the parking lot. The reason he picked it up was a spur of the moment decision to take it away from the fight so that it would not be used again. The defence submits that the abandonment of the firearm should be looked at in the context of Mr. Ali having picked it up in the manner that he did. Basically, if the Court has a reasonable doubt that Mr. Ali had a criminal intent when he picked up the firearm and kept it for several seconds, then he should have the benefit of that doubt with respect to his intent concerning the careless handling of the weapon. Mr. Addelman further submitted that given the circumstances, it was not unreasonable for Mr. Ali to abandon the gun in the manner that he did.

Crown Submissions

[61] Mr. Eagles, for the Crown submitted that the evidence shows that by retrieving the pistol, Mr. Ali was exercising domain over it. Inherent in his submission is the suggestion that I not believe the accused's contention that the reason he picked it up to get it away from the men involved in the fight. With respect to the allegations of careless handling, it is the Crown's position that in the circumstance of this case, the abandonment of the firearm represented a marked departure from a legally acceptable norm. Even if the Court determines that Mr. Ali did here have a lawful excuse to possess the gun, he would have to dispose of it lawfully.

Analysis

Credibility Assessment

[62] On its face, the Crown case with respect to the two counts of possession of the firearm are basically made out by the accused's concessions. Mr. Ali conceded that he picked up the unregistered pistol, for which he did not have a licence, and took it outside of the mall. With respect to the careless use of a firearm, Mr. Ali conceded that he had disposed of it. The manner in which he did so was established by the Crown through the evidence of Ms. Harris and corroborated by the evidence of Mr. Ali himself.

[63] I wish to make something clear at this point in my judgment. For the following reasons, I have great trouble believing Mr. Ali's evidence where it is not supported by independent evidence.

[64] Mr. Eagles' cross-examination of the accused was quite effective. Under that questioning, I noted that Mr. Ali changed his evidence on several significant points. First of all, it was his evidence in-chief that he had come to the mall by himself for an appointment at his hair stylist and bumped into Mr. Al-Enzi and Fat Tony while waiting to be seen. According to Mr. Ali's first version of the events, he first becomes aware of the fight in the mall when Fat Tony went through the first set of doors, came back towards Mr. Ali and yelled for him to come while gesturing with his hands to the same effect. He initially reiterated this version in cross-examination. However, upon being shown the video recording of the entry of he and Fat Tony into the mall, he had to concede that Fat Tony had not entered through the first set of doors nor had he gestured to Mr. Ali. In fact, it is quite clear in the video that Mr. Ali is walking behind Fat Tony towards the entrance before Fat Tony notices the fight.

[65] As a result of having the video evidence pointed out to him, Mr. Ali changed his story. The second version is that perhaps Fat Tony had not gestured to him but had only called out. Prior to this part of the cross-examination, whenever Mr. Ali referred to this part of his story, he would always accompany his words with quite dramatic hand gestures mimicking those that he said Fat Tony had made.

[66] In-chief, Mr. Ali indicated that he had gone to Entrance 3 in order to wait for his appointment at the hair salon. In cross-examination, he initially agreed with the Crown that Entrance 3 was at the other end of the mall from the hair salon. And yet later in the cross-examination, Mr. Ali stated that Entrance 3 was the closest to the salon and that he had not indicated otherwise earlier in his testimony. I accept Mr. Addelman's comment that if Mr. Ali was waiting for his appointment, there is no logical requirement that he wait at a closer exit. However, it is not which entrance that he used that concerns me. What concerns me is that Mr. Ali changed his evidence and then denied having done so.

[67] Mr. Ali would have the Court believe that he went to the mall by himself, bumped into some acquaintances, and was subsequently asked by them to help out in a fight. I find it impossible to accept that version of events.

[68] I have reviewed earlier the evidence with respect to the two unknown men who are observed in one of the video recordings entering, pulling on their hoods, and then quickly leaving the mall. The timing of their entry in conjunction with their observed actions suggests that they were somehow involved in the event but the extent of that involvement need not be decided in the context of this judgment. Mr. Ali's evidence was that he did not know these men. However, after being shown the relevant portion of the video-recording by Mr. Eagles, the accused testified that he remembered that these two men, both unknown to him, had been outside the exit door talking or smoking. Mr. Ali testified in May of 2018. He turned himself into police in February of 2018 soon after they contacted him. The allegations go back to October 2nd, 2017. I do not believe that Mr. Ali would have a memory of two unknown, uninvolved men months later. I note here that these two men are entering the mall at more or less the same time as the accused and Fat Tony. One suspects that they are the people who were in the white pick-up truck observed by Ms. Harris.

[69] As I noted earlier, it does not appear that Fat Tony called to Mr. Ali to come and help. Mr. Ali was already just about to walk into the mall along with Fat Tony and the two unknown males. Mr. Ali's version of why he got involved in the fight makes little sense to me. It was his own evidence that he did not know Mr. Al-Enzi or Fat Tony well. His evidence was that these two men were involved in gang activities. He indicated that he did not know Mr. Ismael. Why on earth would a gang member ask a mere acquaintance for assistance in a fight in a very public place? Why would a mere acquaintance get involved? And why would a mere acquaintance display the enthusiasm that is clearly evident from the security video. Mr. Ali can be seen sprinting towards the fight so quickly that he nearly falls down. Once at the fight, his actions, or at least those that can be seen, are not half-hearted and this is before, on his own evidence, he becomes aware of the presence of the pistol.

[70] It seems to me that the evidence shows that Mr. Ali was involved with the other four men prior to entering into the mall. To be clear, I am not referring here to idle chat outside in the parking lot. I find that there was some sort of plan and Mr. Ali was part of it. However, the evidence does not go so far as to lead me to find that the accused knew that a firearm would be present that day in the mall.

[71] For all of these reasons, I find that the accused was not a credible witness and that I must exercise caution before accepting any of his evidence. I will now outline what parts of his evidence I am willing to accept.

Corroboration and Identification Issues

[72] Ms. Harris' evidence corroborates that of Mr. Ali to a significant extent. It seems from her evidence that Mr. Ali did not exit the mall at the same time as Mr. Al-Enzi and Fat Tony; this is in keeping with Mr. Ali's version of the events. She saw the pistol leave the possession of Mr. Ali and end up under a car; once again, entirely in keeping with the accused's evidence. However it was her evidence that the same man retrieved the pistol at some point – she did not testify as to how long the gun remained on the ground. During cross-examination by Mr. Addelman, she described the third man as a black man wearing a white T-shirt and blue jeans and having short hair.

[73] Ms. Harris' evidence that it was Mr. Ali who retrieved the gun from under the car is at odds with all the other evidence heard at this trial. It is very clear that Mr. Ali was wearing white pants and a dark long sleeved sweater and with all due respect to Ms. Harris, to describe Mr. Ali as black is absurd. The evidence of Mr. Ali was that at the time, his hair was shoulder length with some braids. While not perfectly clear, the video recording (C39 Entrance 3) appears to show the accused with long hair and/or braids. This was corroborated by Mr. O'Reilly who testified that the person who had Mr. Ismael in a headlock had long hair with some braids.

[74] So who was the man who retrieved the gun from underneath the car? All I can say is despite Ms. Harris' evidence, it was not Mr. Ali. The man who picked up the gun was a black male with short hair and wearing a white T-shirt and blue jeans. It was not Mr. Ismael, nor Mr. Al-Enzi, nor Fat Tony. I have no evidence as to what DJ, Ralo, or the other man in the pick-up truck (assuming he really existed) were wearing. Mr. Ali testified that the two unidentified men recorded entering and then quickly leaving the mall are not DJ, Ralo, or the other fellow. He testified that these two unidentified men had nothing to do with the incident. As I have explained, I do not believe him. Furthermore, I note that the first of these two men is black, has short hair, is wearing three quarter length pants that may be made out of blue denim and has a white shirt of some sort underneath his jacket; jackets are made to be put on and taken off.

[75] I believe that Ms. Harris did see Mr. Ali drop the pistol, but then saw another man retrieve it at some point. It would seem that she has conflated the two men in her memory and aspects of her testimony reflect her attempt to make her evidence fit her recollection despite what she could plainly see in the courtroom right before her eyes. I do not think that Ms. Harris was being untruthful, however, she was clearly unreliable on the aspect of identification. At any rate, I find that it was not Mr. Ali who retrieved the pistol from underneath the car.

[76] I accept Mr. Ali's evidence, therefore, that someone else picked the pistol up from where he dropped it. It is unclear to me from the evidence who that man was or how he knew that it was there. Mr. Ali told the Court that the man whom he says picked it up had already left the pick-up truck when he told DJ and Ralo what had happened in the mall and what he had done with the pistol. But it is clear that the other man did retrieve it. Logically, he would have had to see Mr. Ali drop it, or be told by Mr. Ali where it was, or be told by someone whom Mr. Ali had told, or independently observe it lying on the ground himself. This issue does not need to be resolved in order to decide this matter. All I can say is that on the basis of the evidentiary record before me, it is possible that Mr. Ali had nothing to do with the retrieval of the pistol.

Consistency with Video Evidence

[77] The accused's evidence is consistent with or at least not contradicted by the security videos. It is to be remembered that the video-recordings are not helpful in determining how the pistol came to be sliding across the floor. It is very clear from the videos that Mr. Ali was indeed panicked as he rushes towards the exit. While the pistol does slide to the exit and end up beside the doors where he picks it up, it is not at all clear to me that he was running after the pistol as opposed to running in the same direction. The evidence is also consistent with his having been trying to leave the mall and, upon seeing the pistol right in front of him at the door, picking it up. He then took it outside still in a panic.

Intent in Picking Up the Pistol

[78] It was the accused's evidence that the reason he took the pistol was because he thought that it was the best thing to do as he did not want anyone to get shot. I accept his evidence on this point. If Mr. Ali had been trying to retrieve the gun for Mr. Al-Enzi or Fat Tony, I do not believe that he would have disposed of it in the manner that he did. There is no evidence before me that the arrival of the police was imminent and that he had to hide it immediately. When asked by Mr. Eagles whether he had heard the sounds of approaching police sirens, he responded in the negative. Ms. Harris was not asked whether she heard sirens at the point that the pistol ended up on the ground. I find therefore that Mr. Ali's having placed the pistol underneath the motor vehicle was not an attempt to get the pistol back to Mr. Al-Enzi et al. He testified that he had been "really nervous" and wanted to get out of the situation. I do not know how the "third man" learned that the pistol was under the car and I cannot make assumptions.

The Issues

Possession Counts

[79] Given the facts that I have found, can it be said that Mr. Ali had a lawful excuse with respect to the two counts involving the possession of the pistol? Was his possession of the pistol lawful in the circumstances of this case as he picked it up in a panic in order to take it away from the men whom he was afraid might use it? It is to be remembered that I have found as a fact that it was not his intention to retrieve it for Mr. Al-Enzi et al.

[80] Mr. Ali's actions were consistent with the so-called "public duty defence". As explained by Green J. of the Ontario Court of Justice, in R. v. Loukas, 2006 ONCJ 219, at paragraph 12:

The notion of "public duty" is somewhat ambiguous. At narrowest, it suggests that the exemption (if such it is) from criminal liability applies only to those, such as the police and court officers, who are required to occasionally possess legally prohibited items in the execution of their professional responsibilities. However, the facts in Hess suggest a broader application. As explained by the Ontario Court of Appeal in R. v. Ormerod, [1969] 4 CCC 2, at 16: "The concept of 'public duty' in the Hess case … relates to the handling of things only for the purpose of turning them over to the police, and not with even any momentary intention of keeping or using them". Subsequent jurisprudence has further enlarged the compass of this defence to include, at its most expansive, those situations where control over the unlawful goods is exercised solely for a worthy public purpose and without any intention of keeping, using or otherwise personally benefiting from the property. In these circumstances, and consistent with the values enshrined in s. 7 of the Charter, the law is not prepared to infer a criminally blameworthy state of mind or, put otherwise, to punish the "morally innocent".

[81] The Ontario Court of Appeal cited this case with approval in R. v. Chaulk, 2007 ONCA 815 at paragraphs 23-25:

[23] There is a line of authority supporting the proposition that exercising control over contraband with the requisite knowledge, but solely with the intent of destroying the contraband or otherwise permanently removing it from one's control does not constitute criminal possession: see R. v. Glushek, 1978 ALTASCAD 175, R. v. Christie, R. v. York, 2005 BCCA 74. In Christie, supra, Chief Justice Hughes, in referring to what I would call "innocent possession", said at p. 287 C.C.C.:

In my opinion, there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think that a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession. . . .

[24] The "innocent possession" line of authorities was helpfully examined by Green J. in R. v. Loukas, [2006] O.J. No. 2405, 2006 ONCJ 219. Green J. points out that some of the "innocent possession" cases recognize a public duty defence as for example where an accused takes possession of contraband to deliver it to the authorities. In other cases, "innocent possession" is said to arise from the absence of an intention to exercise control beyond that needed to destroy the contraband or otherwise put it permanently beyond one's control. Green J. observes that in all of these cases there is, despite the existence of possession in the strict sense, an absence of a blameworthy state of mind or blameworthy conduct. Convictions for criminal possession by a technical application of the concepts of knowledge and control in these circumstances would overreach the purpose underlying the criminal prohibition against possession.

[25] I agree with the analysis described above. There are cases where an individual has the requisite control and knowledge, but cannot be said to be in possession for the purpose of imposing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond that person's ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather than to possess. Like the other appellate courts whose discussions are referred to above, I do not think that criminal liability should attach to that kind of brief, "innocent" possession: see e.g., R. v. Glushek, supra; R. v. York, supra.

[82] The very recent decision by Schreck J. of the Ontario Superior Court of Justice in R. v. Adedokun, 2018 ONSC 2138, reviews briefly the history of this form of innocent possession. Of particular importance to the case at bar, is the discussion that deals with whether the lack of a "concrete plan" about what to do with the pistol in that case would negate that accused's ability to rely on the public duty defence. That Court reviewed the case law and concluded at paragraphs 33ff. that the public duty defence did not require that an accused have a concrete plan for the disposal of the object in question. In the case at bar, it is clear that Mr. Ali was in a panicked state when he took the pistol. Furthermore, I have accepted his evidence that he took the pistol to get it away from the fight. It seems that he almost literally stumbled upon the pistol as he fled in a panic from the scene. His lack of a plan as to what he would ultimately do with the pistol is not surprising. But once again, I accept that he was trying to get it away from the fight. On the facts in this case, that Mr. Ali ultimately abandoned the pistol as he did does not assist me in determining whether or not he is guilty of having possessed it criminally in the moments just prior to the abandonment.

[83] The fact that that the pistol was retrieved by a party associated with Mr. Al-Enzi after Mr. Ali abandoned it does not change what he was trying to do (i.e., get the gun away from the fight). Obviously, there is no requirement that reliance on the public duty defence can only established where the object in question is rendered harmless. He abandoned the pistol and there is no compelling evidence that it was retrieved as a result of anything he did subsequent to his having left it there. If there had been evidence that the man in the white T-shirt and blue jeans had picked up the weapon because of information received from the accused, the result of this analysis might have been different. However, I accept here that the defence of public duty is made out and I dismiss Count 3 and Count 4.

Careless Handling Count

[84] I will now deal with the remaining count: the careless handling of the pistol. The legal test was articulated by the Supreme Court of Canada in R. v. Creighton; see, too, R. v. Gosset. To summarize, this offence requires a marked departure from the standard that would have been exercised in the same circumstances by a reasonable person. The mens rea is to be determined by assessing whether an accused person was capable of appreciating the risk if he/she had turned his/her mind to it. Personal factors short of establishing incapacity to recognize the risk are not to be considered.

[85] Mr. Ali testified that the reason that he abandoned the pistol under a car in the parking lot was basically due to his panicked state. It may have been loaded. There were other people in the mall parking lot. The security videos from inside the mall show that there were a fair number of people there. I have no difficulty finding that in the circumstances of this case, the abandonment of the firearm did constitute a marked departure from what a reasonable person would have done with that weapon. While panicked, Mr. Ali was clearly well capable of appreciating the risk inherent in his action. He just wanted to get rid of the pistol and either did not think at all or did not think clearly about what he was about to do. The fact that he had a lawful excuse for possessing the firearm does not allow him to dispose of it in an unlawful manner. Therefore, he is found guilty of this count.

Verdict

[86] In summary, Mr. Ali is found guilty of Count 1 (careless handling of a firearm) but not guilty of the two possession of a firearm counts. He was acquitted of the weapons dangerous charge earlier in this trial.

Released: May 18, 2018

Signed: Justice David A. Berg