Court File and Parties
Court File No.: 182894 Date: May 17, 2019 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Goran Nejat Kakamad
Before: Justice Robert S. Gee
Heard on: January 3, 4, 7, 8, 11, 14, 15, 16, 17 and 18, 2019, February 12, 2019, March 21, 2019 and April 25, 2019
Reasons for Judgment released on: May 17, 2019
Counsel:
- Lawrence Brock, counsel for the Crown
- Ashley Audet, counsel for the accused
Introduction
[1] On October 9, 2017, there was a shooting in the City of Brantford. Luckily, no one was injured nor was there any property damage as a result. The focus of this trial has been on the identity of the shooter.
[2] The Crown theory is that the shooter was the accused, Goran Kakamad. Mr. Kakamad has denied this.
[3] Aside from the accused, there were two males at the scene. One male has never been identified. The other was Hajir Ahmed. The Crown alleges that Mr. Ahmed was a target of the shooting. Mr. Ahmed has admitted he was shot that day but he claims the shooter was not Mr Kakamad. Mr. Ahmed says the shooter was his Marijuana dealer, a person known to him only as "Moon."
[4] The role played by the unidentified third male is unknown. It is unclear to me whether the Crown thinks he is an accomplice or a target.
[5] No weapon or gun was ever found in this matter. However, a single 9 mm shell casing was located near where the shooting took place that the Crown alleges came from the gun used.
[6] The accused is facing nine charges from this incident. Although I would not usually do so, the Crown has particularized these charges in such a manner that it is necessary to reproduce them in their entirety.
[7] Count 1 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, with intent to endanger the life of Hajir Hussein Ahmed, did discharge a firearm (handgun) at an unidentified male victim contrary to Section 244 (b) of the Criminal Code of Canada.
[8] Count 2 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did without lawful excuse, use a firearm, to wit: handgun, in a careless manner contrary to Section 86(1) of the Criminal Code of Canada.
[9] Count 3 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did, without lawful excuse, point a firearm to wit: a handgun, at Hajir Hussein Ahmed, contrary to Section 87 of the Criminal Code of Canada.
[10] Count 4 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did unlawfully have in his possession a prohibited weapon, to wit: a firearm (handgun), contrary to section 91(1) of the Criminal Code of Canada.
[11] Count 5 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did have in his possession a firearm, to wit: a handgun, knowing that he was not the holder of a licence under which he may possess it contrary to Section 92(2) of the Criminal Code of Canada.
[12] Count 6 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did possess a loaded restricted or prohibited firearm, contrary to Section 95 (a) of the Criminal Code of Canada.
[13] Count 7 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did unlawfully carry a concealed weapon, to wit: a handgun, when he was not the holder of a permit under which he could lawfully so carry it, contrary to Section 90 of the Criminal Code of Canada.
[14] Count 8 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, did unlawfully have in his possession a weapon, to wit: a handgun, for the purpose that was dangerous to the public peace, contrary to Section 88 of the Criminal Code of Canada.
[15] Count 9 - that Goran Nejat Kakamad on or about the 9th day of October in the year 2017 at the City of Brantford in the said Region, being bound by a probation order, did fail without reasonable excuse to comply with said order, to wit: keep the peace and be of good behaviour, contrary to Section 733.1(1) of the Criminal Code of Canada.
[16] During the trial two voir dires were held. One was in relation to an Application by the Crown to admit two statements made by the accused to police. Both statements were made October 24, 2017.
[17] The first statement was a videotaped statement made by the accused to Detective Adam Jefferess of the Hamilton Police and Detective Jason Davis of the Brantford Police. The defence ultimately conceded the voluntariness of this statement.
[18] The second statement was an utterance the accused is alleged to have made to Detective Jefferess in the holding cell area of the Mountain Police Station in Hamilton sometime after the completion of his videotaped statement.
[19] The second voir dire was in relation to an Application by the Crown to permit Detective Constable Fabiano Mendes of the Hamilton Police to testify that he was able to recognize Mr. Kakamad from security video and still images from that video which was taken just prior to and of the shooting pursuant to R. v. Leaney, [1989] 2 S.C.R. 393.
[20] At the close of the Crown's case, I gave oral rulings on these two voir dires. I ruled that the Crown failed to prove the utterance to Detective Jefferess made in the cell area was voluntary and as well I ruled Detective Constable Mendes would not be permitted to testify that he recognized the accused in the security video or still images.
[21] I promised counsel I would provide more fulsome reasons for these rulings at a later date. The balance of these reasons will fulfill that promise by explaining my reasoning for those two rulings and as well, will explain why I find the accused not guilty of all charges.
Facts
[22] The site of the shooting was 359 Darling Street in the City of Brantford. This is a city owned housing complex made up of a number of two storey buildings, each containing several separate units. There are several security cameras throughout the complex, one of which captured the shooting.
[23] This camera was in a parking area and faced Unit 51. To the right in the video was the end of the parking area. At this end there were two garbage dumpsters and a grey metal shipping container. Behind was a grassy area and a basketball court.
[24] Not long before the shooting, a person is seen exiting Unit 51. He walks in the parking area apparently speaking on a cell phone and then returns to the same unit. The Crown alleges this person talking on the cell phone is Mr. Kakamad.
[25] Not long after, two other males arrive. One is walking and one is riding a bicycle. The person walking according to the Crown is Hajir Ahmed, the person on the bike is the male who has never been identified.
[26] These two males approach Unit 51 and the person the Crown says is the accused exits. The three males make their way around to the end of the parking area and go behind the dumpsters. At this point the unidentified male and the one alleged to be Mr. Ahmed are out of sight. The person alleged to be the accused can be seen just to the right of the shipping container and appears to be holding his arm in a manner that suggests he is pointing and shooting in the direction of the other males. The alleged shooting is over quickly with the unknown male and the one alleged to be Mr. Ahmed leaving from the parking area the way they came in and the alleged shooter fleeing out the frame of the video through the grassy area away from the housing complex.
[27] Police received reports of the incident. It was first reported to police as youths shooting a BB gun and that was the type of call the first police on the scene thought they were responding to. As the investigation progressed, a single 9 mm shell casing was located on the pavement in the parking area in front of the dumpster. The Crown alleges this was part of the shooting and alleges Mr. Kakamad was in possession of a firearm and not a BB gun.
[28] An extensive search of the area of the alleged shooting was undertaken by police. No other shell casings were found in the area of the shooting or in the parking area. No fingerprints or other forensic evidence was found on the shell casing that would link it to the accused.
[29] A number of witnesses who were at the housing complex at the time of the shooting testified. Two of these witnesses, Trevor Emery and James Leblanc, testified that in their opinion the sound they heard were gunshots. Other witnesses testified they thought it was fireworks or a BB gun. Although some of these witnesses testified to seeing the three males the Crown alleges were involved in the shooting, none testified to seeing a gun.
[30] The Crown also called a number of witnesses who testified to their dealings with a person known to them as "Moe" around the time of the alleged shooting. It is the theory of the Crown that "Moe" is actually Mr. Kakamad.
[31] Some of these persons also spoke to Moe on their cell phones. The Crown led evidence associated to a number of cell phone numbers. There were several numbers the Crown alleges are associated to Moe and a review of the call logs and texts associated to these numbers provides further circumstantial evidence that Moe is in fact the accused and he was in Brantford in the area of the shooting at the time of the shooting and in the days leading up to it.
[32] Two persons who had dealings with Moe were Brandy Paskaruk and Chris Pusey. Ms. Paskaruk rented 359 Darling Street, Unit 51. It was from this unit the person observed on the security video talking on the cell phone came from and went to just prior to the arrival of the other two males. Ms. Paskaruk and Mr. Pusey were in a relationship at the time of the shooting. Mr. Pusey lived at 350 Dalhousie Street in Brantford, which is only a short distance from 359 Darling. As such, Ms. Paskaruk spent much of her time at Mr. Pusey's and was allowing her friend, Brandy Simon and her boyfriend to live at her unit on Darling Street at the time.
[33] On October 9, 2017 she went to check on her unit and saw Moe there, sleeping on a sofa. She stated Ms. Simon told her that she was going to be driving Moe to Hamilton that day. She testified she later returned to Mr. Pusey's house and received a call from Moe who asked her to go back to the unit and pick up some of his belongings for him. When she did she noticed there were police at the complex. She was allowed in her unit and she retrieved items belonging to Moe. Later that evening Moe attended Mr. Pusey's to get his belongings. When he picked up the belongings, Ms. Paskaruk asked him about the police presence at the complex and Moe is alleged to have replied "it was no big deal, it was a BB gun."
[34] Leading up to this day, Ms. Paskaruk's dealings with Moe were not extensive. She stated she met him the year before through a friend and had "seen him around" since. She described him as mulatto and short as well as having short hair.
[35] Later in the investigation on November 30, 2017, the police conducted a photo lineup with Ms. Paskaruk to see if she could identify the person she knew as Moe. She chose as Moe a picture of Mr. Kakamad. When asked by the officer how she knew it was Moe, her response was it looked like him.
[36] By mid-October 2017, Mr. Kakamad was wanted by the Hamilton Police on unrelated charges. The Hamilton Police issued a press release and photo him. The local Hamilton television station CHCH, broadcast the picture and posted it on their website or Facebook page. By the time Ms. Paskaruk gave her statement to the police on October 16, 2017 she had been made aware the police theory was the person wanted by the Hamilton Police was the same person responsible for the Brantford shooting. As well, by October 16, 2017 she had gone online and saw the picture of Mr. Kakamad released by the Hamilton Police.
[37] In cross examination Ms. Paskaruk stated she was not 100% sure the person she chose in the photo lineup was Moe, but that she chose him as he looked similar to him. Mr. Pusey as well became aware of the theory that the person wanted in Hamilton and the Brantford shooter were the same person. He also reviewed online the picture of Mr. Kakamad released by the Hamilton Police but stated although it looked like him, he could not be certain it was Moe. After viewing the picture, he as well was asked by the Brantford Police to participate in a photo lineup that included a picture of Mr. Kakamad, however he did not pick anyone out.
[38] Malti Patel was a further witness called by the Crown who chose Mr. Kakamad's picture out of a photo lineup. Ms. Patel and her husband owned a motel near 359 Darling Street that the Crown believes both Mr. Ahmed and Mr. Kakamad were at in the days leading up to the shooting. In its written submission the Crown did not refer to Ms. Patel's evidence, likely for good reason. Prior to her viewing the photo lineup, Ms. Patel was shown a single photo of the accused on two occasions, once by Hamilton Police and once by Brantford Police. At the photo lineup she chose Mr. Kakamad's photo and stated she was 100% certain it was the person she saw at her motel. However earlier in the photo lineup procedure she had chosen another photo and also expressed a high degree of certainty in relation to that person. Notwithstanding this, she told the officer that she had seen Mr. Kakamad approximately one week to 10 days before this at a local store in Brantford. However by that time, Mr. Kakamad had been arrested on the Hamilton charges and was in custody.
[39] Hajir Ahmed also testified. As noted, the Crown theory is he was the person the accused was targeting. Mr. Ahmed agrees he was shot at that day but unequivocally denies the accused was the shooter. He testified he was there to meet with his Marijuana supplier. He knew this person as "Moon" and described him as Spanish but a little darker so perhaps Dominican. He stated Moon shot at him three or four times with what he presumed was a BB gun. He presumed it was a BB gun as he was hit with at least one shot and it had left him uninjured.
[40] Mr. Ahmed also testified that he knew who Mr. Kakamad was. Both Mr. Ahmed and Mr. Kakamad are members of the relatively small Kurdish community in Hamilton. He testified he knew of him and had seen him at various Kurdish community events in Hamilton in the past. He knew Mr. Kakamad had a brother, and he believed they were twins and he was able to point out a person in the gallery of the courtroom while testifying that he identified as Mr. Kakamad's brother.
[41] He stated when he became aware that Mr. Kakamad was arrested for this matter he advised the police that Mr. Kakamad was not the person who shot him and he was certain of that to the day he testified.
[42] As noted the security video and a number of still images taken from it were admitted at trial. As well, two images of each of the three persons allegedly involved in the shooting were taken from the video, enlarged 200% and enhanced by the OPP crime lab and admitted on consent. The Crown argues from these videos and still images and my observations of Mr. Kakamad in court over the days of trial I should conclude he is the person depicted in those images in accordance with R. v. Nikolovski, [1996] 3 S.C.R. 119.
[43] Mr. Kakamad chose not to testify at trial. On October 24, 2017, the day he was arrested, Mr. Kakamad was interviewed by Detective Jefferess of the Hamilton Police and Detective Davis of the Brantford Police at a police station in Hamilton. This interview was video recorded and the defence conceded its voluntariness. The Crown played this interview as part of its case. Throughout the interview, Mr. Kakamad denies involvement in the shooting. The Crown alleges in its written submissions in this matter that a number of statements made by Mr. Kakamad in this interview were untruthful. I would presume the Crown believes almost the entirety of Mr. Kakamad's interview was untruthful since if the Crown believed his denials as being the shooter, I would not be writing this judgment.
[44] Other than asking me to accept Mr. Kakamad lied during his interview, the Crown's written submissions are silent on what I am being asked to infer from that or even what I may be permitted to infer from any finding I might make that Mr. Kakamad was untruthful. More on this will be discussed below.
[45] I will now explain my reasoning for the rulings I made in relation to the two voir dires held in this matter and will then explain my reasoning on the trial proper.
Voluntariness Voir Dire
[46] As noted, Mr. Kakamad was interviewed on video on October 24, 2017, the day he was arrested. This videotaped interview was conceded by the defence to be voluntary. After the completion of that interview, Mr. Kakamad was taken back to a holding cell in the Hamilton Mountain police station. The holding cells are monitored by video cameras and at some point after being lodged back in the cell, Detective Jefferess saw Mr. Kakamad waving to the camera.
[47] Detective Jefferess went to the cell to see what Mr. Kakamad wanted and was advised he need to go to the washroom. He accommodated this request and on the way back to the cell and in response to Mr. Kakamad noticing his clothes laid out on the floor in front of his cell, the following exchange is alleged to have taken place:
Mr. Kakamad: They never took my shoes?
Detective Jefferess: No, they don't need them
Mr. Kakamad: Why?
Detective Jefferess: Well, you weren't wearing, you were wearing different shoes at the time, weren't you?
Mr. Kakamad: Yeah
Detective Jefferess: Ahh.
[48] Detective Jefferess agreed in cross-examination that when he entered the cells area at 9:45 pm to check on Mr. Kakamad, he contemplated that there may be some conversation with him at that time. He also agreed both before and after the alleged exchange there was conversation between him and Mr. Kakamad but that he did not make any notes or other recordings of this aspect of their conversation nor did he have any recollection as to the specifics of what was said.
[49] After the alleged utterance was made, Detective Jefferess acknowledged sending an email to Detective Davis the next day about his interaction with Mr. Kakamad. In that email, Detective Jefferess told Detective Davis: "I thought I might catch Goran and I did a little bit."
[50] Just after it occurred, Detective Jefferess made what he claims was a verbatim note of the conversation quoted above between him and Mr. Kakamad. Although he acknowledged there would have been some other conversation both before and after this exchange, he did not make any notes of it. As well, he did not check at the time if the video monitoring of the cells recorded the interaction. It was not until several weeks or months later that he checked for any video of it and by then, none was available.
[51] The burden is on the Crown to prove beyond a reasonable doubt that any statement to a person in authority by an accused is voluntary. In order to meet this burden, the Crown must necessarily prove the circumstances under which the statement was made and a sufficient record of the interaction between the police and the accused must be available so the circumstances as to how the statement came to be made can be assessed. Justice Charron, as she was then stated it thusly in the case of R. v. Moore-McFarlane, [2001] O.J. No. 4646 at paragraph 65:
However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[52] Detective Jefferess in this situation, did not deliberately set out to interrogate Mr. Kakamad. He was responding to Mr. Kakamad's attempts to get his attention and to use the washroom. It would not have been practical nor could it have been expected in this situation for Detective Jefferess to make a contemporaneous video and audio recording of their exchange. The issue is whether a sufficient substitute is available.
[53] Detective Jefferess is an experienced police officer. He is aware of the importance of the creation and preservation of a reliable record of any interaction between police and an accused when a statement is made. Whether there was video recording of their interaction is now not known since Detective Jefferess did not take any steps on the night of the statement to check its availability and preserve it if a recording was made.
[54] As well, he made no effort that night to make any contemporaneous notes of the exchange between them beyond what he viewed to be the inculpatory aspects of their exchange. He denies that there was any other discussions between them that would impact the voluntariness of the statement, but other than his testimony to that effect some 15 months after the event, there is no record available to the court to help assess his evidence.
[55] Added to this is the email Detective Jefferess sent to Detective Davis the next day. His indication that he thought he might "catch" the accused and that he thinks he did, seems to contradict his testimony that he was nothing more than the passive receiver of Mr. Kakamad's spontaneous utterance. It implies he may have had an active role in directing, encouraging or developing the conversation during their interaction. Without any contemporaneous record of what took place between them, when we know there was other conversation, the recording of just the inculpatory aspect of the exchange is insufficient. I do not know what that conversation was between them and what impact, if any, it may have played in the making of the utterance by Mr. Kakamad.
[56] Without a better, more accurate record of the entirety of their interaction it is not possible for me to conclude beyond a reasonable doubt that the utterance was voluntary. As such, this statement alleged to have been made by Mr. Kakamad, is not admissible against him.
The Leaney Voir Dire
[57] As part of its case, the Crown sought to call Detective Constable Fabiano Mendes of the Hamilton Police to give evidence that he recognized Mr. Kakamad in the security video of 359 Darling taken on the day of the shooting. The Crown submitted this evidence was admissible based on the Supreme Court ruling in R. v. Leaney, [1989] 2 SCR 393. The test for the admissibility of such evidence was set out in paragraph 33 of Leaney. It is only admissible if two criteria are met, the first being that the witness has a prior acquaintance with the person being identified and second, the witness must be in a better position than the trier of fact to identify the suspect.
[58] At this admissibility stage of the analysis, courts have been reluctant to establish any threshold or quantification for the prior acquaintance criteria. A prior acquaintance sufficient that the witness is able to point out certain features or idiosyncrasies of the suspect has been rejected.
[59] The analysis is contextual. The prior acquaintance criteria does not have to be demonstrated to be significant or long term. However the nature of the acquaintance informs the analysis of whether the witness' testimony will put him or her in a better position than the trier of fact. A witness who is related or a close, long term friend of the suspect may well be in a better position than the trier of fact. Conversely, if the acquaintance was brief and insignificant or not very recent, then even with that prior acquaintance the witness may very well not be in any better position to identify the suspect than the trier of fact. See the Court of Appeal decision in R. v. Berhe, [2012] O.J. No. 5029 at paragraphs 19 to 23, and especially the comprehensive review of the contextual nature of the analysis and the interplay between the two criteria that was undertaken by Nakatsuru J., as he was then in R. v. Berhe, 2013 ONCJ 368, [2013] O.J. No. 3186 at paragraphs 15 to 30.
[60] In this case, Detective Mendes's prior acquaintance with Mr. Kakamad is purported to come through his work as a Hamilton police officer. The Hamilton Police apparently had a program that targeted repeat youth offenders which they referred to as the STOP Program. While he was a youth, Mr. Kakamad was a target of the STOP Program. Detective Mendes was for a time a member of the STOP Team. As part of this team one of his duties was to do compliance checks on STOP targets to ensure they were complying with bail or youth probation orders they were on.
[61] It is in doing one of these compliance checks that Detective Mendes had his first dealing with Mr. Kakamad. Approximately three to four years before he was asked to review the security video in this case, he attended Mr. Kakamad's house to do a bail compliance check on him. He knocked on the door to Mr. Kakamad's then residence. His mother answered the door and at the request of the police, Mr. Kakamad came and stood behind his mother so the police could be satisfied he was home. When they saw he was home, they left. The interaction on this occasion between Detective Mendes and Mr. Kakamad lasted a few seconds and no words were exchanged between them.
[62] After this one in person encounter, over the next several years, Detective Mendes's familiarity with Mr. Kakamad came exclusively through his work in the STOP Program and other police work. He testified that the mug shots of the STOP Targets would be posted on the wall of the station he worked at and there were other times other mug shots of Mr. Kakamad were circulated by email to Hamilton police officers and he would review these. While testifying he produced 20 mug shots for Mr. Kakamad. However he was unable to testify which of the 20 he may have saw in his capacity as a STOP Team member or which ones were circulated by email. As well, two of the mug shots were created after he viewed the video in this case. As well, other than saying he saw the mug shots often he was unable to testify to when they were posted or circulated or quantify the length of time he reviewed them.
[63] In addition to this, the Crown is seeking to rely on two more observations Detective Mendes allegedly had of Mr. Kakamad close in time to the matter at hand to support their Application. On or about October 7, 2017, Mr. Kakamad was being investigated by the Hamilton Police on an unrelated matter. As part of this investigation, police believed Mr. Kakamad had rented a car from a Hamilton Thrifty car rental. Detective Mendes reviewed the security videos from this Thrifty location for the date and time when the car was rented and purported to recognize Mr. Kakamad from this video. Additionally, during the investigation, Detective Mendes and his partner on October 7, 2017 allegedly located Mr. Kakamad in a car in a parking lot in Hamilton. Before attempting a takedown of him, they drove by the parked car twice and Detective Mendes testified he recognized Mr. Kakamad as the person in the driver's seat. When a takedown and arrest was initiated though, the car fled and the occupants of the car were not apprehended.
[64] At this trial, it was not conclusively established that Mr. Kakamad was the person who rented the car from Thrifty, nor was there any admissible evidence confirming it was him driving the car observed by Detective Mendes on October 7, 2017. Since there was no confirmation that Mr. Kakamad was the person on the video at Thrifty or the driver of the car October 7, 2017, I find I cannot rely on these purported observations to support a finding of prior acquaintance of Mr. Kakamad by Detective Mendes or that they are of any assistance to the Crown on this Application. All the other times relied on by the Crown to support a prior acquaintance of Mr. Kakamad by Detective Mendes, there was confirmation the person he was observing was Mr. Kakamad, whether that was through a mug shot or his appearance at his door with his mother.
[65] On these latter two observations there is no such confirmation. All these amount to are two more incidents where Detective Mendes claims to have recognized Mr. Kakamad. The accuracy of these purported recognitions has not been confirmed and as such they offer nothing to the inquiry.
[66] That leaves the assessment in this matter to be based on the one in person, few second encounter from three to four years prior as well as the review of the unknown number of mug shots over the years. Detective Mendes can be said as a result to have some level of prior acquaintance with Mr. Kakamad but I would not describe it as significant. The lack of any recent, in person observations of Mr. Kakamad by Detective Mendes in particular weakens the strength of the Crown Application. Perhaps if this had been a short trial, a few hours or a day long, and my personal observations of Mr. Kakamad in court were limited, I may be inclined to have allowed Detective Mendes to offer his opinion as to how he recognized Mr. Kakamad on the videos, but this was not a short trial. This was a trial that took place over 11 days. As such I was in Mr. Kakamad's presence for any number of hours on each of those days. In the circumstances, my familiarity with Mr. Kakamad's current appearance is vastly greater than Detective Mendes's was at time he viewed the video. It is for these reasons I find Detective Mendes is not in a better position than I am to assist me in determining if it is Mr. Kakamad on the video.
[67] In any event, even had I allowed him to testify as requested by the Crown, I would have placed no weight on his evidence. Detective Mendes did not view any of the enhanced still pictures taken from the security video of 359 Darling. He viewed the originals. Although these videos I find are of decent quality compared to some security videos, given the angles of the view, the distance of the person from the camera, and the overall quality of the images, it would be dangerous to accept Detective Mendes's purported identification. The frailties of eyewitness identification are well known and even in a situation like this, where the video can be viewed without the observer being in a stressful situation, even with some prior familiarity with the alleged suspect and with the ability to slow down, rewind and watch over and over and stop the videos, the quality is not such that a reliable identification could be made.
[68] Also troubling though was the manner in which the identification was made. By the time Detective Mendes viewed the security video he knew Mr. Kakamad was wanted by the Hamilton Police. He was also aware the working theory of both the Hamilton and Brantford Police was that Mr. Kakamad was responsible for the incident in each city. Added to this is that Detective Mendes was asked to attend Brantford to view the security video to see if he could identify Mr. Kakamad on it. When he attended he admitted he was expecting to see Mr. Kakamad on the video. This was a flawed and unfair procedure and would have rendered any purported identification from it meaningless.
[69] As a result, it is for these reasons the Crown application to have Detective Mendes testify that in his opinion the person on the security videos from 359 Darling was Mr. Kakamad was denied.
The Evidence at Trial
[70] As noted at the beginning of these reasons, Mr. Kakamad faces nine charges out of this incident. Much of the evidence at trial was aimed at proving Mr. Kakamad was the shooter. The first six counts however, all require the Crown to prove the accused possessed a firearm and counts four and six particularized it as either a prohibited or restricted firearm. The Crown has conceded it has failed to prove the firearm was prohibited or restricted and has invited me to dismiss those counts. I would go further and find the evidence falls far short of proving beyond a reasonable doubt that what was used here was any type of firearm. As such for this reason alone. Mr. Kakamad is entitled to acquittals on the first six counts in the Information.
[71] The evidence the Crown relies on to prove the item was a firearm is twofold. First is the 9 mm shell casing found in the parking lot in front of the garbage dumpsters and the grey shipping container. As noted earlier, there was no forensic evidence such as fingerprints or DNA linking this shell casing to Mr. Kakamad.
[72] Furthermore, the shooting is alleged to have taken place in the grassy area behind the shipping container, basically on the opposite side of where the shell casing was found. There was no evidence presented at trial to explain if this shell casing was related to the shooting, how it ended up where it was found. There is nothing in the security video that would make one think any of the three persons that were said to be involved in the shooting had anything to do with moving it to where it was found. As well, there was no evidence as to how far a shell casing could travel when ejected from a firearm and if the shell casing found here was within that distance. Also, notwithstanding an extensive search of the area, no other shell casings were found even though witnesses stated they heard several shots fired. As such, any link between this shell casing and the alleged shooting is tenuous.
[73] The other evidence the Crown relied on to prove the use of a firearm was the testimony of Trevor Emery and James Leblanc. Mr. Emery testified he has heard gunshots many times, had his FAC when younger and grew up hunting. He testified firearms have a distinctive sound and what he heard this day was in his opinion a gunshot, likely of a low calibre, either a .22 or 9 mm. Mr. Leblanc as well stated he was certain this was gunshots and likely low calibre.
[74] The Crown did not attempt to qualify either of these witnesses to give opinion evidence on the sound made by firearms, specifically low calibre firearms. At best this is lay opinion evidence. I was not provided with any authority that this type of layperson opinion evidence is admissible.
[75] I find this is not the type of evidence that is permissible to support the inference the Crown wishes me to draw, that the sound these witnesses heard came from a firearm. The sound made by low calibre firearms is not something of which I can take judicial notice. It is also something I find that is not permissible to be proven by lay opinion evidence. Even if I were wrong in this regard, I would place no weight on the evidence of Mr. Emery or Mr. Leblanc, given that the evidence led of the foundation for their opinions was minimal at best. That they have hunted when young or heard gunshots before, would fall far short of a basis for providing lay opinion evidence in a criminal trial. Whether this is even an area that actual qualified opinion evidence could be given on would likely be open for debate.
[76] Also other witnesses who heard the purported gunshots described them as fireworks or a BB gun. Then there is the evidence of Mr. Ahmed, the only witness called by the Crown who actually was present and saw the weapon used and testified it was a BB gun. His belief that it was a BB gun was grounded on the fact that even though he was shot with it, it caused him no injury. Even if his evidence is not believed, it certainly casts doubt on the Crown contention this was a firearm.
[77] For these reasons there is simply no evidence capable of proving an essential element required for conviction in counts one to six, that Mr. Kakamad possessed a firearm of any type, as such the Crown has failed to prove these charges and they will be dismissed.
[78] Count seven is an allegation that Mr. Kakamad carried a concealed weapon, that being a handgun. This is a further count where I find the Crown has failed to prove an essential element of the offence, that being that the weapon was in fact concealed. Even though there were a number of witnesses who testified they were in the area when the shots were allegedly fired, none testified to seeing the incident or seeing any weapon.
[79] What the Crown was left with to prove this element of the offence was the security video and the testimony of Mr. Ahmed. Again Mr. Ahmed is of no assistance to the Crown in this regard. His evidence was that Moon had the BB gun in his hand during the incident, there was no evidence from him that it was concealed in any way.
[80] The security video is of no help on this point either. The images of this part of the incident are simply too far away from the camera to discern what the shooter may have had in his hands when he exited Unit 51 and the confrontation occurred. Even when the alleged shooting is happening, it is too far from the camera to be able to make out what is in the shooter's hands. The image quality simply is not good enough to determine where the item came from. It could have been concealed in a pocket or the waistband of the pants or just as easily it could have been held in the person's hand the entire time. The video quality is not capable of proving it one way or the other. Given that concealment is an essential element the Crown is required to prove on this count and for these reasons the evidence is not capable of supporting such a finding, this count as well will be dismissed.
[81] This leaves only two remaining counts, that being count eight an allegation that Mr. Kakamad possessed a weapon for a purpose dangerous to the public peace and count nine an allegation Mr. Kakamad breached the keep the peace term of the probation order he was subject to at the time. Mr. Kakamad's liability for count nine depends on the outcome to count eight.
[82] In order to secure a conviction on these counts, it is necessary for the Crown to prove that Mr. Kakamad was the person involved in the incident behind the shipping container with Mr. Ahmed. The evidence the Crown relies on to prove this is the security videos from 359 Darling, the still pictures taken from that video as enhanced, circumstantial evidence of various witnesses and phone records that Mr. Kakamad was in Brantford and at 359 Darling on the day of the incident and the days leading up to it as well as a number of lies Mr. Kakamad is alleged to have made in his statement to the police. When viewed as a whole it is the position of the Crown that it has proven beyond a reasonable doubt that Mr. Kakamad is the shooter.
[83] The biggest problem for the Crown is that the person they allege was the target of the shooting, Mr. Ahmed has testified in no uncertain terms that the Crown theory is wrong and that Mr. Kakamad was not the person who shot at him. Of this, Mr. Ahmed claims to be certain, the shooter was not Mr. Kakamad, a person he knows; it was Moon, his Marijuana dealer. This has left the Crown in the awkward position of having to urge me to disbelieve a person they called and who should be their star witness.
[84] There is some evidence pointing to Mr. Kakamad as the shooter, however I find that evidence is just too weak to overcome the direct and unequivocal testimony of Mr. Ahmed that the shooter was not him. Let me explain.
[85] First a lot of trial time was spent trying to demonstrate that Mr. Kakamad was the person known to a number of the witnesses as "Moe." The person who probably was in the best position to make this link was Brandy Paskaruk. She testified to having had several opportunities to see Moe in the year or so leading up to this incident and claims to have seen him at 359 Darling, Unit 51 earlier on the day of the shooting then again later that night. However her familiarity with him was not that great and her physical descriptions of him were generic at best. She described him as short, with short dark hair and possibly mulatto. She did choose Mr. Kakamad's picture out of a photo lineup, but given how this happened I would not ascribe any weight to this evidence. As will be recalled she went online and saw the picture of Mr. Kakamad the Hamilton Police had released before she did her photo lineup and even then when cross examined at best she stated she chose the picture she did because it most resembled the person she knew as Moe.
[86] Chris Pusey was also a witness said to have had dealings with Moe on the day of the shooting. Mr. Pusey's history with Moe was very limited. He as well was asked to participate in a photo lineup but was unable to pick out Moe from it. He purported to recognize Moe's voice when he called but given his limited dealings with Moe, I would not place any weight in this evidence.
[87] The Crown also led evidence of a number of cell phone numbers they alleged are associated to Mr. Kakamad and were used to call various person who associated the numbers to Moe. Ms. Paskaruk was one of the persons whose cell phone records purportedly revealed calls between her number and one of those allegedly associated to Mr. Kakamad. Her evidence though in this regard was not overly strong. She was not able to recall which numbers Moe would call her from nor was she asked what her number was that Moe called her on.
[88] Ms. Patel as will be recalled also picked Mr. Kakamad out of a photo lineup. However her evidence in this regard is not worthy of any weight. As will be recalled she in fact chose two pictures from the photo lineup and then stated she saw the person a week to ten days earlier in a store in Brantford at a time when Mr. Kakamad would have been in custody.
[89] At best all this evidence is capable of demonstrating is that it is possible Moe could be Mr. Kakamad and that he was in Brantford on the day of the shooting and in the days leading up to it. It does not by that fact though, even if accepted Moe is Mr. Kakamad, necessarily lead to a finding that Mr. Kakamad is the shooter.
[90] As shown above, the Crown also sought a ruling on the voluntariness of Mr. Kakamad's videotaped interview with Detective Jefferess and Detective Davis. The defence conceded the voluntariness of this statement. The statement itself can be described as exculpatory, Mr. Kakamad consistently denied being involved in the shooting. The Crown led the statement notwithstanding as part of its case. In the end, Mr. Kakamad chose not to testify. In its submissions the Crown is now urging me to find that several assertions made by Mr. Kakamad in the statement were lies. The submissions of the Crown though are silent on what the Crown contends I should make of the fact if I find Mr. Kakamad lied.
[91] I agree with the defence that the Crown seems to implicitly be asking me to find some inherent probative value in the alleged deceit. Where the Crown introduces an exculpatory statement of the accused, it is impermissible to do so for the sole reason of suggesting that the accused lied. What the Crown is implicitly asking is to treat Mr. Kakamad's alleged falsehoods as circumstantial evidence of guilt. To do so would run contrary to a long line of authority from the Ontario Court of Appeal.
[92] The Court of Appeal expressed the principle in R. v. Selvanayagam, [2011] O.J. No. 4138 as follows:
27 The law, briefly stated, is that the trier of fact may not treat a disbelieved exculpatory statement as positive evidence of guilt unless there is evidence, independent of the fact of falsity itself, that the statement was concocted or deliberately fabricated. The rationale for the rule was explained by Doherty J.A. in R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), at p. 203 as follows:
If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [References omitted.]
28 Procedurally, where the Crown wishes to have the jury draw the inference of guilt from an accused's statements, then at the admissibility stage it must show the court sufficient evidence of concoction that is independent of the falsity of the statement, to demonstrate fabrication. See R. v. Hall, 2010 ONCA 724, at para. 164. Otherwise, the Crown is limited to putting the statements to the accused in cross-examination, if the accused testifies at the trial. That procedure was not followed in this case before the Crown was allowed to lead the statements in evidence as part of its case. However, the accused testified in his own defence, so that the statements were also put to him in cross-examination.
[93] In this case, the Crown never led any independent evidence of concoction nor did it seek to lead such evidence at the admissibility stage. As such, it is not proper for the Crown to seek to rely on the alleged deceitfulness of Mr. Kakamad in his interview as further evidence of his guilt and any such statement has no evidentiary value and will not be considered.
[94] The best evidence of the identity of the shooter in this matter comes from the fact the incident was captured on the security video at 359 Darling. Two still pictures from this video of the person the Crown alleges is Mr. Kakamad were captured and as noted enlarged 200% and enhanced.
[95] The Crown has asked me to review the security video and the still pictures of the persons alleged to be Mr. Kakamad and compare that to my own observations of him in court throughout the trial and the various mug shots filed. Assessing in this manner whether the person depicted on the video or in the images is in fact the accused is permissible but, it is a task the Supreme Court has warned must be approached with caution. Cory J. in the case of R. v. Nikolovski, [1996] 3 S.C.R. 1197 directed triers of fact to approach such a task with the following in mind:
28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.
29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.
30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.
[96] In addition to this, I am constantly mindful of and vigilant to the well know inherent frailties of eyewitness identification evidence, even when that identification is done in the manner I am being asked to do so here. History has shown far too many wrongful convictions were the result of honest, but mistaken eyewitness identifications. As well, my judicial office does not by that fact, bestow in me any better ability to accurately make an identification such as this.
[97] The actual security video here although decent, is not of sufficient clarity or quality to prove the identity of the shooter beyond a reasonable doubt. From Unit 51 to the area where the shooting took place behind the garbage dumpsters and shipping container is simply too far from the camera to make out any identification of any of the persons involved. No distinctive features of any of the persons is observable, beyond the most basic and generic descriptions of young males, one black, all with dark hair is about all one can see.
[98] Prior to the shooting though, the person the Crown alleges is Mr. Kakamad walked through the parking lot closer to the security camera. The other two persons involved also passed by this area on their way into the complex prior to the shooting and out of the complex after. Better images were captured on the video of these persons at this time but were still not of sufficient clarity or quality to make an identification beyond a reasonable doubt.
[99] The enlarged still images were captured from these closer approaches to the video camera. The enlarged and enhanced still images provide a much better depiction of the person the Crown alleges is Mr. Kakamad. The Crown contends from these two still images it is possible to make out many distinctive features that Mr. Kakamad has and as such a reliable and positive identification of him can be made. The Crown points to the hair style, facial hair, thick black eyebrows and "Asian looking" eyes visible in the images.
[100] These images I find are not as clear and the features mentioned not as distinctive as the Crown contends. In both images the person is holding a phone in their right hand to their right ear. This partially obscures the right side of the face. In one image the person is turned slightly to the right so the left side of the face is visible but not much of the right side of the face can be seen. In the other image the person is turned completely to the left. The right side of the face is visible in profile but obscured some by the phone being held to the ear. The left side of the face is not visible at all.
[101] The person is a young white or perhaps middle-eastern male, likely in their 20's. He has dark hair cut short to the head. He also has a dark short cut beard. In the image showing the right side of the face in profile it looks like he may have a moustache however in the other image his upper lip appears clean shaven so perhaps it is a shadow in the first image. In both images he was either in the act of blinking, looking down or his eyelids are droopy, it is impossible to determine from these images which, but in any event, it is not possible to determine his eye colour. He is wearing a dark t-shirt, dark pants and white shoes. He has no visible tattoos and it is not possible to make out any scars or other marks.
[102] The Crown contends Mr. Kakamad and the person depicted in the images share several distinctive characteristics making it possible to conclude they are the same person. The Crown points to thick eyebrows. As noted I had the advantage of being in the same courtroom as Mr. Kakamad for approximately eleven days during this trial. I also have available to me mug shots taken of Mr. Kakamad on Oct 31, 2017 which were filed at trial. These were taken approximately three weeks following the incident. In them Mr. Kakamad can be described to have thick, even length eyebrows over both eyes. The eyebrows of the person depicted in the enlarged images are difficult to discern clearly. The right eyebrow could perhaps be described as thick but in the only picture of the left one, it appears thinner than Mr. Kakamad's mug shot.
[103] The Crown also points to the similarity of the hairstyle. The hair for both Mr. Kakamad and the person in the images is dark and cut short and straight across the forehead. However in the images the hair seems to be the same thickness on the side of the head to the ears while in the mug shots taken October 31, 2017 the hair in this area seems thinner, though hairstyle is something easily changeable.
[104] Again in terms of facial hair the images and the mug shots appear to differ, but this again is something easily changed. In the images a full, short cut beard appears visible. As noted though it is difficult from the images to determine if there is a moustache or hair on the upper lip. In the mug shots, the hair on the bottom of the chin could be said to be full beard-like but the sides of the face have much less than is visible in the images and would appear to be what could be described as several days growth. There is also hair on the upper lip in the mug shot that I would describe as somewhat longer and thicker than on the sides of the face but less thick than the hair on the chin.
[105] Given these discrepancies and the limits on the clarity and quality of the enlarged images taken from the security video of October 9, 2017, I am not able to conclude beyond a reasonable doubt that the person depicted in those images is Mr. Kakamad. At best all I can say is that based on my observations of him in court and the mug shots filed at trial the person in the images certainly bears a resemblance to Mr. Kakamad. However noting a resemblance, even a strong one, falls short of being satisfied beyond a reasonable doubt.
[106] I am also left with the evidence of Mr. Ahmed. He was the only witness who testified with any direct involvement in the alleged shooting. He was there and he was adamant that Mr. Kakamad was not the person who shot at him. He was insistent it was his Marijuana dealer Moon whom he described as Spanish, or perhaps Dominican. Although an exceedingly generic description, I would note it would not even as generic as it is, exclude the person captured on the security videos or the enlarged still images.
[107] I am also left with the evidence of Mr. Ahmed when he testified that Mr. Kakamad had a brother, one he thought was a twin and pointed that person out in court while he testified. If Mr. Kakamad and the person Mr. Ahmed identified in court as his brother are not twins, they could pass for it. This as well was not the first day Mr. Kakamad's brother attended court for the trial. He had been there for several if not most of the days. Even before he was pointed out by Mr. Ahmed, I had noticed the resemblance between him and Mr. Kakamad. I do not mean to imply that this was in any way a trick or something improper resorted to by Mr. Kakamad or the defence. It is not surprising Mr. Kakamad's brother would be concerned for him and want to attend court to observe his trial. There is nothing wrong with that. I mention it only as it is apt illustration of the difficulties surrounding cases dependent on eyewitness identification. On most days of this trial, there were two people sitting in court who bore a resemblance to the person depicted in the security video and the enlarged still images.
Conclusion
[108] As noted, Mr. Ahmed was the Crown's witness. Given his testimony was unfavourable, the Crown is left in the awkward position of asking me to disbelieve him. Even were I to disbelieve Mr. Ahmed that does not necessarily lead to a conviction. It is the same for Mr. Ahmed as it is for Mr. Kakamad. Just as disbelief of Mr. Kakamad does not equate to guilt, disbelief of Mr. Ahmed also does not equate to guilt.
[109] Even were I to disbelieve Mr. Ahmed, I would still need to ask if his evidence has left me with a reasonable doubt. To do this I would need to ask if there was a basis for the outright rejection of his evidence. I find there is not a basis for the outright rejection of his evidence.
[110] I have concluded I cannot be satisfied beyond a reasonable doubt based on the security videos and the still images taken from it, that the person depicted in it is Mr. Kakamad. As such I cannot use this as a basis for the rejection of Mr. Ahmed's evidence.
[111] As well the evidence of the other witnesses mentioned earlier about their dealings with the person known to them as Moe, has not convinced me due to the frailties of their evidence that Mr. Kakamad is Moe. As such I am unable to reject Mr. Ahmed's evidence on this basis as well.
[112] Furthermore even when the evidence is viewed as a whole, I find it is not capable of providing a basis for the outright rejection of Mr. Ahmed's evidence.
[113] As a result of this, in the end I find the Crown has failed to prove beyond a reasonable doubt that Mr. Kakamad was the person shooting at Mr. Ahmed on October 9, 2017, as such on this basis he would be entitled to an acquittal not just on counts eight and nine but on all charges.
[114] These were serious allegations and society in general and this community in particular would expect a vigorous prosecution of them provided they are viable. However, for the Crown, it seemed proving the identity of the shooter overwhelmed all other aspects of this case. From start to finish this case occupied all or some of 13 days of court time. Notwithstanding the seriousness of the allegations, the Supreme Court has made it clear in cases such as R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31, all justice system participants are expected to make objective and critical assessments of their case. I am aware the Crown who tried this case came onboard rather late in the life of the matter so perhaps he was unable, due to time constraints to undertake such a task, however had one been done earlier in this matter it should have been clear that the Crown was in no position to prove a firearm was used or that it was carried in a concealed manner. If that had been done a more critical assessment of the case and how to proceed with it would likely have meant a much quicker resolution of this case with much less valuable court time being devoted to it.
[115] As should be clear from all these reasons, I find that the Crown has failed to prove beyond a reasonable doubt any of the charges before the court, as such Mr. Kakamad will be found not guilty of all charges.
Signed: Justice Robert S. Gee