Court Information
Ontario Court of Justice
Date: October 11, 2019
Court File No.: Toronto Region 18-15000893
Parties
Between:
Her Majesty the Queen
— And —
Nickolous Spencer
Judicial Officer and Counsel
Before: Justice M. Block
Heard on: June 5, 6, 10, 2019
Reasons for Judgment released: October 11, 2019
Counsel:
- A. Leggett – counsel for the Crown
- M. Chernovsky – counsel for the accused
Judgment
Block J.
Charges
[1] Nickolous Spencer is charged with possession of a prohibited firearm contrary s. 92(1) of the Criminal Code, discharge handgun while reckless to life s. 244.2(1), careless use of firearm s. 86(1), possess loaded prohibited firearm without authorization s. 95(1), possess weapon for a purpose dangerous to the public peace s. 88(1), carry concealed weapon s. 90(1) and breach probation s. 733.1.
Nature of the Case
[2] This is an identification case. The only disputed issue in respect of all of the counts in this information is whether the Crown has proven beyond reasonable doubt that the defendant was the man who fired a shot from a handgun into a crowded lane in the early morning of October 14, 2017. It is common ground that the available eye-witness evidence is insufficient to establish the identity of the shooter. The determination of whether the crown has met its burden requires consideration of other evidence including photographs, firearms and ballistics evidence and DNA analysis. It is conceded that Mr Spencer had no authority to have possession of the handgun in question and that he was on probation on October 14, 2017 on terms that required him not possess handguns.
Facts
The Incident
[3] About 2:41 AM on October 14, 2017 Toronto Police Constable Jamie Breau and other officers attended a location near the intersection of Dundas Street and Ossington Avenue because of a report of a man pointing a handgun.
[4] Constable Breau testified that when he arrived at the intersection it was crowded with approximately 20 vehicles and numerous pedestrians. His attention was directed by a civilian to a young black man in his twenties, standing 20-30 feet away in a Green P parking lot on the south side of Dundas Street. Before the constable could exit his police vehicle, this man aimed directly west into a lane, levelled his handgun and fired. PC Breau both heard the shot and saw the muzzle flash.
[5] This urban neighbourhood is densely populated and enjoys a thriving night-life. PC Breau told the Court that the lane was crowded with over 100 people, an observation unchallenged in cross-examination. The lane runs between Dundas Street on the north and Halton Street to the south. It lies just east of and parallel to Ossington Avenue. It provides access to the Ballet club, located at 227 Ossington Avenue. The immediate area is home to a substantial number of clubs, pubs and restaurants. Patrons from local establishments, including the Ballet club, had disgorged into the lane at the time of the shooting.
The Pursuit
[6] After he fired into the lane, the shooter ran west along the south side of Dundas Street and attempted to enter several cabs. On his second unsuccessful attempt, and a matter of seconds after the shot, the shooter spotted Constable Breau heading towards him. The shooter briefly looked at the officer and then ran west on Dundas Street, turned left onto Ossington Avenue and ran south to Halton Street. PC Breau, followed by his partner, PC MacArthur, chased the shooter but lost him after he turned east on Halton Street near the point that the lane into which the shot had been fired abuts Halton Street.
[7] Constable Breau testified that he had unbroken sight of the shooter in between the discharge of the handgun and the point he lost him on Halton Street. This evidence was unchallenged, and I accept it.
[8] Constable Breau's account of chasing the suspect south down Ossington Avenue is corroborated by video surveillance from several commercial premises. The videos depict the chase as it passes people running away from the corner of Ossington and Dundas.
Constable Breau's Description of the Shooter
[9] PC Breau saw the shooter briefly as he attempted to enter the second cab. He described the suspect as "a male black, light skinned, dark afro hair, thinner build, about five, five-ish 5'4" in height". His contemporaneous notes stated that he was "wearing a dark black and grey hoodie with dark black hair, curly". It is clear from the totality of the evidence that PC Breau used the words "hoodie" and "jacket with a hood" interchangeably. He believed the suspect was 30-50 feet away when he made his observations. He could not make out facial features or facial hair.
[10] Under cross-examination PC Breau agreed that he had only the briefest opportunity to see the shooter's face. He recalled nothing about the man's shoes. He elaborated on the colour of the jacket or hoodie worn by the suspect. He described it as "speckled", "all dark grey, dark black" reminiscent of the pattern of old television sets though without any white. He recalled nothing about any logos or insignia on the jacket.
[11] Constable Breau's description of the shooter can best be described as a fleeting glance. He had minimal opportunity to make observations of the shooter. He volunteered that his brief glimpse of the shooter's face in artificial light 30-50 feet away would not enable him to identify the suspect.
[12] The credibility of PC Breau did not appear to be challenged by counsel for Mr Spencer. Rather, the focus of cross-examination was on the reliability of the officer's description of the shooter and the accuracy of his memory of these events.
[13] In his able submission to the Court, Mr Chernovsky noted the discrepancy between PC Breau's estimate of the shooter's height, noted at paragraph 8 above, and the 5'7" recorded at the time of Mr Spencer's arrest. In view of the fleeting glance that this witness had of the shooter-in-flight, I consider this apparent discrepancy to have little ultimate significance.
Video Surveillance Evidence
[14] The Crown tendered video surveillance of Mr Spencer attending the Ballet club earlier that morning. PC Breau's description of the shooter is consistent with that of Mr Spencer as he appears in the video.
[15] The Ballet video recordings are black and white. The resolution was often grainy and indistinct. Nevertheless, they clearly showed Mr Spencer to be slighter and less muscular than he presented at trial. He appeared as a short, slight, light-skinned, short-haired African-Canadian male. He wore a puffy, hooded winter jacket. On the upper portion of the left sleeve a white or light patch or insignia was visible. He wore running shoes which appeared to be mainly white with a distinctive pattern on the lower portion.
Recovery of the Firearm
[16] Shortly after the unsuccessful pursuit, a 9mm Luger semi-automatic pistol was pointed out to the police by a civilian. It was located under a grey Hyundai parked on the north side of Halton, near the intersection with the north/south lane into which the shooter fired a few minutes before. This was the same area in which the shooter was last seen in flight from the police.
[17] At approximately the time that the handgun was recovered by the police, a spent cartridge case was located in the area of the Green P parking lot where the shot had been fired into the lane.
Forensic Evidence
[18] A Centre of Forensic Sciences report was filed on consent. It contained the result of an analysis of the cartridge case described above, the Luger 9mm semi-automatic pistol and a comparison of a test-fired round from the pistol and the cartridge case. The report confirmed that the Luger was functioning correctly, capable of causing serious bodily harm or death and a prohibited weapon within the Criminal Code definition. Most important, in the terse language of the CFS, there was "agreement of class and individual characteristics between" the Luger 9mm and the cartridge found in the Green P parking lot.
DNA Evidence
[19] Dr Trevor Claxton, a scientist from the CFS, testified that he analyzed DNA from the grip of the handgun recovered on Halton Street. Mr Spencer's DNA was found as well as DNA from three other persons. This evidence confirms that the defendant at some point handled, or was in close proximity to, the handgun at the centre of this prosecution. Dr Claxton was careful to explain the limitations of DNA analysis. In addition to being deposited through direct physical contact, DNA can also be deposited by a sneeze in proximity to the object. It is also not possible to determine in which order the four profiles were left on the handgun. There is no test that can determine when Mr Spencer's DNA was left on the handgun. The presence of Mr Spencer's DNA on the handgun is some circumstantial evidence of the identity of the shooter.
Additional Surveillance Video Analysis
[20] Surveillance video from 199 Ossington captured images of the shooter as he ran southbound on the east sidewalk pursued by Constable Breau. When slowed to a frame-by-frame series of photographs, the video records both the footwear of the runner and a patch of white on the upper left shoulder area of his clothing. The video is not colour and is of poor resolution. Mr Chernovsky contends that the image of the footwear captured in the 199 Ossington video is not a match for the footwear worn by Mr Spencer in the Ballet. My assessment is that the footwear in this video is consistent in both general appearance and trim with the footwear worn in the Ballet earlier that morning by Mr Spencer.
[21] Both the image of the white patch captured in the 199 Ossington video and the upper left arm patch on the jacket worn by the defendant in the Ballet are indistinct. While it is not possible to discern the shape or detail of either the white arm patch on the upper left arm of the jacket of the shooter running southbound on Ossington or that seen on Mr Spencer in the Ballet, the white patch is a feature that distinguishes the jacket from similar garments worn in the Ballet and on the path of the shooter's flight.
[22] Another surveillance video captured activity in the lane a short time after the shot into it and the subsequent unsuccessful pursuit by police. It recorded a young black male walking northbound toward the scene of the shooting from the area of Halton Street where the handgun was found and the police lost sight of the shooter. The police were concentrating their search for the suspect in this immediate area. As he walked northbound, this man drew his hood up over his head. This person was black, male and youthful. No facial features could reliably be discerned. The person was wearing a jacket consistent with that worn by the shooter fleeing southbound on Ossington a few moments before. On the upper left arm of this person was a flash of white. The Crown's position is that this person was the shooter, who had just discarded his weapon and outrun the police foot pursuit. I find that this submission is supported by the evidence.
Legal Analysis
Circumstantial Evidence Framework
[23] Counsel agree that the core of this trial is a circumstantial case of identity. The guidance of the Supreme Court in R. v. Villaroman, 2016 SCC 33, requires that the available inferences "must be considered in the light of all of the evidence, and the absence of evidence, assessed logically and in the light of human experience and common sense", Villaroman, supra, at paragraph 36. The crown must prove that the guilt of the accused is the only reasonable conclusion that can be drawn from the evidence.
[24] Has the crown proven beyond reasonable doubt that the only reasonable conclusion is that Mr Spencer was the man PC Breau saw shooting a handgun in a Green P parking lot on Dundas St West in the early morning of October 14, 2017?
The Grayson Distinction
[25] Mr Chernovsky provided me with R. v. Grayson, 2016 ONCA 784. In this case the Court of Appeal considered a conviction for car theft based on the discovery of the appellant's DNA on a balaclava located in the car after it was found 2 days later. The trial judge found that the defendant committed the car theft based on the close proximity of the scene of the theft, the location of the abandoned car, and the scene of other offences in which the car was used, as well as the short interval between the theft of the car and the subsequent crimes for which it was used.
[26] In granting the appeal the Court stated, at paragraph 14, "while DNA evidence is powerful evidence that the person whose DNA is on the object was in contact with that object, the connection of the accused with the crime will depend on the existence of other evidence capable of establishing that the accused was in contact with the object at the relevant time and place".
Application to This Case
[27] This case is not Grayson. The following evidence is available to link Mr Spencer's DNA, found on the handgun grip, to the relevant time, place and criminal act:
The defendant's admitted presence at a club located a few feet from the location of the shooting within several hours of the shooting.
The fleeting glance by Constable Breau of the shooter, a man not inconsistent with Mr Spencer, and the continuous visual contact the officer maintained as the two men passed the video surveillance at 199 Ossington Avenue until he lost sight of the shooter on Halton.
The consistency between the images of the footwear and the jacket with the white patch worn by the fleeing shooter captured on the 199 Ossington surveillance video and that worn by Mr Spencer in the Ballet.
The discovery of the firearm used in the shooting on the shooter's escape route within a few minutes of the shooting.
The discovery of the spent cartridge at the location of the shooting and the forensic evidence establishing its connection to the handgun.
The consistency between the image of the jacket with the white patch worn by the male captured in the lane surveillance camera, as he walked northbound within a few minutes of the shooting and that worn by Mr Spencer in the club.
Conclusion
[28] In my view the crown has met its burden. The totality of the available evidence excludes the possibility of innocent coincidence. The evidence has established the identity of the shooter beyond reasonable doubt. Any other conclusion would be based on conjecture unsupported by evidence.
[29] Mr Spencer stands guilty of the charges before this court.
Released: October 11, 2019
Signed: Justice Michael Block