Court File and Parties

Ontario Court of Justice

Date: 2019-11-01

Court File No.: Ottawa 18-A12517

Between:

Her Majesty the Queen

— and —

Abdul Hamid Haji Ragab, Noah Hope, and Pranavan Paraparan

Before: Justice P. K. Doody

Heard on: October 28, 29, 30, 2019

Reasons for Judgment released on: November 1, 2019

Counsel

Juliana Martel — counsel for the Crown

Biagio Del Greco — counsel for the defendant Abdul Hamid Haji Ragab

Mash Frouhar — counsel for the defendant Noah Hope

Dominic Lamb — counsel for the defendant Pranavan Paraparan

DOODY J.:

Overview

[1] Shortly after 1:00 a.m. on September 1, 2018, a black car drove into the parking lot of a strip mall at the corner of Bank Street and Hunt Club Road, two busy thoroughfares in Ottawa. Two men standing beside the car argued with a group of young men and women who had gathered on the sidewalk in front of the stores and a café. One of them raised what appeared to be a handgun and shot at one or more of the young persons who were running away.

[2] The three defendants have been charged with a number of offences arising out of these events. The Crown theory is that Mr. Haji Ragab was the person who shot the handgun, Mr. Paraparan was the driver of the car, and Mr. Hope was a passenger in the back seat.

Admitted Facts

[3] After the shooting, the two men got in the car and it drove away. Police tried to stop it, but the car sped away at speeds exceeding 180 kilometers per hour on Hunt Club Road and over 200 kilometers per hour westbound on highway 417. The car then left the highway and continued back along Hunt Club Road. Police attempted to block the car with a cruiser but had to move it to prevent a high speed head on collision. The car, a black Chevrolet Impala, was abandoned on Reubens Crescent.

[4] Two males were seen running across Johnston Road, a location nearby the abandoned car. They ran between two houses at 2139 and 2149 Johnston Road. They had black skin. One was wearing a white shirt. The other appeared to carry a white shirt.

[5] A police dog was deployed where the two males had been seen. He acquired a scent and began tracking behind the house at that location. A black tuque, a broken bottle of rum, and a white shirt or piece of clothing were found draped over the fence, which was partially broken open.

[6] The police dog continued to follow the scent over another fence, through that yard and into another yard, through a small field and up a large berm leading to Swansea Crescent. The dog crossed Swansea and entered a fenced in compound which was a wrecker yard or car repair shop.

[7] After several minutes, the police dog showed interest in an old Lexus. An officer saw a male in a light-coloured shirt leaning back in the passenger seat. He saw other occupants attempting to hide from the police.

[8] The officer yelled at the occupants, telling them they were under arrest. The car door was locked. The officer broke the passenger window. The passenger began to comply with the arrest demand until suddenly a male, the defendant Mr. Hope, opened the driver's side door and fled.

[9] Another officer yelled at Mr. Hope to stop but he did not do so. He ran toward and over the fence and disappeared out of sight. The dog unsuccessfully tried to stop him from escaping. Mr. Hope was arrested shortly thereafter at 1:55 a.m.

[10] The other two occupants of the Lexus, the other two defendants, were also arrested.

[11] A search was made for a firearm, but none was found – not in the parking lot of the strip mall, not on the route between the point the males were seen running across Johnston Road and the Swansea yard, not in the Lexus, and not in the abandoned car which had fled the scene of the shooting.

[12] The three defendants were handcuffed and taken to the police station in the back seat of police cruisers.

[13] Their hands were tested for gunshot residue at the police station between 2:55 a.m. and 3:37 a.m. One particle of gunshot residue was found on Mr. Hope's hand, but not on the hands of the other two defendants.

[14] When Mr. Paraparan was searched, the key fob for the abandoned car, the Chevrolet, was located in his pocket. The car could be started by a push button if the key fob was in the car. The car was a rental car and the rental agreement was in the name of Mr. Paraparan.

[15] When Mr. Hope was arrested, he was not wearing a shirt or shoes.

[16] A pair of white shoes, a black tuque, a grey hooded sweatshirt and a tshirt were found between 2139 and 2149 Johnston Road, the houses between which the two men ran and from which the police dog started his tracking.

[17] The abandoned car contained, among other things, black and white Nike shoes.

[18] A dark grey/black hooded sweater was located the next evening balled up in shrub hedges at the rear of 13 Reubens Crescent. The sweater showed no signs of having been in the weather for a long period of time. A backpack was also found in that backyard the morning of September 1. Neither the sweater nor the backpack belonged to the homeowner.

[19] A shell casing was found at the strip mall at the location of the shooting incident. It was consistent with being used and discharged by a 9 mm handgun.

The Charges

[20] A total of 12 charges were laid.

[21] All three defendants have been charged with:

(a) using a firearm in a careless manner, contrary to s. 86(3) of the Criminal Code (count 1);

(b) possessing a weapon, namely a firearm, for a purpose dangerous to the public peace, contrary to s. 88(2) of the Criminal Code (count 2);

(c) possessing a restricted firearm without being the holder of a licence and registration certificate, contrary to s. 91(3) of the Criminal Code (count 3);

(d) possessing a restricted firearm while knowingly not being the holder of a licence or a registration certificate contrary to s. 92(3) of the Criminal Code (count 4);

(e) occupying a motor vehicle knowing that there was in that vehicle a restricted weapon, namely a firearm, which was not a replica firearm, contrary to s. 94(2) of the Criminal Code (count 5); and

(f) possessing a loaded restricted firearm without being the holder of an authorization or licence permitting such possessing or registration certificate, contrary to s. 95(2) of the Criminal Code (count 6).

[22] Mr. Haji Ragab is also charged with discharging a firearm with intent to wound contrary to s. 244(2) of the Criminal Code (count 7).

[23] Mr. Hope is also charged with:

(a) breaching a s. 810 recognizance by failing to keep the peace and be of good behaviour contrary to s. 811 of the Criminal Code (count 8); and

(b) breaching a s. 810 recognizance by possessing a weapon as defined by the Criminal Code, contrary to s. 811 of the Criminal Code (count 9).

[24] Mr. Paraparan is also charged with:

(a) possessing a firearm in breach of a s. 109 prohibition order, contrary to s. 117.01(3) of the Criminal Code (count 10);

(b) while operating a motor vehicle and being pursued by a peace office, failing to stop his vehicle as soon as reasonable in order to evade that peace officer, contrary to s. 249.1(2) of the Criminal Code (count 11); and

(c) dangerous driving, contrary to s. 249(2) of the Criminal Code (count 12).

How I Must Decide This Case

[25] While there were two witnesses to the shooting, neither testified that they saw any of the defendants at the scene, shooting a firearm, or either being the driver of or a passenger in the black car in which the shooter arrived and left. They did give descriptions of two men they saw out of the car and later getting into the car. They testified that one of those men fired what appeared to be a firearm in the direction of one or more persons leaving the parking lot.

[26] There is other circumstantial evidence. There is no direct evidence of guilt of any of the defendants.

[27] Circumstantial evidence can be used as the sole or primary basis for concluding that the defendant has been proven guilty beyond a reasonable doubt. Care must be taken when doing so, however. Because triers of fact may be inclined to "fill in the blanks" or "jump to conclusions" when applying circumstantial evidence, they should be aware that they should not draw inferences of guilt too readily. Circumstantial evidence should only be used as the primary basis for a finding of guilt where the defendant's guilt is the only reasonable inference to be drawn from the evidence or the absence of evidence. (R. v. Villaroman, 2016 SCC 33 at paras. 26 to 37)

[28] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt to determine whether "the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty." (Villaroman, at para. 38)

[29] It is not necessary, however, that the trier of fact negative every possible conjecture, no matter how irrational, fanciful, or speculative, which might be consistent with the innocence of the accused. The following language summarizes this principle:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot be reasonably supposed.

(Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375, cited with approval by Cromwell J. in Villaroman, at para. 40)

[30] Furthermore, the inferences that may be drawn must be considered in light of all the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. (Villaroman at paras. 30 and 36)

[31] The Ontario Court of Appeal explained this in R. v. Wu, 2017 ONCA 620:

15 It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

The Law Relating to Possession

[32] Crown counsel submits that Mr. Haji Ragab, as the shooter, was in personal possession of the handgun, and that Mr. Paraparan and Mr. Hope were in constructive possession.

[33] The Supreme Court of Canada explained the determinants of possession of an illicit thing in R. v. Morelli, 2010 SCC 8. Fish J. wrote for the majority of the Court at paras. 15 to 17:

15 For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.

16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.

17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

Analysis

(a) The Crown has proven that the three defendants were in the car at the strip mall where the shooting occurred

[34] The Crown relies on all of the facts I have set out to establish that the three defendants were in the car at the strip mall and, after the car was abandoned, in the Lexus when the defendants were confronted by the police in the wrecker yard. In my view, the admitted facts lead inexorably to that conclusion. While some individual pieces of evidence would support a different inference, taken together that is the only conclusion.

[35] The key fob in Mr. Paraparan's pants and the rental agreement in his name link him to the abandoned car. That fob had to be in the car for it to operate. Given the short time between the car being abandoned and Mr. Paraparan being arrested, I conclude that he was in the car while it was being driven from the strip mall to where it was abandoned.

[36] The presence of the other men with Mr. Paraparan in the Lexus in the wrecking yard at 2:00 a.m. where they were arrested, having been tracked by a police dog following two men running through nearby backyards, supports no other rational conclusion than that all three defendants were together in the Chevrolet just prior to being arrested. It would be speculation to suggest that they met there by coincidence. A pre-arranged meeting is contrary to the evidence that Mr. Paraparan, at least, had arrived at the wrecker yard after a high speed car chase and fleeing the police on foot. Given the high speed chase in which the Chevrolet had been engaged since leaving the strip mall, that means that all three were in the car from the time it left the strip mall.

[37] The key issue is whether the Crown has established that each of the defendants were in possession of a firearm. Other important issues include whether the Crown has proven beyond a reasonable doubt that Mr Haji Ragab was the shooter, and Mr. Paraparan was the driver.

[38] I will deal first with whether the Crown has proven beyond a reasonable doubt that Mr. Haji Ragab was the shooter and Mr. Paraparan the driver. Those issues will assist in determining the possession issue.

(b) The Crown has not proven beyond a reasonable doubt that Mr. Haji Ragab was the shooter

[39] Crown counsel submits that Mr. Haji Ragab, as the shooter, was in personal possession of the handgun, and that Mr. Paraparan and Mr. Hope were in constructive possession.

Crown counsel relies on the following facts she submits are established by the evidence which, when taken together, support only one reasonable inference – that Mr. Haji Ragab is the shooter:

(a) The shooter was the person dressed in grey seen getting into the front passenger door in the black car in the strip mall in the photograph taken by Mr. Chandan, as Mr. Chandan testified.

(b) That photo shows a man dressed in a grey top, grey pants and white shoes with dark hair.

(c) Mr. Chandan described that man, who he testified was the shooter, as a "black guy, stocky built guy, medium sized, about 5 feet 8 or 5 feet 9 in height". He said that he thought that he had short thick black hair, and was "a young guy, very very very early 20s". He said that he was wearing a grey hoodie and dark grey jeans.

(d) Mr. Haji Ragab is the only defendant who matched some of that description. He is a black man with short black hair. He was wearing grey pants and white shoes when arrested. He was wearing a grey t-shirt. A grey hoodie was found discarded behind one of the houses two black men were seen running between, on the route followed by the police dog which led to the car in which Mr. Haji Ragab was arrested.

[40] The primary difficulty with this submission is that it depends on my concluding that the man in the grey top and grey pants on the passenger side of the Chevrolet in the photo he took was the shooter. In my view, however, the Crown has not established that fact, either on a balance of probabilities or beyond a reasonable doubt.

[41] Mr. Chandan testified that that was so. Mr. Datta, however, testified that the shooter was the man on the driver's side of the car in that photograph. Crown counsel submits that I should reject Mr. Datta's evidence on this point in its entirety and accept Mr. Chandan's evidence. I cannot do so.

[42] There were a number of difficulties with the reliability of Mr. Chandan's evidence.

[43] He testified that after he and Mr. Datta left the café where they had spent the previous three hours, they chatted and smoked cigarettes with some university students in the parking lot near their cars. He saw the Chevrolet come into the parking lot driving very slowly and reverse into a parking slot facing the strip mall. He said that he heard someone yell "he's got a gun". He turned and walked toward his car, which was parked beside him. He got in his car and heard the shot.

[44] It happened very quickly. He estimated that about 4 to 6 seconds passed between the gunshot and the car speeding away.

[45] It was dark. The lighting was bad. He testified that after he heard the person yelling about the gun and he went to his car, he could not see the shooter until he sat in his car and looked out the front window.

[46] He was tired. The situation was highly stressful. He was concerned for his own personal safety.

[47] All of these factors combined would have made it very difficult to accurately observe and recall what happened in any detail.

[48] He testified that he did not have any discussion with his friend Mr. Datta about what he had said in either of his two police statements, or what the officer had said to him. He was adamant that he had not done so. Mr. Datta, however, testified that Mr. Chandan had told him that the officer had told him (Mr. Chandan) that the police had arrested three people.

[49] He gave evidence which was internally inconsistent and inconsistent with his prior statements.

[50] He testified in examination in chief that when he saw the man with the gun he was walking back to his car, and when he sat down he saw the person pull the trigger and shoot. Later he testified that he could not see the man with the gun while he was walking to his car.

[51] In cross-examination he testified that as soon as he sat in his car he saw the man shoot and as soon as the shot was over he (Mr. Chandan) started driving away. He said that immediately after the shooting he saw the shooter and the driver get in the car. He told the police officer in a recorded statement that "I start to drive away and at this point I noticed this guy also shot again." When confronted with the contradiction, he testified that it was possible that the man shot a second time after he (Mr. Chandan) drove.

[52] He also testified that when he took the photo the man on the passenger side, who he identified as the shooter, was getting into the car. The photo shows that. That is inconsistent with him having shot a second time after Mr. Chandan started to move his own car. It is also inconsistent with the Chevrolet having already left the scene before Mr. Chandan had done so.

[53] He testified that when the man shot the gun he had his hood on. The photograph he took immediately after the shooting shows the man he identified as the shooter not wearing a hood. I examined the photo closely. In my view, the shirt or sweatshirt that man is wearing has no hood.

[54] Mr. Chandan testified in examination in chief that the gun was in the shooter's right hand. He had told the police officer that he believed that the shooter used his left hand.

[55] Mr. Datta testified that the man on the driver's side of the Chevrolet in the photograph, wearing a cream coloured hoodie, was his "best guess" as the shooter. He testified that he was of that opinion because the other man was scrambling to get in the car. In cross-examination, he testified that the shooter was, from his vantage point sitting in his car looking at the sidewalk of the strip mall, behind the Chevrolet, closer to the businesses than the parking lot. That is the opposite side of the car from where the man identified by Mr. Chandan as the shooter was located in the photo. He said that he did not see the gun until the shooter raised his hand, because it was blocked by the car. This is consistent with the shooter being on the driver's side of the car.

[56] He testified that he heard only one shot. Mr. Chandan testified that he heard two shots.

[57] Mr. Chandan was adamant that the shooter was the man on the passenger side of the car. Mr. Datta was less certain that the shooter was on the driver's side. Firmness of conviction, however, is a notoriously inaccurate measure of accuracy.

[58] In my view, both Mr. Chandan and Mr. Datta were honestly trying to give accurate and truthful evidence. Both were operating under situations of extreme stress when they were quite tired. The lighting was poor. The situation happened extremely quickly. There are significant issues with the reliability of their evidence.

[59] The issues with the reliability of Mr. Chandan's evidence about what he saw extend to the description he gave of the man who he said was the shooter, which the Crown relies on to support an inference that the man in the photograph on the passenger side was Mr. Haji Ragab. He described the shooter, who he said was the person standing by the front passenger door in the photo, as a black man wearing grey jeans and a grey hoodie. The man in the photograph is wearing grey pants and a grey top. There is a possibility that Mr. Chandan's memory is unwittingly "filling-in" the description by reference to the man in the photograph.

[60] Furthermore, the description he gave is little more than generic. He admitted he did not get a good view of the man's face.

[61] Crown counsel's submission that Mr. Haji Ragab was the only defendant who was wearing grey pants, as was the man on the passenger side in the photo, is reliant on the three defendants being the only occupants of the Chevrolet. There is no evidence, however, to establish that. Mr. Chandan testified that when the Chevrolet drove in and parked beside Mr. Datta's car, he saw that the car contained a driver, someone in the front passenger seat, "and I could feel a person or two in the back seat". Later he testified that he remembered "feeling one person or more in the back seat", but it was very dark and there were only lights in the front two seats. I cannot conclude that there were only three persons in the car. Thus the fact that Mr. Haji Ragab was wearing grey jeans does not, on its own or together with the other evidence, support a finding that he was the person getting in the front passenger seat in the photo.

[62] Nor, in my view, does the fact that Mr. Haji Ragab was wearing white shoes when arrested significantly bolster the inference that he was that person in the photo. White shoes were discarded on the route taken by at least two of the defendants on their way to the wrecker yard. Black shoes were found in the Chevrolet after it was abandoned. The presence of two abandoned pairs of shoes supports an inference that there were four people in the car, not just three.

[63] I cannot find as a fact on all of the evidence that Mr. Haji Ragab is the man seen getting into the front passenger seat of the Chevrolet at the strip mall.

[64] I conclude, on the facts I have found or which have been admitted, that the Crown has not proven beyond a reasonable doubt that the shooter was Mr. Haji Ragab.

(c) The Crown has not proven beyond a reasonable doubt that Mr. Paraparan was the driver

[65] Crown counsel submits that the following things establish that Mr. Paraparan was the driver:

(a) He had the key fob in his pants pocket and had rented the car;

(b) Mr. Chandan testified that the driver had brown, not black, skin, as does Mr. Paraparan;

(c) Mr. Chandan's description of the driver's facial hair as "a thin little hair on the side, on the contour of the face" accurately describes Mr. Paraparan's facial hair;

(d) Although Mr. Chandan testified that the driver was wearing a cream coloured hoodie and Mr. Paraparan was wearing a black t-shirt when arrested, a cream coloured hoodie was found on the path taken by two men which led the police dog to the three defendants in the Lexus in the wrecker yard;

(e) Mr. Paraparan was the only person wearing black shoes when arrested.

[66] I do not accept these submissions. I cannot conclude, on all the evidence, that the Crown has proven beyond a reasonable doubt that Mr. Paraparan was the driver.

[67] As I have said, he was associated with the car. The key fob had to be in the car for it to be driven and it was found in Mr. Paraparan's pants pocket. But the car could have been started and driven so long as the key fob was inside the car. It did not have to be handled by the driver. Anyone in the car could have driven it as long as Mr. Paraparan was in the car if it was in his pocket.

[68] Mr. Chandan's evidence is not entirely reliable, as I have explained.

[69] Furthermore, his description of the facial hair of the driver does not, in my view, describe Mr. Paraparan's facial hair when he was arrested as shown in photographs taken by the police. His moustache was not bushy and when looked at face on his sideburns were not prominent. However, he had a full beard, consisting of sideburns approximately 1 to 2 inches in width leading to a beard approximately 1 inch long covering the bottom of his face below his bottom lip. It was not "a thin little hair on the side, on the contour of the face".

[70] Furthermore, the photo taken by Mr. Chandan appears to show the individual who he described as the driver (who was wearing a cream coloured hoodie) getting into the rear seat on the driver's side. When confronted with this in cross-examination, he admitted that he was unsure whether that person was getting into the back seat or the driver's seat. Mr. Datta testified that the person wearing a cream coloured hoodie, on the driver's side of the car, got in the back seat. As a result of this and the general reliability issues with Mr. Chandan's evidence, I cannot conclude that the man on the driver's side of the car in the photo got in the driver's seat.

[71] The black shoes worn by Mr. Paraparan do not add much. Black shoes were found in the abandoned Chevrolet. Mr. Hope was shoeless when arrested. There may well have been a fourth person in the car.

(d) The Crown has not proven beyond a reasonable doubt that any of the defendants were in possession of the gun which was shot

[72] Since the Crown has not proven that Mr. Haji Ragab was the shooter, it has not proven that he was in personal possession of the gun. In order to prove beyond a reasonable doubt that the gun was in the possession of any of the defendants, the Crown must prove that each of them was in constructive possession of it.

[73] As I have indicated, that requires that each of them have knowledge of the gun, have knowingly put it or kept it in a particular place, and have intended to have it in that place for either his own use or benefit or that of another person.

[74] The only evidence as to the location of the gun is that it was in the shooter's hands when he shot. While there is no direct evidence that he got out of the car with the gun in his possession (Mr. Chandan having testified that he did not recall seeing either of the men get out of the car, and Mr. Datta testifying only that he saw the shooter "pull out a gun and just shoot") it is a reasonable inference that he did so. But I cannot make any factual conclusion, on any standard of proof, as to where it was inside the car. It may well have been in the shooter's personal possession. But it could have been anywhere in the car.

[75] Without that basis, and without being able to conclude who the shooter was, I cannot conclude that any of the defendants knew about the gun before it was used.

[76] Crown counsel submitted that I could conclude from the way in which the car was driven on arriving at the strip mall that all of the occupants, or at least the driver, knew that there was a gun in the car and intended to use it before they arrived at the mall. Relying on Mr. Chandan's evidence, she submits that the following facts support that inference:

(a) It was past 1:00 am when the car drove into the mall;

(b) The car drove very slowly into the mall;

(c) It reversed into the parking spot, facing the mall and the group of young men and women with whom the shooter was later arguing;

(d) None of the persons in the car got out and attended any of the business in the strip mall;

(e) Two men got out of the car and confronted the group of persons;

(f) The shooter pulled out the gun and shot.

[77] In my view, while it is a possible inference from those facts that the occupants knew of the presence of the gun and intended to use it, it is not the only reasonable inference. It is also a reasonable inference that only the shooter knew that the gun was in the car, and that it was in his personal possession.

[78] Crown counsel also submits that when the shooter got back in the car before it drove off, the occupants knew that he had the gun. As a result, knowledge of the gun's presence was established on the part of all occupants of the car from that point on.

[79] The difficulty with that submission is that possession requires knowledge and a voluntary act. The Court of Appeal dealt with this in R. v. Swaby (2001), 54 O.R. (3d) 577. That case dealt with a charge of being an occupant of a motor vehicle in which he knows there is a restricted weapon. At paragraph 17, Sharpe J. wrote:

[17] To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s. 91(3), namely occupancy of the vehicle and the appellant's knowledge of the weapon. In my view, it is implicit as well that the Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant. Although the section under which the appellant was charged contained no explicit defence in the terms of the present s. 94(3), it must be interpreted so as to exclude the possibility of conviction for what would amount to an involuntary act.

[18] Voluntary conduct is a necessary element for criminal liability: see A.W. Mewett & M. Manning, Mewett & Manning on Criminal Law, 3rd ed. (Toronto, Butterworths: 1994) at pp. 129-32; Glanville Williams, Textbook of Criminal Law, 2nd ed. (London, Stevens & Sons: 1983) at pp. 146-54. The requirement for voluntary conduct applies even if the provision creating the offence does not expressly require one: see D. Stuart, Canadian Criminal Law: A Treatise, 3rd ed (Toronto, Carswell: 1995) at p. 94: "There is no general Code stipulation that the guilty act be voluntary. The requirement exists by virtue of judicial reasoning . . .". As explained by McLachlin J. in R. v. Théroux, [1993] 2 S.C.R. 5, 79 C.C.C. (3d) 449 at p. 17 S.C.R., p. 458 C.C.C.: ". . . the act must be the voluntary act of the accused for the actus reus to exist."

[19] If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. If a passenger tells the driver that the passenger has a gun, it cannot be the case that the driver is immediately guilty. Should the driver immediately stop the vehicle and tell the passenger to leave, the driver would have known of the gun while he was an occupant of the vehicle, but he would have done all the law could expect. The driver's occupancy of the vehicle would have coincided with his knowledge of the gun, but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish.

[80] Similar principles apply here. Two men got in the car after the gun was fired. One of them was the shooter. He knew that the gun was in the car, and voluntarily chose to get in the car. The same could be perhaps be said of the other man who got in the car after the shooting, who may well have seen or heard the gun. But the same could not be said of the person or persons who had been in the car during the shooting. The evidence is that the Chevrolet sped off immediately after the men got in the car. There was no time for that person or those persons to "deal with the situation" as Justice Sharpe said is required for criminal liability.

[81] In any event, the Crown relies on constructive possession for the defendants other than the shooter. As I have indicated, that requires, in addition to knowledge, that the offender intend that it be put or kept in a particular place so that it could be used by him or another person. The evidence does not support such an inference for a passenger of the car.

[82] The particle of gunshot residue found on Mr. Hope's hand does not justify a finding that he was in possession of the gun. Dr. David Ruddell, an expert in gunshot residue, testified that gunshot residue has been found in the back seats of police cruisers and on police handcuffs. It can be transferred to the hands of persons who sit in the cruiser or are cuffed.

[83] Since the Crown has not proven that Mr. Paraparan was the driver, and has not proven that Mr. Haji Ragab was the shooter, the issue of whether the Crown has proven each of the defendants guilty must be dealt with in the same way. On the proven facts, they are in the same position. I conclude that the Crown has not proven that any of the defendants were in possession of the gun.

Count-by-Count Conclusions

(a) Count 1 – Careless Use of a Firearm

[84] This count charges all of the defendants with carelessly using a firearm. The Crown has not proven who was the shooter, who would be liable as the principal. Nor did Crown counsel submit that any of the defendants were guilty as an aider or abettor under s. 21. Accordingly, this count is dismissed against all defendants.

[85] There is another reason that this charge must be dismissed. The item I have been calling a gun was never recovered. There is no evidence of what kind of gun it was. Both Mr. Chandan and Mr. Datta testified that they saw the gun being shot, with flames or sparks coming out of it. A shell casing was recovered from the scene which was agreed to be "consistent with being used and discharged by a 9 mm handgun."

[86] A firearm is defined by s. 2 to mean:

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

[87] I cannot conclude, from the evidence presented and facts agreed upon, that the item which has been referred to as a gun meets that definition. The fact that the shell casing was consistent with being fired by a 9 mm handgun does not establish beyond a reasonable doubt that the item was a 9 mm handgun, that it was fired from a 9 mm handgun, or that the item was capable of causing serious bodily injury or death. An expert in firearms may be able to provide that opinion. I do not know. While deeply suspicious, I cannot conclude that this has been proven.

(b) Counts 2, 3, 4, 6 – Joint Possession Charges

[88] All these counts charge all of the defendants with possession of the handgun. Since the Crown has not proven that any of the defendants were in possession of the handgun, all of these counts are dismissed against all defendants.

[89] These counts all particularize the item in question as a firearm. Since it has not been proven that it was a firearm, these counts must be dismissed for that reason as well.

[90] Furthermore, counts 3, 4 and 6 require that the Crown prove beyond a reasonable doubt that the defendants were not the holder of a licence permitting possession of the firearm and a registration certificate. There is no evidence that Mr. Haji Ragab and Mr. Hope did not hold such a licence or certificate. The charges must be dismissed for that reason as against those defendants as well.

[91] This does not apply to Mr. Paraparan. While there is no direct evidence that he did not hold the requisite licence or certificate, he admits that he is bound by a s. 109 weapons prohibition order. He is thus legally prohibited from having a licence or certificate.

(c) Count 5 – Occupying a Motor Vehicle Knowing That There Was in That Motor Vehicle a Restricted Weapon

[92] This count is against all of the defendants. While at least one occupant – the shooter – knew of the gun's existence, the Crown has not proven beyond a reasonable doubt that any of the defendants knew, before the gun was shot, that there was a gun in the car. Since the Crown has not proven the identity of the shooter or the other man who was shown by the photo to be out of the car, all of the defendants must be treated as passengers who were in the car after the shooter got back in. There was no time for them to deal with the situation. This count is dismissed against all defendants.

[93] The weapon in issue is particularized in count 5 as a firearm. It must be dismissed for that reason as well.

[94] Furthermore, the term "restricted weapon" is defined by s. 84(1) to mean "any weapon, other than a firearm, that is prescribed to be a restricted weapon." The restricted weapon is particularized in the count to be a "firearm". It thus charges an offence not known to the law. In any event, since the item in issue was not found, it cannot be shown that it is prescribed to be a restricted weapon even if it is not a firearm.

(d) Count 7 – Discharging a Firearm with Intent to Wound

[95] Mr. Haji Ragab is charged with discharging a firearm with intent to wound. The Crown has not proven that he was the shooter. This count is dismissed.

[96] The offence is of discharging a firearm, and it is particularized in the count as being a firearm. Since the Crown has not proven that the item was a firearm, it must be dismissed for that reason as well.

(e) Count 9 – Breach of s. 810 Recognizance by Possessing a Weapon as Defined by the Criminal Code

[97] Mr. Hope is charged with this count. Crown counsel properly conceded that if Mr. Hope was not found to be in possession of the gun, he could not be convicted of this count. It is dismissed.

(f) Count 10 – Possessing a Firearm While Prohibited

[98] Mr. Paraparan is charged with this offence. Since it has not been proven that he was in possession of the gun, he cannot be convicted. The count is dismissed.

[99] Since it has not been proven that the item was a firearm, it must be dismissed for that reason as well.

(g) Count 11 and 12 – Failing to Stop a Motor Vehicle While Being Pursued by a Police Officer and Dangerous Driving

[100] Mr. Paraparan is charged with these offences. Since it has not been proven beyond a reasonable doubt that he drove the car, these charges are dismissed.

(h) Count 8 – Breach of Recognizance by Failing to Keep the Peace and Be of Good Behaviour

[101] Mr. Hope is charged with breaching his s. 810 recognizance. The Crown case was premised on him being convicted of one of the other offences with which he is charged. I have dismissed all the other charges against him. Crown counsel submitted, in closing arguments, that even if I were to dismiss all other charges, Mr. Hope failed to be of good behaviour when he ran from the police when they were trying to arrest him.

[102] In R. v. Gosai, [2002] O.J. No. 359, Durno J. held, in a summary conviction appeal:

27 There are conflicting authorities as to whether the term can be breached without offending any law or regulation, or must involve conduct otherwise prohibited. Those favouring the need to offend some law or regulation include R. v. R.(D.), 138 C.C.C. (3d) 405 (Nfld. C.A.); R. v. Grey (1993), 19 C.R. (4th) 363 (Ont. Ct. P.D.); and R. v. Barker, supra. The following cases found there was no need to limit the offence to non-compliance with legal obligations: M.(S.A.M.) [1994] S.J. No. 537 (Sask. Prov. Ct.); R. v. Johnson (1993), 90 Man. R. (2d) 43.

28 I am persuaded, that in order to comply with the third requirement noted in para [19] above, a failure to be of good behaviour must involve a breach of a legal obligation created in legislation. To permit criminal offences to be created for breaches of some fanciful standard of conduct which is expected of law abiding and decent citizens, is to set the line in the sand as one which is forever changing at the whim of the person examining the conduct. In addition, any other interpretation is inconsistent with a full mens rea offence.

[103] It was not alleged until closing submissions that Mr. Hope was guilty of breach of recognizance because he failed to cooperate with police. Nor was he given notice of that in the way the charge was worded. The Crown's case was based on him being convicted of one of the other offences with which he is charged. That has not happened. This count is dismissed.

Released: November 1, 2019

Signed: Justice P. K. Doody