Court File and Parties

Ontario Court of Justice

Date: 2020-02-28

Between:

Her Majesty the Queen

— and —

Lloyd Williams

Judgment at Trial

Counsel:

• C. Ponesse, for the Crown
• A. Vaughn, for the Defendant

Before: Felix J.

Table of Contents: R. v. Williams

I. Introduction II. Background III. Analysis

• A. General Comments about the Video Surveillance
• B. The Confrontation at McDonald's Exit and Entrance Doors
• C. Forensic Support for the Use of a Firearm or Firearms IV. Conclusion
• A. Liability for Conduct Outside the Restaurant
• B. Liability for Conduct at the Corner of Yonge and Elm Street

I. Introduction

[1] On July 28th, 2019 gunfire erupted in the vicinity of Yonge Street and Elm Street in Toronto shortly before 5:00 AM. The defendant is charged with attempt murder and firearms-related offences as a result of a police investigation into that event.

[2] The Crown and Defence cooperated to admit into evidence that which was not controversial by filing formal admissions in an agreed statement of facts. This professional approach on the part of experienced counsel should be emulated. Their combined efforts compressed perhaps a week's worth of viva voce evidence into an agreed statement of facts. Their efforts meant that the entire trial and submissions were completed in one full day. One week later, the Court is in a position to render judgment.

[3] There is a serious problem with gun violence in Toronto and surrounding communities. Any reasonable member of the community would be concerned and upset about the use of illegal firearms and the risk to life. That no one was harmed in this case is simply fortuitous.

[4] Notwithstanding the obvious concern, a Court must focus on the rule of law. The rule of law requires a Court to properly apply important criminal law principles and decide cases on an objective assessment of the evidence. A Court may not relax the criminal burden of proof no matter the seriousness of the allegations.

[5] I have spent the past week reviewing the evidence several times. Notwithstanding the persuasive submissions of the Crown Attorney, I find that the prosecution has failed to prove the defendant's guilt beyond a reasonable doubt.

[6] Consequently, I am required to acquit the defendant of all charges.

II. Background

[7] As part of the background I will begin with some preliminary findings before setting out why the prosecution has not established the defendant's guilt beyond a reasonable doubt.

[8] The prosecution's case relies generally on two categories of evidence. The first category involves video surveillance depicting the movements of the defendant, an unknown female associate of the defendant, and a male named Keshawn BELL. The second category depends on the forensic examination of the scene and the evidentiary record supportive of a finding that a firearm or firearms were discharged.

[9] The evidence at trial supports a conclusion that the defendant and BELL had a conflict at a McDonald's restaurant located at Yonge and Elm Street shortly after 4:45 AM on July 28, 2019.

[10] Video surveillance shows that BELL entered the McDonald's and approached the cashier just after 4:45 AM. A minute later the defendant and a female party approach the cashier as well and stood feet away from BELL. While there is no audio capture of what occurred, the video image shows clearly that some dialogue occurred between the three individuals. Thereafter, BELL proceeded away from the cashier area and moved towards the exit and entrance doors of the McDonald's restaurant. He can be seen gesturing to the defendant to follow him.

[11] There are two sets of double-glass doors allowing patrons to enter and leave the McDonald's. The defendant followed BELL to the entrance of the restaurant with the female party. BELL leaves the restaurant. The defendant and his female companion remain inside the first set of double glass doors at the entrance of the restaurant. The defendant can be seen looking outside. The female companion is clearly having a conversation with him and can be seen grasping at his hand and perhaps a black satchel bag slung across his body. Moments later the female party can be seen near the outside doors of the McDonalds engaging in dialogue with BELL. BELL is located south of the doors, on the sidewalk, approximately fifteen to twenty feet away from the McDonald's.

[12] Shortly thereafter, the defendant and BELL have an interaction at the same doors of the restaurant. The defendant can be seen just outside glass door of the McDonald's. BELL can be seen on the sidewalk just to the south of the defendant approximately fifteen to twenty feet away.

[13] The two central issues in this trial concern (1) whether the prosecution has established that the defendant shot at BELL during this initial confrontation; and (2) whether the prosecution has established that the defendant shot at BELL shortly thereafter at the corner of Yonge and Elm street.

[14] The prosecution theory is that there was an exchange of gunfire between the two men at the initial confrontation point located at the entrance doors to the McDonald's. This theory depends on the video surveillance showing the physical movements and body language of the two men, the evident reaction of the general public in the moments thereafter, and the forensic examination of the scene.

[15] The prosecution theory is that the defendant thereafter pursued BELL, who ran south on Yonge street and west on the northside of Elm Street. From the perspective of the prosecution, it makes sense that the defendant pursued BELL after the initial confrontation. The Crown submits that it must be the defendant depicted on the Elm street video footage showing a person at the north-west corner of Yonge and Elm. The Crown submits that the defendant is shooting a firearm at BELL as BELL runs westbound on Elm. The Crown also concedes that the video surveillance, audio recording, and forensic examination of the scene supports a finding that BELL is also discharging a firearm as he flees westbound.

III. Analysis

A. General Comments about the Video Surveillance

[16] The video surveillance inside the McDonald's restaurant is of sufficient quality to see colours, shapes, and to gain a good perspective of the layout of the premises. It is admitted that the video shows the defendant and BELL. It is also possible to see other parties inside the restaurant including the unknown female party accompanying the defendant.

[17] The quality of the video surveillance covering the exit and entrance doors outside the restaurant is not as clear as inside the restaurant. For whatever reason, the video appears more black and white rather than colourized, as if it was compromised by the lighting conditions. The identification admissions in this case do not extend to proof of the identity of the two parties at the exit and entrance doors of the restaurant. Nevertheless, having regard to the video surveillance inside the McDonald's I find that that the defendant and BELL are depicted on this video at the exit and entrance doors of the restaurant.

[18] The video surveillance on Elm Street directed at the north-west corner of Yonge and Elm is of modest quality. The camera perspective is some distance from the corner of Yonge and Elm – approximately 50 to 100 feet. The depiction of the person at the corner is not clear or discernible. I find that I can honestly only conclude that there is a person at the corner. I can see a black shape. I cannot determine if that shape is male or female. I cannot see any clothing, physical descriptors, or any features of the person given the distance.

[19] The video surveillance on Elm Street directed at the north side of the street is of modest to good quality. There is also a very clear audio capture. This camera, and the succession of video captures played by the Crown, make it clear that BELL is the male person running westbound on Elm. The clear sound of multiple gunshots can be heard on the audio. The video footage is clear enough for me to identify BELL on this video. I am comfortable in making this identification because I can see the physical dimensions of BELL on Elm street and compare it to the known (admitted) depiction of him the order desk area of the McDonald's. Further, I took careful note of the white socks and white shoes in common. On the sum of all of the video surveillance in this case I am satisfied that it was BELL running west on Elm. I am also reasonably satisfied that BELL was discharging a firearm as he fled as conceded by the Crown.

B. The Confrontation at McDonald's Exit and Entrance Doors

[20] There is no direct evidence that the defendant possessed a firearm at the doors to the restaurant. There is no direct evidence that BELL possessed a firearm at the doors to the restaurant. There is no visible image of a firearm. There is no visible confirmation of the discharge of a firearm. A review of the video at the McDonald's reveals several patrons of the restaurant including a uniformed security guard who appeared to be on duty working inside the restaurant. No civilian witness from the McDonald's restaurant provides evidence that gunfire occurred.

[21] Notwithstanding these findings, I agree with the Crown submission that the circumstantial evidence supports a finding that the defendant and BELL engaged in some conflict involving a firearm and that the discharge of a firearm occurred given the following evidence:

1. The defendant and BELL clearly had some sort of disagreement leading up to their interaction at the front door given the body language and actions of both men, and the intervention of the female companion associated to the defendant;

2. Throughout the video depiction of defendant and BELL, each of them at times appear to be placing a hand inside black bags affixed to their respective bodies, or at a minimum, appear to be favouring such bags;

3. At the juncture of conflict at the McDonald's door, despite the absence of audio, and notwithstanding no firearm or muzzle flash consistent with the discharge of a firearm can be seen, both men suddenly and visibly recoil for some reason;

4. The evidence, at it's highest (particularly in video still exhibit #3), appears to show BELL holding his black bag up with something shiny in his hand;

5. The depiction of the defendant at the door of the McDonald's is not clear enough to see distinguishing detail of anything he might be holding;

6. A security guard within the McDonald's and many patrons attended the front door right after the interaction between the men;

7. The area of Yonge and Elm was replete with the remnants of discharged 9mm calibre ammunition;

8. There might be bullet-related damage on the grey wood barrier between the McDonald's and the commercial premises beside the restaurant;

9. There might be bullet-related damaged glass at the Alibaba Restaurant and Basil Box Restaurant;

10. There might be bullet-related damage to a parking meter on the north sidewalk of Elm street;

11. The video and audio evidence from Elm street shows BELL running westbound on the north side of Elm street while discharging a firearm; and,

12. The admitted civilian witness evidence is supportive of an inference of gunfire occurring.

[22] I find that there was a confrontation between the defendant and BELL at the restaurant doors and that the discharge of a firearm must have occurred. I find this to be a reasonable common-sense inference based on this evidentiary record.

C. Forensic Support for the Use of a Firearm or Firearms

[23] Again, it must be emphasized that no firearm is depicted on any video surveillance. No firearm was seized or linked to the defendant in this case. The strongest evidence at trial concerns the audio capture and video surveillance on Elm Street supporting a reasonable conclusion that BELL possessed and discharged a firearm. In addition to this record, the Crown relies upon damage allegedly associated with the discharge of firearms including:

1. The scene in the area of Yonge St. and Elm St. was replete with discharged 9mm ammunition;

2. Damage to the wooden barrier wall at the business premises directly south of, and next to, the McDonald's;

3. Damage to the windows at two retail stores on the east side of Yonge street across from Elm Street; and,

4. Damage to the parking meter on Elm Street.

[24] This evidence, alone or in combination with the record at trial, does not provide a foundation to conclude that the defendant possessed or discharged a firearm. While I am satisfied that there was a discharge of a firearm or firearms, the evidence does not support a conclusion that there must have been two firearms and therefore, inferentially, the defendant was also armed.

1. The scene generally – spent ammunition

[25] The SOCO police witness documented evidence of discharged 9mm ammunition produced by two different manufacturers in the vicinity of Yonge and Elm street.

[26] I find that I may draw a reasonable inference that this ammunition is related to the incident at trial. I may use common sense and life experience to note that Yonge and Elm is not a location in the city of Toronto where there are gun battles every day. The police secured the scene very shortly after the incident. While there is no evidence showing precisely when the discharged ammunition was deposited, it is reasonable for me to infer that it is related to the incident in question.

[27] The numbering of the spent ammunition exhibits by the SOCO officer is not probative of the actual progression, evolution, or trajectory of a gun battle. It is merely the documentation of the spent casings in the order determined by the forensic police officers.

[28] That there existed discharged 9mm ammunition produced by two different manufacturers does not support the Crown theory that there was an exchange of gunfire or that there existed two separate firearms. For example, there was no evidence of forensic examination for tool marks on the discharged ammunition supportive of the theory that there were two firearms. Further, the SOCO police witness testified that 9mm ammunition from different manufacturers could conceivably be fired by the same firearm. The SOCO police witness testified to this knowledge without any specialized expertise in the area of firearm examination. Nonetheless, I am satisfied that he has this knowledge given his testimony that he knew this fact given his general experience as a police officer. Finally, this Court is not required to ignore experience. It is not unprecedented for those who possess illegal firearms to cobble together ammunition from difference sources and different manufacturers.

2. The scene proximate to the McDonald's Entrance

[29] There is evidence of 9mm spent ammunition in the area outside the McDonald's entrance.

[30] The Crown also relies upon damage to a wooden barrier wall depicted in photograph exhibits 80, 81, 82, 83 and 84. There is no forensic evidence linking that damage to the discharge of a firearm. There is no forensic examination supporting a finding that a 9mm round caused this damage. There is no evidence establishing when that damage was caused (i.e., a timeframe where there was no damage preceding this incident). I cannot find, as submitted by the Crown, that there is any directionality to the damage presented (i.e., an entrance and an exit trajectory of the projectile). This is too far from the realm of judicial notice, common-sense inference, or judicial experience. There is no expert opinion evidence supporting this submission.

3. Damage to the Store Windows

[31] There is no forensic evidence to support the finding that the two holes in the windows were caused by bullets as opposed to rocks (for example). There is no evidence from the owners of the stores in question to support a finding that the windows were pristine prior to this incident. Nonetheless, it is at least possible that BELL caused this damage when he was shooting towards the corner of Yonge and Elm. The windows are directly opposite that location.

4. Damage to the Parking Meter on Elm Street

[32] The SOCO photos #11, 12, 13 depict a parking meter on the north side of Elm Street. Even in the absence of expert opinion evidence I feel confident in concluding that the damage looks like it was caused by a bullet. Augmenting this conclusion is the video and audio evidence from Elm street supporting the discharge of a firearm by BELL. Once again there is no evidence as to timing of the damage to the parking meter, but I nevertheless reach this conclusion on all of the evidence at trial.

IV. Conclusion

[33] The Crown theory is that both the defendant and BELL were armed, and an exchange of gunfire occurred at the McDonald's restaurant door and at the corner of Yonge and Elm. The Defence urges caution. The Defence submits that the evidentiary record more strongly supports that BELL was armed with a firearm, only BELL can actually be seen and heard discharging a firearm, and the fact that there are discharged rounds from two manufacturers does not mandate that two firearms were involved.

[34] As the trial judge I must consider the evidence in a wholistic manner. I should not consider the evidence piecemeal nor should I require the prosecution to prove discrete facts beyond a reasonable doubt: R. v. Morin, [1988] S.C.J. No 80 at paras. 6, 21; R. v. Youssef, 2018 ONCA 16 at paras. 4-6, aff'd 2018 SCC 49; R. v. Tremble, 2017 ONCA 671 at paras. 78, 93-94.

A. Liability for Conduct Outside the Restaurant

[35] While I am satisfied that a firearm or firearms were involved in the altercation at the doors of the restaurant, the circumstantial record does not permit me to determine if only one of the two men was armed with a firearm, or both men were armed. Similarly, I can not determine whether one male or both discharged a firearm.

[36] While the Crown submits that the forensic examination of the scene supports the theory that both men were armed, that record, shell casings from two different manufacturers, does not establish that there must have been two firearms. As explained in this judgment, the forensic examination of the discharged ammunition does not singularly support this theory.

[37] That each man favoured a black bag they were carrying could be probative of possession of a firearm but could be probative of possession of other weapons. That they mutually recoiled away from each other at the restaurant door does not reasonably lead to the singular inference that that both parties were armed with firearms or that both parties discharged a firearm. The reaction could be indicative of both parties being armed or only one party being armed. The reaction could be indicative of one party shooting or both men shooting at the same time.

[38] The audio and video evidence on Elm Street supports a conclusion that BELL possessed a firearm and discharged it while running on Elm Street. Given the sequence of events it is reasonable to infer that he possessed that firearm at the restaurant doors as well.

[39] That I am satisfied that a firearm was discharged proximate to the McDonald's does not inevitably lead to the singular inference that the defendant must have discharged a firearm. The evidentiary record is equally supportive of the reasonable inference that BELL was the only person who discharged a firearm outside the restaurant.

[40] As it pertains to any criminal liability for the events outside the McDonald's doors, the prosecution has not proven beyond a reasonable doubt that the defendant possessed a firearm, discharged a firearm, or attempted to murder BELL.

B. Liability for Conduct at the Corner of Yonge and Elm Street

[41] The Crown submits that it only makes sense that it was the defendant who was shooting at a fleeing BELL who was running westbound on Elm street. This is a good argument premised upon the rationale conclusion that those who were in conflict at the McDonald's entrance might also be in conflict at the corner of Yonge and Elm. But this argument is vulnerable to other considerations.

[42] First, while I do not have direct evidence of the exact distance between the entrance of the McDonald's and the corner of Yonge and Elm I have sufficient record in the numerous photographs and the scale on the Google map exhibit to estimate the distance at approximately 10 metres or just over 30 feet.

[43] Second, there is no video evidence showing the defendant or anyone else running from the entrance of the McDonald's to the corner of Yonge and Elm much less chasing BELL.

[44] Third, there is no evidence from civilian witnesses describing the defendant or anyone else running from the entrance of the McDonald's to the corner of Yonge and Elm.

[45] Fourth, there is no evidence from the defendant's female companion detailing her involvement in the incident or evidence from her negating an inference that she could possibly be involved with the discharge of a firearm. Defence counsel makes the point that in circumstances where there is no audio capture and the Court is drawing inferences from observed conduct, it is notable that the female party also seems to be having a conflict with BELL. He cautions that reasonable inferences should not be premised on stereotypes (i.e., a preference for assigning possession and use of a firearm to males rather than females based solely on stereotypical thought processes).

[46] Fifth, I note that there were other patrons at the McDonald's and there were other people on Yonge street including the defendant's female companion. One civilian witness observed a dark-skinned person cross from the north to the south side of Elm Street from his vantage point 16 stories up. Another witness saw people running in the street after hearing what sounded like fifteen gunshots. There was even another black male also equipped with a black bag who went into the McDonald's and walked around without purchasing anything. If I was in the business of speculation or suspicion, I would wonder about his involvement in this incident as well. But a criminal court must refrain from rank speculation and ground any circumstantial inferences in the evidentiary record. The simple point is that there were other persons in the area of the McDonald's restaurant and presumably out on Yonge Street some of whom can be seen on video.

[47] Finally, as outlined earlier in this judgment, I have a duty to be intellectually honest. I can not determine who is depicted in the video surveillance at the corner of Yonge and Elm. No one could make this determination on that video depiction. I simply see a black shape devoid of any detail. Even if I agreed with the Crown that the light flashes that I see were muzzle flashes associated with gunshots, for the reasons outlined in this judgment, I simply can not be convinced to the criminal standard of proof that it was the defendant and only the defendant at that corner.

[48] As a Judge I am not immune to the obvious community concern about gunfire on our streets. Any reasonable person would be gravely concerned about what happened at Yonge and Elm street. But I also believe that informed reasonable and informed individuals would appreciate that I am required to apply the criminal burden of proof at a trial. Furthermore, the record requires me to instruct myself on the law as it pertains to assessing circumstantial evidence, the proper foundation for reasonable inferences, and the consideration of competing inferences: (See R. v. Villaroman, 2016 SCC 33; R. v. Lights, 2020 ONCA 128, at paras. 36-39). These reasons are in aid of demonstrating my considerations and my objective analysis of the evidence.

[49] Given the record at trial, I am required to acquit the defendant of all allegations.

Signed: "Justice M.S. Felix"