R. v. Downey-Smith

Ontario Court of Justice

Date: September 3, 2020

Court File No.: Brampton 19-10750

Court Information

Between:

Her Majesty the Queen

— and —

Shawn Downey-Smith

Before: Justice M.M. Rahman

Heard: August 6, 7, 10, 11, 12, 13, 2020

Reasons for judgment released on: September 3, 2020

Counsel:

• R. Alexander Cornelius, for the Crown
• Elizabeth Bristow, for Shawn Downey-Smith

RAHMAN J.:

1. Introduction

[1] The accused, Shawn Downey-Smith, is charged in a seven-count information with firearm-related offences. During closing submissions, Crown counsel acknowledged that there was insufficient evidence to prove three of the counts (counts 2, 3 and 4). Two of the remaining charges (counts 1 and 5) relate to the seizure of a .40 calibre semi-automatic Heckler and Koch handgun from 21 Graham Crescent in Brampton on evening of February 13, 2019. The last two charges (counts 6 and 7) allege that Mr. Downey-Smith discharged a firearm at the occupants of a home at 7 Bevington Road in Brampton during the early morning hours of February 13.

[2] The Crown's case relies on circumstantial evidence to prove all charges, because no witnesses at the trial saw Mr. Downey-Smith possess the firearm, or otherwise discharge the firearm. The Crown relies on documents connecting Mr. Downey-Smith to one of four bedrooms at 21 Graham Crescent. Police found several documents in the name of "Waylon Smith" in a dresser drawer in a bedroom. In the same bedroom, in a different drawer, police discovered a .40 calibre cartridge. Police discovered the loaded semi-automatic handgun concealed in a blue backpack in a linen closet next to the bedroom containing the Waylon Smith documents and the .40 calibre cartridge. The .40 calibre cartridge was compatible with the handgun in the closet. The Crown also relies on the fact that Mr. Downey-Smith's DNA profile cannot be excluded as one of three contributors to a DNA swab taken from the handgun. Finally, to connect Mr. Downey-Smith to a shooting that took place at 7 Bevington Road in the early morning hours of February 13, the Crown relies on expert evidence that shell casings found at the scene of the shooting match the handgun seized from 21 Graham Crescent.

[3] Mr. Downey-Smith says that the Crown's case is insufficient to prove his guilt beyond a reasonable doubt. He says that the already weak circumstantial case is weakened further by the defence evidence, offered by his sister Kortney Smith. Ms Smith testified that her brother did not live at the residence, though he did stay overnight occasionally. It is their mother's home. Ms Smith said that her brother was spending the night at 21 Graham Crescent on the night of February 12 and was present on February 13, but that he was just visiting the home with his girlfriend. Ms Smith testified that the room in which the .40 calibre cartridge was found was her nephew's room. She said that Mr. Downey-Smith was staying overnight in the guest bedroom, which is not the one where the documents or .40 calibre cartridge were found. Ms Smith also testified that, to her knowledge, her brother did not leave the home after he arrived on February 12 until he was arrested on February 13.

[4] There is no issue that Mr. Downey-Smith was not authorized to possess a handgun. There is also no issue that a shooting took place in the area of 7 Bevington Road in Brampton, and that shell casings found at the scene of that shooting came from the .40 calibre handgun seized from the linen closet at 21 Graham Crescent. The main issues in this case are whether the Crown has proven, beyond a reasonable doubt, that Mr. Downey-Smith possessed the .40 calibre handgun found at 21 Graham Crescent and whether he is the person who discharged that firearm at 7 Bevington Road.

[5] I will first outline the Crown's case, followed by the defence evidence. I will conclude with my analysis of the evidence and finding.

2. Crown's Case

[6] The testimony from the Crown's witnesses was largely unchallenged. That evidence established the following:

(1) 21 Graham Crescent has four bedrooms on its upper level. All of the bedrooms contained beds, and from their appearance and contents, were being used by someone.

(2) The bedroom to the immediate right as one goes up the stairs had a dresser with a total of six drawers (three drawers on each side). The room contained what appeared to be male clothing. It also had a few pairs of size 10 running shoes.

(3) The dresser in the bedroom had one drawer containing a loose .40 calibre Smith & Wesson cartridge. In a different drawer in the same dresser were several personal documents. The documents were contained in a folder that said "Send to Smith" with an FPS number. There was a blue, three-hole punch folder that has the name Waylon Smith. Waylon Smith is one of the names Mr. Downey-Smith uses. The blue folder contains documents that can be described as a workbook that appears to be part of a correctional rehabilitation program. The documents are not dated. Also within the folder are documents generated by Correctional Service Canada. The most recent of those documents is dated November 2017. There are also several loose documents that are similar to the workbook as they seem to be part of a correctional program. In addition, there was a document in the room bearing the name of "Shawn Smith." That document was dated from about 20 years ago and appeared to be some form of school certificate.

(4) Police located a .40 calibre Heckler & Koch semi-automatic handgun within a blue knapsack. The knapsack was found on the floor of a linen closet next to the bedroom described above. The handgun had a magazine with ammunition.

(5) DNA swabs taken from the handgun were analyzed by the Centre for Forensic Science. An expert in forensic DNA analysis, James Morrow, identified DNA profiles of three contributors, including at least two males. Mr. Morrow concluded that Mr. Downey-Smith could not be excluded as one of the three contributors. Mr. Morrow also concluded that it was 250 times more likely that Mr. Downey-Smith was one of the three contributors to the genetic material on the swab than if the genetic material came from three unknown people. Mr. Morrow explained that he could not place that probability, known as the likelihood ratio, any higher because the genetic material was a mixture and because the genetic material that could be Mr. Downey-Smith's did not contain sufficient material to compare at all the locations that CFS testing checks for. Mr. Morrow also testified that, given the mixture, it is possible that the genetic material ended up on the handgun by indirect transfer. Mr. Morrow said one example of indirect transfer would include person A shaking hands with person B and then person B touching an object. The object could contain a mixture of both A and B's DNA because of the indirect transfer of A's DNA through B's hand.

(6) Nine spent cartridge casings were found in the area of 7 Bevington Road. A shooting occurred near that address in the early morning hours of February 13. A forensic firearms expert from the Centre of Forensic Sciences, Benjamin Sampson, testified that the shell casings' characteristics showed that they had been fired from the Heckler & Koch handgun seized at 21 Graham Crescent.

(7) Mr. Downey-Smith was present inside 21 Graham Crescent when police executed the search warrant there on February 13. He was arrested by tactical officers who first entered the house.

3. Defence Evidence

[7] Mr. Downey-Smith called one witness, his 25-year old sister, Kortney Smith, to testify in his defence. Ms Smith testified that in February 2019, she lived at 21 Graham Crescent with her child and her child's father, her mother, her uncle, and her thirteen-year old nephew Malachi.

[8] Ms Smith testified that the home at 21 Graham Crescent is her mother's home. It is something of a social hub for her family and family friends. She testified that many members of her immediate and extended family, and friends, drop by the home every day to visit. She said that they have a large family. Ms Smith is the youngest of eight siblings. She estimated she has about nine aunts and uncles and she was unable to count how many cousins she has. Ms Smith said that a few of her male cousins and nephews, who did not live in the home, had keys to the home so they could enter it when her mother was not home. She estimated between five and ten people had keys to the house. Ms Smith also testified that, because her mother is usually upstairs in her bedroom, visitors to the home often go upstairs to see her to say hello.

[9] Ms Smith testified that Mr. Downey-Smith had been visiting the home when he was arrested. Ms Smith said that her brother did not live at the home at the time but lived with their sister in Mississauga. She said that Mr. Downey-Smith did not have a key to the home because he had lost it at some point and her mother would not give him a new key. Ms Smith testified that Mr. Downey-Smith arrived on February 12 and was staying in the guest room with his girlfriend. She also testified that the room where the .40 calibre cartridge and Waylon Smith documents were found was not her brother's, but was her nephew Malachi's room. Ms Smith also testified that her mother often kept her children's important documents for them, and that she stored them in the guest room dresser and closet.

[10] Ms Smith testified that her brother never left the home during the night of February 12 or the early morning hours of February 13. When asked how she could be sure that he did not leave she answered, "from what I recall, I never seen him leave the house." In cross-examination, she confirmed that she did not see him from the time she went to bed at about midnight until the next morning when she left her room between 7:30 am and 9:00 am.[1]

[11] Ms Smith's testimony about where her brother lived in February 2019 was the subject of some dispute between the parties. To understand exactly what she said about where Mr. Downey-Smith lived, and what she says she understood what living somewhere meant, it is important to set out how she answered questions on the subject.

3.1. Ms Smith's Testimony About Where Mr. Downey-Smith Lived

[12] Early on in her examination in-chief, Ms Bristow asked Ms Smith where her brother lived in February 2019. She said that her brother lived with their sister in Mississauga. When asked how long he had been living there, she said it had been "pretty much the whole time" since he got out of jail, which she believed was September 2018. She was then asked who lived at 21 Graham Crescent. She listed herself, her child, and her child's father. She also listed her mother, her uncle Clay and her nephew Malachi.

[13] In cross-examination, Ms Smith was presented with her statement to police from February 13, 2019. In that statement, when asked who lived in the house, she answered "me, my mom, Malachi, I guess you could say Shawn because he's in and out." When confronted with the fact that she did not say that her brother lived with their sister, Ms Smith said she answered as she did because she was asked who lived in her mother's house. She agreed that the answer she gave to police was different than the one she had given during examination in-chief.

[14] In re-examination, Ms Bristow asked Ms Smith if she could recall whether she had said anything to police later the same night as she sat in on her nephew Malachi's interview with police. Although she could not initially remember saying anything, her memory was refreshed when she was shown a transcript of the interview. When asked by an officer if Mr. Downey-Smith lived at the house, Ms Smith answered, "I wouldn't say lives there because he'll be like there for one day and we won't see him for three weeks." When Ms Bristow asked what Ms Smith meant by someone living in a place, she explained that, "When someone lives at a home that's where they go back to every night." Ms Smith said she had testified that her brother did not live at the home because "he wasn't there consecutively every day. He was at my sister's consecutively every day."

3.2. Findings Regarding Ms Smith's Testimony

[15] Though Ms Smith's evidence about her brother's connection to 21 Graham Crescent was not crystal clear, I would not reject her testimony or find her not to be a credible witness. Nor can I reject her evidence that her brother was not a full-time resident of 21 Graham Crescent. It is important to consider what she was asked during examination in-chief and the order of the questions, when determining whether her prior statements to police support the inference that she is an untruthful witness.

[16] When Ms Bristow asked, during examination in-chief, who lived at the home, Ms Smith answered with a list of people whom she believed to be residents of the home. She was then asked specifically where her brother lived at the time, and she answered that he lived with their sister. In her statement to police, Ms Smith was not exactly firm about her brother living at the home. Her initial answer "I guess you could say Shawn because he's in and out" was not exactly a firm statement that her brother was a full-time resident. And her later comment the same evening during her nephew's statement – "I wouldn't say lives" -- further watered-down her earlier answer. In short, though her answers to police were not identical to her in-court testimony, her answers to police, read fairly, did not exactly put Mr. Downey-Smith as someone who slept every night at 21 Graham Crescent and called it his home. I am inclined to take a charitable approach to Ms Smith's evidence because she was not a sophisticated witness and is relatively young. At worst, she was trying to downplay her brother's connection to the residence. But even in her police statements, Ms Smith suggested her brother's association to the residence was more of a person who dropped in and did not live there full-time.

[17] In the end, it would seem that Ms Smith adopted her previous answers to police and, once she was re-examined, did not consider them inconsistent from her in-court testimony. The thrust of her evidence is that her brother had some connection to the home, although she would not have called it his residence, because he did not spend consecutive nights there. Rather, as she said to the police, he would spend a few nights and then disappear. What is clear is that Mr. Downey-Smith visited the home frequently and stayed overnight on multiple occasions, including the night before the search warrant had been executed.

[18] Based on my assessment of Ms Smith's evidence I will consider it as part of the evidence in this case.

4. Analysis

[19] Because the Crown's case against Mr. Downey-Smith rests on circumstantial evidence, I must be satisfied that his guilt is the only reasonable conclusion available on the evidence that I accept. I cannot find Mr. Downey-Smith guilty unless I am sure that he is guilty.

[20] I am also required to consider the totality of the evidence in deciding whether Mr. Downey-Smith is guilty. While individual pieces of evidence may not be sufficient to prove the Crown's case, I must consider all of the evidence together in determining whether the Crown has satisfied me, to the point of certainty, that he is guilty. Although I must consider the totality of the evidence, that does not mean I cannot assess the individual parts of the Crown's case to determine how much probative value each of those parts contribute to the whole of the Crown's case.

[21] The Crown relies on Mr. Downey-Smith's connection to the bedroom next to the linen closet, as well as the DNA evidence, to prove that Mr. Downey-Smith possessed the handgun. The Crown seeks to connect Mr. Downey-Smith to the bedroom with the Waylon Smith documents that were in that bedroom. Mr. Downey-Smith's connection to that bedroom is important because it contained a loose cartridge that fit the handgun. The bedroom is also right next to the linen closet, which would put the occupant of the bedroom near the handgun.

[22] I cannot find that the Crown has shown that Mr. Downey-Smith had a strong connection to the bedroom. I accept that the Waylon Smith documents are personal documents. They contain personal information about Mr. Downey-Smith. And as Mr. Cornelius observes, the hand-written documents contain very personal thoughts and self-reflection that most people would consider quite private. However, it is also important to consider when those documents were likely created. The printed parole documents from CSC were printed, at the latest, in November 2017. The remaining, personal documents are not dated. Judging by their content, they appear to have been created while Mr. Downey-Smith was in prison. Nothing about them suggests that they only could have been created while Mr. Downey-Smith was outside of prison. In other words, I cannot infer that these were recently-created documents. Ms Smith's evidence that their mother would store her children's personal documents for them further weakens the inference that the presence of the documents in the room mean that it was Mr. Downey-Smith's room. While I appreciate that Ms Smith said that her mother stored the documents in the guest room, the fact that a 20-year-old school certificate was also found in the bedroom, supports the inference that the Waylon Smith documents were simply being stored in the bedroom as part of a collection of Mr. Downey-Smith's important documents.

[23] I also consider Ms Smith's evidence that the bedroom was not her brother's but her nephew's. Even though Ms Smith's evidence was not perfect, as I said above, I am not inclined to reject it and it is entitled to some weight. Her evidence further weakens the inference that the bedroom was Mr. Downey-Smith's. Even if I reject Ms Smith's evidence that the bedroom belonged to her nephew, I still cannot find that the Crown's evidence supports a strong inference that the bedroom belonged to Mr. Downey-Smith. The documents do not advance the Crown's case very far and do not have a great deal of probative value.

[24] The Crown also relies heavily on the DNA evidence on the handgun. Mr. Cornelius argued that the DNA evidence alone, could support a finding that Mr. Downey-Smith possessed the gun.[2] In my view, the DNA evidence does provide some evidence that Mr. Downey-Smith possessed the handgun. But it does not provide a very powerful inference that he did. I say that for three reasons.

[25] First, the probability that Mr. Downey-Smith is a contributor is not very high. Mr. Morrow testified that the probability that he provided was not high.[3] Second, I note that the home was a social hub for several family members. Mr. Morrow said that the likelihood ratio would be lower if one of the three unknown people in the hypothetical comparison was a sibling, though he could not say how much lower the probability would be. He testified the more distant the familial relationship the less effect that relationship would have on the likelihood ratio. Third, the possibility of indirect transfer of the DNA that could be Mr. Downey-Smith's cannot be ruled out.

[26] The three foregoing reasons all weaken the probative force of the DNA evidence. The probability that it is Mr. Downey-Smith's DNA is low to begin with. The fact that several of his blood relatives regularly visit the home may further weaken the inference that it is his DNA. Finally, even if it is his DNA, there is a possibility he did not put it there.

[27] Once again, I am aware that I must consider all the evidence as a whole when deciding whether the Crown has proven its case. My analysis of the individual pieces of evidence to determine their probative value does not mean I am isolating the Crown's evidence to see if each part of its case can carry the burden of proof. An essential part assessing the totality of the Crown's case is considering the probative value of individual pieces of evidence.

[28] When I consider all of the evidence, I cannot find that Mr. Downey-Smith's guilt is the only reasonable inference. Neither the evidence connecting him to the bedroom, nor the DNA evidence, have a great deal of probative value. Even when I add Mr. Downey's presence in the home during February 12 and 13, I cannot conclude that the only reasonable conclusion is that he possessed the handgun. In short, all of the evidence together does not rise to the level of certainty the Crown needs to reach. The evidence may go as far as establishing that Mr. Downey-Smith probably possessed the handgun. However, I cannot find that it goes as far as proving his guilt beyond a reasonable doubt.

[29] Because the Crown's case on the two counts relating to the shooting at 7 Bevington Road relies completely on proof that Mr. Downey-Smith possessed the handgun, it follows that the Crown has failed to prove those counts as well.

5. Conclusion

[30] The evidence in this case falls short of establishing Mr. Downey-Smith's guilt beyond a reasonable doubt on any of the charges he is facing. Consequently, I find him not guilty of all charges.

Released: September 3, 2020

Justice M.M. Rahman

Footnotes

[1] Mr. Cornelius suggested in closing submissions that Ms Smith's answers were inconsistent, because she first said categorically that he did not leave and then said she did not see him leave. In fairness to Ms Smith, as most lay witnesses, she likely answered based on what she believed rather than what she did or did not see. Her answer about how she could be sure he did not leave was given during examination in-chief, when Ms Bristow tried to clarify whether she had direct knowledge or was merely speculating. I do not find that she was inconsistent at all on this point.

[2] I note that Mr. Cornelius qualified his submission by saying that it could "theoretically" support a finding of possession, but because there was other evidence, the court did not have to decide the case on the DNA evidence alone.

[3] Mr. Morrow considered anything lower than 1000 to be in the low range.