Ontario Court of Justice

Date: 2021-06-09 Court File No.: Toronto 4817 998 19-75005655

Parties

Between: Her Majesty The Queen And: Steven Karapetrov

Before: Justice Howard Borenstein

Heard: April 12, 13, 14, 15 and 19, 2021 Reasons for Judgment Released: June 9, 2021

Counsel: Ms. Jennifer Armstrong, counsel for the Crown Ms. Leora Shemesh, counsel for the accused Steven Karapetrov

BORENSTEIN, J.:

[1] Steven Karapetrov is on trial charged with attempted murder, discharge firearm and related offences. The Crown closed its case. No defence has been called. Most of the Crown’s case comes from video footage taken from a camera on a nearby apartment building and the inferences that flow from that footage.

[2] At approximately 2:15 in the morning, video footage shows two cars pull up to a housing complex near Greenwood and Gerrard. The cars stop quickly next to an alley. Two men exit the front car and one exits the rear car. It is conceded that Karapetrov was the front passenger in the front car.

[3] The three men quickly walk up the exterior staircase to an apartment. They wave to a fourth person who exits the rear car and joins the three. The four enter an apartment and leave about a minute later and return to their cars as before.

[4] As they are getting into the cars, grainy video footage shows a lone gunman walking out of the alleyway and directly approach the cars. He approaches the front left of the front car from a direction of about at 10 or 11 o’clock from the front of the car. As he is approaching, his arm raises. He has a gun and he continues his approach.

[5] As the lone gunman gets closer, we then see a muzzle flash from the gun held by the driver of the first car milliseconds before we see another muzzle flash from the lone gunman. In the next three seconds, a large exchange of gunfire is unleashed, not only between those two men but by others in the two cars. The passenger in the second car begins shooting as well. Karapetrov, who is in the front passenger seat of the front car, is alleged to have fired several rounds from the front passenger seat of the front car.

[6] In the video, one can see what looks like two muzzle flashes from within the front passenger side of the front car and then a plume of smoke or glass immediately appears in front of the passenger side windshield.

[7] The lone gunman runs up the street and turns right, around the corner. The two cars then speed away in the same direction. As the first car flees, and before the second car does as well, the passenger in the rear car continues firing forward.

[8] The driver of the first car, the one with Karapetrov, drove to Michael Garron hospital, literally 2.9 kilometres away, and dropped Karapetrov off at the emergency entrance area and fled. Karapetrov drops to the ground. Medical personnel attend to him and bring him into the hospital where he was treated. They recovered two bullets from Karapetrov’s body and found four unspent rounds of .38 caliber ammunition and over $5,000 cash in his pocket. When that first car was later recovered, four bullet holes were found in the right passenger windshield as well as spent and unspent casings. Bullet holes entered the rear and the right side of the first car. Karapetrov was shot on the right side, side of the head and his back, likely from bullets fired through the rear or that car, either from the lone gunman or the shooter in the second car.

[9] According to the Forensic Investigative Services’ (FIS) expert, the holes in the front windshield are such that, due to the concave nature or funnelling, suggest they were holes originating from inside the car going out. Based on that concave funnelling, and the plume of smoke, and the location of the shooters, and the muzzle flash, and the absence of glass on the dashboard, I find those holes are bullet holes fired from inside the front car through the passenger side windshield.

[10] Mr. Karapetrov survived the shooting and is now on trial for these charges. I have not heard that anyone else was found or charged in this case.

[11] More than 40 spent shell casings and many bullet fragments were found at the scene of the shooting. The Centre of Forensic Sciences’ (CFS) firearms expert testified that they came from at least four distinct firearms, possibly more as she was could not identify many of the fragments.

[12] The Crown closed its case. No defence was called.

Positions of Crown and Defence

[13] The Crown conceded that it could not prove Karapetrov had a specific intention to kill and the attempted murder charge was dismissed. A defence motion for a non-suit was also dismissed. The Crown submits it has proved all the other charges.

[14] Karapetrov submits that the Crown has not proved beyond a reasonable doubt that he fired any shots. He submits the two muzzle flashes seen on the video from within the first car, together with four holes in the front passenger side windshield does not prove beyond a reasonable doubt that he was the one who fired any shots. There may have been someone else in the back seat of the first car and, in the 8-, 9-minute drive from the scene to the hospital, that person may have gotten out of the car. He submits that is a reasonable inference on the evidence, even if only a weak inference.

[15] He further submits that, if the Crown did prove he was a shooter, given that Karapetrov was himself shot in the back and head, his discharge may have been accidental; he may not have been aiming at the lone gunman or he was acting in self-defence.

[16] Given the skilled and focussed manner in which counsel conducted this trial, there are only three issues to decide, the resolution of which will determine all remaining counts.

1. Did Karapetrov fire shots from the front passenger seat of the first car?

[17] For the following reasons, I am satisfied beyond a reasonable doubt that, during this shootout, Karapetrov fired several shots, likely four, from the front passenger seat out, through the front windshield.

[18] To re-iterate the context, the lone gunman emerged from the alley as the four men return to the two cars. What they were doing in the apartment is not known but we know some, if not all, were armed. We can see that on the video and at least four distinct firearms were used in this shootout. Assuming only four guns, for a moment, that would be the lone gunman plus three. Those guns were all at the ready within the three seconds of this encounter.

[19] The gunman approached the front car from about ten o’clock, with his arm outstretched while holding a loaded gun. He was about to shoot when the front driver fired out his side window and the passenger in the rear car began shooting as well.

[20] From the video footage, we can see a large exchange of gunfire occur as the lone gunman approached.

[21] The entire shooting took a matter of seconds. During those seconds, we can see what appears to be two muzzle flashes from inside the front car, on the passenger side. At the same time, we see a plume of glass or gas or smoke blow out from the front of the passenger side windshield, which is consistent with what you might expect from someone shooting through the windshield from inside the car.

[22] Taking into consideration the fact that the front driver was shooting through his side window toward the lone gunman on his left, the muzzle flashes seen within the car on the passenger side, combined with the four holes in front of the passenger side windshield which, based on the absence of glass on the dashboard, the smooth nature of the interior of the glass as opposed to the exterior and the coning or funnelling shape of those holes, as well as the plume of smoke or glass, I am satisfied that those shots were in fact fired from within the car on the passenger side. There would be no reason for the driver to shoot out that window when he was firing at the gunman out his side window.

[23] Karapetrov submits that it is possible that a third person was located in the back seat of the front car; that this person remained in the car to watch the car while the others went into the apartment, and that this person then engaged in the shootout by leaning forward from the back seat and firing out the front passenger windshield.

[24] Given that no third party was seen in the car when it pulled into the emergency bay area of Michael Garron, Karapetrov submits that it was possible this person got out of the car on the drive from the scene to the hospital.

[25] I reject that as pure speculation. While there is no onus on Karapetrov to prove anything, the scenario he posited goes well beyond a reasonable inference flowing from the evidence to sheer speculation. The Crown’s case is circumstantial, and I caution myself that I must be satisfied that the shooting that was done was done by the accused is the only reasonable inference available on the evidence. No third person is ever seen. There are only two people seen exiting and re-entering the car when it arrived. There is nothing in the evidence that causes me to believe this scenario is anything more that a theoretical possibility, not something that I have a reasonable doubt about flowing from the evidence.

2. Did Karapetrov accidentally fire his firearm between two and four times?

[26] Karapetrov submits that, even if I am satisfied beyond a reasonable doubt that he was the shooter, there should be a reasonable doubt about whether he fired accidentally; particularly given that he was shot himself. Given that there were numerous shots fired out the front passenger windshield, this accidental discharge must have occurred repeatedly.

[27] Again, it is not a reasonable inference that Karapetrov was holding a loaded gun and, when shot, accidentally discharged his gun during a gunfight four times. There is no evidence in support of this being an accidental discharge during a shootout. I am not left with any doubt about that.

Self-defence

[28] Turning to self-defence, this is the main issue in contention in this case.

[29] I do not know what these four men were doing that night, but they were involved in serious criminality. They attended that apartment and left quickly. At least three of them, including Karapetrov, were armed with loaded firearms at the ready, which is, itself, a serious offence. Karapetrov had just over $5,000 cash in his pocket. But what they were doing is unknown to this Court.

[30] Whatever they were doing, as they were getting into their car, about to leave the scene, the lone gunman approached with his firearm, outstretched, about to fire lethal force at these men. They were being threatened with lethal force by a man with a loaded firearm.

[31] In the next three seconds, which seems a lot longer in slow motion, there was a dangerous shootout on a residential street where over 40 shots were fired. He was hit twice; once in the back and once in the head. And even though the accused has not testified, self-defence has an air of reality.

[32] As Justice Doherty wrote for the Court of Appeal in R. v. Khill, 2020 ONCA 151, “An act done in self-defence is not unlawful and death caused by that act is not culpable”; (para 38).

[33] Certain things are apparent from the video even without the accused’s evidence.

[34] A claim of self-defence has three conditions. If there is a reasonable doubt about all three conditions, then a claim of self-defence will succeed. Conversely, if the Crown proves beyond a reasonable doubt that any of the three conditions are not met, the defence will fail.

[35] Section 34(1) of the Criminal Code provides that:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

Based on the video evidence alone, this condition is easily met in this case. Anyone would have perceived their lives to be in mortal danger at that time.

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

Again, and based solely on the video evidence in the context of what was occurring, this condition is also met. Karapetrov and the others fired in response to this male approaching with a loaded firearm. Numerous shots were fired, and they quickly fled, within three seconds. I believe the shooting was in response to, and in defence of, this male approaching with a loaded gun. The fact that the driver fired a millisecond before the male discharged his gun does not change that. The lone gunman was there for that purpose

(c) the act committed is reasonable in the circumstances.

This is the real issue to be resolved in this case. Driving with loaded firearms is not reasonable. It is a crime. A shootout is dangerous and shocking, despite its increased prevalence. The issue is whether Karapetrov firing his gun in self-defence was reasonable in all the circumstances. That requires an assessment of all the circumstances.

[36] Section 34(2) of the Criminal Code provides a non-exhaustive list of factors to consider in making this assessment.

[37] Section 34(2) provides:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

This is not an abstract notion but one of the most significant factors to consider when assessing the reasonableness of the response, or act, of the accused. The greater the threat, the more likely a severe response will be found to be reasonable. The threat to Karapetrov and others that night was lethal.

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

The threat was immediate. They fired and fled the scene within seconds of the threat emerging.

(c) the person’s role in the incident;

I do not know what the four men were doing. The powerful and most likely inference is that they were engaged in serious criminality, possibly robbery. Four men rush in and leave quickly, at least three carrying loaded firearms. When Karapetrov is treated at the hospital, he had over $5,000 cash in his pocket. While I am not certain what they were doing, I suspect that a robbery likely occurred, but I concede it remains speculative.

[38] It is tempting to hold that, because Karapetrov and the others were themselves armed and involved in some unknown criminality, he should not be permitted to successfully claim self-defence. But his role in the incident, which is largely unknown, remains one factor. Like the nature of the threat, it is a significant factor but remains a factor.

[39] It may be that in some circumstances, one’s role in the event would prevent that person from successfully claiming self-defence. A potential example might be someone holding up a victim at gunpoint who gets shot in response would then likely have a difficult time claiming self-defence when returning fire.

(d) whether any party to the incident used or threatened to use a weapon;

Everyone was using loaded firearms.

(e) the size, age, gender and physical capabilities of the parties to the incident;

That is not relevant during this three second incident.

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat

This is unknown.

(f.1) any history of interaction or communication between the parties to the incident;

This too is unknown.

(g) the nature and proportionality of the person’s response to the use or threat of force; and

The lone gunman approached the car about to fire. In three seconds, a flurry of gunshots occurred before the driver fled. Karapetrov was faced with likely being shot or death. In those circumstances, I cannot find beyond a reasonable doubt that his actions were disproportionate to the threat faced.

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

There was nothing lawful about these events.

Conclusion

[40] Considering all these circumstances, recognizing that Karapetrov bears responsibility for his own crimes and some responsibility for putting himself in the situation that confronted him that night, he was nonetheless confronted with an imminent threat of death from a gunman approaching and intent on firing. Karapetrov and the others, while far from innocent, were about to leave when this occurred. The Crown has not persuaded me beyond a reasonable doubt that his response, firing shots before the driver fled three seconds later, as Karapetrov himself was hit twice, was unreasonable.

[41] Therefore, he will be acquitted of the offences that could benefit from the defence of self-defence.

[42] In summary, he will be found guilty of the following counts on the Court Information:

Count 1 – possession of a restricted firearm; Count 3 – possession of a weapon for a purpose dangerous; Count 5 – being an occupant in a motor vehicle knowing there was a prohibited firearm arm in the vehicle.

[43] The attempted murder charge having already been dismissed, he will be found not guilty of the following offences on the basis of self-defence:

Count 2 – pointing a firearm without a lawful excuse; Count 7 – reckless discharge of a firearm.

Released: June 9, 2021 Signed: "Justice H. Borenstein"