ONTARIO COURT OF JUSTICE

CITATION: R. v. Stanley, 2021 ONCJ 423

DATE: 2021 08 10

COURT FILE No.: 20-15001081

Toronto Region – Old City Hall

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TARIQ STANLEY

Before Justice H. Pringle

Heard on August 6, 2021

Reasons for Judgment released on August 10, 2021

Mark RIEGER....................................................................................... counsel for the Crown

Dirk DERSTINE........................................................................... counsel for the defendant

PRINGLE J.:

[1] Mr. Stanley stands charged that during the early morning hours of February 5, 2020 he committed the criminal offences of Dangerous Driving and Fail to Stop for Police. There can be no doubt that someone driving the defendant’s Range Rover committed those two offences on that date. The salient issue for me to resolve was whether the Crown had proven, to the requisite standard of proof beyond a reasonable doubt, that the offending driver was Mr. Stanley.

[2] I will but briefly summarize the evidence, given it was largely uncontroversial. At around 3 a.m. on February 5, 2020, the police dispatch system broadcast information about a recent shooting. Officers Baroudi and Kobayashi heard that broadcast, which informed all officers to be on the lookout for two vehicles fleeing the scene in opposite directions on Queen Street West.

[3] The location of the shooting was particularized as Queen Street West and Dennison, in 11 Division. Officers Baroudi and Kobayashi were in nearby 14 division, at Queen West and Roncesvalles, when they heard this radio broadcast.

[4] While the officers were still stopped at Queen and Roncesvalles, they saw a Range Rover drive by. It generically matched the hearsay description of a vehicle seen driving away from the shooting scene, in that it was a black SUV.

[5] They decided to investigate the SUV further and began to follow it. We know, concretely, that it was 3:07 a.m. by this point. The officers ran the licence plate, and determined the SUV was registered to two different persons. One of those registrants was Mr. Stanley.

[6] The SUV briefly appeared to stop in front of St. Joseph’s Hospital before driving away. At this point, the officers engaged emergency equipment and the situation evolved into a high speed police chase. The chase was captured on scout car video.

[7] There is no doubt that the driver of the defendant’s SUV committed the offences of Fail to Stop and Dangerous Driving on that date. Both offences were captured on video and, to be fair, were not disputed as having substantively occurred. The central issue was whether the Crown proved the driver at the time of these offences to be the defendant, Tariq Stanley, beyond a reasonable doubt.

[8] Both officers frankly acknowledged they could not identify anyone as the driver of that SUV. The windows appeared tinted, it was dark, and they were unable to see inside it. No other evidence relevant to the driver’s identity arose during either officer’s description of the high-speed chase. Ultimately a supervisor called off that chase, and the officers ended their pursuit.

[9] Street surveillance footage was tendered into evidence, which captured the scene of the earlier shooting at Queen and Dennison. The surveillance footage was conceded to be from the location of the shooting. One of the persons in that footage was conceded to be the defendant Mr. Stanley. More specifically, Mr. Stanley was the male wearing a bright yellow hoodie sweatshirt in the first clip shown.

[10] That first clip, labeled “Main Queen”, shows Mr. Stanley and an unknown person on Queen Street. The two, obviously together, attempt unsuccessfully to open a door. Finding the door locked, Mr. Stanley steps out of camera range. The unknown person, however, remains visible. At 2:51:46 on the video clip, the unknown person ducks for cover and runs away. We know from other clips that this is the shooting at Queen and Dennison.

[11] The “Exit Queen” clip captures that same vantage point, but from a wider perspective and further away. From this angle, one can see a vehicle driving slowly down Queen Street West before stopping at 2:50:47 on the clip. This vehicle stops at the side of the road just out of camera range. Its licence plate is undiscernible while the vehicle is in motion, and not visible at all after the vehicle stops. While the vehicle appears to be an SUV of some kind, the evidence does not establish its make or model. The vehicle is dark in colour. It could be dark blue, it could be dark grey, it could be black like the SUV registered to Mr. Stanley.

[12] The unknown male exits the vehicle from the front passenger side door. Mr. Stanley appears to exit from the drivers’ side area and walks around the rear of the vehicle. His actual exit from vehicle was not captured on this video, and thus from this clip I do not know whether he exits from the drivers’ side front or drivers’ side rear door. Mr. Stanley walks to the rear of the vehicle.

[13] The events of “Main Queen” repeat, albeit from this wider perspective. Additionally, this viewpoint leaves little doubt that Mr. Stanley and the unknown male are fleeing the scene of a shooting. A shattering window is apparent at around 2:51:47 on the clip, and two persons, at least one visibly armed with a gun-shaped object, can be seen on camera leaving the building.

[14] The times on the third clip, “Black and White Clip”, do not accord with the first two played. At 2:55:10 on the clip, the vehicle can be seen pulling up to the sidewalk and stopping. Two persons exit. I am confident, when I consider this clip cumulatively with the other two clips, that Mr. Stanley has exited this vehicle from the drivers’ seat and the unknown person has exited from the front passenger seat. It was necessary to use the contents of the other two clips to draw this conclusion, since the vantage point of “Black and White” clip is from quite a distance, and only figures are visible.

[15] They approach the building and, as with the other clips, Mr. Stanley steps back to the car and opens the passenger side door as if to put his small bag inside. At 2:56:22 on this clip, it appears the two react to gunshots, an inference I again draw from considering all clips as a whole. Mr. Stanley enters that open front passenger side door, climbs somehow through the vehicle, exits from the front drivers’ side and runs across the street. The unknown male drops largely out of view behind the open passenger side door.

[16] At this point events become somewhat confused. An apparent third person approaches the vehicle behind that open passenger side door. There is movement from that area. Mr. Stanley is seen crossing the street again, towards the car, and the third person retreats back towards the building. But then either that same third person or perhaps a wholly new fourth person, approaches the vehicle again and enters it through the open passenger side door. The rear passenger side door also opens and closes.

[17] Meanwhile, Mr. Stanley has re-entered the vehicle from the drivers’ side and drives the vehicle away. I have identified Mr. Stanley as the person re-entering the car based on the lighter coloured shirt and the events of all three clips considered cumulatively.

[18] These are the events of the surveillance clips as best as I can discern them. I should add that at no point are the licence plate specifics visible. The number of occupants inside the vehicle, when it pulls up next to the sidewalk, cannot be determined whatsoever. I cannot see inside the vehicle. I know two people initially exited the vehicle, and that one of them is Mr. Stanley. I do not know if anyone remained inside the vehicle. I know that a minimum of three people were inside the vehicle when it left the scene, and that Mr. Stanley was one of those three and he was the driver when the vehicle left the area of Queen and Denison.

[19] I do not know what time the shooting took place, although the evidence as a whole suggest it was somewhere around 2:51 a.m., or maybe 2:56 a.m. These times are reference points from the video clips as opposed to being fixed in reality. Given the discrepancy between the “Black and White” video times, and the times from the other two clips, none of the videos can be relied upon with certainty to fix the time of the shooting. I should add that the accuracy of the times recorded on the videos was not the subject of concession.

[20] I know the police dispatch broadcast went over the air at “around 3:00 a.m.” according to Officer Baroudi. I know from the scout car video and officer Baroudi’s testimony that by 3:07 a.m. they had seen Mr. Stanley’s SUV in the area of Queen and Roncesvalles, and had begun to follow it. I know they followed it a short distance to St. Joseph’s Hospital, where the SUV stopped briefly before taking off at high speed. I also know the distance between the location of the shooting and the location where Officers Baroudi and Kobayashi first saw the defendant’s SUV was 3.8 km.

[21] The Crown submitted that, based on that distance, the content of the video clips, and the short timeframe engaged between Mr. Stanley driving a vehicle away from the shooting scene and police seeing Mr. Stanley’s SUV at Queen and Roncesvalles, I should find Mr. Stanley was driving the SUV at the time the offences were committed and thus he has been proven guilty beyond reasonable doubt.

[22] When I consider the evidence as a whole, there is a strong inference that Mr. Stanley drove away from the shooting scene in his SUV and was still driving his SUV past officers Baroudi and Kobayashi before committing the driving offences. The Crown submitted this inference was the only reasonable one, and the suggestion of anything other than this occurring would be speculative.

[23] The defence disagreed, and emphasized the application of R. v. Villaroman, 2016 SCC 33 to the circumstantial case at bar. Beginning at para. 35, under the heading of Whether the Inference Must Be Based on “Proven Facts”, the Supreme Court of Canada held that:

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

I have found two particularly useful statements of this principle.

The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

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 reasonably be supposed. [Emphasis added.]

While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances

that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.

[24] Turning back to Mr. Stanley’s case, again I state there is a strong inference that Mr. Stanley was the person driving his SUV when the two driving offences were committed. There are also alternate inferences available. I find not only are they possible but they are reasonable, applying common sense and human experience. It is a reasonable inference that someone else was driving Mr. Stanley’s SUV when it was engaged in that high speed police chase.

[25] There are too many evidentiary gaps here for me to rule out reasonable inferences inconsistent with guilt. I do not know what type of vehicle Mr. Stanley left the shooting scene in. I do not know the plates of that other vehicle. I do not know how many people arrived in that vehicle, or how many people were in that vehicle when Mr. Stanley drove it away.

[26] I also, respectfully, cannot place any faith in the Crown’s submission that the timeframe engaged was so short as to exclude other reasonable inferences. I do not know what time the shooting happened. It could be, as the defence pointed out, as long as 20 minutes or more between the shooting and police seeing Mr. Stanley’s SUV at Queen and Roncesvalles.

[27] I cannot say, based on time and distance, that Mr. Stanley had no time to do anything but drive from the scene of the shooting to Queen and Roncesvalles. It is not unreasonable to conclude he stopped and exited the vehicle that he had driven away from the shooting scene. It is not unreasonable to conclude he could have stopped that vehicle and switched drivers, or switched vehicles. Such behaviour would not be unreasonable, and would make sense if one were hoping to avoid being linked to descriptors of a vehicle, its licence plate, or of its driver leaving a shooting scene.

[28] It is not unreasonable to conclude that Mr. Stanley could have let one of those other people in the vehicle drive his SUV to St. Joseph’s, to drop off someone injured in the shooting. It is also not unreasonable to conclude that Mr. Stanley drove his own SUV to St. Joseph’s Hospital for that exact same reason but, upon becoming aware of a police presence, fled instead. I strongly suspect this is what happened. But I cannot rule out other reasonable inferences and, therefore, Mr. Stanley must be acquitted of both offences.

Released: August 10, 2021

Signed: Justice H. Pringle