Court File and Parties

ONTARIO COURT OF JUSTICE DATE: September 10, 2022

BETWEEN:

HIS MAJESTY THE KING

— AND —

AYOBAMI OWUSU

Before: Justice Maureen H. Bellmore

Heard on: May 11-13, 2022 Decision delivered on: June 29, 2022 Reasons for Judgment released on: September 10, 2022

Counsel: Patricia Garcia ................................................................................... counsel for the Crown Cydney Israel ……………………………………………………… counsel for Mr. Owusu

Bellmore J.:

Endorsement

[1] On Sunday, August 29, 2021, at approximately 2:00 p.m., Ayobami Owusu and two friends attended Yorkdale mall. After shopping for over an hour, Mr. Owusu and his friends walked past a male in a red tracksuit (“Shooter 1”) in one of the main hallways of the mall. Almost immediately after passing Mr. Owusu and his friends, Shooter 1 turned and fired a handgun two times in their direction.

[2] Mr. Owusu then removed a handgun from the waistband of his pants and returned fire, discharging his firearm in the direction of Shooter 1 three times.

[3] Hundreds of people were in the mall hallway at the time of the incident, with approximately 50 in the immediate area of the shooting. It is nothing short of a miracle that nobody was hit by any of the bullets that were discharged in Yorkdale Mall on a busy Sunday afternoon.

[4] Ayobami Owusu was arraigned on the following charges:

(1) possession of a loaded firearm contrary to Section 95(1) of the Criminal Code of Canada [1];

(2) possession of a firearm while prohibited contrary to Section 117.01(1) of the Criminal Code of Canada; and

(3) reckless discharge of a firearm contrary to Section 244.2(1)(a) of the Criminal Code of Canada.

[5] Mr. Owusu entered guilty pleas to the Sections 95(1) and 117.01(1) offences at the commencement of these proceedings. He pleaded not guilty to the count of Reckless Discharge of a Firearm and elected to have his trial at the Ontario Court of Justice.

[6] By agreement of both counsel, the evidence and exhibits from trial are to be applied as the facts supporting the guilty pleas to Possession of a Loaded Firearm and Possession of a Firearm Contrary to a Prohibition Order.

[7] The Crown called two witnesses at trial: Detective Constable Haghshenas and Detective Constable Smissen, both of the Toronto Police Service. The Crown also relied on the video surveillance clips from Yorkdale Mall, a number of photographs, a Firearm Report and a Certificates of Analysis related to the firearm in Mr. Owusu’s possession.

[8] As is his right, Mr. Owusu did not call any evidence.

[9] On consent of both parties, an Agreed Statement of Facts was submitted and marked as Exhibit 1 (the “ASF”).

[10] The key issue to be determined in this case is whether Mr. Owusu was acting in lawful self-defence when he discharged his firearm.

The Evidence

[11] The evidence in this case is largely undisputed. Except for an area of approximately 22-25 feet of hallway, the key events were captured by video surveillance. Additionally, the ASF includes important details about the events in question.

[12] The facts, as I find them, can be summarized as follows:

(1) On Sunday, August 29, 2021, at approximately 2:00 p.m., Mr. Owusu and two friends arrived at Yorkdale Mall in Toronto;

(2) Mr. Owusu and his friends shopped at various stores in the mall for approximately one hour and 20 minutes;

(3) At approximately 3:22 p.m., Shooter 1 and a female companion arrived at Yorkdale Mall, parked in the North parking lot, and entered the Mall via the Northwest entrance, between The Cheesecake Factory and The Bay (the “Bay Hallway”). Once in the mall, the two walked Southbound through the Bay Hallway which ends as it converges with one of the main East/West hallways in the Mall (the “Main Hallway”);

(4) At approximately 3:37 p.m., as Mr. Owusu and his friends turned North into the Bay Hallway, they passed Shooter 1 and his female companion as they were rounding the same corner Southward from the Bay Hallway into Main Hallway;

(5) Moments after passing each other, Shooter 1 turned, and discharged his firearm at Mr. Owusu and/or his friends and other mall patrons;

(6) Mr. Owusu then produced a loaded firearm that had been concealed in the waistband of his pants and discharged his firearm three times in the direction of Shooter 1 and other mall patrons;

(7) The entire shooting incident lasted approximately 3 seconds;

(8) The shooting occurred at the corner of The Bay Hallway, where that hallway converges with the Main Hallway. Hundreds of people can be viewed in the video of the Main Hallway at the time of the shooting. Approximately 50 people were in the direct area of the shooting at the time of the incident. All of the shoppers in the Main Hallway and Bay Hallway can be viewed in the video clips taking cover and/or running to safety when the shots begin;

(9) Immediately after firing the shots, Shooter 1 fled into the Bay store;

(10) Mr. Owusu and one of his friends fled the scene through the Bay Hallway to the North parking lot;

(11) Police officers attended Yorkdale in response to the shooting. Officer Haghshenas described the chaotic scene upon arrival;

(12) Officers stopped Mr. Owusu close to the mall and when they conducted a pat down search, they found a loaded Glock 19 handgun with an overcapacity magazine in his pant leg. There was one round in the chamber and fourteen 9mm rounds in the magazine, which had a capacity of 18 rounds (suggesting 3 rounds had been fired). The firearm located on Mr. Owusu was one of the firearms used in the mall shooting; and

(13) Mr. Owusu was arrested and ultimately charged with the offences before the court.

[13] All parties agree, as do I, that based on the video clips, the evidence of Officer Smissen, and the location of the bullet defects, it is reasonable to infer that:

(1) The two projectiles from Shooter 1’s firearm hit the bottom of the Godiva store sign (on the Southeast corner of the Bay Hallway);

(2) The three projectiles from Mr. Owusu’s firearm struck three different locations:

(a) The side of a metal garbage container positioned near the South end of the Bay Hallway;

(b) The side of a pillar on the West side of the Bay Hallway; and

(c) The third projectile travelled from the Bay Hallway, through the Main Hallway, pierced the security gate of a closed store and travelled into the interior of that store.

Mall Surveillance Cameras

[14] Due to the fact that most of the evidence in this case is derived from video surveillance at the Mall, it is important to understand the positioning of the interior mall cameras:

(a) There is one camera on the West end of the Main Hallway facing East;

(b) There is a camera on the East end of the Main Hallway facing West;

(c) There are two cameras that face North down the Bay Hallway. One appears to be approximately halfway down the hallway and captures part of the hall as well as the entrance to the Mall from the North parking lot. The other is close to the South end of the Bay Hallway and captures the middle portion of that hall. Neither of these cameras capture approximately 22-25 feet at the Southernmost end of the Bay Hallway just before it meets the Main Hallway (the “Video Deadzone”); and

(d) There is also video surveillance from inside the Bay store. I have not relied on this video as it is very difficult to see the area of the shooting clearly from this camera.

Video of Mr. Owusu in the Bay Hallway

[15] As a result of the Video Deadzone, there is no video footage of Mr. Owusu in the Southernmost section of the Bay Hallway. Therefore, there is no video evidence of Mr. Owusu producing his handgun from his pants, outstretching his right arm, and firing his handgun. It is reasonable to infer that all of this occurred while he traversed the Video Deadzone because when Mr. Owusu first appears on the Bay Hallway video at 3:37:17 pm, he is retreating towards the exit, his body is angled sideways with his right arm outstretched to the South pointing a firearm. No muzzle flashes from his firearm are visible in the video.

[16] As a result of the Video Deadzone, it is unclear whether Mr. Owusu started shooting while Shooter 1 was still in the act of discharging his firearm or whether he fired after Shooter 1 had stopped. The Video Deadzone also makes it difficult to determine whether Shooter 1 had rounded the corner into the Main Hallway when Mr. Owusu started to discharge his firearm or whether he was at the corner and was visible to Mr. Owusu.

[17] At approximately 3:37:18 Mr. Owusu can be viewed on video running down the Bay Hallway, lowering is right arm and turning towards the exit to the parking lot. As he flees, Mr. Owusu collides with three people and a baby stroller with a child in it. He runs into the stroller, causing it to roll over with the child in it. At the same time, he knocks the woman pushing the stroller to the ground and lands on top of her. He then gets up and runs out of the Mall, colliding into a metal bar in his haste to escape.

[18] Only 3 seconds elapse between the time the Shooter 1 first raises his arm with his handgun in it (3:37:15) to the end of the shooting incident when Mr. Owusu appears to lower his handgun (3:37:18). A total of 5 bullets are fired in total in that short period of time.

Applicable Law

Proof Beyond a Reasonable Doubt

[19] Mr. Owusu is presumed to be innocent, unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt.

[20] In this case, Counsel for Mr. Owusu conceded that if the Crown is successful in disproving that Mr. Owusu acted in self-defence, the elements of the offence of Reckless Discharge have been established beyond a reasonable doubt.

Self-Defence – General Principles

[21] The law of self-defence in Canada is codified in Section 34 of the Criminal Code of Canada. Section 34(1) and (2) read as follows:

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;

(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

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

Factors

(2) 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;

(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;

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

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

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

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

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

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

[22] In the recent decision of R. v. Khill, 2021 SCC 37, the Supreme Court of Canada extensively reviewed the law of self-defence. The Court confirmed the three elements of a successful self-defence claim: (1) the catalyst: the accused person must reasonably believe that force is being used against him or another person; (2) the motive: the accused person’s subjective purpose for responding to the threat must be to protect himself or another; and (3) the response: the accused’s act must be reasonable in the circumstances (Khill at para. 37).

[23] Section 34(2) sets out a non-exhaustive list of factors to consider in assessing Section 34(1)(c), the reasonableness of the accused’s act. These factors must be considered in all self-defence cases in which they are relevant on the facts (Khill at para. 45). Each factor informs “the overall reasonableness of the accused’s actions in the circumstances” (Khill at para. 42). No one factor is dispositive, rather the consideration of the factors is a “global, holistic exercise” (Khill at para. 69).

[24] The burden is on the Crown to disprove self-defence beyond a reasonable doubt. The Crown is required to disprove only one of the three elements in Section 34(1) to satisfy its burden (Khill at para. 185).

[25] In addition to Khill, I have reviewed and considered all caselaw and other materials provided by both Crown and Defence Counsel. Although instructive and helpful with respect to applicable legal principles, each claim of self-defence must be assessed by applying the specific facts of the particular case to the law.

Positions of the Parties

[26] The Crown asserts that she has discharged her duty to disprove the “motive” and/or the “response” elements of self-defence beyond a reasonable doubt. Specifically, the Crown submitted that Mr. Owusu’s acts do not satisfy the elements of self-defence due to the fact that: he brought a loaded firearm to a busy mall “ready to meet aggression with aggression”; he escalated an already dangerous situation by recklessly firing his handgun into a crowded mall; his actions do not accord with societal norms; and there were other options available to Mr. Owusu in order to respond to or evade the use of force by Shooter 1.

[27] Counsel for Mr. Owusu submits that the Crown has failed to disprove all three of the elements of self-defence. Specifically, she submitted that Mr. Owusu and his friends were being shot at while in close range of the shooter and, as a result, their lives were in imminent peril. Mr. Owusu’s act of firing back at Shooter 1 was reasonable in order to protect himself and/or his friends from the lethal use of force against them. She further submitted that when the factors set out in 34(2) are considered, in light of the circumstances that Mr. Owusu found himself in, his act of firing back at Shooter 1 was reasonable. Counsel argued that the fact he was carrying a loaded firearm does not disqualify him from being able to rely on the self-defence provisions in the Criminal Code.

Analysis

[28] Mr. Owusu has plead guilty to carrying a loaded firearm. It is important to delineate that offence from the offence for which he was tried, namely, reckless discharge of that firearm. However, the fact that he was carrying a loaded firearm may, to some degree, be relevant to the assessment of his role in the incident pursuant to section 34(2).

Section 34(1)(a) – Did Mr. Owusu reasonably believe that force was being used against him or another person?

[29] The first element of self-defence requires Mr. Owusu to believe that force was being used against him or another person.

[30] This element of self-defence is assessed on a modified objective standard: the accused’s beliefs are considered from the “perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions” (Khill at para 54 and Lavallee, at p. 883).

[31] In this case, the Crown concedes that she cannot disprove this element of self-defence.

[32] I agree.

[33] Mr. Owusu or his friends were shot at, while at close range, by Shooter 1. It is reasonable that Mr. Owusu believed that force was being used against him or his friend(s) by Shooter 1.

Section 34(1)(b) – Did Mr. Owusu fire his gun to protect himself or his friend(s) from the use or threat of force?

[34] The second element of self-defence is an assessment of the accused person’s motive for reacting to the catalyst. The motive must be to protect the accused or another person from the use or threat of force.

[35] A subjective analysis, outlined by the Supreme Court of Canada in R. v. Khill at para 59, applies to this element:

The second element of self‑defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self‑defence.

[36] In this case, the ASF submitted by both the Crown and Defence assists in assessing this second element.

[37] Paragraphs 5 and 6 of the ASF filed as Exhibit 1 state that it was only after Shooter 1 had opened fire in the direction of Mr. Owusu and his two friends that Mr. Owusu produced his firearm from the waistband of his pants and discharged it in the general direction of Shooter 1. It was therefore jointly agreed in the ASF that Mr. Owusu produced and fired his handgun in response to the initial shot or shots by Shooter 1.

[38] The Crown submitted that when Mr. Owusu grabbed the waistband of his pants with both hands as he is approaching Shooter 1, he is getting “battle ready”. I disagree. At 3:37:11pm on the video of the Main Hallway facing East, Mr. Owusu is seen grabbing his waistband as he rounds the Bay corner from the Main Hallway prior to the shooting. He does so with both hands on either side of his waist. If he was in the act of producing a firearm, one would expect him to only use one hand. Furthermore, this is the same motion of hitching up his pants that Mr. Owusu is seen doing multiple times earlier in the video surveillance.

[39] Mr. Owusu and his friends had walked around the Mall for over an hour before the shooting. Ms. Israel had Officer Haghshenas point out several times during the trio’s shopping spree where Mr. Owusu hiked up his pants as they were falling or being weighed down. A careful review of the video shows that Mr. Owusu pulled up his pants while walking around the mall upwards of twenty times. It appears that just as he passes Shooter 1, Mr. Owusu again hikes up his pants.

[40] Given this and the fact that he pulled the firearm from the waistband of his pants at the time of the shooting (as indicated in the ASF), it is reasonable to infer that Mr. Owusu was in possession of the firearm for the entirety of the time he was walking through the Mall.

[41] Even though the loaded firearm was on his person and easily accessible, a review of the video surveillance shows that Mr. Owusu did not use or produce the firearm at any time prior to being shot at by Shooter 1.

[42] To be clear, I am not in any way condoning the fact that Mr. Owusu walked around a busy public place filled with people for over an hour while carrying a fully loaded firearm. However, in my view, the fact that he did so without using it, informs his motive when he does produce and use it after Shooter 1 fires at him or his friends.

[43] I accept Defence Counsel’s submission that it is reasonable to infer that Mr. Owusu is merely pulling up his pants rather than getting “battle ready” as suggested by the Crown.

[44] In all of the circumstances, I find that Mr. Owusu produced and discharged his firearm to protect either himself or his friend(s) from the use of force perpetrated by Shooter 1.

[45] Accordingly, the Crown has failed to disprove this element of self-defence beyond a reasonable doubt.

Section 34(1)(c) – was Mr. Owusu’s act of firing his handgun towards Shooter 1 reasonable in the circumstances?

[46] The final element of self-defence, and the one that this case turns on, requires an assessment of whether Mr. Owusu’s response was reasonable in the circumstances.

[47] In considering this element, the Supreme Court of Canada stated that “the focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time” (Khill at para. 65, emphasis added). In this case, the “circumstances” include the fact that Mr. Owusu’s responsive act took place on a Sunday afternoon in a busy mall in the biggest City in Canada and the fact that his act put at least 50 unsuspecting, innocent people at risk of injury or death.

[48] In assessing the overarching reasonableness of Mr. Owusu’s act, I am required to consider the non-exhaustive list of factors contained in section 34(2).

[49] In discussing the newly codified factors in 34(2), the majority of the Supreme Court of Canada in Khill held that a trier of fact has great flexibility in evaluating the accused’s response:

The importance of this reform cannot be overstated. As Justice Paciocco writes, “the evaluative component of the defence is more fluid, and factors that would not have been contemplated under the repealed provisions are now available to the decision‑maker” (Paciocco (2014), at p. 295). It is now for the trier of fact to weigh these factors and determine the ultimate success of the defence. (para.42)

(a) The nature of the force or threat

[50] Shooter 1 fired his gun two times towards Mr. Owusu and/or his friends and several other mall patrons at very close range. There is no doubt that the nature of the force or threat was severe and potentially 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

[51] The use of force by Shooter 1 was imminent. He shot, at close range, at several individuals. The people in the area of Shooter 1 at the time of the shooting were at risk of imminent injury or death.

[52] The Crown argued that, notwithstanding the imminence of the use of force, Mr. Owusu had other means available to him to respond. She argued that everyone else in the vicinity of the shooting, ducked for cover and fled the area. In fact, hundreds of people can be viewed on the video in both the Main Hallway and the Bay Hallway scrambling to safety when the shots rang out. No other mall patron fired a handgun in response to the use of force, including Mr. Owusu’s friends.

[53] The Crown’s position is that it was unnecessary for Mr. Owusu to use his firearm. He had other options. He could have hidden behind the metal garbage receptacle or one of the pillars on the West side of the Bay Hallway. Instead of resorting to duck and cover means of protection alone, Mr. Owusu escalated the risk of injury to others by firing his handgun.

[54] Defence Counsel argued that Mr. Owusu did duck and run for cover, like others in the Mall. I agree. When Shooter 1 begins to fire his gun, Mr. Owusu can be seen ducking down at 3:37:15-16 on the East facing video. Defence counsel further submitted that in addition to his evasive actions, Mr. Owusu also responded with force, which he was entitled to do.

[55] It is important in assessing this factor to consider the speed with which this situation evolved. The shooting took place in a span of seconds. Mr. Owusu had very little time to carefully weigh his options. I note that in R. v. Cunha, 2016 ONCA 491, the Court held at para. 7: “… the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection” (see also R. v. Mohamed, 2014 ONCA 442 at para. 29).

[56] I find that in this case Mr. Owusu had other options which did not require “subtle reflection”. Mr. Owusu knew the Main Hallway was full of people as he had just walked through it moments before firing his handgun. He knew how busy the Mall was generally because he had spent over an hour shopping there. Therefore, it is reasonable to infer that Mr. Owusu knew the grave risk to others when he chose to resort to violent response by shooting his handgun.

[57] Mr. Owusu could have ducked and run without using his firearm. He could have taken cover behind one of the pillars. In other words, he could have done what every other person in the Mall did to avoid injury or death.

(c) The person’s role in the incident

[58] The interpretation and breadth of the factor “the person’s role in the incident” was at the heart of the appeal in R. v. Khill. The majority of the Supreme Court of Canada adopted a broader interpretation of “role in the incident” and held that:

“… the phrase “role in the incident” includes acts and omissions, decisions taken and rejected and alternative courses of action which may not have been considered. It captures the full range of human conduct: from the Good Samaritan and the innocent victim of an unprovoked assault, to the initial and persistent aggressor, and everything in between (see, e.g., R. v. Lessard, 2018 QCCM 249). Thus “role in the incident” encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds. As the Crown submits, this does not mean that the reasonableness assessment is “unbounded” or overly subjective. The inquiry is broad, not vague.” [emphasis added] (para. 84)

[59] Accordingly, in assessing Mr. Owusu’s role in the incident, I must apply a broad perspective which includes the “reckless escalation of risk”. In my view, the video of Mr. Owusu from the Bay Hallway demonstrates his reckless behaviour during and after the shooting.

[60] While I agree with Defence Counsel that the fact that Mr. Owusu was carrying a loaded firearm in a public place does not disqualify him from claiming that he acted in lawful self-defence, it is a factor to be considered in assessing his role in the incident. I agree with the Crown’s submission that it is reasonable to infer that Mr. Owusu had the firearm in his possession in the event he needed to meet aggression with aggression. He did not use it throughout his time in the mall until he was faced with aggression by Shooter 1. If Mr. Owusu did not have the loaded firearm with him in the first place, he would not have had the option to shoot back at Shooter 1 and into a crowd of innocent people. I conclude that the fact that he illegally possessed a firearm in a public place is one factor to consider in assessing Mr. Owusu’s role in the incident.

[61] Mr. Owusu had walked around Yorkdale Mall with a fully loaded gun for over an hour prior to the shooting. As I stated earlier, it is reasonable to infer that he knew just how busy the Mall was on that Sunday afternoon. Although the entire shooting incident was extremely quick, Mr. Owusu would have known how many lives he put at risk by his actions.

[62] Mr. Owusu was clearly responding to Shooter 1’s despicable act of opening fire in the middle of a busy mall. Defence counsel claims that Mr. Owusu acted to protect himself or his friends when he fired three shots in the direction of Shooter 1 as he was running away. However, in allegedly attempting to save one or two lives, Mr. Owusu put countless other lives in peril.

[63] Mr. Owusu’s role in the incident significantly militates against his act being “reasonable”.

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

[64] Clearly in this case, both Shooter 1 and Mr. Owusu used firearms. However, this factor directs me to consider whether “any party to the incident” used a weapon. It is noteworthy that of the hundreds of people who were present in the Main Hallway at the time Shooter 1 opened fire, Mr. Owusu was the only other person to use a weapon.

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

[65] The only evidence supporting this factor is from the video surveillance in which it appears that Mr. Owusu is shorter than Shooter 1, but Mr. Owusu looks broader than him. Given the limited evidence I have with respect to this factor, I have not considered it in my analysis.

(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

[66] This factor does not apply as I have no evidence about any relationship between Mr. Owusu and/or his friends and Shooter 1.

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

[67] I have not considered this factor as I have no evidence about any history of interaction or communication between Mr. Owusu and/or his friends and Shooter 1.

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

[68] Shooter 1 fired his handgun twice at Mr. Owusu and/or his friend(s). Mr. Owusu returned fire three times. On a strict proportionality assessment, Mr. Owusu’s response was proportionate to the threat he encountered. He did not use excessive force against Shooter 1. He only fired one more bullet than was fired at him and/or his friend(s).

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

[69] This factor is not applicable.

Overall Assessment of Reasonableness in the Circumstances

[70] As indicated, the third element of self-defence is an overall consideration of the reasonableness of Mr. Owusu’s act in the circumstances. As articulated by the SCC in Khill, “the reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct.” (para. 62) I have considered the applicable factors listed in section 34(2) as well as the overarching reasonableness of Mr. Owusu’s actions and whether his acts conform to community norms.

Specific Circumstances of Mr. Owusu’s Act

[71] Section 34(2) directs that in assessing reasonableness “the court shall consider the relevant circumstances of the person, the other parties and the act”.

[72] The circumstances of the offence are not to be considered in a vacuum. Given the broad interpretation of the third element espoused by the majority of the Supreme Court of Canada in Khill, I am to consider all of the circumstances; not just what occurred between Shooter 1 and Mr. Owusu (and his friends) as if they were the only people in the area at the time of the shooting. The “circumstances” include the non-exhaustive list of factors in Section 34(2) but also other relevant factors such as the location of the incident, the time of the incident, and the other parties who were present.

[73] I have already reviewed the circumstances of the offence in detail and most are captured on video which I have attempted to describe. However, any attempt to describe the video from the relevant area of the Mall on the day of the shooting will be inadequate. The video is compelling. It is clear. It is the best evidence of what happened at that busy mall on a Sunday afternoon. The video conveys the events far more effectively and clearly than words ever could.

[74] That said, it is not an overstatement to say that the video clip of the Main Hallway in the moments before the shooting shows hundreds of people walking in the Mall. There are people of all ages visible in the video: babies in strollers, children with their parents, teens, and adults of all ages, including elderly people.

[75] Although I have tried to pause and count how many lives were put in peril by Shooter 1 and Mr. Owusu, it is a difficult task. It appears to me that there are at least 50 people in Mr. Owusu’s line of fire (in the Bay Hallway and in the area of the Main Hallway between Mr. Owusu and the store that one of his bullets went into) when he discharged his handgun.

[76] A review of the video shows that Shooter 1 initiated the gunfight putting several people at risk of harm or death. Mr. Owusu then recklessly escalated that risk by firing his handgun while running in the opposite direction, putting far more innocent mallgoers at risk. When the shots rang out, people in the Main Hallway desperately dispersed, grabbed loved ones, helped those who had fallen and fled to safety. The terror of those individuals is demonstrated by the speed with which that packed Main Hallway is almost completely emptied of all people.

Community Norms

[77] In my view, community norms dictate that there are limits on what a person can do in order to defend themselves or another. Putting the lives of at least 50 innocent people in peril in order to defend oneself or another from the threat of injury or death is not reasonable and does not accord with community norms of conduct.

[78] The majority in Khill held as follows:

The contours of our law of self‑defence are tied to our notions of culpability, moral blameworthiness and acceptable human behaviour. To the extent self‑defence morally justifies or excuses an accused’s otherwise criminal conduct and renders it non-culpable, it cannot rest exclusively on the accused’s perception of the need to act. Put another way, killing or injuring another cannot be lawful simply because the accused believed it was necessary. Self‑defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances. A fact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation. (at para. 2)

[79] It would be contrary to community norms to permit a claim of self-defence in the circumstances of this case. Mr. Owusu may have believed that his conduct was necessary but in applying a broad societal perspective, I find that it was not reasonable.

[80] While factually very different, the analysis of reasonableness in R. v. A.H., 2017 ONCJ 201, [2017] O.J. No. 1427 is applicable. At paragraph 168, the Court notes:

Canada's law of self-defence requires that force used in self-defence be reasonable in all of the circumstances. The corollary of this is that not all uses of defensive force will be reasonable, and sometimes members of a community have to put up with some level of risk rather than use excessive force in self-defence.

[81] Finally, if I were to find that Mr. Owusu’s conduct was reasonable, then arguably any other person in the vicinity of the shooting who possessed a firearm could have also lawfully fired their gun and claimed self-defence.

[82] First, this may encourage individuals to carry loaded firearms in public places in order to be “battle ready”. Second, this may create a “wild west” scenario, where numerous firearms are brandished and fired in public places where innocent members of our society could be caught in the crossfire. Citizens in our community should be able to go to a mall without fear of being caught in the middle of a gunfight. In my view, both of these possible consequences would be contrary to our community values and commonly accepted community norms.

Conclusion Section 34(1)(c) – Reasonableness in the Circumstances

[83] In conclusion, having weighed “all the circumstances” I find that the Crown has discharged its burden of disproving the third element of self-defence beyond a reasonable doubt. Mr. Owusu’s act of shooting three times towards not only Shooter 1 but also a crowd of unsuspecting people was not reasonable in the circumstances, does not accord with societal norms and dangerously and recklessly escalated the risk of injury or death to several innocent parties. In my assessment, a reasonable person would not have fired a handgun in comparable circumstances. As such, I find Mr. Owusu was not acting in lawful self-defence when he discharged his firearm.

Reckless Discharge

[84] I now turn to the elements of reckless discharge of a firearm which were set out in R. v. Breese, 2020 ONSC 6272 at paras. 140-142 as:

a. The accused person possessed a loaded firearm;

b. The accused discharged a loaded firearm;

c. The accused person intentionally discharged the firearm and it was not an accident; and

d. The accused person was “reckless as to the life or safety of another person.”

[85] In this case, all of the elements of reckless discharge of a firearm have been established beyond any reasonable doubt.

Conclusion

[86] I therefore find Mr. Owusu guilty of Reckless Discharge of a Firearm contrary to section 244.2(1)(a) of the Criminal Code.

[87] Further, having applied the evidence from the trial (including the ASF and Exhibits) to the Possession of a Loaded Prohibited Firearm offence (section 95(1)) and the Possession of a Firearm contrary to a Prohibition Order offence (section 117.01(1)), I find Mr. Owusu guilty of those offences as well.

Released: September 10, 2022 Justice Maureen H. Bellmore

[1] After trial and a finding of guilt but before these reasons were released, the Crown applied to re-open its case to amend the information so that the word “restricted” was replaced with “prohibited” on Count 2 to conform with the evidence. Mr. Owusu consented to the application to re-open and the amendment. The amendment was made on consent.