Ontario Court of Justice
Date: 2024 12 03 Court File No.: Windsor 22-81103420
Between:
HIS MAJESTY THE KING
— AND —
CORY LECLAIR
Before: Justice S. G. Pratt
Heard on: 9, 10, 13 May, 23, 24, 25 July, 21 November 2024 Reasons for Judgment released on: 3 December 2024
Counsel: Shelby Odom, Counsel for the Crown Mark Ertel, Counsel for the Defendant
Pratt J.:
[1] On 8 October 2022, Jamie Labelle was drunk. He was with two friends, the Defendant Cory Leclair and a female named Christina Roberts. As he staggered across Riverside Drive near Ouellette Avenue, a passing vehicle got too close for his comfort. He started an argument with the people inside. They got out of their car and a fight started. It ended when Labelle produced a handgun he’d been carrying. This trial concerned the actions of one of Labelle’s compatriots that night. The Crown alleges that after brandishing and firing the gun, Labelle put it back in the bag he’d been carrying and gave the bag to the Defendant. The Crown says the Defendant took the bag and left the area, eventually hiding it under Roberts’s car. By doing so, the Crown claims the Defendant illegally possessed the firearm, and that by taking it, he helped Labelle escape liability for his own conduct.
[2] The Defendant says I shouldn’t be satisfied beyond a reasonable doubt that he knew what was in the bag when he took it from Labelle, or that he knew what Labelle had just done. I should find him not guilty as a result.
[3] These reasons explain why I agree with both sides. The only reasonable inference available to be drawn from the totality of the evidence is that the Defendant knew full well what was in the bag when he took it from the scene and hid it under the Roberts vehicle. I am not, however, satisfied beyond a reasonable doubt that Labelle had just fired the weapon and that the Defendant knew it.
Admissions
[4] Several admissions were made at the outset of trial. Date, time, jurisdiction, and the firearm examination report were all admitted. So too were the various surveillance videos filed by the Crown. It was acknowledged the Defendant was not licensed to possess firearms. The vehicle under which the gun was found was admitted to belong to Roberts. Through the course of the trial, it was not contested that the person seen in the videos wearing either a dark jacket with camouflage sleeves or a cream-coloured hoodie, was the Defendant.
[5] This case comes down to what the Crown has proved regarding the Defendant’s knowledge of the circumstances that night.
The Information
[6] After submissions, I contacted counsel by email and sought further input on the wording of counts 4 and 8. As drafted, each referred to a restricted firearm. The evidence at trial identified the recovered handgun as a prohibited firearm. The Crown sought amendments to the counts to conform to the evidence, pursuant to s. 601(2) of the Criminal Code. Counsel for the Defendant acknowledged this issue had not been pursued in argument and that no prejudice would result from the amendment, and very reasonably consented. I amended the counts as requested and each now refers to a prohibited firearm.
Issues
[7] There are two issues to be determined in this case:
(1) Has the Crown proved beyond a reasonable doubt that the Defendant knew what was in the black bag when he took possession of it?
(2) Has the Crown proved beyond a reasonable doubt that the Defendant knew Labelle had committed the offence of discharging a firearm?
[8] I will address each issue in turn, though there is some overlap between them.
Issue 1: Has the Crown proved beyond a reasonable doubt that the Defendant knew what was in the black bag when he took possession of it?
[9] Counts 4 and 8 require the Crown to prove the Defendant’s possession of a firearm. Possession requires two elements: knowledge and control. It is not in dispute that the Defendant had physical control of the bag at the relevant time. The question is whether he knew what was in it. That is, did he have the requisite knowledge of the bag’s contents such that he could be said to be in possession of those contents?
[10] I will review the evidence chronologically.
[11] The night of 7 October began, according to the surveillance videos, at 11:30pm. At that time, the Defendant, Labelle, and Roberts all entered Cheetah’s, an adult entertainment bar in downtown Windsor.
[12] The videos show the three entering the bar and being seated. Labelle is wearing a red coat. They order several drinks and remain seated until 11:51, though the Defendant does move to a table next to the one where Labelle and Roberts are sitting. At 11:51 Labelle and the Defendant leave the seating area. The lobby camera shows them leaving the bar. At 11:58, the Defendant returns to collect Roberts. They leave at 11:59.
[13] While seated at the bar, Labelle is seen with a black strap across his back. This strap appears attached to a small black bag. He is wearing this bag the entire time he’s in the bar.
[14] At 12:06am the morning of the 8th, the three are seen on video from the Loose Goose restaurant on Ouellette Avenue, walking north. Labelle is clearly under the influence of something as he stumbles through the frame, being supported by the Defendant. The north-facing Loose Goose camera shows the three as well, but this angle reveals that Roberts now has the black bag slung over her shoulder. The bag is on her left side, while her purse is on her right side.
[15] The group continues on until Labelle leaves the sidewalk and goes closer to the building. The Defendant follows him, leaving Roberts waiting on the sidewalk. At 12:08, the Defendant emerges and gives his dark coat with camouflage sleeves to Roberts. He is now in a cream-coloured hoodie. As he waves to a grey truck that has pulled over on the opposite side of Ouellette, Labelle returns to the frame. This accords with the evidence of PC Mark Kloppenburg, who testified to being in a low-profile police truck that night. He said he saw the three and saw the male in a red coat urinating on a building. He told them to move along, and they did.
[16] The next video is from a City of Windsor camera. It shows the intersection of Ouellette and Riverside, looking east on Riverside. At 12:10am, Labelle and the Defendant can be seen crossing Riverside, walking north. They are near, but not at, the intersection with Ouellette. As they walk through the eastbound lanes, a white vehicle in the left eastbound lane has to slow and maneuver around them. This catches Labelle’s attention, and he immediately stops and turns towards it. The vehicle stops. The Defendant, to his credit, tries valiantly to keep Labelle from going to the white vehicle. He gets Labelle to the north curb. At that point, Labelle is still gesticulating towards the vehicle.
[17] Roberts, who was not with the two when they crossed the street, comes into the frame from the west. She takes up the argument with the parties in the vehicle and starts walking towards it. She drops the Defendant’s coat, hands the black bag to Labelle, drops her purse, and confronts both the driver and driver’s side passenger. She starts fighting with the female driver.
[18] Labelle immediately puts the bag around his neck and joins in the confrontation. The Defendant puts his coat back on and picks up the purse. He also walks toward the altercation.
[19] At that point, the driver’s side passenger, wearing a dark hoodie, punches the Defendant in the face. The Defendant immediately falls to the pavement. The passenger then punches Labelle in the face. He also goes down.
[20] Labelle quickly regains his feet and walks back towards the others. He seems to be manipulating something on his chest. Now, when the people from the car see him, they run. The person in the dark hoodie, who had been aggressive to that point, runs nearly to Goyeau Street. The only person who doesn’t run is the female driver, who is still locked in a struggle with Roberts. Labelle violently kicks the female in the head, breaking them up. Roberts goes after the female again. Labelle then punches the female in the head. All parties who came from the vehicle get back in and drive away.
[21] After being punched, the Defendant remains some distance away from the fight watching it unfold. Following the departure of the white vehicle, Labelle hands the black bag to the Defendant, who then walks north, across a grassy area, towards the Detroit River. As Labelle and Roberts are seen walking east, the Defendant can be seen walking north and then turning east towards a parking lot.
[22] Another City of Windsor video shows the lead-up to the altercation. The camera is at Ouellette and Riverside, facing south. At around 12:07, the three can be seen walking north on Ouellette. They stop at a building just south of Riverside. The police truck is seen stopping opposite them for a brief period. The video corroborates the Loose Goose video and the testimony of PC Kloppenburg.
[23] It then shows the three walking to the corner at Riverside. Labelle is having difficult staying upright. As they wait for the walk signal at the intersection, Labelle is distracted by someone rolling past on a skateboard. He starts following that person. The Defendant walks after him as Roberts crosses Riverside. The Defendant catches up with Labelle and guides him across the street. At that point, the white vehicle turns onto Riverside and has to go around them. The altercation begins. Much of it takes place off camera, given the angle of the video.
[24] The video does show a second white vehicle at the corner, waiting to turn east onto Riverside. As the altercation develops, the driver of that vehicle understandably waits on Ouellette and does not enter Riverside. Only after the first white vehicle departs does the second white vehicle make the turn and drive east.
[25] I heard from the occupants of that vehicle. Sehajdeep Singh was in the rear passenger seat. He testified to being out with three friends in a white Honda Accord. I will refer to the witnesses in the Accord by their first names as they share a common surname of Singh. They were about to turn onto Riverside when he heard a “big noise”. Sehajdeep looked to the east and saw the parties fighting. He also saw a white Chrysler vehicle. He took a short video of the scene on his phone. That video shows a brief portion of the same altercation captured on the city cameras, but from street level. It shows the male in the black sweatsuit punching Labelle. Labelle falls, then gets back to his feet and walks towards the others. The Defendant is sitting on the ground throughout the video.
[26] Sehajdeep testified that he called 911. He said they followed the white Chrysler when it left the scene. He said they went a couple of streets past Aylmer when they received a call from police directing them to return to the scene. They did.
[27] One notable point from Sehajdeep’s evidence is that he said the gunshot rang out before he started taking the video. The noise, in fact, was the first thing that drew his attention. I will return to this aspect of his evidence later in these reasons.
[28] I also heard from Vikramjit Singh. Vikramjit was in the front passenger seat of the Accord. He testified to seeing the fight, and then hearing a shot. He said he saw the person in the red jacket pull out a gun and fire it. He didn’t see him point it anywhere in particular, but he was clear that the item was a gun as he saw the barrel.
[29] After hearing the shot, he said two people got back in the Chrysler and started driving. He said a female and the person in the red jacket went east on Riverside, running towards the parking lot.
[30] Both Sehajdeep and Vikramjit testified to consuming no drugs or alcohol that night.
[31] Amer Kadri is another civilian who was in the area that night. He was in his vehicle, parked in the lot on the north side of Riverside Drive. He was parked in what he called the “back row” of the lot, facing north. He was sitting in his car, waiting for his friends. He was listening to music and looking at cars on his phone when he heard sirens coming from Riverside Drive. He looked forward, towards the river, and saw someone running towards his vehicle.
[32] At the time, he was backed into his parking spot. Next to him, also backed into a spot, was a white Chrysler vehicle. This would mean his driver’s side was next to the other vehicle’s passenger side. Kadri had his seat reclined. He also testified to having “limo tint” on his vehicle windows.
[33] He said that person running had a backpack with them. They ran between his vehicle and the one next to him and dropped it under the other vehicle. The person then scaled the hill back towards Riverside Drive. By this point, police were in the area. He got out of his vehicle and called to an officer. He told them what he’d seen. Police put yellow tape around his vehicle and the vehicle next to it.
[34] He testified that the person left the bag in front of the rear passenger side tire. He described the person as a male wearing all black and a baseball cap. He said the bag that was dropped under the car had two straps and resembled a backpack a student might use for school. He said the male swung it off both shoulders before putting it under the vehicle.
[35] He was also shown several photographs. He identified the vehicle seen in pages 1 and 2 of Exhibit 6 as the vehicle he was parked next to.
[36] PC Joshua Koptie was one of several officers who responded to the 911 call. He was first involved in the arrest of Labelle and Roberts, who were found a short distance east of Ouellette on Riverside. After they were secured, he was asked by Sgt. Stephanie Burch to accompany her to a nearby vehicle. When they got there, he saw Sgt. Burch remove a black bag from under a white Chrysler sedan. When Sgt. Burch opened the bag, he saw the handle of a firearm. She removed the gun and gave it to PC Koptie. He removed the magazine, which contained live ammunition. He also locked the slide back, causing an empty shell casing to be ejected.
[37] I pause to note that the firearms report of PC Douglas Tilson identified the firearm as a Polymer 80 9mm Glock type pistol. He wrote that this item is generally sold by a manufacturer in an unfinished state. The recipient would complete the assembly by adding a top slide and barrel. PC Tilson stated the firearm “is termed a ‘Ghost Gun’ due to the fact that it cannot be traced”. The gun bore no markings or serial numbers. Without question this is an illegal firearm, created to be untraceable, with no legitimate purpose in society. It was admitted to be a prohibited firearm.
[38] PC Kloppenburg, who had encountered Labelle, Roberts, and the Defendant earlier that night, also responded to the scene. He and his partner, PC Scott Sprague, drove east on Riverside as they had been told two parties were in custody but the third was outstanding. When he saw the arrested parties, he recognized them from the earlier incident.
[39] He drove slowly on Riverside to Glengarry. He turned right at the driveway to the riverfront park. He said they saw a male who matched a description they had been given walking on the trail. He also recognized the person as the third individual he’d encountered that night. He and PC Sprague exited their truck and arrested the male. It was the Defendant.
[40] A search incident to arrest revealed the Defendant had a woman’s purse with him. It had Roberts’s identification in it. When PC Kloppenburg viewed the Loose Goose and Cheetah’s surveillance videos, he confirmed that the purse Roberts had in those videos was the same purse the Defendant had at the time of his arrest.
Analysis
[41] Before a person can be said to be in legal possession of an item, he must know he possesses it. As stated by Justice Doherty for the Court of Appeal for Ontario in the case of R. v. Chalk 2007 ONCA 815 at paragraph 18: “Possession requires knowledge of the criminal character of the item in issue.” The Crown must prove beyond a reasonable doubt that the Defendant knew the gun was in the bag when the bag was handed to him by Labelle.
[42] There is no direct evidence on this point. I have not heard from Labelle or Roberts, or from any other witness who could say definitively that the Defendant knew the contents of the bag when he took it. Instead, the Crown relies on circumstantial evidence to show the requisite knowledge.
[43] Circumstantial evidence, by its nature, is not inherently weaker than direct evidence. Both circumstantial evidence and direct evidence are capable of proving a point in issue with equal force. Proof to the criminal standard of beyond a reasonable doubt can be established exclusively with circumstantial evidence. The key issue is how the circumstances surrounding an event can be interpreted by a trier of fact.
[44] In the case of R. v. Villaroman 2016 SCC 33, [2016] 1 S.C.R. 1000, Justice Cromwell stated the following at paragraph 30:
It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences…The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[45] If the Crown is relying on circumstantial evidence to prove guilt, that guilt must be the only reasonable inference available to be drawn from the evidence. If one or more other reasonable inferences that point away from guilt could also be drawn, the Crown will have failed to prove their case. Those other inferences can arise from the evidence or from a lack of evidence.
[46] While this task is not an easy one, it is also not impossible. The Crown does not need to disprove any possible inference that points away from guilt. It need not address every bit of conjecture or speculation that might arise. It must only dispel “other reasonable possibilities” or “other plausible theories”, as confirmed by Justice Cromwell in Villaroman, supra, at paragraph 37.
[47] It is with this test in mind that I assess the evidence.
[48] I begin by finding as a fact that the bag seen over Labelle’s shoulder at Cheetah’s is the same bag later seen over Roberts’s shoulder on Ouellette Avenue. It is the same bag she hands to Labelle at the start of the altercation, and it is the same bag later handed to the Defendant by Labelle. Finally, it is the same bag recovered by Sgt. Burch and PC Koptie, when it was found to contain a loaded handgun.
[49] On that point, Counsel has made the reasonable concession that the Crown has proved the bag handed to the Defendant by Labelle was the same bag recovered from underneath the Roberts vehicle.
[50] In my view, the finding that it was the same black bag throughout does not require resort to circumstantial evidence as I have the benefit of extensive video surveillance footage. I have viewed the bag and its strap from each video and seen the photographs of it taken later. I have seen the bag itself in court. It is the same bag throughout.
[51] I do note that at no point prior to being given the bag by Labelle was the Defendant ever seen in possession of it that evening. Labelle had it at Cheetah’s while Roberts had it on Ouellette.
[52] This case comes down to what is seen on surveillance at the time of the altercation. The Defendant is seen guiding Labelle across the street. The white Chrysler drives around them. Labelle turns and faces the vehicle. The Defendant successfully gets him across the street to the north curb. The whole incident may have ended there had Roberts not inserted herself into the proceedings. It was she who walked onto the roadway to confront the white Chrysler. She dropped the coat the Defendant had given her and her purse, and gave the black bag to Labelle (I observe she didn’t simply drop that bag, but took the time to hand it to Labelle) and walked up to the vehicle. She choked the driver’s side rear passenger and began wrestling with the female driver. Labelle then got involved, though it’s arguable he did so only to assist Roberts.
[53] Regardless, the rear passenger soon dispatched both the Defendant and Labelle with punches to the face. Both went down. While the Defendant stayed down, Labelle immediately sprang back up. What happened next is crucial.
[54] By this point, he had taken the black bag from Roberts and put it around his neck. After he got back up, he gestured to his torso area. When the occupants of the white Chrysler saw him, their behaviour changed in an instant. The rear passenger went from chasing down the Defendant and Labelle and punching them to running from the scene. He ran nearly to Goyeau Street, the next block over from Ouellette. The other passenger ran back into their vehicle. Labelle hit the female driver, then kicked her. Roberts continued to try to attack her. Labelle removed the bag from his shoulder and walked back to the vehicle. The others continued to run from him. They all got back in their vehicle and left.
[55] As for the Defendant, after he was punched, he remained on the ground for a moment putting his hat back on. He then walked to the sidewalk. He was facing the group the entire time except for a brief moment when he turned and walked a short distance away through the grass. He quickly came back to the sidewalk. When joined by the other two, he took the bag from Labelle and walked off alone to the north and east.
[56] Did the Defendant know what was in the bag when he took it from Labelle?
[57] In my view, the only reasonable inference to be drawn from the evidence is yes, he did.
[58] I base this on the video evidence. When Roberts starts the fight with the vehicle group, they are as aggressive as she is. The driver’s side rear passenger, rather than trying to deescalate the situation, actively pursues and assaults the Defendant and Labelle. While he’s doing that, the female driver can only be said to be pummelling Roberts on the ground. None seemed particularly reticent or unwilling to participate in this melee.
[59] That changed the instant Labelle went to his torso and then returned to the fray. As I’ve said, one vehicle participant ran down the street while another jumped back in the vehicle. The female driver does not try to flee but that is mostly because Roberts goes after her again after Labelle punches her.
[60] It is clear that something significant changed when Labelle went back to the group. He motioned to the bag slung across his chest. This is the same bag later found to contain a loaded handgun. Previously aggressive combatants scattered when they then saw him. The only reasonable inference to draw on this evidence is that Labelle took the gun from the bag, and it was visible to the others. There is no other reasonable explanation for their sudden fear. I find as a fact that is exactly what he did.
[61] Further, as this was unfolding, the Defendant was either sitting on the ground only a few feet away, or standing on the sidewalk. At the time Labelle took the gun from the bag and returned to the group, the Defendant was facing them and had no obstructions in his line of sight. Yes, he did turn away briefly, but that was later in the altercation, well after Labelle had taken the gun out.
[62] When the Defendant left the area, he was carrying two items: the black bag and Roberts’s purse. Only the black bag was placed under her car. If the Defendant had no knowledge of what was in the black bag, why would he have made a point of discarding it so quickly, and in a place where Labelle and Roberts would find it? If he wanted to divest himself of what he was carrying, why not also leave the purse there? If he thought the bag was innocent, why get rid of it at all? The Defendant’s own behaviour is another circumstance that points only towards his knowledge of what was in the black bag.
[63] Finally, before he left the scene, the Defendant actively reached out to take the black bag from Labelle. It wasn’t thrust into his hands. If the bag, to the Defendant’s mind, was innocent, why would he immediately take it and leave with it? This is further support for the inference that he knew what was in the bag, and that he needed to remove it from the area as quickly as possible.
[64] The witness Kadri described the person and the bag he saw next to his own vehicle. His description of the bag is different from the bag that was recovered. I heard no evidence of a second black bag being found under the Roberts vehicle, so I can only infer the bag deposited there was the bag found by police. When he described it as a two-strap school-style backpack, he must have simply been mistaken. This was at night and he was looking through darkly tinted windows. The whole incident could only have taken a matter of seconds. I am not troubled by his misdescription of the black bag.
[65] Regarding his description of the person, he said it was a male, all in black, with a black ball cap. When the Defendant left Riverside Drive with the black bag, he had put his coat back on. This was a coat with a dark-coloured body and camouflage sleeves. He also wore pants that were grey-blue in the arrest photos but that appeared very dark in the videos. All of which is to say Kadri got the description mostly correct. He didn’t mention the sleeves, and he added a ball cap. For the same reason his misdescription of the bag does not trouble me, his errors in describing the person are of little importance. I find it was the Defendant who placed the black bag under the Roberts vehicle. On this point I have both direct evidence in the partial description of the male by Kadri, and also circumstantial evidence in that the Defendant had the bag moments earlier. There were only ever three people in the Defendant’s group that night. The notion that someone else would have taken the black bag and secreted it under the Roberts vehicle is an unreasonable and entirely speculative inference.
[66] If I have erred in my assessment of Kadri’s evidence and should not have found the Defendant to be the person who put the black bag under the Roberts vehicle, I find that does not change the result of this case. In my view, when the Defendant took the bag from Labelle with knowledge of its contents, the offences in counts 4 and 8 were complete. Whether he later put the bag under the car does not change his possession when he parted from Labelle and Roberts.
[67] Counsel for the Defendant advanced an alternative position. He suggested that the Defendant may have become aware of the gun after taking control of the bag and then decided to dispose of it. I agree this theory could potentially afford him a defence if it was accepted that on learning of the gun (the knowledge component) he immediately disposed of it (the control component). If that theory leaves me with a reasonable doubt, it could lead to acquittal.
[68] I do not accept that theory, nor does it leave me with a reasonable doubt. For the reasons I have already stated, I find the Defendant knew the gun was in the bag from the moment he saw Labelle take it out. There is no support for the notion that he only discovered it after removing the bag from the scene.
[69] Based on the totality of the evidence, I find the Crown has proved the Defendant’s guilt on counts 4 and 8 beyond a reasonable doubt.
Issue 2: Has the Crown proved beyond a reasonable doubt that the Defendant knew Labelle had committed the offence of discharging a firearm?
[70] Count 9 requires the Crown to prove beyond a reasonable doubt that the offence of discharging a firearm took place. It is not necessary that someone be convicted of that offence; the Crown must only prove that the offence happened.
[71] Speaking for the Court of Appeal for Ontario in the case of R. v. Duong, [1998] O.J. No. 1681, Justice Doherty stated the following at paragraph 19:
A charge laid under s. 23(1) must allege the commission of a specific offence (or offences) and the Crown must prove that the alleged accessory knew that the person assisted was a party to that offence. The Crown will meet its burden if it proves that the accused had actual knowledge of the offence committed.
[72] Citing Duong, Justice DiLuca of the Superior Court of Justice said this at paragraph 18 of R. v. Lopez-Carter [2024] O.J. No. 1973:
In terms of the offence charged, the Crown must prove beyond a reasonable doubt that the person assisted by Mr. Lopez-Carter committed murder and that Mr. Lopez-Carter knew about the murder, see R. v. Duong, at para. 15. Further, the Crown must prove beyond a reasonable doubt that Mr. Lopez-Carter did something for the purpose of assisting the perpetrator of the murder to escape. That said, it matters not that the perpetrator of the offence has not been arrested, charged and/or convicted of murder, see Criminal Code, s. 592.
[73] The Crown must prove that the Defendant knew Labelle had committed the offence of discharging a firearm. Further, it must prove that his conduct subsequent to that offence assisted Labelle in escaping responsibility.
[74] Sehajdeep Singh testified to hearing what he called a “big noise” as his vehicle was at the corner of Ouellette and Riverside. He said he heard the noise, looked over, and saw the fight. He then took a short video of the scene. He was clear in his testimony that the shot was heard before he took the video. Again, the video he took showed the altercation from street level. It showed the male in the black sweatsuit, from the white Chrysler, punch Labelle. Labelle then gets up and starts walking towards the group.
[75] The difficulty with the picture Sehajdeep paints is it conflicts with the rest of the video evidence. His video is from relatively early in the fight. It captures the person in black still being aggressive towards Labelle. As the other videos show, it was after that, after Labelle got back up and motioned towards his chest, that the others started to run away. I have found that is when he produced the gun. There is no way a shot could have been heard prior to the start of the Sehajdeep video.
[76] Further to that, his evidence is at odds with that of Vikramjit Singh. Vikramjit said he first saw the fight and then heard a shot. He saw the person in the red jacket pull out a gun and fire it. At that point, the other people got into the white Chrysler and drove away. The person in the red jacket and a female ran east on Riverside towards a parking lot. In his evidence, he described the female as wearing a white hoodie. I note that at no point was Roberts ever wearing a hoodie. She was in a one-sleeved dress, and briefly wore the Defendant’s coat around her shoulders. She was never in a white hoodie.
[77] Other evidence related to the gun being fired came from PC Koptie. When he took possession of the gun to make it safe, he found one spent shell casing that had not ejected. This is at least some evidence that the weapon had been fired, though it falls short of saying when it was fired.
[78] The other witness who was in the area at the time, Amer Kadri, testified that he did not hear anything until he noticed sirens coming from the street.
[79] Lastly, I have reviewed the best video of the altercation, from the camera that faced east on Riverside Drive, many times. I have slowed the playback to one-third speed. At no point can I detect Labelle firing the gun. I can see no muzzle flash. I can see no puff of dust as if a bullet had hit the roadway. There is no sudden taking of cover by anyone involved (though as I said the others do back away quickly once Labelle takes the gun out). The female driver does not disengage with Roberts until after Labelle kicks her in the head. Certainly, she betrays no reaction to a shot being fired, or even to knowing a gun was present.
[80] The evidence presented makes me very suspicious that Labelle did fire the gun that night. Both Sehajdeep and Vikramjit said they heard a shot being fired. Vikramjit testified to seeing Labelle produce a gun and fire it. But he also misdescribed Roberts as wearing a white hoodie. He also said the entire episode was only seconds long. I heard no evidence of any gunshot residue being recovered from Labelle’s hands. Kadri, who was only a short distance away, did not testify to hearing anything other than police sirens. The video does not show Labelle firing the gun.
[81] I have given this issue a lot of thought, and candidly, have gone back and forth in my decision. In the end, I find that uncertainty must lead me to conclude I have a reasonable doubt on the point. I cannot find beyond a reasonable doubt that Labelle fired the gun such that when he took possession of it, the Defendant was assisting him in escaping liability.
[82] The Defendant will be found not guilty of count 9.
Result
[83] The Defendant will be found guilty of counts 4 and 8, and not guilty of count 9.
Released: 3 December 2024 Signed: Justice S. G. Pratt