ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-50000376

DATE: 20140311

B E T W E E N:

HER MAJESTY THE QUEEN

Jill Cameron for the Crown

• and -

MOHAMUD DUALE

Michael Morse for Mohamud Duale

HEARD: January 20, 21, 22, 24, 27, 28, 29 and 31, 2014.

REASONS FOR JUDGMENT

CORRICK J. (orally)

Introduction

[1] Mr. Duale is charged in a multi-count indictment with a number of offences related to an allegation that he ran through a townhouse complex armed with a loaded .40 calibre handgun in the middle of the day on February 9, 2012. They are as follows:

Count 8 – possession of a loaded prohibited firearm,

Count 11 – use of a firearm without reasonable precaution for the safety of other persons, contrary to s. 86(3)(a),

Count 13 – possession of a firearm knowing that the serial number had been removed, contrary to s. 108(2)(a),

Count 14 – possession of a prohibited device to wit: an over capacity magazine, contrary to s. 91(3)(a),

Count 15 – possession of a firearm while prohibited from doing so, contrary to s. 109(1),

Count 16 – fail to comply with a condition of a probation order to abstain from acquiring or possessing any weapon, contrary to s. 733.1,

Count 17 – fail to comply with a condition of a probation order to keep the peace and be of good behaviour, contrary to s. 733.1, and

Count 18 – fail to comply with a condition of a probation order not to associate, contact or communicate with Abdiweli Abdullahi, contrary to s. 733.1.

[2] At the outset of the trial, Ms. Cameron, Crown counsel, withdrew three other counts – 9, 10 and 12.

[3] Much of the evidence is not in dispute. Mr. Duale admits running through a residential townhouse complex on Tandridge Crescent at 1:50 in the afternoon on February 9, 2012 armed with a loaded prohibited firearm. He argued that he did so because he feared for his life. He relies on the defence of necessity.

Background

[4] Mr. Duale testified and provided the following context for the events of February 9, 2012. In September 2010, he was shot in his right leg. He did not call the police or an ambulance, but instead took a cab to the hospital with his friend, Inch, where he was treated and discharged. While at the hospital, he did not provide the police with any information or allow the police to photograph his injuries. He testified that he had no information to give the police because he did not know who shot him or why he was shot. The entire experience was terrifying and left him afraid of gun fire.

[5] Mr. Duale testified that he was from the 320 Dixon Road neighbourhood, which was the territory of the Bloods street gang. He believed that members of the Crips street gang lived in and “hung out” at 75 Tandridge Crescent, and that Tandridge was Crips territory. He denied being a gang member, but knew that he could be mistaken for one. He knew that it was a sign of disrespect for a male from 320 Dixon Road to go to Tandridge. He also knew that it would be disrespectful for a person, who was not a member of the Crips gang, to carry a gun in their territory. Finally, he testified that he knew that the shooting of a gang member would result in retaliation.

[6] A few weeks before February 9, Mr. Duale visited a friend who lived at 75 Tandridge Crescent, unit 1046. He testified that he took the precautions of arriving at Tandridge during daylight hours with a female so that he would not be perceived as a threat to anyone. While there on that occasion, he noticed people “hanging out” near unit 927. He believed that this was a “hang out spot” for gang members, and testified that he wanted to avoid that area. Nothing significant occurred during that visit.

Events Before the Shooting

[7] On February 9, 2012, Mr. Duale returned to 75 Tandridge Crescent, unit 1046. He again went with a female during the day. He arrived at 10:00 or 10:30 a.m., intending to stay two or three hours. When he arrived, he noticed bullet holes in the ceiling of the kitchen that had not been there a few weeks earlier. Thirty minutes after his arrival, two of Mr. Duale's friends, Mr. Abdullahi and Inch, arrived. They were drinking. According to Mr. Duale, Mr. Abdullahi came to Tandridge simply to have a brief conversation with him. He was then supposed to leave. Later, when Mr. Duale left in a cab with a female friend to get a sandwich, Mr. Abdullahi was standing outside waiting for someone to pick him up. When Mr. Duale returned 15 minutes later, Mr. Abdullahi and Inch were standing outside of unit 1046 drinking and smoking. Mr. Duale went inside unit 1046 and a few minutes later joined his friends outside and smoked a cigarette. He and Mr. Abdullahi then walked towards unit 919 to see two girls who Mr. Abdullahi knew.

[8] While they were speaking to the girls, Mr. Duale noticed that Mr. Abdullahi was intoxicated. He also noticed a bulge on Mr. Abdullahi's waist and believed that he was armed. According to Mr. Duale, the visible bulge in Mr. Abdullahi's waist would be seen as a threat to the people at Tandridge. As a result, Mr. Duale returned to unit 1046 to call a cab and leave. On his way into unit 1046, Mr. Duale told Inch, who was still outside, that he was going to leave.

The Shooting

[9] Almost five minutes after entering unit 1046, Mr. Duale heard five or six gunshots. He looked out the window and saw Inch on the ground. He appeared to have been shot.

Events After the Shooting

[10] Mr. Duale testified that he went to the door to help Inch. Inch told him he had been shot and that there were "guys around," but he did not know where they were. Mr. Duale asked him to go and look for them in the direction of Tandridge Crescent. He asked Mr. Abdullahi to look for them near the path that ran north between units 920 and 928. Mr. Abdullahi yelled to Mr. Duale that there was no one there. Mr. Duale did not trust Mr. Abdullahi's observations and ran over to check for himself. Mr. Duale testified that he was not armed at this point, but that Mr. Abdullahi was.

[11] Mr. Duale ran back to unit 1046. He testified that he intended to call a cab to get out of there. While inside, he heard more gunshots. The security camera footage revealed that the three gunshots Mr. Duale heard were fired by Mr. Abdullahi on the path in front of unit 1046. Mr. Duale went to the door, saw Mr. Abdullahi and saw a firearm on the grass where Inch had fallen after being shot. Mr. Duale testified that he was now in shock and afraid for his life. He did not think it was safe to stay inside unit 1046. The bullet holes in the ceiling of unit 1046 together with the gunshots he had just heard made him think that someone would shoot up the house. He ran out of the house, picked up the firearm, and ran south on the path between units 1000 and 1046. He put his jacket over the gun so that anyone who saw him from afar would know that he was armed. Mr. Abdullahi and Inch followed him down the path. He testified that he was running to get out of the complex, although he did not know the complex or where the attackers were.

[12] While he was running behind unit 1004, Mr. Duale noticed that the gun was jammed. According to him, that did not affect its ability to protect him. The protection was provided by the appearance to others that he was armed.

[13] Officer Nasser plotted the route Mr. Duale and the other two men took through the complex on Exhibit #3.

Arrival of Police

[14] Mr. Duale ran west on the path behind units 1021 to 1010. Mr. Abdullahi was ahead of him and Inch was behind. He testified that once he heard police sirens, he realized he was no longer in danger, and no longer required the gun for protection. He therefore threw the gun into the back yard of unit 1013. He testified that he did not know that Officers Zeljkovic and Sarasua were pursuing them behind units 1021 to 1010 and that he did not hear Officer Zeljkovic issue a police challenge to stop.

[15] Mr. Duale testified that the first time he saw a police officer was when he and Mr. Abdullahi had reached the grassy area in front of 75 Tandridge Crescent, and Officer Sarasua had caught up to them. Despite being ordered to get down on the ground by Officer Sarasua, Mr. Duale ran east, away from the officer who was arresting Mr. Abdullahi. Mr. Duale was eventually arrested a short distance away by Officer Zettler. Mr. Duale testified that he ran from Officer Sarasua because he saw Mr. Abdullahi's gun on the ground and he did not want to be connected to it.

The Video Surveillance

[16] Many of the events of February 9, 2012 were captured by the security cameras in the townhouse complex. The footage has been recorded on a compact disc, which is marked Exhibit #2. The timing of some of the events is important to my analysis of the evidence. The security footage shows the following sequence of events, commencing at 1:41:06 p.m.

1:41:06
Mr. Duale and Mr. Abdullahi leave unit 1046 and walk together to unit 919. Mr. Duale is wearing a light-coloured hoodie.

1:43:49
Mr. Duale leaves unit 919 and walks back to unit 1046.

1:44:15
Mr. Duale enters the path to unit 1046. He testified that he told Inch he was leaving.

1:48:46
Shots are fired and Inch is shot.

1:49:40
Mr. Abdullahi runs from the path in front of unit 1046 towards unit 920.

1:49:59
Mr. Duale runs from the path in front of unit 1046 towards unit 920. He is now wearing a black jacket.

1:50:11
Inch limps away toward Tandridge Crescent.

1:50:19
Mr. Duale runs into the path leading to unit 1046.

1:50:21
Mr. Abdullahi is walking along the path in front of unit 1046 and fires a number of shots, at least three.

1:50:53
Mr. Duale emerges from unit 1046, falls over a barrier and runs south along a pathway to the west of unit 1046.

1:51:01
Mr. Abdullahi and Inch emerge on the same pathway and run behind Mr. Duale. Mr. Abdullahi is holding a gun in his right hand.

1:51:07
Mr. Duale continues to run through the townhouse complex. He is holding a gun in his right hand.

1:51:41
Mr. Duale runs south behind unit 1021.

1:52:00
Officers Sarasua and Zeljkovic run south behind unit 1021.

1:52:14
Mr. Abdullahi emerges around the corner of unit 1010.

1:52:15
Mr. Duale emerges around the corner of unit 1010.

1:52:28
Officer Sarasua emerges around the corner of unit 1010 in pursuit of Mr. Abdullahi and Mr. Duale.

1:52:48
Mr. Duale runs east, away from 75 Tandridge Crescent.

Other Evidence

[17] Given Mr. Duale's admission that he was in possession of a loaded prohibited firearm while running through a residential townhouse complex, it is unnecessary to recount all of the other evidence in detail.

[18] Officer Rodeghiero, a firearms analyst with the Guns and Gangs Task Force, gave expert evidence about the characteristics of the gun Mr. Duale had been carrying. Officer Rodeghiero’s qualifications to do so were not contested by Mr. Morse. He testified that the gun in question was a Glock model 23, .40 Smith & Wesson centre-fire calibre semi-automatic handgun with a barrel length of 102 mm. The serial number had been removed. According to Officer Rodeghiero, Glock stamps the firearms it manufactures with a serial number in three places – on a metal piece that is attached to the underside of the receiver, on the right side of the slide and on the right side of the barrel at the ejection port. The metal piece with the serial number had been removed from the gun; the serial number on the right side of the slide had been obliterated by grinding; and the gun's original Glock barrel had been replaced by a Lone Wolf barrel.

[19] The magazine that Officer Khan had removed from the gun at the scene on Tandridge Crescent was also examined by Officer Rodeghiero. It was a detachable box cartridge magazine capable of holding 13 cartridges of .40 Smith & Wesson calibre centre-fire ammunition. It functioned with the gun Mr. Duale carried.

[20] Officer Khan testified that while he was guarding the scene, a citizen approached him and told him that she had found a gun in her backyard at 75 Tandridge, unit 1013. When he located the gun, the magazine was in it. The slide of the gun was locked back and a bullet had been misfed and was stuck in the chamber.

[21] Two affidavits were filed on consent, indicating that Mr. Duale was not the holder of a licence or registration certificate for the gun or magazine.

[22] Finally, certified copies of a probation order and a prohibition order were filed, indicating that Mr. Duale was found guilty of assault with a weapon on August 9, 2011 and placed on probation for 18 months with conditions that he not possess weapons, not associate or communicate with Abdiweli Abdullahi, (whose nickname is Inch), and keep the peace and be of good behaviour. He was also prohibited from possessing any prohibited firearms and devices for life.

Positions of the Parties

[23] Mr. Morse submitted that the defence of necessity has an air of reality to it in the circumstances Mr. Duale found himself in on February 9, 2012. It was obvious to Mr. Duale after the first set of gunshots that Inch had been shot. It is reasonable to believe that Mr. Duale believed the second set of gunshots, which occurred right outside of unit 1046, came from the same attackers. This frightened Mr. Duale, given his experience of being shot in 2010. He reasonably believed that he was a target and that he was not safe inside unit 1046 because he reasonably believed that it too was a target based on the presence of bullet holes in the kitchen ceiling. Calling the police was not an option because he did not have a safe place to wait for them. Under those circumstances, it was reasonable for Mr. Duale to arm himself with Inch's gun for protection while attempting to flee the situation. He did not aim or discharge the gun, but merely displayed it to let potential attackers know that he was armed.

[24] In Mr. Morse's submission, Mr. Duale honestly believed, on reasonable grounds, that he faced a situation of imminent peril and that he had no reasonable legal alternative available to him. Further, Mr. Morse submitted that the action Mr. Duale took was proportionate to the peril he faced. Finally, Mr. Morse submitted that the Crown had not proven that Mr. Duale acted voluntarily and must therefore be acquitted of the counts related to his possession of the firearm.

[25] Mr. Morse conceded that the Crown had proven two of the breach of probation counts, 17 and 18, beyond a reasonable doubt.

[26] Ms. Cameron submitted that Mr. Duale's evidence that he armed himself with a gun to protect himself while fleeing from the attackers at Tandridge Crescent was not credible. Rather, she submitted that Mr. Duale armed himself to seek out Inch's attackers and retaliate against them. When he knew that the police were nearby, he jettisoned the firearm.

[27] Even if I accept Mr. Duale's evidence, Ms. Cameron submitted that she had still proven the offences beyond a reasonable doubt because there was no air of reality to at least two of the three requirements for the defence of necessity. According to Ms. Cameron, Mr. Duale's belief that he faced a situation of imminent peril was not reasonable; nor was his belief that he had no reasonable legal alternative to breaking the law.

Analysis

[28] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

[29] The first is that Mr. Duale is presumed to be innocent. The second is that the Crown bears the burden of proving Mr. Duale's guilt beyond a reasonable doubt. It is a very high standard, but does not require the Crown to prove his guilt with absolute certainty. In this case, Mr. Duale is not required to prove that he acted out of necessity. If I accept that there is sufficient evidence to raise the issue of necessity, the Crown must meet it beyond a reasonable doubt.[^1]

[30] The third is the principle set out by the Supreme Court of Canada in the decision of R. v. W. (D.).[^2] If I believe Mr. Duale's evidence, I must acquit him. If I do not believe Mr. Duale's evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Duale's evidence, I must be convinced beyond a reasonable doubt on the basis of all of the evidence that I do accept that Mr. Duale is guilty.

[31] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

[32] The resolution of this trial turns to a large extent on my assessment of the reliability and credibility of Mr. Duale's evidence. Mr. Duale has admitted to having a criminal record. He was convicted on six occasions as a youth between 2005 and 2008. No evidence was led regarding the offences of which he was convicted as a youth. As an adult, he was convicted on August 9, 2011 of assault with a weapon. I have not placed any weight on his criminal record in assessing his credibility.

[33] In assessing the credibility of Mr. Duale, I must examine his evidence against the backdrop of all the other evidence. As O'Hallaran, J. A. said in Faryna v. Chorny,[^3]

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.[^4]

[34] When examined against the other evidence, particularly the events revealed by the surveillance tapes, Mr. Duale's version of the facts does not make sense. There are a number of aspects of Mr. Duale's testimony that raise concerns about his credibility and his version of events.

[35] According to Mr. Duale, he was concerned for his safety at Tandridge Crescent. He had to take precautions to go to Tandridge lest he be seen as disrespectful of the people who hung out there. He testified that being alone or in the company of another male would be viewed as threatening behaviour. Yet, he and Mr. Abdullahi walked together to unit 919 at 1:41:06, and he, Mr. Abdullahi and Inch stood together in front of unit 1046 having a cigarette. His explanations for why he engaged in this behaviour when he was concerned for his safety did not make sense.

[36] He also said that it was a sign of disrespect for an outsider to be armed while at Tandridge. For that reason, he became nervous about his safety once he saw that Mr. Abdullahi was armed. He thought someone from Tandridge would see that Mr. Abdullahi was armed and there could be a confrontation that involved the exchange of gun fire. He testified that he wanted to leave right away. He said his plan was to return to unit 1046 and call a cab. He had to return to unit 1046 to do this rather than call a cab from his cell phone because his cell phone was not fully charged. He planned to put it in the charger, which he had left in unit 1046, and then call a cab. On his way to 1046, he stopped to talk to Inch, who was waiting for a ride. He did not ask Inch if he could get a ride with him because he wanted to leave "right now." He testified that as soon as he went inside unit 1046, he put his phone in the charger, looked up the cab's phone number, and was just about to place the call when he heard gunshots. It is difficult to accept that Mr. Duale was eager to leave Tandridge and was making plans to do so when he heard the gunshots. The surveillance video shows Mr. Duale sauntering back to unit 1046 from unit 919. He does not appear to be in a rush. It is unclear why Mr. Duale would have had his phone charger inside unit 1046, a place he had visited only once before. He was in unit 1046 for almost five minutes before the first gunshots were fired, yet was unable to leave within that time. I do not accept that Mr. Duale was concerned about his safety at that time and was planning to leave right away.

[37] More telling in terms of Mr. Duale's credibility is what he did after he heard the first gunshots. He ran to the very place where he had seen who he thought were Tandridge gang members congregating. His explanation for doing so does not ring true. He testified that he did not trust Mr. Abdullahi's assertion that there was no one around unit 927, and so he ran, unarmed, to see for himself. His explanations for doing this were inconsistent. He testified that he thought he was in danger and was trying to figure out how he was going to get out. He went over there to see if that was a way he could get out. He also testified that he went there "for my own reasons." He said he wanted to know who shot Inch and where they were.

[38] I do not accept that Mr. Duale went to look around unit 927 to see if that was a way out. Had that been his reason, he would have taken that path once he saw that it was clear. He claimed that he did not do so because he did not want to run through the townhouses; however that is precisely what he did moments later. A more reasonable explanation for Mr. Duale's actions is that he went to the place where he thought he might find the people who had shot Inch.

[39] I also do not accept Mr. Duale's explanation about how he came to be in possession of the gun. He testified that he found it on the ground where Inch had been lying after he was shot. He assumed it was Inch's gun. It makes no sense that Inch, the man who was shot, would get up and walk over to Tandridge Crescent on Mr. Duale's instructions to see if his attackers were there, and leave his gun on the ground. If anyone felt it was necessary to protect himself, surely it was Inch, who had just been targeted by the attackers. It also seems highly improbable that Mr. Duale would seek out Inch's attackers unarmed.

[40] Finally, I do not accept Mr. Duale's evidence that he ran through the townhouse complex armed with a gun, looking for a way out because he was afraid for his life. His explanation for not staying inside unit 1046 once the gunfire started is not credible. He said he feared the house was a target because of the bullet holes in the kitchen ceiling. However that did not prevent him from staying in the house before the first gunshots were fired. Nor did it prevent him from returning to the house after he discovered that Mr. Abdullahi was armed, or after he looked for the attackers near unit 927.

[41] He said he did not call the police after the second set of gunshots because he did not have the chance. He said he was so fearful that he had to escape immediately. He said his plan was to call the police once he got out of Tandridge safely. This is contrary to the way Mr. Duale conducted himself in 2010 after being shot and it is also contrary to the actions he took on February 9, 2012. Despite Mr. Duale's assertions to the contrary, I find that he is not a person willing to engage the police. Contrary to his evidence that he would have spoken to a police officer had he seen one while running through the townhouse complex, he ran away from Officer Sarasua when he saw him. His explanation for doing so is at odds with the evidence. He said he ran because he did not want to be connected with the gun Mr. Abdullahi threw on the ground. Officer Sarasua testified that he issued a police command to Mr. Abdullahi and Mr. Duale to get down before Mr. Abdullahi threw his gun on the ground. If fear of the attackers had been the genuine motivation for Mr. Duale's flight with the gun, he would not have run from Officer Sarasua.

[42] I also do not accept that Mr. Duale threw his gun away because he knew he was safe once he heard the police sirens. He did not stop running once he knew he was safe; nor did he turn around to see what had happened to his friend of eight years, Inch, who had been shot. Mr. Duale threw the gun away to avoid being found in possession of it when the police caught up with him.

[43] Given my rejection of Mr. Duale's explanation for running through the townhouse complex armed with a loaded gun, and my finding that he armed himself to seek out Inch's attackers, it is unnecessary to consider whether the requirements for the defence of necessity have been established.

Conclusion

[44] I am satisfied beyond a reasonable doubt that on February 9, 2012, Mr. Duale possessed a loaded prohibited firearm without being the holder of a registration certificate for it, and that he possessed a prohibited device, an over-capacity handgun magazine, without being the holder of a licence for it. I therefore find Mr. Duale guilty of counts 8 and 14.

[45] I am also satisfied beyond a reasonable doubt that Mr. Duale used the firearm without reasonable precaution for the safety of other persons. The act of carrying a loaded firearm through a residential townhouse complex and then tossing it into someone's backyard is sufficient evidence that Mr. Duale did not take reasonable precautions for the safety of others. I therefore find him guilty of count 11.

[46] Count 13 charges Mr. Duale with possession of a firearm knowing that the serial number on it has been removed, contrary to s. 108(1)(b) of the Code.

[47] Officer Rodeghiero testified that the serial number had been removed from the firearm Mr. Duale possessed. A metal piece with the serial number on it had been removed and the serial number that is usually engraved on the right side of the slide had been ground off. Because the barrel of the gun had been replaced, the serial number that usually appears on a Glock barrel was absent.

[48] Pursuant to the presumption outlined in s. 108(4) of the Criminal Code, where this offence is charged, and the Crown establishes, as it has in this case, that the serial number of the firearm has been "wholly or partially obliterated," the possession of the firearm by the accused is proof, in the absence of evidence to the contrary, that the accused possessed the firearm knowing that the serial number on it has been altered, defaced or removed.

[49] I am satisfied beyond a reasonable doubt that the original serial number had been removed and that Mr. Duale was in possession of the firearm. As there is no evidence to the contrary, I am obliged to act on the statutory presumption under s. 108(4) of the Code and find that Mr. Duale was in possession of the firearm knowing that the serial number on it had been removed. Therefore, I find him guilty of count 13.

[50] The Crown has established beyond a reasonable doubt that on February 9, 2012, Mr. Duale was subject to an order prohibiting him from possessing a firearm. I therefore find him guilty of count 15.

[51] Mr. Morse properly conceded that the Crown had proven counts 17 and 18 beyond a reasonable doubt. Count 16 relates to the breach of a condition in the same probation order that Mr. Duale not possess any weapon. The Crown has also proven that offence beyond a reasonable doubt. Accordingly, I find Mr. Duale guilty of counts 16, 17 and 18.

Corrick J.

Released: March 11, 2014

COURT FILE NO.: 13-50000376
DATE: 20140311

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
MOHAMUD DUALE

REASONS FOR JUDGMENT

Corrick J.

Released: March 11, 2014

[^1]: R. v. Perka, [1984] 2 S.C.R. 232 — https://www.canlii.org/en/ca/scc/doc/1984/1984canlii23/1984canlii23.html
[^2]: R. v. W. (D.), [1991] 1 S.C.R. 742 — https://www.canlii.org/en/ca/scc/doc/1991/1991canlii93/1991canlii93.html
[^3]: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) — https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html
[^4]: This passage has been adopted by the Court of Appeal for Ontario in cases dealing with credibility assessments, such as R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont.C.A.) — https://www.canlii.org/en/on/onca/doc/1993/1993canlii3387/1993canlii3387.html