R. v. Bonnick, 2016 ONSC 2586

Court File and Parties

COURT FILE NO.: CR-15-50000197 DATE: 2016/04/29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LEIGHTON BONNICK Accused

Counsel: Paul Zambonini, for Her Majesty the Queen Nathan Gorham, for the Accused

HEARD: February 22-26, 29, March 1-3, 2016

REASONS FOR JUDGMENT

DUNNET J.: (Orally)

1Leighton Bonnick has been charged with firearms offences arising out of a shooting that occurred on July 14, 2013.

The Evidence

Mitze Hibbert

2On July 13, 2013, Mitze Hibbert was hosting a barbeque at her house located at 664 Trethewey Drive in Toronto. Although the party started at two o’clock in the afternoon, most of the guests came after ten o’clock in the evening. The police arrived around two o’clock in the morning and told Ms. Hibbert to close the bar.

3There were about ten people left in the backyard when Ms. Hibbert noticed that Mr. Bonnick behaving aggressively towards her son, Princeton Hibbert. Mr. Hibbert became upset and asked him why he was complaining about bread. A friend of Mr. Hibbert, known throughout the trial as “Jermaine,” was being disrespectful to Mr. Bonnick.

4Mr. Hibbert approached Mr. Bonnick and knocked his plate of food off the table. Then he punched Mr. Bonnick who flew backwards, striking his head on the wall of the house. He slid to the ground and passed out.

5When he regained consciousness, blood was coming from his eye and he appeared to be in shock. Judy Alfred was shouting, “That’s my man. How can you disrespect him like that?” When she refused to calm down, someone put her into a car and they drove away.

6After Mr. Bonnick stood up, Ms. Hibbert apologized and asked him to come inside the house. He said to her, “Ma’am, don’t worry. I’m not going to disrespect your yard.” Then he left.

7Fifteen to twenty minutes later, Ms. Hibbert was standing in front of her house when she saw Mr. Bonnick coming around the corner on the sidewalk to the right of her house.

8She testified that he was holding a silver, semi-automatic gun, which was five to six inches long with a square mouth and a black handle. She jumped in front of him and said, “Don’t do this.” Mr. Bonnick turned right and walked up the driveway towards her house.

9He approached Jermaine who was leaning against the front wall of the house. He pointed the gun at two girls who were sitting on the front steps. Ms. Hibbert was standing between Mr. Bonnick and Jermaine and shouting, “Don’t shoot. Don’t hurt nobody. Take me. I’ve lived a life.”

10Mr. Bonnick looked at Jermaine and said, “Yo, pussyhole.” Ms. Hibbert explained that the expression is demeaning and he was mad at Jermaine. He grabbed Jermaine by the shirt and held him up as if he wanted to hit him. Jermaine grabbed Mr. Bonnick by the wrist and they started to wrestle for the gun in the middle of the driveway.

11Mr. Hibbert appeared around the left corner of the house from the backyard and put his hands together in front of him pointing at Mr. Bonnick who put his hands together and pointed at Mr. Hibbert. Ms. Hibbert screamed “no.” Four shots “went off” and everyone dropped to the ground.

12Jermaine ran towards the street and flagged down a taxi and jumped in. Mr. Bonnick stood in front of the taxi pointing a gun at the driver. He lowered the gun and ran to a beige car, which was parked on the southeast corner of Trethewey and Tedder Street. He entered the passenger seat and the vehicle disappeared.

13In cross-examination, Ms. Hibbert testified that she was one hundred per cent certain that Mr. Bonnick was the person with the gun. She agreed that she was not able to identify him in a police photo lineup. She also agreed that during her son’s preliminary inquiry for gun-related charges arising from these events, she asked Mr. Bonnick for a cigarette outside the courthouse and used her lighter to light his cigarette, but she did not recognize him as the person with the gun.

14She agreed that when she was asked at Mr. Bonnick’s preliminary inquiry why she was able to say that he was the person who got into a fight with her son and came back with a gun, she said:

I know, with the way he carried on as a guilty man, and I just know. I may not – can’t recognize him at the moment, within the whole – the thing going on, okay, but I know. He has made himself clear that he’s the one that came back.

15After the shooting, Ms. Hibbert went into the house with Natasha Francis to clean up. She was not concerned about Mr. Bonnick coming back and left the front door open.

16When the police arrived and asked her if there had been a shooting, she said “no.” When the police returned shortly thereafter and told her that there had been a shooting and that someone had been shot, she told them that she had been inside the house and did not know what happened. When she was asked why she lied to the police, she said that she was “protecting the whole situation. Nobody got hurt. Nothing happened, to my knowledge. It was done and over with, so I said there was no shooting.”

17When she received a telephone call that her friend Donahue Bernard was the victim, she went to the hospital in the morning to visit him. While she was there, Mr. Hibbert telephoned his mother and spoke to Mr. Bernard.

18Although Ms. Hibbert denied that her son told her his side of the story during the call, she agreed that at his preliminary inquiry, she had testified that her son told her during the call that he had fired his gun because he thought that she and Jermaine were going to lose their lives.

19Ms. Hibbert did not remember Jermaine saying anything before Mr. Bonnick grabbed him by the chest. She was referred to her testimony at her son’s preliminary inquiry when she said that Jermaine looked at Mr. Bonnick and said, “Oh my god, nice gun.” She testified that it was when she spoke to Jermaine after the shooting that he told her that as he grabbed the gun, he thought to himself, “Oh my god, nice gun.” She said that he grabbed the gun because it was nice.

20Ms. Hibbert’s evidence was that if no one had been hurt, she would not have talked to the police. After the shooting, she had been trying to work things out for days and everyone was getting angrier. On July 19, 2013, she decided to give a statement to the police because she could not resolve the rumours; she could not get hold of her son and her brother told her to do the right thing.

21She testified that if it were not for her respect for her brother, a police officer, she would have said nothing and “watched itself play out.” When it was suggested to her that earlier in her testimony, she said that going to the police had nothing to do with her brother, her response was, “Well, I changed my story.”

22She agreed that she told the police that the only person who could have shot Mr. Bernard was her son because her son was facing the street and Mr. Bernard was facing the car parked at the top of the driveway near the house.

23During Mr. Bonnick’s preliminary inquiry, Ms. Hibbert was reminded of her evidence at her son’s preliminary inquiry when she said that there was pressure from everyone for him to turn himself in and “if they don’t catch the skirt tail, they’re coming for me.” Ms. Hibbert denied that she used those words. When counsel for Mr. Bonnick was about to read the evidence to her, she acknowledged that she had testified:

You know, everybody was on the road saying, get him off the street, they’re gonna kill him, they’re - if they don’t catch the skirt tail, they’re coming for me. So it was peer pressure from everybody saying, let Prince turn himself in.

24Ms. Hibbert agreed that everyone was telling her those things, but she maintained that she was not afraid of anybody and that it was not peer pressure that persuaded her to turn in her son.

25She denied that she made up a story about Mr. Bonnick pointing a gun at her son. She testified that she lied to the police at the beginning, but afterwards, she told the truth.

26When she was asked by counsel for Mr. Bonnick,

Q. What would your brother think of you if you came into court today and said, “I’ve been lying. I lied to the police in my first statement. I lied at the preliminary inquiry for my son’s case to try to help him out. I lied at Mr. Bonnick’s preliminary inquiry.” What if you came clean on that? A. I will never come clean because there is nothing to come clean about. It’s been the truth all along and my brother asked me to tell the truth.

Princeton Hibbert

27Princeton Hibbert was at the barbeque drinking rum, beer and cognac over a period of eleven or twelve hours. He was drunk, but not falling over. The police arrived and told his mother to shut down the party. Ten or fifteen minutes later, he noticed a man who did not have bread for his hamburger, so he offered him a piece of bread. Words were exchanged because the man did not approve of his gesture.

28Because he felt disrespected, Mr. Hibbert hit the man in the face and he flew backwards against the house. A woman was screaming and others were trying to diffuse the situation. His mother took the man to the front of the house and Mr. Hibbert stayed in the backyard cleaning up.

29Three or five minutes later, he heard his mother scream. He went around to the side of the house and heard her yell “no.” Although the driveway was dark, he could make out the silhouettes of his friend and his mother fighting with a man who was waving something shiny in the air. He thought that it was an automatic firearm.

30The man broke free from his friend’s grip and put his hands together with his arms out straight and pointing down as if he was getting ready to aim or fire at Mr. Hibbert’s friend.

31Mr. Hibbert pulled out his gun and fired two shots. When the man winced, he thought that he had shot him and Mr. Hibbert ran away.

32A couple of days later, he learned that Mr. Bernard had been shot and that the police wanted to talk to him. He intended to tell them whatever he needed to say in order to stay out of jail. When he arrived at the police station, he was told that his mother had already given the police a statement and he was angry.

33In his video-taped statement on July 19, 2013, Mr. Hibbert said that he was drunk and high and he was not one hundred per cent sure what had happened. It was less than ten minutes after he punched the man when he ran around the house and saw a man “about to point down his gun at my peoples.”

34The following day, Mr. Hibbert told the police that he recognized a photograph of the man whom he punched and who came back to his mother’s house with a gun. At trial, he was unable to say for sure whether it was the same person. He testified that he would not be able to recognize the man whom he punched.

35In cross-examination, he agreed that it was over a minute or two, or three, but less than ten minutes between punching the man in the backyard and seeing a man on the driveway pointing a gun. He saw the man’s arm up in the air at a forty-five degree angle. He was bringing his arm down when Mr. Hibbert fired. He testified that the man was holding the gun in his left hand.

36Mr. Hibbert acknowledged that the action of lowering his hand could have been an attempt by the man to intimidate his friend and that it was possible that the gun was not real. He testified that he just had a glance at it and in the dark he could not see it.

37Mr. Hibbert agreed that there were six rounds of ammunition in the cylinder of his gun and the police told him that all of the rounds had been spent. He did not hear any other shots being fired. He ran because he did not want to get into trouble with the police.

38As he was running, he tossed his gun into a ravine near Eglinton Avenue and Weston Road. He denied that he tried to hide the gun. He did not tell the police the truth about what he did with the gun because he had intended to retrieve it when he was released on bail. After someone found the gun, he admitted to the police that it was the same gun that he used to fire the shots at the barbeque.

39Mr. Hibbert testified that he went to the police because his mother told him to turn himself in and he did not want Mr. Bernard’s sons shooting at his mother’s house. He intended to tell the police that he left the barbeque before anything happened. Then he learned that his mother had already spoken to the police and said that Mr. Bernard was shot by accident when her son was trying to defend his friend and his mother. Mr. Hibbert denied that he made up a story about the man having a gun in order to get a more favourable sentence for shooting Mr. Bernard.

40When it was suggested to Mr. Hibbert that Mr. Bonnick had “disrespected” him and when he returned, he wanted to teach the man a lesson, Mr. Hibbert’s response was that he punched a man who left. Then someone came and pointed a gun at his family and he struck first before the man could strike him.

Donahue Bernard

41Donahue Bernard arrived at the barbeque between nine and eleven o’clock in the evening. Mr. Bernard was in the backyard when he heard an argument about bread and he went over and “addressed” Mr. Hibbert and Mr. Bonnick.

42He walked back to his seat and when he turned around, he saw Mr. Bonnick on the ground with blood coming from his face. Ms. Alfred was shouting and swearing about what had happened to her man. Mr. Bernard took her to the front yard and put her into “Kabo’s” truck and they drove off. Someone put Mr. Bonnick into a white car.

43Mr. Bernard and his wife went to their car, which was parked one block away. As he was driving past Ms. Hibbert’s house, Mr. Bernard’s friend “Edge” asked if he would give some women a ride home. He parked his car near Ms. Hibbert’s house and removed clothing from the back seat in order to make room for his passengers.

44Mr. Bernard walked towards the house in order to tell the women that he was ready to leave. As he reached the edge of the driveway, he saw Mr. Bonnick on the driveway walking ahead of him to his right. There was nothing in his left hand, which was straight down on his left side. He could not see whether Mr. Bonnick had anything in his right hand.

45When Mr. Bernard heard the sound of a gunshot, he turned to his left. He felt warmth and looked down at his right arm and saw blood. He ran towards his car and heard six or eight more gunshots. He did not know that he had been shot in the back until he arrived at the hospital.

46He sustained a bullet hole to his right mid arm. The bullet travelled through his arm, out his armpit and entered his torso where it became lodged under his left lung. A second bullet entered his back and lodged next to his spine. Neither bullet could be surgically removed.

47In cross-examination, Mr. Bernard testified that shortly after he arrived at the hospital, he gave the police an audio statement. In the statement, he said, “There was a little scuffling about something, but I didn’t get a picture of it because I was already on the journey to go get my car.”

48He testified that he knew the men involved in the scuffle, but he did not want to “rat” on them. He explained that when something like this happens, there is a stigma on the street. Once you open your mouth, you become an informer and you need to find ways to “divert around the question [the police] ask and still answer most of it.” At the time, he did not know who had shot him or why shots had been fired.

49On July 17, 2013, he gave a video statement to the police. He said that there was an argument between two men about bread and “people squashed it up.” He got up and went to his car because, “You try to skid-addle. You don’t stick around.” Mr. Bernard did not tell the police that he had talked to the men after the argument because he did not want to be an informer and drag them into something that had happened to him.

50He testified that when he went to find his passengers, Mr. Bonnick was twenty feet ahead of him on the driveway. He never lost sight of the man and he did not see him struggling with anyone. He did not see Mr. Bonnick pointing his hands out in front of him or towards the sky. He did not see a gun in his left hand.

51In his video statement, Mr. Bernard told the police that he did not see Mr. Bonnick’s hands clearly, but if he had anything in his hands, he probably would have seen it. He said, “In my head, I’m thinking dude couldn’t have done it because I didn’t see anything in his hands.”

52In his audio statement, Mr. Bernard told the police that when he heard the first shot, he turned and felt warmth on his right side and started running to his car. He felt the next one when it came into his back and he kept on running.

53Later on in his audio statement, he said that he was heading to the driveway when he heard the first shot. He did not think that the first shot hit him. He started to spin and heard more shots before he felt the blood and ran. He felt the next one when it went in because it turned him.

54In his video statement, he said that he was looking straight ahead on the driveway when he heard a bang and turned. Then he felt his arm getting warm. He started to run and that was when he felt the next shot come into his back and knock him forward.

55In his testimony at trial, Mr. Bernard agreed that the shot that struck him in the arm was the second shot that he heard. He maintained, however, that it was only when he reached the hospital that he realized he had been shot in the back.

56He agreed that he lied to the police about the different sounds of the bullets because he did not want to say too much before he found out if the shots were meant for him.

57He testified that Mr. Hibbert apologized for shooting him when they spoke on the telephone at the hospital. Mr. Bernard told Mr. Hibbert that if he turned himself in, he would “leave it alone.” He explained, “We’re on the street and if the police don’t deal with it, we deal with it.”

58After he gave his video statement, Mr. Bernard learned that Mr. Hibbert was not going to turn himself in. He testified that he did not want his children to start looking for Mr. Hibbert and get into trouble for something they might do to him. Therefore, he told the police that Mr. Hibbert was the shooter.

59In re-examination, Mr. Bernard was asked if it was possible that Mr. Bonnick had a gun in his hand and he said, “It’s possible because I didn’t see. So, it’s probably he could have it, probably he didn’t have it. I didn’t see it, so I definitely can’t say if, or if not.”

Audrey Kelly-Bernard

60Audrey Kelly-Bernard was in the backyard with her husband when she heard Mr. Hibbert and Mr. Bonnick arguing about bread and ketchup. Mr. Bonnick was walking away when Mr. Hibbert punched him and he fell. Mr. Bernard went over to them to prevent the matter from escalating.

61Ms. Alfred became angry and asked Mr. Hibbert why he had punched her man when he had not done anything to Mr. Hibbert. Mr. Bernard put Ms. Alfred into Kabo’s car and told him to take her home. Mr. Bonnick left calmly in a silver or white car. People at the barbeque were saying that Mr. Bonnick was coming back with a gun and she told her husband that she wanted to go home.

62Someone asked Mr. Bernard for a ride and he retrieved his car and parked it four houses east of Ms. Hibbert’s house facing east. Ms. Kelly-Bernard was seated in the front passenger seat. Mr. Bernard was removing items from the back seat when someone called out to him and he walked back to Ms. Hibbert’s house.

63Through her side view mirror, Ms. Kelly-Bernard saw behind her that as Mr. Bernard reached the driveway, there was a man in the driveway and people were crowding around him. The man made a “breast stroke” motion with his arms as if he wanted people to get away from him.

64She did not see anything in his hands. She testified that it was not really dark and if he had something in his hands, she would have seen it.

65Then she heard gunshots and when she lifted up her head, she saw Edge running on the sidewalk. He fell on his back with his girlfriend on top of him and Ms. Kelly-Bernard thought that they had been shot. When Mr. Bernard jumped into their car, she saw blood on his arm and told him to drive fast so that the police would stop them and get him to a hospital.

66In cross-examination, Ms. Kelly-Bernard maintained that she saw her husband put Ms. Alfred into Kabo’s car and tell him to take her home. She saw Mr. Bonnick being put into another car and she heard that someone was going to come back with a gun.

67She testified that she was forty feet from the man when she saw the breast stroke motion. Then she heard three or four gunshots. She said that she would have been able to see an object in the man’s hand, especially if it was silver. She also testified that if he had pulled out a gun, she would have been able to see it.

68On July 17, 2013, she gave a statement to the police. She did not say anything about Mr. Bonnick getting into a car or about hearing that he was coming back with a gun. She was not sure if the man who made the breast stroke motion was the same man who was “boxed.”

69She had heard that Mr. Hibbert was the man who shot her husband, but she did not tell the police because she did not want to send an innocent person to jail.

70In re-examination, the following exchange took place between Ms. Kelly-Bernard and Crown counsel:

Q. What can you tell us about whether or not that person on the driveway doing the breast stroke motion was Mr. Bonnick? A. No, maybe, I wasn’t sure. Q. What I’m asking is why it is when I asked you, you know, who was the person who came back, you said it was Mr. Bonnick. Why did you answer that to my question? A. ‘Cause they said they came – he came back. Q. Okay, who’s “they”? A. The people that were there. If something happened and you move away they talk. So, they said he come back and his girl was arguing when they put him in so I know he left. And, when he’s coming back, people come and they said he’s coming back and people were leaving.

Judy Alfred

71Judy Alfred testified that she was Mr. Bonnick’s girlfriend. They had consumed one or two drinks at a bar that evening and arrived at Ms. Hibbert’s house together in Mr. Bonnick’s car. They went into the backyard and had a drink before the police arrived and told everyone to move their cars. Mr. Bonnick parked his car on a side street and when he returned to the backyard, they had another drink.

72Ms. Alfred remembered going into the house to help Ms. Hibbert cook fish and when she came out, some women were trying to separate Mr. Hibbert and Mr. Bonnick. Mr. Hibbert appeared to be upset and his mother was trying to calm him down. He reached over his mother and blind-sided Mr. Bonnick who fell backwards and passed out.

73When he regained consciousness, Mr. Bonnick said, “Let’s go.” Ms. Alfred saw a huge gash under his eye and became very angry. She was yelling at Mr. Hibbert when someone picked her up and put her into a car. She thought that it was Mr. Bernard.

74As she was being driven away, she saw Mr. Bonnick standing on the sidewalk in front of the house holding his face. Five to ten minutes later, she arrived at her building. She telephoned Mr. Bonnick and he told her that he was on his way. When he arrived, he said that he thought the same man who had punched him earlier had fired a gun at the Hibbert house and someone may have been shot.

Natasha Francis

75Natasha Francis was inside the house when she heard a commotion and went outside. She saw Mr. Bonnick with a bump on his eye and heard him say, “You popped me in my face,” and he disappeared. Ms. Alfred was screaming at Mr. Hibbert, “You gonna die. He’s gonna kill you. He’s gonna get a gun and shoot up this place.” Ms. Francis escorted Ms. Alfred to the driveway and pushed her into a car.

76Ms. Francis thought that Mr. Bonnick had been gone at least ten minutes when she saw him turning into the driveway. He walked by her with a gun in his left hand pointing down. She described the gun as a shiny, silver, semi-automatic, which was eight to ten inches long.

77Jermaine was leaning against the house talking to two girls and Ms. Hibbert was standing on the front porch. Jermaine and Mr. Bonnick started wrestling for the gun. Mr. Hibbert came around the side of the house from the backyard and said, “You think only you can have a gun, pussy.” She told Mr. Hibbert to go back and she dropped to the ground. Then she heard, “pop pop pop.”

78Fifteen seconds later, she got up. Everyone was gone and she went into the house with Ms. Hibbert. When the police arrived and asked about gunshots, she told them that she had not heard anything. She lied to the police because she did not think that anyone had been shot.

79The next day she heard that Mr. Bernard had been shot. Eleven days later, she gave a statement to the police because Ms. Hibbert told her that she needed to tell them “her side.”

80In cross-examination, Ms. Francis agreed that she did not tell the police that Ms. Alfred said that Mr. Bonnick was coming back with a gun. She testified that it probably slipped her mind. She maintained that she told the police what she felt they should know.

81In her statement, she said that Jermaine was leaning against the house when she heard Mr. Bonnick say, “Yo, pussy,” and they started to struggle for the gun in the driveway. Jermaine ran into the “circle part,” which she described as that part of the driveway between the sidewalk and the street, and Mr. Bonnick ran after him. Mr. Hibbert came from behind the house and shots were fired when Mr. Bonnick was at the edge of the circle part. She did not know if Jermaine was also in the circle part.

82She agreed that she told the police that Mr. Hibbert fired into the air “just to scare the guy off.”

83Ms. Francis testified that when the shots rang out, she was on the driveway lying on her stomach facing the street. Mr. Bonnick was in her direct line of vision with the gun in his left hand. He winced and she thought that he had been shot.

84She said that she lied to the police because she did not want Mr. Hibbert to go to jail and she thought that Mr. Bonnick and his girlfriend made a very good couple and looked nice together.

85She agreed that she and Ms. Hibbert had a discussion about Mr. Hibbert having to shoot Mr. Bonnick because he came back to the house with a gun. She knew that Mr. Bonnick had a gun because of what Mr. Hibbert said to him when he appeared from the backyard. She denied that she lied about Mr. Bonnick having a gun in order to help out Mr. Hibbert.

86In re-examination, she said that when the shots were fired, Mr. Bonnick was close to the sidewalk at the beginning of the circle part and Mr. Hibbert was “lined up right with” Mr. Bonnick.

Police Officer Nimrod Rose

87On the afternoon of July 14, 2013, Police Officers Nimrod Rose and Dyanne Parker attended JP Towing in Toronto to speak to Mr. Bonnick who was there to retrieve his motor vehicle. Officer Rose noticed that Mr. Bonnick had a fresh wound under his right eye that was covered with gauze soaked in blood. When he was asked about the injury, Mr. Bonnick said that he had been in a scuffle three or four days earlier.

88When the officer asked Mr. Bonnick if he knew anything about a shooting the night before, he said that he knew nothing. He had parked his car on Chiswick Avenue, went to a house party and left at two o’clock in the morning.

Leighton Bonnick

89Leighton Bonnick testified that he and Ms. Alfred were together at a bar before she left to go to the barbeque at Ms. Hibbert’s house. He was not interested in going because he did not know anyone. When she telephoned him and said, “It’s alright over here,” he decided to join her. He had consumed two or three shots of rum that night before arriving at the barbeque.

90He stood alone in the backyard for an hour and drank one or two more shots of rum before he decided to have a hamburger. He noticed that his bread had ketchup on it and he asked Mr. Hibbert for another piece.

91Mr. Hibbert became belligerent and started acting like “the Tasmanian Devil.” Mr. Bonnick no longer wanted any bread and walked away. Ms. Hibbert wanted to know what the problem was and when Mr. Bonnick turned to speak to her, someone reached over a tall man with dreadlocks standing in front of him and “clocked” Mr. Bonnick in the face.

92When he regained consciousness, he was not able to see anything but colours because of the blood on his face. Someone led him around to the front yard and he stood on the sidewalk in front of the house until he regained his vision. He was angry and decided to go back for revenge.

93He saw the tall man with dreadlocks standing at the top of the driveway near the house and started walking towards him “to punch him out.” The man approached Mr. Bonnick and said, “What are you doing back here?”

94When they were three or four feet from the house, they started to “tousle” on the driveway, moving a few feet closer to the street. Mr. Bonnick heard a shot and ran towards the street. A woman was driving by and asked him if he needed to go to the hospital. He entered her car and told her to drop him off at Ms. Alfred’s building.

95Mr. Bonnick testified that he did not see who punched him, but Ms. Alfred told him later that it was Mr. Hibbert. He did not see who fired the gun, but he assumed that it was the same man because he had been acting aggressively.

96In cross-examination, Mr. Bonnick denied that he drove to the barbeque together with Ms. Alfred. When the police arrived and started to ticket cars parked on Trethewey, he moved his car around the corner to Chiswick and returned to the barbeque.

97He testified that he did not know if the person who had punched him in the face was Mr. Hibbert or the tall man who had been standing in front of him just before he was punched. He stayed on the sidewalk for about ten minutes before he was able to see out of his eyes. He denied that someone put him into a car. He denied that he went to his car and retrieved a firearm, which he brandished.

98He testified that when he saw the tall man standing close to the house, he was not afraid to get into a fight. Almost immediately after they began to tousle, he heard a shot. Out of the corner of his eye, he saw a spark seven or eight feet to his left in the backyard, which was “pitch black.” Then he heard “bang bang bang” and ran for his life.

99Mr. Bonnick testified that during the scuffle, he was facing towards the aluminum siding on the house and the shooter did not have his back or the tall man’s back. He did not think that the shots were meant for him because he was not hit.

100He agreed that he lied to the police when he said that he had received the cut to his face in a scuffle a few days earlier and that he had not heard anything about a shooting. He explained that when the police spoke to him, he did not think that he was a suspect and if it had been a physical fight, it would have been easier to say something to them. Once gunshots were involved, he was reluctant to come forward. He thought that the person who punched him might come after him and he did not want any repercussions.

The Position of the Crown

101The position of the Crown is that after the assault, Mr. Bonnick went to his car to get a gun. Ten or fifteen minutes later he came back, seeking revenge. He pointed a silver semi-automatic gun at Ms. Hibbert in a threatening manner. He put everyone in danger, and but for his decision to engage in a gun fight with Mr. Hibbert, Mr. Bernard would not have been shot.

102The Crown submits that there is no dispute that there was a punch. The real dispute is whether Mr. Bonnick left the house. Ms. Hibbert and Ms. Francis testified that he left and when they saw him again, he was approaching the house from Chiswick where he had parked his car. Mr. Bernard and his wife saw Mr. Bonnick being put into a white car. The next time they saw him, he was walking up the driveway towards the house.

103It is submitted that although Ms. Hibbert was verbose and repetitive, the core of her evidence was unshaken and it corroborated the evidence of Mr. Bernard and his wife that Mr. Bonnick left after the assault. Ms. Hibbert’s evidence was that when Mr. Bonnick returned with a gun, a scuffle took place with Jermaine and Mr. Bonnick pointed the gun at Mr. Hibbert.

104The Crown contends that inconsistencies as to whether the gun was in the left or right hand or where people were positioned in the driveway is understandable, given that these events happened around three o’clock in the morning after all of the witnesses had been drinking for some time.

105The Crown asserts that the evidence of Mr. Hibbert is essentially the same as his mother. He was in the backyard when he heard her yell. He saw a struggle and Mr. Bonnick’s arm pointing at his friend and that is why he took out his gun.

106It is submitted that Mr. Bonnick’s version of a physical fight with Jermaine does not explain why Mr. Hibbert appeared suddenly and reacted by firing shots.

107It is submitted further that the evidence of Ms. Francis supports the evidence of Ms. Hibbert that Mr. Bonnick had a gun. The Crown accepts that the criminal record of Ms. Francis is troubling and suggests that there may be a need to be skeptical about the veracity of her testimony.

108The Crown also accepts that Mr. Bernard’s evidence may be unreliable in some respects, because he was injured, but submits that he had no motive to fabricate. The Crown acknowledges that it is troubling that Mr. Bernard did not see a struggle before shots were fired, but submits that this does not mean that there was no confrontation.

109The Crown submits that Ms. Kelly-Bernard saw a man in the driveway and others crowded around him, contrary to the evidence of Mr. Bonnick.

110The Crown’s position is that the evidence of Mr. Bonnick should be rejected because it does not make sense and is contradicted by the other witnesses. Moreover, he lied to the police about how he was injured and this places him on no different page than the witnesses who admitted that they lied to the police. The Crown contends that the witnesses lied to the police because they were trying to work things out themselves.

111The Crown also submits that the trajectory of the shots fired by Mr. Hibbert accords with the evidence of the Crown witnesses and contradicts the evidence of Mr. Bonnick. The witnesses described an extended scuffle that moved to the middle of the driveway before shots were heard. Mr. Bonnick was facing Mr. Hibbert and Mr. Hibbert was shooting in his direction.

112Mr. Bonnick’s evidence was that when he saw a spark to his left, he was facing sideways towards the house. It is submitted that on Mr. Bonnick’s version of events, Mr. Bernard could not have been shot.

113The Crown asserts that a reasoned acceptance of the evidence of the Crown witnesses proves beyond a reasonable doubt that Mr. Bonnick is guilty of possession of a weapon for a purpose dangerous to the public peace, pointing a firearm at Ms. Hibbert, using a firearm or imitation firearm while committing an indictable offence and assaulting Ms. Hibbert with a weapon. In addition, pursuant to R. v. J.S.R., 2012 ONCA 568, 112 O.R. (3d) 81, Mr. Bonnick is guilty as a party to the offence of aggravated assault by endangering the life of and/or wounding Mr. Bernard.

The Position of the Defence

114The position of the defence is that Mr. Bonnick’s evidence is not inherently implausible. Further, it could reasonably be true that the events happened as he described. It is submitted that the defence has proven on a balance of probabilities that when he entered the driveway with the intention of punching his assailant, Mr. Bonnick did not have a gun.

115The defence submits that the evidence of Mr. Bernard tends to confirm Mr. Bonnick’s description of the struggle and contradicts the evidence of Mr. Hibbert and Ms. Francis. Moreover, the conduct of Ms. Hibbert, Ms. Francis and Mr. Hibbert after the shooting supports the inference that the only person who had a gun was Mr. Hibbert.

116The defence asserts that when he was shot, Mr. Bernard was to the left of Mr. Bonnick by a significant distance and this supports the inference that Mr. Hibbert was not aiming at Mr. Bonnick when Mr. Bernard was hit in the back, either because he was drunk or scared or trying to intimidate Mr. Bonnick by shooting the gun in the air.

117It is also submitted that the case of J.S.R. does not apply because there is no evidence that Mr. Bonnick and Mr. Hibbert agreed to engage in a mutual gunfight.

118Accordingly, the position of the defence is that on either the second or third branch of R. v. W.(D.), [1991] 1 S.C.R. 742, Mr. Bonnick should be found not guilty on all charges.

Analysis

119The Crown’s position is that Mr. Bonnick returned to the driveway ten to fifteen minutes after the assault.

120The blind-sided punch to Mr. Bonnick’s face rendered him unconscious and when he stood up and was ushered to the front of the house, he was disoriented and unable to see because of the blood in his eyes. He thought that he was on the sidewalk for about ten minutes before his vision cleared.

121He candidly admitted that he went back to the house to punch the person involved in the assault and when he saw the tall man with dreadlocks leaning against the house, he thought that he was “the likely guy.”

122Ms. Hibbert testified that fifteen to twenty minutes went by before she saw Mr. Bonnick again. Mr. Hibbert testified in chief that his mother took Mr. Bonnick to the front of the house and everyone left. Three to five minutes later, he heard her scream out. He went around the side of the house and heard her yell “no.” In cross-examination, he agreed that it was more than one, two or three, but less than ten minutes before he heard her yell “no.”

123Given that the witnesses had been drinking for hours and had just witnessed the aftermath of a violent assault, I am of the opinion that there is no reliable evidence as to exactly how much time passed before Mr. Bonnick was seen walking up the driveway. However, I am prepared to accept that Mr. Bonnick’s estimate of ten minutes is reasonable.

124The theory of the Crown is that during that time, Mr. Bonnick returned to his vehicle and retrieved a gun. Ms. Hibbert and Ms. Francis did not see where he went. Mr. Hibbert did not know what happened to him because he stayed in the backyard.

125Mr. Bernard and his wife said that someone put Mr. Bonnick into a white car. Neither witness mentioned the white car to the police. Mr. Bernard told the police that he left before the argument in the backyard between Mr. Hibbert and Mr. Bonnick was resolved. This aspect of their evidence is unreliable and may have been based on what they heard rather than what they saw.

126It is difficult to reconcile the conflicting evidence about Mr. Bonnick brandishing a gun. Ms. Hibbert testified that she saw a gun in his hand. Mr. Bernard testified that he did not have anything in his left hand. Although he did not see the man’s right hand, he told the police that if Mr. Bonnick had a gun, he thought that he would have seen it.

127Ms. Kelly-Bernard did not see anything in his hands. She testified that if Mr. Bonnick had something in his hands, she would have been able to see it.

128Ms. Francis said that he had a gun in his left hand. Mr. Hibbert saw something shiny that he “figured” was a gun in his left hand because the man’s left side was closer to him.

129Mr. Bernard’s evidence about the struggle tends to confirm the evidence of Mr. Bonnick and contradicts the evidence of Mr. Hibbert and Ms. Francis. Mr. Bernard saw Mr. Bonnick walking up the driveway ahead of him to his right. He did not see the man struggling with anyone before he heard the first shot.

130Mr. Bonnick testified that as he approached the tall man with dreadlocks, there may have been others around, but he did not see them. The man approached Mr. Bonnick; they grabbed each other’s chest and when the shots rang out, Mr. Bonnick’s body was turned towards the house on his right.

131If he was positioned in the way that he described, it is possible that Mr. Bernard would not have been able to see the engagement between Mr. Bonnick and Jermaine to his right because he would have been looking at Mr. Bonnick’s back.

132Ms. Kelly-Bernard described a breast stroke movement, which is not entirely different from Mr. Bonnick thrusting his hands out in front of him before engaging Jermaine.

133Mr. Hibbert testified that during the altercation, the man put his arm straight up in the air and brought it down to aim at Jermaine or his mother. Mr. Bernard did not see Mr. Bonnick’s arm in the air. He testified that if that happened, he would have seen it.

134Ms. Francis was the only witness to testify that as they were struggling, they tumbled down the driveway together before Jermaine broke away and ran into the circle part and Mr. Bonnick ran after him before the shots were fired.

135Mr. Hibbert testified that the reason he came out of the backyard was because he heard his mother yell “no.” The defence suggests that Ms. Hibbert may have yelled “no” as Mr. Bonnick was approaching Jermaine and not when they were already engaged in the altercation. It was Ms. Hibbert’s evidence that before Mr. Bonnick grabbed Jermaine, she was standing between them shouting at Mr. Bonnick.

136The conduct of Ms. Hibbert, Ms. Francis and Mr. Hibbert after the shooting tends to support the inference that there was only one gun involved.

137Ms. Hibbert testified that after everyone fled, she went into her house to clean up and left the front door open. She maintained that she had no concern that Mr. Bonnick would return with a gun, nor did she appear to exhibit any concern for her son’s wellbeing.

138Ms. Francis went into the house and she went to sleep. When the police arrived and said that someone had been shot, neither Ms. Francis nor Ms. Hibbert asked them if Mr. Hibbert was the victim.

139Mr. Hibbert ran to a friend’s tattoo shop; he had a shower and went to sleep. There is no evidence that he knew where Mr. Bonnick was or that he was concerned for his mother’s safety.

140When Ms. Hibbert was finally able to speak to her son, the first question she asked him was why he fired the gun.

141During her testimony, Ms. Hibbert was argumentative, unresponsive and evasive. She gave contradictory evidence about whether she was pressured by Mr. Bernard to go to the police. She denied that she had testified, “If they don’t catch the skirt tail, they’re coming after me.” When confronted with this evidence, she reluctantly agreed that she used those words, but she denied that she was pressured by Mr. Bernard or those connected to him to speak to the police.

142She was inconsistent about her motive for speaking to the police. At trial, she testified that it was the right thing to do because someone was hurt, but in her prior statements, she said that she did not want to speak to the police. She also said that she would not have spoken to the police if it were not for her brother’s involvement. When confronted with her earlier statement, she denied that her brother’s involvement was the reason that she went to the police.

143When she heard that Mr. Bernard had spoken to the police about her son, she contacted them and told them that he had fired the shots in self-defence.

144She gave contradictory evidence about whether she saw her son with a gun. She told the police that she saw an object in Mr. Hibbert’s hand and the object looked like a gun. At his preliminary inquiry, she testified that she did not see anything in his hand, giving a version that served her son’s cause.

145The defence contends that Ms. Hibbert’s purported outrage during her testimony at wanting Mr. Bonnick to “own up” to having a gun may have resulted from her honestly held belief that he had a gun because that was what her son told her and she wanted to support him in his criminal proceedings. Alternatively, she was well aware that she might be charged criminally if she resiled from her story to the police or her testimony at the preliminary inquiries.

146Mr. Hibbert’s evidence about the struggle between Jermaine and the man in the driveway and about whether the man had a gun is contradicted by Mr. Bernard’s evidence. Further, there is no reliable evidence about the timing of Ms. Hibbert’s shouts in relation to the altercation or the appearance of Mr. Hibbert from the backyard.

147Mr. Hibbert testified that he went to the police with the intention of misleading them so that he would not be arrested. When they told him that his mother said that he had acted in self-defence, he asked to speak to her privately before he gave the police a statement. Although he denied in his testimony that he talked to his mother about what happened, it is reasonable to conclude that his evidence was contaminated by her version of events.

148Mr. Hibbert admitted that he lied to the police when he told them that he threw the gun into a ravine. He lied in the past, as evidenced by his conviction for obstructing justice. Although I am aware that I may only use the past conviction to help decide how much or how little to believe and rely upon his testimony, I do not find his evidence to be credible or reliable.

149Ms. Francis lied to the police when they came to the house after the shooting and she was inconsistent about why she lied. She testified that she did not know if anyone had been shot and if she had known, she would not have lied. After she was told that Mr. Bernard had been shot, she continued to lie.

150Her five-page criminal record is riddled with crimes of dishonesty, in particular, nine breaches of court orders, nine thefts, two frauds, two possessions of property obtained by crime and obstructing police. Thus, her evidence must be approached with the greatest care and caution. I am entitled to rely on her evidence, even if it is not confirmed by another witness or other evidence, but it would be dangerous to do so.

151Ms. Francis is the only witness who testified that Mr. Bonnick was close to the street when the shots were fired. She failed to tell the police that she was lying in the driveway a few feet away from Mr. Bonnick. She maintained that she told the police what she felt they should know. Her evidence is incredible and dishonest.

152The trajectory of the shots raises more questions than answers. The theory of the Crown is that Mr. Hibbert fired the shots at Mr. Bonnick. Mr. Bernard testified that after he heard the first shot, he turned left and Mr. Bonnick broke to the right. The second shot hit Mr. Bernard on his right side.

153Mr. Bernard told the police on July 14, 2013 that he felt the second shot in his back, which actually turned him and he almost went down. Three days later, he told them that after he was hit the first time, he was running and yelling, “I got shot, I got shot” when he felt the next shot in his back and it knocked him forward. His evidence and the site of his injuries tend to support the inference that Mr. Hibbert could not have been aiming at Mr. Bonnick.

154The Crown relies on J.S.R. and submits that once Mr. Hibbert pulled out a gun and Mr. Bonnick pointed his gun at Mr. Hibbert, they created a dangerous situation. But for Mr. Bonnick participating in the dangerous situation, Mr. Bernard would not have been shot.

155At paras. 103 and 104 in J.S.R., Feldman J.A. stated:

This court concluded in its analysis [in R. v. S.(J.), 2008 ONCA 544] as follows, at para. 30:

Borrowing the words of Hill J. and applying them to this case, a reasonable jury could find that each shooter induced the other to engage in a gun fight on a crowded street. “But for” the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not have been killed.

The appellant accepts this test, but submits that many of the factual circumstances that allowed this court to conclude that there was sufficient evidence of a mutual gun fight occurred at the Eaton Centre just before the two groups went to the Foot Locker. These facts were excluded from the evidence at the appellant’s trial. The appellant argues that without that additional evidence, it would be unreasonable to draw the mutual gun fight conclusion.

156At para. 106, Feldman J.A. set out those parts of the evidence that led to the inference of an agreement in J.S.R. to engage in a mutual gunfight on the street, including issuing or accepting a challenge to engage in a gun battle and standing their ground and opening fire rather than running away.

157There is no evidence that Mr. Bonnick and Mr. Hibbert had an agreement to engage in a mutual gunfight. Even if he was menacing Jermaine, Mr. Bonnick had no way of knowing that Mr. Hibbert had a gun. Moreover, when Mr. Hibbert opened fire, Mr. Bonnick ran away.

Disposition

158The third branch of W.(D.) instructs the trier of fact to consider the evidence of Mr. Bonnick as follows:

Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

159Mr. Bonnick admitted that he has a criminal record for unauthorized possession of a firearm in a motor vehicle in 2000, failing to comply with a recognizance in 2004, failing to attend court in 2005 and drug offences in 2001, 2002 and 2008. His record is dated and it is not particularly probative of his credibility. Nonetheless, he admitted that he lied to the police in response to their questions about his injury and his knowledge about the shooting.

160The Crown’s case at its highest is that Mr. Bonnick had a gun in his left hand. Mr. Bernard and Ms. Kelly-Bernard were adamant that they did not see a gun in his left hand.

161Ms. Hibbert, Ms. Francis and Mr. Hibbert all admitted that they lied to the police. Much of their evidence was inconsistent, unreliable and lacked credibility. Further, the inference to be drawn from their conduct after the shooting is that the only person who had a gun was Mr. Hibbert.

162Accordingly, regardless of whether or not I believe the evidence of Mr. Bonnick, I am not convinced beyond a reasonable doubt by the evidence in this case that he was in possession of a gun. Mr. Bonnick will be acquitted of all charges against him.

Dunnet J.