R. v. Callaghan, 2016 ONSC 2764
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRE CALLAGHAN
M. Bellmore, for the Crown
M. Cremer, for the Accused
HEARD: April 18-20 & 25-29, May 2-4, & May 12, 2016
1The accused, Andre Callaghan, is charged in an indictment with 13 offences relating to a 9mm Luger semi-automatic pistol, which is a prohibited firearm under the Criminal Code, R.S.C. 1985 c. C-46. The gun was loaded with a magazine that had a capacity of twelve 9mm Luger calibre cartridges, which is a “prohibited device” under the Code.
2The police located the firearm in a black bag in some bushes at the corner of Garnett Janes Road and Ninth Street in Etobicoke shortly after midnight on July 22, 2014. Police attended at the scene after residents in the area called 911 to report the sound of gun shots. One caller reported hearing six or seven shots in rapid succession, followed by three or four more shots, which sounded as though they were further away and fired from a different gun.
3The main issue in this case is whether the Crown has established beyond a reasonable doubt that Mr. Callaghan was in possession of the firearm.
4The first nine counts in the indictment are as follows:
Count 1: Discharging a prohibited firearm with intent to wound or endanger the life of a person, contrary to s. 244(2)(a) of the Code;
Count 2: The intentional discharge of a prohibited firearm, being reckless as to the life or safety of another person, contrary to s. 244.2 (3)(a) of the Code;
Count 3: Possession of a loaded prohibited firearm, without being the holder of an authorization or licence under which he may possess that firearm and not being the holder of a registration certificate for the firearm, contrary to s. 95(2)(a) of the Code;
Count 4: Possession of a firearm knowing that he was not the holder of a licence under which he may possess it and the holder of a registration certificate for the said firearm, contrary to s. 92(3) of the Code;
Count 5: Possession of a firearm without being the holder of a licence under which he may possess it and the holder of a registration certificate for the said firearm, contrary to s. 91(3)(a) of the Code;
Count 6: Possession of a prohibited device, to wit, a high-capacity magazine, knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(3) of the Code;
Count 7: Possession of a high-capacity magazine, without being a holder of a licence under which he may possess it, contrary to s. 91(3)(a) of the Code;
Count 8: Possession of a firearm knowing that the serial number on it had been removed, contrary to s. 108(2)(a) of the Code; and
Count 9: Storing a firearm in a careless manner, contrary to s. 86(3)(a) of the Code.
5Counts 10 and 11 charge Mr. Callaghan with possession of the firearm while he was prohibited from doing so by reason of orders made pursuant to s. 109 of the Code on September 21, 2006, and June 23, 2008, respectively, contrary to s. 117.01(3)(a).
6Counts 12 and 13 charge Mr. Callaghan with possession of a prohibited device, to wit, an over-capacity magazine, while he was prohibited from doing so by reason of the s. 109 orders made on September 21, 2006, and June 23, 2008, contrary to s. 117.01(3)(a).
7Counts 14 and 15 charge Mr. Callaghan with dangerous driving, contrary to s. 249(2)(a), and failing to stop his vehicle while being pursued by the police in order to evade the police, contrary to s. 249.1(2)(a) of the Code. These charges arose as a result of Mr. Callaghan’s actions after the police pulled over the car that he was driving, a Ford Escort, in the early hours of the morning on July 24, 2014. Their intention was to arrest him on the firearm offences. However, as soon as the officers exited their vehicle, Mr. Callaghan drove off. He ran two red lights and travelled at excessive rates of speed while being pursued by the police. He ultimately abandoned his vehicle and fled on foot into a ravine. The police eventually located him using a dog from the canine unit and executed the arrest. The defence has conceded that the Crown has proved Mr. Callaghan’s guilt beyond a reasonable doubt on Counts 14 and 15.
OVERVIEW
8The area or crime scene that became the focus of this investigation is bounded by Coin Street on the west, Ninth Street on the east, Garnett Janes Road to the north, and Tenth Street to the south.
9The apartment building at 1 Coin Street has a back entrance off Ninth Street. There are seven concrete steps leading to a landing and a set of double glass doors at the back entrance. Those doors lead to a foyer and another set of glass doors, which open to the main lobby of the building. There are bushes and shrubs to the north or right of the steps and landing as one approaches the back entrance [see photographs marked as Exhibits 10 (a) to (f) and 16 (a)].
10When the police arrived on scene, there was one bullet strike on the top step of the back entrance, two bullet holes in the lower half of the glass door to the right, and another bullet hole higher up on the door frame to the right. Five bullet casings were located on Ninth Street, from which it may be inferred the shots were fired. The forensic evidence establishes that all the bullets were fired from the same gun, which is not the firearm that the Crown alleges was in the accused’s possession. The firearm that is the subject of the charges before the court was located by the police in the bushes at the southwest corner of Ninth Street and Garnett Janes Road.
11Shortly after the police arrived, Mr. Callaghan emerged from the bushes to the right of the landing at the back entrance. That area had been cordoned off by police tape, designating it as part of the crime scene. Mr. Callaghan walked out from under the tape and spoke to two officers, Detective Constables Nott and Macdonald [“Nott” and “Macdonald”]. It is admitted by the defence that all utterances/statements made by Mr. Callaghan to police officers were voluntary.
12Mr. Callaghan told Nott and Macdonald that he had an argument with his girlfriend earlier that day. His girlfriend lived in an apartment at 1 Coin Street. He was sitting at the top of the stairs, with several bags containing all his clothes and other belongings, and waiting for a ride, when he saw two males walking north on Ninth Street, and seven or eight males on bicycles who were also headed north on Ninth. The last male on a bike fired four or five shots at the two males on foot. One of the bullets came close to Mr. Callaghan’s head, at which point he jumped into the bushes and hid.
13After briefly speaking to Mr. Callaghan, Nott and Macdonald were satisfied that he was a victim/witness, as opposed to a suspect, and asked him to provide a videotaped statement at 22 Division. Mr. Callaghan agreed, and accompanied them to the police station for that purpose.
14When his statement was completed, Mr. Callaghan asked the officers if they would drop him off at a nearby gas station. The officers complied with that request. Shortly thereafter, the officer in charge of the investigation, Detective Miron, notified Macdonald that documents in Mr. Callaghan’s name, including his birth certificate, social insurance card and health card, were in the same bag containing the firearm found in the bushes at the corner of Ninth and Garnett Janes. Nott and Macdonald returned to the gas station in search of Mr. Callaghan, but he was no longer there. Mr. Callaghan was not arrested on these charges until July 24, 2014, following the car chase earlier described.
15The north side of the apartment building at 1 Coin Street runs along the south side of Garnett Janes Road. Across the street, on the north side of Garnett Janes Road, there are two adjoining buildings: the Lakeshore Gardens/Robert Cook Cooperative, at 10 and 20 Garnett Janes Road, respectively. Lisa Young, an eyewitness to some of the events on the night of the shooting, was staying in a two-story apartment on the first and second floors at Lakeshore Gardens. Ms. Young made her observations from a window on the second floor, which faces south onto Garnett Janes. The window provided her with an unobstructed view of the intersections at Garnett Janes and Coin Street, which was to her right, and at Garnett Janes and Ninth Street, which was to her left. She could only see a short distance south on Ninth Street.
16Ms. Young described hearing two popping sounds shortly after midnight on July 22, 2014. When she looked out her window, she saw a young male on a bicycle round the southwest corner of Ninth Street and Garnett Janes. At one point, he dropped the bicycle and fled on foot, continuing west on Garnett Janes. Almost simultaneously, a second male came running around the same corner, slowed to a walk, and then raised one or both of his arms straight out in front of him. He was holding something in his hands. At that moment, Ms. Young heard two popping sounds. The second male then lowered his arm or arms and went to the corner of Ninth and Garnett Janes, where he appeared to hide something in the bushes. These are the same bushes where the police located the black bag containing the firearm and Mr. Callaghan’s identification papers. The second male then ran around the corner, heading south on Ninth Street.
17Facts that are not in dispute in this case include the following:
Mr. Callaghan was sitting at the top of the stairs at the back entrance of 1 Coin Street shortly after midnight when five bullets were fired in his direction
All five bullets were fired from the same gun
The person who shot in Mr. Callaghan’s direction was a male in his late teens/early twenties, who was riding a bicycle
Mr. Callaghan dove into the bushes to the north of the entrance to avoid being shot
After firing the shots, the male on the bicycle continued riding north on Ninth Street
Mr. Callaghan grabbed his belongings, which were in various bags, and tossed them into the bushes to the north of the back entrance
18The position of the defence is that after the shots were fired, Mr. Callaghan remained hidden in the bushes by the back entrance until he walked out and was questioned by Officers Nott and Macdonald. Defence counsel submits that the evidence does not support a finding that Mr. Callaghan was the second male observed by Ms. Young, or that the gun found in the bushes at the corner of Ninth and Garnett Janes was fired that night. The defence submits that the Crown has failed to establish beyond a reasonable doubt that Mr. Callaghan was ever in possession of that gun.
19The position of the Crown is that Mr. Callaghan was the second male observed by Ms. Young. The Crown submits that Mr. Callaghan was the intended target of the first five shots. After being shot at, he pursued the shooter, who was the cyclist observed by Ms. Young and who headed west on Garnett Janes, ditched his bike, and fled on foot. Moments later, Mr. Callaghan rounded the same corner, took aim, and fired two shots at the cyclist. He tried to fire a third shot, but the gun jammed – the gun seized by police had a bullet jammed in the chamber. The Crown alleges that Mr. Callaghan then concealed his bag containing the gun in the bushes and returned to the back entrance of 1 Coin Street, where he hid in the shrubbery. He only revealed himself to police when it became apparent they would probably find him in any event. Mr. Callaghan could not flee the area because all his belongings, including credit cards and other documents in his name, were in his bags by the back entrance. Even if he had fled, the police would inevitably have deduced that he was present at the scene of the shooting.
WITNESSES
20The witnesses were as follows:
Lisa Young
Police Constables Daymon Evans and Jonathon Reid, who were the first officers to arrive at the scene. Constable Reid was the last witness and was called by the defence.
Detective Constables Nott and Macdonald who, shortly after their arrival at the scene, observed Mr. Callaghan emerge from the bushes from behind the crime scene tape
Detective Bruno Miron, who was in charge of the Major Crime Investigative team at 22 Division
Detective Constable Leslie Wyard of the Forensic Identification Services [“FIS”], who examined and photographed the scene
Police Constable Rene Kuhn from the Emergency Task Force [“ETF”], who attended at the scene and proved the firearm safe
Jennifer Plath, from the Firearms and Toolmarks Section of the Centre of Forensic Sciences [“CFS”], who examined the firearm and magazine, as well as the cartridge casings, projectiles and projectile fragments found at the scene
Detective Constable Kim Seguin, who executed the search warrant on the Ford Escort that Mr. Callaghan was driving on July 24, 2014, and which he abandoned when fleeing from the police
Detective Constable Christian Miranda, the Scenes of Crime Officer [“SOCO”], who photographed various items at 22 Division on July 24, 2014, at the request of Macdonald and other officers
Police Constable Edward Tamse, who pulled over the Ford Escort that Mr. Callaghan was driving on July 24, 2014
Detective Constable Omar Ahmed, who was a passenger in Nott’s car as they pursued Mr. Callaghan during the car chase on July 24, 2014, and who sealed the car pending the obtaining of a search warrant
Police Constable Brett Newmarch, through whom a black LG cell phone was adduced into evidence. Detective Constable Wyard testified that she located this cell phone in the black bag containing the gun.
THE EVIDENCE
Testimony of Lisa Young
21Lisa Young testified that just after midnight, as she was lying in bed, she heard two popping noises. When she looked out the window, she saw a young male on a black and yellow bicycle. He had been riding north on Ninth Street but turned left or west onto Garnett Janes. He continued on Garnett Janes until he reached the area of the garbage loading-bay door for 1 Coin Street, which was almost directly across from her window. He left the bike on the road at that point and fled on foot, continuing west on Garnett Janes. He was running fast. Ms. Young did not see where he went or if he ran around the building at 1 Coin Street. She estimated the distance between herself and this male when he dropped the bike as a bit further than the length of the courtroom, which counsel agree is about 50 feet. [Ms. Young drew an “X” on the photograph, Exhibit 4(a), to indicate the location where the male dropped his bike]
22Ms. Young testified that just as she saw the first male drop his bike, a second male came running around the same corner at Ninth and Garnett Janes. He ran a further two steps, then walked two steps. He was going from running to walking when he extended one or both of his arms straight out in front of him. He was holding something in his hand or hands, but Ms. Young could not see what it was. It was at that point that she heard two more popping sounds. The second male’s arm or arms then came down. He turned and went over to the southwest corner of Ninth and Garnett Janes, where there were bushes growing on top of a cement wall. She estimated the wall as being about 5 feet 4 inches to 5 feet 5 inches in height. The bushes were another foot to a foot-and-a-half high.
23The second male appeared to be putting something in the bushes. He had no difficulty accessing the bushes – he just put his hands into them. Ms. Young described his hands as “fiddling” in the bushes for two or three seconds. During this fiddling, she had a view of the back portion and the right side of his body. The male then withdrew his hands, ran around the corner and headed south on Ninth Street, disappearing from view. Ms. Young estimated that the distance between herself and the second male as he was placing something in the bushes was about the same distance between herself and the first male when he dropped the bike – that is, a little over 50 feet. However, her view of the second male was on a diagonal or to her left
24Ms. Young marked on a map, Exhibit 3, the routes taken by the first and second males after they rounded the corner of the intersection.
25Ms. Young testified that the time that elapsed from the point where she heard the first two popping sounds, saw the first male round the corner and drop his bike, and then observed the second male run around the same corner was only a few seconds. She estimated that a further 20 to 30 seconds elapsed between the point where the second male raised his arm or arms, she heard another two popping sounds, the second male returned to the corner, fiddled with something in the bushes, and then headed south on Ninth Street. Everything happened very quickly and took less than a minute.
26Ms. Young immediately ran down the stairs and out the front door of her building. This took about five seconds. The black and yellow bicycle was still in front of the garbage loading-bay door, where the first male had dropped it. There were no people outside. Ms. Young ran back to her apartment, retrieved her cell phone from the first floor, and ran back outside. The bicycle was now nowhere in sight. Her neighbour, Daniel Kosar, was outside. Ms. Young told him that there was something in the bushes. Several other people also came out and indicated that the police had been called. No one, including herself, went near the bushes at the corner of Ninth and Garnett Janes.
27Ms. Young estimated that the police arrived about ten minutes after the second male headed south on Ninth Street. She related what she had seen to one of the officers. Either he or another officer went over to the bushes. Later on, an officer spoke to her further and wrote down what she said. After signing his notebook, she returned to her apartment. By this time, it was about 1:20 a.m.
28Ms. Young testified that as she was speaking to the police, two neighbours approached and indicated that they had spotted the black and yellow bicycle in the archway connecting 10 and 20 Garnett Janes Road. The officer accompanied her to that area, where she saw a bicycle that looked similar to the one that the first male had been riding.
29Ms. Young described the cyclist as having dark black skin and a thin build. He did not strike her as being tall, but it was difficult to estimate his height as she was looking down on him from the second floor of her building. She could make out the top of his head but could not say anything about his hairstyle. He was not wearing a hat. She never saw his face, but he struck her as being in his late teens or early twenties. He was wearing a dark-coloured tee-shirt and dark shorts. His black and yellow bicycle was small, “more like a kid’s bike”, and not a ten-speed.
30Ms. Young described the second male as black, with dark skin and a thinner build. He was wearing a dark-coloured tee-shirt, and either faded black or grey shorts. She never saw the front or back of the tee-shirt and was therefore unable to say if there were any logos on it. His socks were pulled all the way up.
31Ms. Young did not see the face of the second male, but based on what she could see of his body, estimated his age as late teens or early twenties. She could see the top of his head. He was wearing a dark-coloured baseball cap, but she could not say if it was blue or black. Since she only saw the top portion of the hat, she was not in a position to observe any logos on it. She made no observations of his hairstyle or the colour of his hair.
32Ms. Young could not estimate the second male’s height, as she was looking down on him. He did not appear to be carrying any bags or knapsacks. She did not see him pull anything out of his pockets.
33In cross-examination, Ms. Young denied that she was groggy when she observed these events from her window. She had been lying in bed for about 15 or 20 minutes and was trying to fall asleep. However, she was still awake when she heard the first two popping sounds. When she heard those sounds, she rolled over and looked out her window. She did not have to get out of bed because the window was at the same level as her bed. The lights were off in her room. She did not turn them on.
34Ms. Young testified that it was dark outside but there was some street lighting, which is visible in the photographs that have been filed as exhibits. There are street lamps on the north and south side of every corner. The street lamp at the southwest corner of Ninth and Garnett Janes was working, but the ones on the north and south sides of the intersection at Coin and Garnett Janes were not. There was a light on the area of the garbage-bay door on Coin Street, and another light over the front door of her apartment building on Garnett Janes.
35Ms. Young described the lighting in the area as “not bright”, but also not “scary dark.” She agreed that it was “not the greatest lighting”, which is how she described it during her testimony at the preliminary hearing.
Testimony of Police Constable Daymon Evans
36Police Constables Daymon Evans [“Evans”] and Jonathon Reid [“Reid”] were on general patrol in the area of Islington Avenue and Birmingham Street when they received a radio call regarding the sound of gunshots in the area of Garnett Janes and Ninth Street. Evans noted the time of the dispatch as 12:08 a.m., and the time of their arrival on scene as 12:12 a.m. These were the “on screen” times, which he recorded independently from Reid, who was driving.
37Reid did not note the time that they arrived on scene, but estimated that it was around 12:15 a.m. I find that Evans’ testimony as to the times of dispatch and arrival are likely the more accurate.
38Evans testified that they drove very quickly, with the lights and siren of the scout car activated. According to Reid, neither the lights nor the siren was employed, as he did not want to alert any suspects who might still be in the area that the police were on their way.
39Reid parked their vehicle on Garnett Janes. He recalled that he parked just east of the intersection at Coin Street. Evans testified that they parked closer to or just west of the intersection at Ninth Street. Reid and Evans were the first officers to arrive on scene, although another scout car arrived very shortly thereafter. Reid did not recall if that car had engaged its lights or siren.
40Evans testified that upon his arrival, Daniel Kosar walked over to him and told him what a neighbour, Ms. Young, had told him – that is, that she had seen a black male fire some shots and then put something into the bushes at the corner of Garnett Janes and Ninth. Evans went over to the bushes, which were quite thick and growing on top of a cement wall. He noticed a black strap on top of the shrubbery. When he looked deeper into the bushes – he parted them with his hands – he saw a black fabric bag. The bag was not on the ground but was hanging or caught in the branches. It was not readily visible from the outside.
41Evans, who is six feet tall, estimated that the cement wall was about five feet high.
42Evans put on his police-issued leather gloves and lifted up the strap. He realized at that point that the bag was attached to the strap and that it had some weight to it. He removed the bag from the bushes. The bag was already open. Evans could see a black metal object that looked like the butt of a gun inside the bag. He did not touch or open the bag. He only handled the strap. He put the bag on the ground and yelled out to Police Constable Osoba [“Osoba”] what he had found. Osoba told him to advise Detective Miron [“Miron”].
43Evans drew a circle on the photograph, Exhibit 6(a), to show where he found the bag. That exhibit also shows where he placed the bag on the ground. Exhibit 6(b) is a close-up photograph of the open bag on the ground. The butt of the gun is plainly visible inside it.
44Evans called over Miron – Miron was within calling distance – and told him that he had found a bag that looked like it contained a gun. Miron told him to set up the crime scene. Evans used police tape to secure the scene from pedestrians. He ran the tape from a tree on Garnett Janes that was just west of Ninth Street to the lamppost at the southwest intersection of Ninth and Garnett Janes: see Exhibit 5. He then stood guard over the crime scene to ensure that it was not compromised. He was “moving about”, but remained within about ten feet of the black bag. No one entered the crime scene area; no one went near the bag.
45Evans testified that he located the bag about two minutes after he arrived on scene, although he did not note the exact time in his memo book. Nor did he note the times that he spoke to Osoba or Miron. (Miron testified that he arrived on scene at 12:17 a.m., at which point Osoba told him that Evans had located a black pouch containing a firearm. Miron saw the pouch on the ground, and told both Osoba and Evans to ensure that no one touched it until the FIS officer arrived.)
46FIS officer Wyard arrived at 1:34 a.m.
47At 2:35 a.m., Evans was relieved of his duties by P.C. Gill and returned to 22 Division.
48Evans testified that he looked for shell casings along the south side of Garnett Janes from Ninth Street westward to the garbage bin, as seen in the photograph, Exhibit 8. He marked the area of his search with half circles on that exhibit. He did not find any casings. He testified that he did not do a detailed search as it was dark and he did not have a proper flashlight to conduct a search for casings. He did not search the north side of Garnett Janes.
Testimony of Police Constable Jonathon Reid
49The defence called Police Constable Reid as a witness. Although Reid was the last witness to testify, it is convenient to review his evidence at this point as it overlaps with Evans’ testimony.
50Reid testified that he and Evans stopped briefly on their way to the scene to speak to a group of white male youths on bicycles. He had just turned south onto Ninth Street from Birmingham Street and was heading towards Garnett Janes when he saw the youths, who were riding north on Ninth. They were coming from the area where the sound of gunshots had been reported, but did not appear to be fleeing the scene. They were moving slowly. They appeared to be 17 to 19 years old, or possibly in their early twenties.
51Reid pulled over and asked one of the youths if he had heard any loud bangs that sounded like gunshots or fireworks. The male, whom Reid recalled was clean shaven, stated that he had heard something further down the street, and pointed south, toward Garnett Janes. Reid did not ask for the male’s name or contact information. He explained that he was anxious to get to the scene, given the time sensitive nature of the call and its gravity – someone may have been shot, there was the possibility of further gunplay, and the suspect or suspects may still be on scene.
52Reid parked the scout car on the south side of Garnett Janes, just east of Coin Street. A second scout car pulled up just after he parked. Reid and Evans got out of their vehicle and did a quick scan for possible witnesses along Garnett Janes. Reid did not see any bicycles in the area. He did not interview any witnesses at the scene, although he was aware of the information given to Evans about activity in the bushes at the corner.
53Reid described doing a general search of Garnett Janes and Ninth Street, keeping an eye out for perpetrators, victims, and any potential evidence, such as projectiles or indications of gunplay. He did not observe any projectiles or shell casings as he walked east along the south side of Garnett Janes. He never searched the north side of the street. He testified that he proceeded fairly quickly onto Ninth Street, while Evans went immediately to the bushes at the corner. Other officers were on scene by that time.
54Reid was on Ninth Street when he heard Evans yell out that he had found a black satchel. Reid continued walking south on Ninth. Although he looked at or scanned the bushes running along the west side of the street, he did not search them. He did not notice any shell casings or projectiles on Ninth Street. His focus was primarily on the west side of Ninth.
55When Reid reached the back entrance of 1 Coin Street, he saw the bullet holes in one of the glass doors. He could not recall if he went up the steps to the landing, but stated that he may well have gone up to the doors in order to take a closer look at them. By that time, there were more officers on scene and more police activity. The police presence in the area would certainly have been “no secret.”
56Reid notified dispatch of the bullet holes and his location. He then secured the area with crime scene tape, running it from the back entrance in a southerly direction along Ninth Street to Tenth Street. Another officer ran police tape north on Ninth up to the southwest corner of Ninth and Garnett Janes.
57Reid did not enter 1 Coin Street via the back entrance off Ninth, but rather went around the building and entered the lobby through the front doors off Coin. While in the lobby, he observed shattered glass from one of the doors of the foyer at the back entrance. He also observed what appeared to be a projectile in the lobby.
58Reid remained in the lobby and guarded the scene. He had a view of the back entrance from the lobby, but did not notice any unusual activity in that area.
59At 1:15 a.m., Reid briefed Sgt. Zekeres regarding his findings. At 1:35 a.m., he spoke briefly to Detective Valint from the Guns and Gangs Task Force. Reid also observed at that time that Wyard had arrived to conduct a scene examination.
60At 2:38 a.m., Reid was relieved of his duties by Police Constable Bassi, and returned to 22 Division.
Testimony of Detective Constable Jason Nott
61Detective Constables Nott and Macdonald received information over the police radio at 12:11 a.m. that gunshots had been heard in the area of Ninth Street and Birmingham Street. The dispatch operator indicated that there were multiple calls from civilians who reported having heard the shots. Macdonald recorded only one of the reports in his notebook. That individual stated that he heard six or seven shots in rapid succession from the front of the building, followed by three to four shots further away, possibly from another gun.
62While on route to the scene, Nott and Macdonald learned that a uniformed officer had found a handgun at the corner of Garnett Janes and Ninth Street, and that another officer had observed bullet holes in the door of 1 Coin Street at the back entrance off Ninth.
63Nott and Macdonald did not note the exact time that they arrived on scene, but estimated that it was about 12:21 a.m. It took them about ten minutes to get there. They were in plain clothes and driving an unmarked police vehicle.
64Nott parked the car facing south on Ninth Street and in front of the steps leading to the back entrance of 1 Coin Street. Macdonald observed that police tape was in place along Ninth Street. Uniformed officers, as well as members of the Major Crime Unit, were on scene.
65Both Nott and Macdonald immediately noted the two bullet holes in the glass door on the right hand side of the back entrance. They were still seated in their car when a male (later identified as Mr. Callaghan) jumped out of the bushes to the right of the entrance. Although Nott drew a circle on Exhibit 10(b) to indicate the area from where Mr. Callaghan emerged, he acknowledged in cross-examination that he was uncertain as to the exact location. It happened very fast. All he could say was that the male jumped out of the bushes somewhere to the right of the door and from behind the concrete wall.
66Macdonald’s testimony with respect to where Mr. Callaghan emerged from the bushes is likely the more accurate version. He testified that Mr. Callaghan went over the barrier at the top of the steps, and then walked down the steps towards Ninth Street. He marked the area from where Mr. Callaghan emerged with a black circle on Exhibit 10(c).
67Nott and Macdonald got out of their car. Macdonald, who was on the passenger side, reached Mr. Callaghan first. Both officers had concerns about him, as he was behind the crime scene tape. They did not know at that point whether he was a suspect, victim, or witness. Macdonald immediately placed Mr. Callaghan under investigative detention and handcuffed him to the rear. He also patted him down for weapons.
68Mr. Callaghan did not resist or make any attempt to walk away from the officers. Nott and Macdonald described him as co-operative and polite. He appeared to be willing to speak to them and answer their questions. Their conversation took place just outside the crime scene tape and near the street light in front of the back entrance.
Nott’s description of Mr. Callaghan
69Nott described Mr. Callaghan as a black male, about 5 feet 8 inches tall, with short black hair. He had a “bit of a beard”, with facial hair on his cheeks and chin. Nott could not recall and made no note as to whether Mr. Callaghan had anything on his head. He was wearing a blue-hooded sweatshirt and shorts. Nott made no note as to the colour of the shorts. Nor did he note the kind of shoes that Mr. Callaghan was wearing. There was a slight odour of alcohol on Mr. Callaghan’s breath.
Macdonald’s description of Mr. Callaghan
70Macdonald recorded a similar description of Mr. Callaghan. He described him as a black male, with short black hair, a medium build, and approximately 5 feet 8 inches tall. He had a beard or facial hair on his cheeks and chin, but far less than he has today. Macdonald believed he had some facial hair under his nose. He was wearing shorts and a long-sleeved blue hooded sweatshirt. The hood was not up. Macdonald could not recall the colour of the shorts. He made no note about Mr. Callaghan’s footwear or whether he was wearing or carrying a hat. Mr. Callaghan was not holding anything in his hands when Macdonald handcuffed him.
Nott’s recollection of his conversation with Mr. Callaghan
71In explaining his presence at the scene, Mr. Callaghan stated that he had been sitting in front of the back entrance of 1 Coin Street, waiting for his girlfriend, when a group of males rode by on bicycles. At the same time, two other males were walking by. The bicyclist at the back of the group fired shots, possibly at the males who were walking. Mr. Callaghan described the shooter as a white or light-skinned black male with a beard. He was in his early twenties and was wearing a hoodie. One of the shots came close to Mr. Callaghan’s head, at which point he jumped into the bushes for his own safety.
72While speaking to Mr. Callaghan, Nott received information from other officers that shell casings had been located on Ninth Street just north of the rear entrance. As a result of that information, Nott began to regard Mr. Callaghan as a witness, as opposed to a suspect. The location of the casings was consistent with a person shooting at the back entrance from Ninth Street. The location of the two bullet holes in the lower portion of the glass door was consistent with the shooter firing shots in the direction of a person sitting on the steps, and would explain why that person would jump into the bushes.
73At some point, Nott observed a female trying to get past the police tape that marked off the crime scene at the corner of Ninth Street and Garnett Janes. The female was cautioned by Police Constable Millar not to enter the crime scene area. Mr. Callaghan told Nott that the female was his girlfriend. She was standing beside a red Ford Escape, licence plate number BNCS 844. Nott approached the female to let her know that her boyfriend was okay. The female was not cooperative. Nott returned to where Mr. Callaghan and Macdonald were standing and told the accused that his girlfriend was unco-operative. Mr. Callaghan replied that she was just upset.
74Mr. Callaghan continued to explain to the officers why he was in the area. He stated that he had had an argument with his girlfriend earlier that day, and that he was waiting for her to return. He also stated that he had several bags of “clothing and stuff” in the area where he was hiding. Macdonald told him that he could not retrieve his belongings until the crime scene tape had been taken down. Mr. Callaghan did not become rude or upset when advised that he could not take his property with him.
75Mr. Callaghan agreed to accompany Nott and Macdonald to 22 Division to give a videotaped statement. Prior to leaving the scene, Nott advised Miron about his intention to interview Mr. Callaghan at the station. Nott made no note of the time that he spoke to Miron. However, he and Macdonald left the scene with Mr. Callaghan at 1:08 a.m., and arrived at 22 Division at 1:17 a.m.
76Macdonald removed Mr. Callaghan’s handcuffs sometime before they got into the police vehicle. Macdonald rode in the back seat with him on their way to the police station.
77Nott and Macdonald testified that by this time, they regarded Mr. Callaghan as a potential witness or victim, as they had no evidence to connect him to any shooting. As a result, they did not swab Mr. Callaghan’s hands or clothing to test for the presence of gunshot residue.
78Mr. Callaghan was taken to an interview room. He was not detained and could have left at any time. At 1:45 a.m., Nott advised him of the importance of telling the truth and gave him a KGB warning. The warning was not given under oath, as there was no commissioner available. The statement was completed at 2:05 a.m. Nott described the statement as consistent with what Mr. Callaghan had told him at the scene.
79The DVD-recording of the interview shows Mr. Callaghan seated in a corner of the room. Nott and Macdonald sat across from him on the other side of a table, on which there was a bottle of water and a baseball cap. Nott testified that the hat did not belong to him. He assumed that it was Mr. Callaghan’s hat.
80Macdonald testified that the baseball hat was neither his nor Nott’s. He therefore assumed that it belonged to Mr. Callaghan. He agreed that the interview room could be accessed by other police officers – it was not locked. However, Macdonald testified that he would never have commenced an interview with an unknown person’s property on the table. Had it not belonged to Mr. Callaghan, he would have moved it out of view.
81Mr. Callaghan was wearing a somewhat fitted royal blue long-sleeved shirt during the interview.
82Nott testified that at the end of the interview, there was nothing to connect Mr. Callaghan to the first or second volley of shots, as described by one of the 911 callers. Nott did not recall Mr. Callaghan giving any information about a second volley of shots. Mr. Callaghan did not say anything about hearing or seeing an individual placing something in the bushes just to the north of where he was hiding. Nor did he say anything about a male running south on Ninth Street and past his location after the shooting.
83At the end of the interview, the officers asked Mr. Callaghan for his contact information. Mr. Callaghan provided his mother’s telephone number and her address on Derry Down Road in North York. He also provided his date of birth: November 13, 1982.
84Nott and Macdonald advised Mr. Callaghan that they would be in touch with him regarding the return of his property that had been left at the back entrance of 1 Coin Street. At 2:15 a.m., they dropped him off, at his request, at a gas station at the corner of Islington and the Queensway.
85At 2:39 a.m., Miron notified Nott and Macdonald that identification documents in Mr. Callaghan’s name had been found in the bag containing the firearm. Based on this new information, Nott and Macdonald now considered Mr. Callaghan to be a potential suspect. They returned to the gas station within ten minutes in the hope of finding him there, but Mr. Callaghan was already gone.
86Nott and Macdonald went back to the scene of the shooting, where they placed the bags that Mr. Callaghan had identified as belonging to him into the trunk of their vehicle. He and Macdonald put the bags into a temporary locker upon their return to 22 Division.
87After returning to the station, Nott checked the licence plate of the Ford Escort and found that it was registered to Jamie Lee Roche, with a Niagara Falls address. At 5:59 a.m., he completed a form that instructed any officer who located the vehicle to notify the Major Crime Unit at 22 Division.
Testimony of Detective Constable Craig Macdonald
88Macdonald exited his vehicle as soon as he saw Mr. Callaghan emerge from the bushes at the back entrance of 1 Coin Street. He was surprised to see someone emerging from the crime scene and shouted out to him, “Hey! What are you doing?” Mr. Callaghan walked towards him and out from under the police tape. Macdonald immediately placed him under investigative detention, advised him that he was investigating a shooting, conducted a pat-down search and handcuffed him.
89Mr. Callaghan did not offer any physically resistance. He was co-operative, polite and, without any prompting, began to explain what he was doing at the top of the stairs. He stated that he had been sitting there waiting for a ride when he heard shots ring out, at which point he jumped into the bushes.
90Macdonald contacted the dispatcher and inquired if there were any descriptions of a suspect, as he wanted to see if Mr. Callaghan matched any of those descriptions. No descriptions were provided.
91Macdonald asked Mr. Callaghan what he had seen. Mr. Callaghan stated that while he was sitting on the steps, two males were walking north on the west side of Ninth Street. They were on the sidewalk. There were also seven or eight males on bicycles riding north on Ninth. The male at the back of the group of bicyclists fired four or five shots at the two males who were walking. Mr. Callaghan described the shooter as a white male with a beard. He was wearing a hoodie with the hood up.
92Mr. Callaghan had no identification papers on him. When Macdonald asked him his name, he identified himself as Andre Williams, with a date of birth of November 13, 1982. Macdonald went over to Sgt. Zekeres’ police vehicle, which was parked 20 to 30 feet south of Macdonald and Nott’s car, and conducted computer checks on that name. There were no results for “Andre Williams” on any of the police data bases.
93Macdonald returned to where Mr. Callaghan was standing and cautioned him with respect to the offence of obstructing police by providing a false name. Mr. Callaghan stated that he also went by the name “Andre Williams Callaghan”, with the same date of birth. A computer check of that name yielded results, including the fact that Mr. Callaghan was the subject of two current driving suspensions.
94When Macdonald returned to Mr. Callaghan following the second computer check, he noted the smell of alcohol on his breath. Mr. Callaghan stated that he had been drinking down by the lake earlier that day. He did not appear to be impaired in any way. He was not unsteady on his feet. His speech was not slurred.
95Mr. Callaghan told Macdonald that he had had an argument with his girlfriend earlier that day and was waiting to get picked up. At one point, while speaking to Macdonald, he pointed to a woman who had arrived on scene and who was standing at the corner of Ninth and Garnett Janes. He told Macdonald that she was his girlfriend and the person whom he had been waiting for to give him a ride. Nott walked over to speak to her. At that point, Mr. Callaghan agreed to go to 22 Division to give a videotaped statement.
96Mr. Callaghan brought up the fact that he had several bags of personal property that were in the bushes, and gestured to the area that was to the right of the back entrance. Although he was concerned about his belongings, he appeared to understand that he could not retrieve them until the crime scene tape was taken down. He never specifically asked to retrieve any of his personal property.
97Mr. Callaghan’s recorded interview was played during Macdonald’s testimony. Mr. Callaghan basically repeated during the interview what he had earlier told the officers. He had been sitting at the top of the stairs at the back entrance of 1 Coin Street for about five minutes, waiting for his girlfriend, when he saw two males walking north on Ninth. They were wearing hoodies. He did not see their faces but they “looked mixed.” There were eight males on bicycles who were also going north on Ninth Street. The two male pedestrians were passing in front of Mr. Callaghan when the last male in the group of cyclists started shooting. The two males who were walking took off. Mr. Callaghan “high-tailed” it into the bushes, grabbed his belongings – “my stuff” – and remained there for about five minutes before presenting himself to the police.
98Mr. Callaghan described the shooting as follows:
I was glancing up as they were – it’s like as you’re glancing up as they’re walking and you see the guys on bikes which is (sic) hear pop pop pop and then I seen a flash but I just got out of dodge. … [Page 8 of transcript of statement]
99When asked how many shots he heard, Mr. Callaghan stated “about four or five.”
100When asked if the shots were consecutive or whether there were any pauses, Mr. Callaghan described them as consecutive:
Nott: The shots, were they consecutive, were there any pauses, was it –
Callaghan: Yah, it was consecutive.
Nott: Pop pop pop pop.
Callaghan: Just pop pop pop pop. Maybe one pause paw(sic) paw (sic) paw (sic).
[Page 18 of transcript of statement]
101Macdonald testified that Mr. Callaghan never mentioned a second volley of shots. He agreed in cross-examination that Mr. Callaghan’s description of the shots in the above exchange could possibly be interpreted as referring to two separate volleys. His impression, however, was that Mr. Callaghan was speaking about only one event or volley of shots.
102In his statement, Mr. Callaghan described the cyclists as “white guys.” He did not see the shooter’s face as his hoodie was up. He had a black beard. The shooter’s bike was “a gear bike but for little kids.” Mr. Callaghan had earlier told Nott and Macdonald that the shooter was in his early twenties. During his interview, he initially would only state that he and the other cyclists “looked young.” When questioned further, he gave an estimated age of “twenty-ish to mid-twenties.” Everyone was wearing dark clothing.
103Mr. Callaghan denied in his statement that he was the target of the shooting or that he had any “beefs” with anyone in the area.
104When asked for his girlfriend’s address, Mr. Callaghan stated that she lived at 1 Coin Street, Apartment 1005. The police did not ask Mr. Callaghan for her name, perhaps assuming that he was referring to the same woman who attended the crime scene in the Ford Escort, which was registered to Jaimee Lee Roche, with a Niagara Falls address.
105Macdonald testified that during their first attendance at the scene, neither he nor Nott looked for or touched the bags that Mr. Callaghan mentioned as belonging to him as they were behind the crime scene tape. When they later returned to the scene after learning that Mr. Callahan’s identification documents were in the same bag containing the gun, they did not immediately seize the bags but waited until Wyard had photographed them.
106The bags consisted of a grey duffle bag, a black garbage bag, a pink Roots shopping bag, and a white plastic bag. The duffle bag was on top of the ledge of the concrete wall by the back entrance of 1 Coin Street. The other bags were behind or just to the north of the duffle bag, as shown in Exhibits 13 (a) (b) and (c). Wyard photographed them, and then placed them on the landing outside the back entrance, where she took further photographs of them.
107The Roots bag and white plastic bag did not have a closing mechanism and were open at the top. A portion of the white plastic bag appeared to be ripped. The black plastic bag was knotted at the top and had a few holes on the side where some articles were protruding.
108At 3:51 a.m., Macdonald seized the bags and transported them to 22 Division, where he placed them in temporary storage locker no. 35. Macdonald did not open any of the bags that day.
109Macdonald testified that the locker was in a secure area. Only he or a supervisor, such as a sergeant, staff sergeant or detective could have accessed the locker. Computer software known as the Divisional Locker Management System (“DLMS”) creates a log or “locker audit” each time a locker is opened. The log includes the date, time, and the name and badge number of the officer accessing the locker. It is an admitted fact at this trial that Macdonald was the only officer who accessed Temporary Locker #35 between July 22, 2014, at 4:55 a.m. and July 24, 2014, at 10:44 a.m.
July 24, 2014
110Mr. Callaghan was arrested by Officers Bassi and Gill on July 24, 2014, at around 4:30 a.m. Macdonald was not involved in the arrest.
111Police Constable Miranda [“Miranda”], a Scenes of Crime Officer, testified that he attended at the scene where Mr. Callaghan had abandoned the Ford Escort during the police chase. Miranda later returned to 22 Division, where he photographed items at the request of various officers.
112Miranda testified that at 5:35 a.m., an officer with badge number 9598 (Miranda could not recall his name, but it was not Macdonald), asked him to photograph a black Alcatel phone. This officer told him that the Alcatel phone had been seized at the scene of Mr. Callaghan’s arrest earlier that morning. Miranda was not told specifically where the phone was located when it was seized. He photographed it and noted down the serial number.
113Miranda testified that at 7:11 a.m., Macdonald told him that he required him to photograph certain property.
114Macdonald testified that at 5:43 a.m., he removed Mr. Callaghan’s bags from Locker #35 and went through all of their contents. He did not catalogue each and every item, which would have been a “monumental task.” He only noted those items that appeared to him to have some evidential value.
115At 6:53 a.m., Macdonald located a pair of Armani blue jeans, size 34, in the grey duffel bag. In the back pocket of the jeans he found a chat-r service contract in the name of “Tony Parker” for a black LG cell phone with the number 647-534-8972. Miranda photographed the jeans and the contract.
116At 7:20 a.m., Detective Miron turned over a black LG cell phone to Macdonald. Miron told him that the phone was found in the same black bag that contained the gun and Mr. Callaghan’s identification documents.
117At 7:25 a.m., Macdonald accessed the settings of the black LG phone and discovered that it had the same number as the phone that was the subject of the chat-r service contract found in the jeans inside the duffel bag.
118Miranda also accessed the properties of the black LG phone and found that it had the same number as the telephone number in the service contract. Miranda recorded the model and serial numbers of the phone, which were on the back interior of the phone. He photographed it at 7:25 a.m. It did not have a property tag on it at that time.
119Miranda testified that after he photographed the phone, he would have returned it to Macdonald, as he did with all the property that he photographed. Macdonald did not mention where he had obtained the phone.
120Macdonald testified that he attached Property Tag Number P321992 to the phone and placed it in Property Bag Number C1503819.
121The duffel bag also contained a white plastic bag containing numerous papers. Miranda photographed the duffel bag and the various documents found inside it. These included a Good Life Fitness card and a Budget Rental agreement, both of which were in the name of Andre Callaghan, and a CIBC card in the name Andre Courtney Callaghan. Miranda completed his photographs of the duffel bag and its contents at 7:55 a.m.
122At 8:41 a.m., Macdonald examined the contents of the black garbage bag, which contained mostly clothing. In the back pocket of a pair of blue jeans, he found a brown wallet containing cards in the name “Andre C. Callaghan.” These included a Manulife Financial Card, a CIBC Aerogold card, an HBC Rewards card, a Hudson Bay Mastercard, and a Hamilton Library card. Miranda photographed these cards, as well as a Yale lift truck operator’s card in the name “Andre Callaghan.” Miranda also photographed the jeans, which he described as “new property.”
123Macdonald also located a Brown Lines binder inside the black garbage bag. Inside the binder was a passport application in Mr. Callaghan’s name, dated July 1, 2014. Mr. Callaghan’s height and weight were recorded as 5 feet 8 and 180 pounds, respectively. The guarantor was Jamie Lee Roche, with a date of birth of March 27, 1980, and an address of 2 Albert Franck Place, Toronto.
124The Roots bag contained shoes and various clothing.
125After Macdonald had gone through all the property in the bags, he placed everything, including the black LG cell phone that Miron had given to him, into locker no. 35, from where it was to be couriered to the Property Bureau in Scarborough. The Property Bureau is the central repository for all items seized by the Toronto Police Service.
Testimony of Police Constable Brett Newmarch
126On April 29, 2016, Police Constable Newmarch “[Newmarch”] attended at the Property Bureau and retrieved the black LG cell phone with the same property tag number and property bag number assigned to it by Macdonald. Newmarch placed the phone in a secure locker at 22 Division, and retrieved it from there on May 2, 2016, before bringing it to court and testifying at this trial.
127The property tag and Macdonald’s property report are stapled to the bag containing the phone. The bag was sealed: see Exhibit 44. Writing on the bag indicates that Macdonald sealed it on July 24, 2014, at 8:30 a.m. Macdonald’s signature also appears on the bag.
Testimony of Detective Bruno Miron
128Detective Miron was in charge of the Major Crime team at 22 Division and was the supervisor at the scene of the shooting.
129Miron first learned of gunshots being reported in the area at 12:13 a.m. on July 22, 2014. He was not aware at the time that he received this report that there were multiple calls coming in with respect to this occurrence. The equipment in his car did not allow him to look up the Intergraph Computer Aided Dispatch [“ICAD”] reports or other caller information.
130Miron arrived on scene at 12:17 a.m., at which point Osoba informed him that a firearm had been found in a pouch in the planter box at the southwest corner of Garnett Janes and Ninth Street. Miron saw the black pouch or bag on the ground, where he assumed Evans had placed it. He told Evans and Osoba to ensure that no one touched it until the FIS officer arrived. Miron did not touch the bag as he did not want to run the risk of interfering with potential evidence, such as fingerprints or DNA. He testified that he had no reason to anticipate that the bag would contain identification papers in addition to the firearm.
131Miron surveyed the scene at the back entrance of 1 Coin Street and observed the bullet holes in the glass door. The right interior glass door was completely shattered. He made these observations from the bottom of the stairs. There were other officers in the vicinity at the time.
132Miron saw Nott and Macdonald speaking to Mr. Callaghan sometime after he had surveyed the scene but could not recall the exact time. He could only say that it was sometime prior to 1:35 a.m. He did not recall seeing Mr. Callaghan in handcuffs.
133Miron, along with other officers, began searching the roadway, sidewalk and grassy area along Ninth Street for shell casings. Miron found four casings on the road, and a fifth on the grassy boulevard just north of the back entrance of 1 Coin Street. (See Exhibits 10(d) and 16(d).)
134In terms of searching for shell casings, Miron testified that he spent most of his time on Ninth Street. There could have been other officers looking for shell casings on Garnett Janes.
135Miron assigned Reid to guard the interior or lobby area of 1 Coin Street, and Osoba and Evans to guard the area where the firearm was situated.
136Miron was questioned with respect to Osoba’s position on Garnett Janes, as shown in Exhibits 4(a) and 8. He testified that Osoba and Evans would have made their own decisions as to the exact positions they took while standing guard over the black bag. They would, however, be required to keep the bag in their line of vision. Although the exhibits show Osoba standing across the street from the bag, he could clearly see the bag from that position, as noted by Wyard in her testimony.
137Wyard recalled that when she first arrived on scene, an officer was standing closer to the corner and guarding the bag. She asked him to step back and out of the frame of her photographs when she started taking pictures of the intersection and bag. Thus, Osoba does not appear in the photographs of Ninth Street that are facing south. However, he does appear in Exhibits 4(a) and 8, which Wyard took after she turned her camera on the tripod to take photographs of Garnett Janes facing west.
138Miron testified that Police Constable Ward, who was assigned to take witness statements, took a statement from Lisa Young. Ward later took up guard duty at the south end of the crime scene at the intersection of Ninth and Tenth Streets.
139Miron testified that the crime scene tape initially ran along the south side of Garnett Janes, from a point just west of Ninth Street, continued around the corner, and then went south along Ninth to the back entrance of 1 Coin Street. However, the police completely blocked off Ninth Street after the casings were located.
140Miron testified that sometime prior to Wyard’s arrival at 1:35 a.m., Nott advised him that bags belonging to a potential witness, Andre Callaghan, were at the top of the stairs at the back entrance. Miron did not go over to that area at the time. Nott also told Miron that Mr. Callaghan had been sitting at the top of the stairs when shots were fired, that he had jumped into the bushes and hidden at the rear entrance, and that he was seen walking away from the designated crime scene. Miron himself had no contact with Mr. Callaghan. The only time that he spoke to him during the entire investigation was after Mr. Callaghan’s arrest on July 24, when he asked him for his address and basic information to complete some paperwork.
141When Wyard arrived, Miron walked around the crime scene with her and briefed her on items of interest that were known to him at that time. He showed her the location of the black bag containing the firearm, the bullet holes in the glass door at the back entrance, and the bags belonging to Mr. Callaghan near that entrance, which were behind the crime scene tape. He also advised her of the shell casings that he had found. He did not instruct her on what photographs to take or evidence to collect, as that was her responsibility.
142At 2:00 a.m., Miron directed Officers Millard and Kovacic to search the area to see if anyone had been injured during the shooting. Miron had not seen any blood or evidence that anyone had been hurt. Officers Millard and Kovacic later advised that they did not find any injured parties.
143Miron testified that prior to 2:00 a.m., he was not aware of the details of Ms. Young’s statement. As a result, the north side of Garnett Janes was not identified by him as part of the crime scene and was not cordoned off by police tape. As described earlier, the police tape only ran from a tree on the south side of Garnett Janes that was just west of Ninth Street, over to the intersection of Ninth and Garnett Janes, and then around the corner and south on Ninth.
144At 2:30 a.m., arrangements were made to relieve Evans, Osoba and Reid from guard duty, as their shift ended at 3:00 a.m. Gill replaced Osoba and Bassi replaced Reid. Police Constable Tamse took over from Ward.
145At 2:38 a.m., Wyard told Miron that she had retrieved a firearm from the black bag, along with Mr. Callaghan’s health card and several other documents in his name. In Miron’s view, this information changed Mr. Callaghan’s status from a witness to a suspect. At 2:39 a.m., he called Nott and directed him to try to locate Mr. Callaghan. Nott and Macdonald returned to the gas station where they had dropped off Mr. Callaghan but he was no longer there.
146Miron called for the assistance of the ETF after Wyard informed him that she was unable to prove the firearm safe. Police Constable Rene Kuhn [“Kuhn”] of the ETF arrived at 3:05 a.m., proved the gun safe, and left the scene at 3:10 a.m. Miron stood near Kuhn while he dealt with the gun. Miron never saw any officer other than Wyard and Kuhn touch the gun or go behind the crime scene tape in that area.
147Miron testified that Wyard showed him Mr. Callaghan’s health card. She photographed and then seized the gun, the magazine that she had removed from it, the black bag and all its contents. Miron never took possession of the bag or its contents.
148Wyard also photographed the bags belonging to Mr. Callaghan that were at the back entrance of 1 Coin Street. Miron did not touch them. As far as he was aware, only Wyard, Macdonald and Nott handled those bags. Macdonald seized them and took them to 22 Division.
149Miron waited in his vehicle as Wyard continued to process the scene. At some point, after Wyard had seized the casings, Miron reduced the size of the crime scene by re-opening Ninth Street. However, the police tape in front of the back entrance was maintained so that a secondary search of that area could be conducted in daylight.
150Miron left the scene at 5:00 a.m. and returned to 22 Division. At 6:00 a.m., he spoke to Detective Gris [“Gris”] and requested that a daylight search be arranged. Miron booked off duty at 12:00 noon on July 22.
151It is an admitted fact at this trial that on July 22, 2014, Police Constable Marina Alekseeva [“Alekseeva”] attended at 1 Coin Street at 6:34 a.m. to conduct a secondary search of the scene. At 7:50 a.m., Gris advised Alekseeva that he had located seven lead projectile fragments on the stairs at the rear entrance of 1 Coin. In addition, a projectile impression was located on one of the stairs. Alekseeva photographed and collected all the projectile fragments [see Exhibits 47(a) to (x)].
152Miron’s next shift began on July 22, at 7:15 p.m., and ran until July 23, at 12:00 noon. He started his shift by checking various police data bases for an address for Mr. Callaghan. At 10:15 p.m., he, Nott and Macdonald attended at 1 Coin Street, apartment 1105, where they believed Nancy Morrissette lived. Mr. Callaghan had told Nott and Macdonald that his girlfriend lived at 1 Coin Street. Miron believed that Ms. Morrissette may have been his girlfriend. There was no answer at apartment 1105. However, a tenant across the hall came out and spoke to them. She did not appear to know Mr. Callaghan.
153On July 23, at 1:22 a.m., Miron was on route to the FIS building when he spoke to Wyard on the telephone. She advised him that she had found a cell phone in the black bag containing the gun. At 1:35 a.m., Miron arrived at her office. At 1:45 a.m., Wyard turned over to him a black LG cell phone, which was in a paper bag. There was no property tag attached to the phone. The phone was the only property that Wyard gave to him.
154Miron put the phone in his desk drawer upon his return to 22 Division. He intended to put it in the property locker at the end of his shift but forgot and left it in his desk. He testified that the desk drawer was locked and that he was the only person who had the key.
155Miron testified that he intended to get a search warrant for the phone for the purpose of obtaining subscriber or contact information that could lead to Mr. Callaghan’s whereabouts. However, Miron never applied for the warrant because Mr. Callaghan ended up being arrested in the early hours of the morning on July 24, 2014.
156Miron reported for duty on July 23 at 8:00 p.m. On July 24, at 12:19 a.m. Nott called and told him that Ms. Roche’s red Ford Escort had been located in the parking lot of the Taboo Strip Club at 532 Evans Avenue. Police maintained surveillance on the car. At 3:03 a.m., Mr. Callaghan was observed exiting an SUV, getting into the Ford Escort, and driving away. He was pulled over by a uniformed officer, Constable Tamse, but then took off and was pursued by police. He eventually abandoned his vehicle behind 20 Humberline Drive, leaving the driver’s door open. There was no key in the ignition. With the help of the canine unit, Mr. Callaghan was eventually located in a wooded area behind an amphitheatre belonging to Humber College. At 4:27 a.m., Officers Bassi and Gill arrested him.
157Miron, who attended the scene of the arrest, instructed Det. Cst. Ahmed to seal and impound the Ford Escort until a search warrant could be obtained. At 5:00 a.m., Miron left the area. He arrived at 22 Division at 5:30 a.m.
158Miron testified that he later turned over the black LG cell phone that Wyard had given to him to Macdonald, who was processing Mr. Callaghan’s belongings from the scene of the shooting. Miron never turned on the phone.
159Miron made no notes of having left the cell phone in his desk drawer overnight, or of handing the phone to Macdonald the next day. His first mention of these matters was in a supplementary will-say statement, dated April 22, 2016, which he prepared at the request of the Crown in regard to his knowledge of the phone. He testified that he had an independent recollection of giving Macdonald the phone. Miron noted that when he gave the phone to Macdonald, his purpose in taking possession of it had evaporated – he had wanted to glean information from it in order to locate Mr. Callaghan, but Mr. Callaghan was arrested within 48 hours of his having received the phone. Miron then gave the phone to Macdonald to submit along with the rest of Mr. Callaghan’s property that had been taken from the scene of the shooting. Miron testified that his notes were prepared to refresh his memory, and the fact that he failed to mention something in his notes did not mean that it did not happen.
Testimony of Detective Constable Leslie Wyard
160Detective Constable Wyard had been a FIS officer for one year at the time of this investigation. She arrived at the scene of the shooting at 1:35 a.m. on July 22, 2014, parked her police van facing south on Ninth Street, just north of Garnett Janes, and spoke to Miron.
161Miron gave Wyard some background information, and walked her through the crime scene. He told her that callers had reported hearing five shots, a pause, and then two more shots. Five shell casings had been recovered on Ninth Street – four on the road and one in the grassy boulevard just west of the roadway.
162Miron pointed out the bullet holes in the glass door of the back entrance of the building at 1 Coin Street, and the shattered door in the foyer. He told Wyard that a male who was found in the bushes beside the back entrance had been taken to 22 Division to give a statement, and that some of his belongings were at the top of the stairs. Miron pointed out the bags while he and Wyard were standing on the street. The bags were in bushes just north of the entrance doors. As far as Wyard was aware, no officer was specifically assigned to guard the bags. She was apparently unaware that Reid, who was standing guard in the lobby, had a clear view of the back entrance. Miron referred to the male who owned the bags as a witness or victim, but never mentioned his name.
163Wyard and Miron did not go into the lobby, which was designated as part of the crime scene after projectiles were located there.
164Miron pointed out the black nylon pouch or bag on the sidewalk at the southwest corner of Ninth Street and Garnett Janes. The bag was open, exposing the butt of a gun. Wyard did not touch the bag at that time. She understood that an officer had located the bag in the bushes but had moved it to the sidewalk. She was therefore not able to photograph it in its original position.
165Wyard put down yellow evidence markers and took photographs of the crime scene [see Exhibits 22(a) to (t), as well as 4(a), 5, 6(a), 8, 10(d), 11(a), and 16(e)]. The “properties” feature on her camera automatically recorded the date and time that each photograph was taken. Wyard relied on this feature to a certain degree in terms of when she performed certain tasks. For example, she did not note in her memo book the exact time that she removed the gun from the bag. However, after removing it, she immediately started photographing it. Hence, the time that she removed the gun can be deduced from the times recorded on those photographs.
166After photographing the black bag on the sidewalk, Wyard removed the firearm from the bag’s unzipped central compartment [see Exhibits 11 and 22(o) to (t)]. She then took steps to prove the gun safe. She removed the magazine and attempted to rack the slide, but it was jammed. At that point, she requested that an ETF officer attend. Wyard did not consider herself to be an expert in firearms.
167Wyard described the firearm as a medium-sized gun. It did not occupy the entire central compartment, which also contained Mr. Callaghan’s identification documents. Wyard could not say exactly where these documents were located within that compartment as she simply reached in and pulled them out. She did not photograph them while they were still in the bag. She explained that her main concern after removing the firearm was proving it safe. She did, however, take photographs of a stack or pile of the identification documents and cards after she removed them, with Mr. Callaghan’s OHIP card on top [see Exhibits 11(c) and 22(u)]. His social insurance card and birth certificate were included in this pile.
168Wyard testified that after discovering Mr. Callaghan’s identification documents, she immediately asked an officer at the scene to notify Miron. Wyard made no note of having made this request, and could not recall the officer’s name. However, the officer would have been standing in the near vicinity where she was examining the bag. Wyard understood that Miron was not at the scene at the time. She could not recall if he returned to examine the documents or to speak to her about them.
169Officer Kuhn from the ETF arrived at 3:05 a.m. At 3:10 a.m., he proved the firearm safe.
170Wyard testified that she continued taking photographs as she waited for Kuhn to arrive. She moved from the corner where the black bag was located and took close-up photographs of the five shell casings on Ninth Street. She also recorded the location of the casings by reference to their distance from a light standard on the northeast corner of the intersection of Ninth and Garnett Janes. She did not measure their location in relation to the rear entrance of 1 Coin Street or the bullet holes in the glass door, but those measurements could be calculated by using her “light standard” measurements. Wyard agreed that the location of the casings on Ninth Street indicated that shots had been fired from Ninth Street towards the door.
171Wyard never measured the distance from the rear entrance doors to the corner of Ninth and Garnett Janes where the black bag was located.
172In cross-examination, Wyard was questioned as to why she did not seize or examine a grey plastic bag that was near some shrubbery and a few feet away from where Evans had placed the black bag on the sidewalk [see Exhibit 22(o)]. Wyard testified that it appeared to her to be garbage and of no evidential value.
173Wyard testified that she searched Ninth Street and Garnett Janes for casings. She did not see any projectiles or casings on Ninth Street other than those that had already been located by Miron. She did not search the bushy area where Mr. Callaghan’s bags were located outside the back entrance.
174Wyard did not find any casings or projectiles on Garnett Janes. When asked to be more specific in terms of her search on Garnett Janes, Wyard testified that she searched the south sidewalk and roadway using a large flashlight, which she panned back and forth in a sweeping motion as she proceeded west along the street until she was about halfway to Coin Street. She did not search the north side of Garnett Janes, or the bushes or grassy boulevard on the north side.
175Wyard believed that the north side of Garnett Janes had been cordoned off with police tape, although no other officer testified to that effect.
176Wyard could not recall whether she left Mr. Callaghan’s identification documents on the sidewalk or put them back in the black bag when she left to take photographs of the shell casings. She testified that she notified another officer that she was leaving the bag and firearm on the sidewalk, but could not recall that officer’s name.
177At 3:18 a.m., Wyard took further photographs of the black bag, firearm, magazine, and identification documents, as well as the bullet that was ejected from the chamber when Kuhn proved the gun safe.
178Wyard testified that the black bag contained a number of documents in the name of Nancy L. Morissette, which she removed from an open back pocket at the scene of the shooting. Wyard made no notation in her memo book as to where the Morissette papers were located in the black bag. She did not take any photographs of them at the scene. When she photographed them later on at her office, she did not place them over the back pocket, as she did with a package of zig-zag papers, in order to indicate that that was where she originally found them. She explained that she only discovered the zig-zag papers after she was back at her office, whereas she had already removed the Morissette documents from the bag at the scene.
179Wyard was questioned as to why, unlike Mr. Callaghan’s identification documents, she failed to photograph the Morissette documents at the scene. She explained that in her mind, Mr. Callaghan’s documents were more significant because they were actual identification documents – for example, his OHIP card, birth certificate, and SIN card – as opposed to “just documents.”
180The Morissette documents included a rental car agreement; a 407 ETR bill, dated May 5, 2014; four City of Toronto Notices of Impending Convictions, with due dates of June 17, June 24, and July 9, 2014; a parking ticket issued on April 26, 2014; and six letters from Enterprise Holdings regarding parking tickets with respect to rental vehicles. Three of these letters were dated December 18, 2013, and related to occurrences at 1 Coin Street on November 9, 10 and 15, 2013. Two of the letters were dated May 21, 2014.
181Photographs taken of the bag’s back pocket at the scene do not show any paperwork protruding from it. During her testimony, Wyard was asked to place the Morissette documents, along with the zig-zag papers, into that pocket. After doing so, about one to one-and-a-half centimetres of the paperwork protruded from the pocket.
182Wyard testified that she had reviewed some of these documents before coming to court. However, it was not until she was in court that she took all of them out of the envelopes and reviewed each one individually. She testified that when asked by defence counsel to put the documents back into the bag, she tried to fold them and put them back together as she had found them, but was not entirely successful in this regard. She had no idea how long these items had been in the bag before she found them.
183Wyard testified that she was 100 percent certain that the Morissette documents were in the black bag. At this point in time, however, without having noted their location in her memo book, she could not say for certain that they were all in the back pocket, although that is her current recollection.
184While at the scene, Wyard photographed the back entrance of 1 Coin Street, including the bags found just north of the landing. She did not touch the bags until after she had photographed them in their original positions. She then placed them on the landing and took further photographs. She never went through or catalogued their contents, as they were seized by an officer from the Major Crime Unit. It was her understanding that this property was of no evidential value – it was simply going to be returned to the witness who had been taken to 22 Division to give a statement. She had not been given that individual’s name. She did not recall when she first learned that that person was Andre Callaghan, whose identification documents she had found in the black bag, along with the firearm.
185Wyard was questioned about a white article of clothing on the ground, and situated beside the black garbage bag, as seen in Exhibit 22(rr), which was taken at 3:50 a.m. Wyard had no note about this article and did not know what it was. She testified, however, that she would not she have left it at the scene and that it would have been seized by the 22 Division officer, along with the four bags.
186Wyard photographed the bullet holes in the glass door, the shattered door in the vestibule, a lead projectile in the vestibule, and another projectile in the lobby. She also photographed a bullet hole that was very close to the edge of the door frame and 49 ½ inches from the ground. This third bullet went through the caulking of the frame, through the vestibule, and appeared to enter the wall on the other side of the vestibule.
187Wyard measured the location of the two bullet holes in the glass door. One was six inches to the right of the door frame and 33 ½ inches from the ground. The second bullet hole was 25 ½ inches to the right of the door frame and 22 inches from the ground. (See Exhibit 23(z)).
188Miron advised Wyard that witnesses had reported seeing a male riding a bicycle away from the scene. The male dropped the bike on Garnett Janes, and continued running west. Miron asked Wyard to fingerprint the bike and to swab the grips for DNA.
189Wyard photographed a black and yellow bike leaning against a tree – Exhibit 23(e) – seized it, and placed it in her van. She could not recall which officer directed her to the bike (it was not Miron), or where the bike was located when she photographed it. She was never directed to photograph a bicycle in the archway between 10 and 20 Garnett Janes Road.
190Wyard left the scene at 5:38 a.m. She took further photographs of the seized items after she returned to her office.
191Photographs of the firearm show that the serial number had been scratched off.
192The magazine contained eight bullets. Three were shorter than the remaining five and would have been the first to be fired from the gun. They were the same length as the bullet that Kuhn removed from the chamber [see Exhibits 23(i) to (o)].
193Wyard described the black nylon Lacoste bag containing the gun as a fairly small bag, almost like a purse. It is only about six inches wide and eight inches long. The sides are about an inch in depth. The shoulder strap is about 1¼ inches wide.
194Wyard spread out and photographed all the items that she seized from the bag’s central compartment, which included Mr. Callaghan’s birth certificate and OHIP card, both of which were in the name, “Andre Cortney Callaghan”, and the SIN card, which spelled his name somewhat differently: “André Courtney Callaghan.” A key, some Chap Stick, and cards from various businesses were also located in the central compartment. [see Exhibits 24(d) to (f)].
195Wyard testified that she found two other documents in the central compartment when she examined the bag at her office: a document in the name of Andre Callaghan that was entitled “Back on Track – Six Month Follow-Up Notice”, with a workshop date of April 8, 2013; and a receipt for $680 from “Adele.” There are no photographs of these items. She explained that she probably just overlooked them when she was taking photographs. She testified that they may have been in the stack of identification cards that she photographed at the scene, or they may have been in the central compartment but separate from the identification cards. The first time that she mentioned these documents was at this trial.
196Wyard was asked during her testimony to place the Back on Track document, the receipt, Mr. Callaghan’s identification cards, the business cards, Chap Stick and key into the central compartment of the black bag, where she says that she originally found them. The items came up to about a third of the height of the bag. Wyard testified that there was still room for the firearm to fit in the bag. None of the cards or other items would have been visible if they were at the bottom of the bag, with the gun on top of them. This would be consistent with the bag as it appears in Exhibits 22(t) and 36, which were taken before Wyard removed the gun. She noted that it is evident from these photographs that the gun was in the bag on an angle. No paperwork is visible inside the bag.
197Wyard testified that she would have, as a matter of course, examined the interior pockets within the central compartment once she was back at her office. Although she cannot say where the identification cards and business cards were located within the central compartment – she simply reached in and pulled them out of the bag at the scene – it is possible that they were within one of those compartments.
198The front of the bag has a zippered pocket. Although the zipper runs across the width of the bag, it is not immediately apparent. Wyard described the zipper as “quite concealed” as it is behind what appears to be a seam in the material, which she mistook for a design or decoration. As a result, she did not realize that the bag had a front pocket when she first examined it at the scene. Nor did she discover the front pocket when she examined it at her office. It was only near the end of her shift, as she was sealing up the property for storage and after hearing a phone ring that she discovered the zipper, opened the front pocket, and removed a black LG cell phone. There was nothing else in that pocket. The cell phone is quite small – about five-and-a-half by ten centimetres.
199Wyard acknowledged that she should have “squished” the bag and checked it more thoroughly prior to securing it for storage.
200Wyard did not immediately photograph the cell phone, but sealed it in the same property bag – no. D417400 – that contained the black bag and the items that she had found in the main compartment and back pocket. At 8:25 a.m., and just prior to completing her shift, she placed all the seized items in the property/evidence handling room, Room 127. That room is kept locked, although other FIS officers would have been able to access it, as well as TPS couriers, who are members of the Property Bureau. The shelf on which she placed the items was specifically designated for property that she was securing.
201Wyard commenced her next shift on July 22 at 11:00 p.m. Later on during that shift, on July 23, Miron called her to discuss the processing of the items she had seized at the scene. Wyard advised him that she had found a cell phone in the black bag. Miron told her that he would come to her office and pick it up.
202Wyard testified that Miron also told her at that time that another phone had been recovered from the scene and that it was in his possession. He did not say where it was found, what type of phone it was, or provide any other details about it. This was the first time that Wyard had heard about another phone being found at the scene. She testified that no one at the scene, including Miron, had advised her that a cell phone had been located there. Wyard did not take any photographs of a cell phone at the scene.
203At 1:30 a.m., Wyard retrieved property bag # D417400, broke the seal, and removed the black LG cell phone. She photographed the front and back of it [see Exhibits 29 (a) and (b)]. She also activated the home screen and took two more photographs, which show the date and time as Wednesday, July 23, at 1:31 a.m. [see Exhibits 29(c) and (d)]. Wyard’s camera recorded the same date and time in relation to when she took these photographs. She did not photograph any other items at that time.
204At 1:45 a.m., Wyard turned the phone over to Miron in a paper bag. She testified that she noted the time in her memo book because it is important to record the time at which property is transferred from one officer to another. She did not, however, assign a property tag number to the phone. She explained that it was not necessary to do so as the phone was not being tracked at that point, that is, it was not as yet in the DLMS system. A property tag is only assigned to an item when it is going to the Property Bureau. She had “tracked” the phone in her notes: it had been sealed in a numbered property bag and stored in room 127. She later broke the seal, removed the phone from the property bag, photographed it, and gave it to Miron.
205Wyard resealed Property Bag No. D417400 by placing a police seal on it. She explained that she took this step because she had broken the original seal on the bag in order to remove the cell phone. She then re-secured the property bag and its contents in the property/evidence handling room. On September 22, 2014, when she was preparing to submit the contents of the property bag to the property bureau in Scarborough, she broke the police seal, and placed the black bag and its contents in a different property bag, along with a property tag number.
206On July 23, at 7:05 a.m., Wyard assisted Detective Constable Borneman in processing the gun and ammunition. She swabbed the slide and grip of the gun and secured the swabs for submission to the CFS. As it turned out, there was insufficient DNA from those swabs to generate a profile suitable for testing. The gun was also dusted for fingerprints. Although fingerprints were visible on the gun, they were insufficient for comparison.
207Wyard did not test the gun for the presence of gunshot residue as that test, if it were to be done, would be carried out in the lab.
208On July 24, 2014, Wyard swabbed both handles of the bicycle that she had seized. The swabs were sent to the CFS, which reported that there was insufficient DNA for testing. Wyard dusted the bicycle for fingerprints, with negative results.
209Wyard was cross-examined as to why she failed in certain instances to photograph items in their original position, such as the identification documents that she found in the central compartment of the black bag, or the Morissette documents that she testified were in the back pouch of the bag. Wyard acknowledged in re-examination that photographing items as you find them is good practice, and that she should have taken more care in searching the bag and photographing its contents after the gun was removed from the bag. She explained her failure in this regard as a result of her concern about the firearm. Her primary focus after discovering the loaded gun and removing it from the bag was to prove it safe. She agreed that after it had been proven safe, she should have taken more care in searching the bag and photographing its contents.
Testimony of Police Constable Rene Kuhn
210Police Constable Kuhn testified that when he arrived on scene at 3:05 a.m., there was at least one uniformed officer in close proximity to the firearm, or within five feet of it. The gun, which he described as a silver semi-automatic 9 mm firearm, was on the sidewalk. The magazine had already been removed. The serial number was obscured or scratched out.
211Kuhn spoke to Miron, who briefed him with respect to the crime scene. He also spoke to Wyard.
212Kuhn wore gloves as he examined the firearm. He described it as “out of battery” – that is, the slide was not all the way forward. Kuhn could see the base of a cartridge when he looked through the ejection port, which was on the right hand side of the gun. He tried to remove the cartridge by pulling the slide backward but the slide would not move. He then put the “dustcover” or front end of the slide on the ground and applied more pressure, using his body weight. This maneuver was successful: the slide went backward and the cartridge was ejected, thereby proving the firearm safe.
213Kuhn could not make out the head stamp on the cartridge, as the lighting was quite poor. The cartridge, which had a full metal jacket and was about 2 mm shorter than a 9 mm cartridge, could be chambered and fired from a gun such as this one.
214Kuhn advised Miron that the gun had been proven safe. He left the gun on the sidewalk where it was originally located, and left the scene at 3:10 p.m.
Testimony of Jennifer Plath
215Jennifer Plath is employed at the CFS in the Firearms and Toolmarks section. She examined the firearm, the five cartridge casings, the two projectiles, the seven projectile fragments found at the scene, and the magazine, which had a capacity of twelve 9mm Luger calibre cartridges. Her report was filed as an exhibit [see Exhibit 20].
216Ms. Plath determined that the five cartridge casings were all fired from the same gun, but not from the gun found in the black bag. However, they would have been fired from the same type of firearm as the gun found in the bag, that is, a 9 mm Luger semi-automatic pistol. This type of firearm is designed to be aimed and fired by the action of one hand, although typically a person will use two hands in order to steady the gun and keep it straight.
217When the gun is fired, the cartridge case is extracted and ejected out through the ejection port. The ejection port on the gun found in the black bag was on the right hand side. When asked whether a casing would be ejected to the right, Ms. Plath testified that it would depend on a number of factors. As I understand her evidence, generally speaking, a casing would be ejected to the right, but it could be to the right and in a forward direction, to the right and in a backward direction, or anything in between. The direction also depends on whether the gun is tilted sideways or on an angle when it is fired, and whether the person firing it is moving. Where a casing ends up on the ground will also depend on whether it hit something before it landed, whether it was kicked or moved after it landed, and the type of surface on which it landed.
218During her testing of this particular firearm, Ms. Plath did not note the distance that the casings travelled after they were ejected. She testified that generally speaking, casings will fall within two to five feet of the person firing the gun, but this distance could be greater and would vary according to the positioning of the ejector and extractor.
219Ms. Plath observed that the serial number of the firearm had been scratched out. The serial number was recovered through the application of chemicals.
Testimony of Detective Constable Kim Seguin
220Detective Constable Seguin [“Seguin”] executed the search warrant for the 2005 red Ford Escape that Mr. Callaghan was driving prior to his arrest on July 24, 2014. She commenced her examination of the vehicle at a FIS facility at 3:15 p.m. on July 24. She photographed the vehicle and its contents [see Exhibits 21(a) to (z) and 21(aa) to (zz)].
221Seguin seized a Huawei cell phone from the driver’s seat. She also seized a pair of shorts, a striped vest, and a grey NBA Chicago Bulls baseball cap, all of which were on the floor behind the driver’s seat.
222Seguin described the colour of the shorts, which were a size 32, as a dark army green, although she acknowledged that in the photograph, Exhibit 21(bb), they appear to be a little browner, or similar to a camouflage colour. A Guess gift card and a receipt for $500 from “Alex” were located in the front left cargo pocket of the shorts. In the right back pocket, there were three parking tickets, none of which were for the Ford Escort.
223In a front pocket of the striped vest, which was a size large, Seguin located a receipt for $50 in the name of Andre Callaghan from the Ministry of Public Safety and Security.
224The baseball cap, as seen in Exhibit 21(gg), appears to be similar in colour to the baseball cap that was on the table during Mr. Callaghan’s interview at 22 Division on July 22, 2014.
225A green tote bag that was on the floor behind the front passenger’s seat contained some ladies wear. At the bottom of the bag, Seguin located a sealed envelope addressed to Andre Callaghan from Liftow Ltd. in Mississauga. There was also a receipt from Money Mart for a transfer of $500 from Andre Callaghan to Pauline Williams. The words “available in Jamaica” appear on the receipt.
226Under the green tote bag, Seguin located a Guess shopping bag, at the bottom of which was a ripped piece of plastic containing a white powder. Seguin later weighed the powder and sent a sample of it to Health Canada for analysis. She never received any paperwork back from Health Canada regarding this substance.
227The Guess bag also contained a grey Guess tee-shirt, size medium, and a navy blue Polo shirt, size large, that was turned inside out.
228A pair of grey Adidas sneakers, size 8 ½, and a Guess black vest, size medium, were found in the trunk. In the vest’s front top left pocket, Seguin located a Roots tag, a Walmart receipt, an Enterprise Rent A Car receipt in the name of Nancy Morisette, and a parking ticket.
229Also located in the trunk was an application for co-operative housing by Andre Callaghan, with an address of 105 West Lodge, and Jamie Lee Roche, with an address of 2 Albert Frank Place.
Events on July 24, 2014
230The Crown relies on Mr. Callaghan’s post offence conduct – that is, his flight from police when his car was pulled over on July 24, 2014 – as evidence of consciousness of guilt in relation to the firearm offences on July 22. Mr. Callaghan led the police on a pursuit from South Etobicoke, across the QEW to Oakville, back to Toronto, and up to Rexdale, where he abandoned his vehicle, fled into a forested ravine, and hid in bushes until he was found an hour later with the assistance of the canine unit. Crown counsel submits that it does not make any sense that Mr. Callaghan would behave in this manner simply to avoid being charged with driving while under suspension pursuant to the Highway Traffic Act.
231Defence counsel submits that the court ought not to draw an inference of consciousness of guilt in relation to the firearm offences, as there is clearly another reasonable explanation for Mr. Callaghan’s flight from police. Mr. Callaghan was the subject of two driving prohibitions at the time, and was in the course of committing the offence of driving while under suspension when he was pulled over by Officer Tamse. It was further submitted that Mr. Callaghan would have no reason to connect the vehicle stop with the shooting incident that had taken place two days earlier.
232I do not intend to review the events of July 24, 2014, in great detail. I will simply outline the route taken by Mr. Callaghan and the evidence regarding his driving over the course of that route.
233At 3:03 a.m., Mr. Callaghan was observed entering the Ford Escort, which had been under police surveillance from 12:13 a.m., when Police Constable Tamse [“Tamse”] located it in the rear parking lot at 532 Evans Avenue. Mr. Callaghan drove east on Evans, south on Kipling, and east on Birmingham Street, where Tamse activated the siren and lights on his scout car and pulled him over. Tamse and his partner had just gotten out of their vehicle and were approaching the Ford when Mr. Callaghan took off at a high rate of speed. He drove south on Seventeenth Street, west on Lake Shore Blvd. and north on Kipling.
234Nott and Det. Cst. Omar Ahmed [“Ahmed”] followed Mr. Callaghan in their police vehicle, keeping about 10 to 15 car lengths behind it. Nott was driving. Ahmed estimated Mr. Callaghan’s speed as he drove north on Kipling at between 100 to 120 km/h. Ahmed and Nott testified that the posted speed limit is 50 or 60 km/h.
235Mr. Callaghan went through two red lights on Kipling – one at Horner Avenue, and another at Evans Avenue. Mr. Callaghan did not slow down at either light. His brake lights were not activated.
236Mr. Callaghan then proceeded west on the QEW. Nott testified that Mr. Callaghan sometimes drove at the speed limit, but at other times sped up. When approaching an off-ramp, he would veer towards it as though he was going to exit, but then at the last minute would veer back and continue westbound on the highway.
237Ahmed estimated Mr. Callaghan’s speed on the QEW at 120 to 140 km/h. Nott continued to maintain some distance behind the Ford.
238Mr. Callaghan exited at Ford Drive, went north, and then drove east on Upper Middle Road. He made a U-turn at the off ramp for Highway 403, went west on Upper Middle Road, south on Ford Drive, and then proceeded eastbound on the QEW. Nott and Ahmed testified that Mr. Callaghan’s speed on the QEW varied from 140 to 160 km/h. Nott estimated these speeds by using his own speed as a guide.
239A construction truck was parked near the exit for Mississauga Road, where barrels were being set up to close the right lane. Mr. Callaghan veered towards the exit but then swerved back again to continue along the highway. Nott and Ahmed anticipated that Mr. Callaghan was going to lose control of his vehicle at this point, as it was swaying back and forth. However, Mr. Callaghan continued driving eastbound on the QEW. He made a similar maneuver at the exit for Hurontario, swerving onto the off-ramp but then swerving back onto the highway at the last minute.
240Mr. Callaghan exited at Evans Avenue and proceeded west while travelling at an estimated speed of 120 km/h in a 60km/h zone. This area is a combination of residential and commercial buildings.
241Mr. Callaghan then went north on Highway 427, continuing at an estimated speed of 120 km/h. He exited at the Rexdale Blvd. off-ramp. Nott testified that he thought Mr. Callaghan was travelling too fast to safely execute the bend in the road at that point. Nott reduced his own speed out of safety concerns.
242Mr. Callaghan proceeded east on Rexdale and then north on Humberwood Blvd. at an estimated speed of 100 km/h. Nott and Ahmed briefly lost sight of the Ford along Humberline Drive. However, as Nott approached 10 and 20 Humberline Drive, which are two high rise apartment buildings, he caught sight of the Ford Escort’s tail lights. Nott continued onto Humber College Blvd., and drove along some residential side streets looking for the Ford. He then returned to 10 and 20 Humberline Drive.
243At 3:37 a.m., Nott and Ahmed located the Ford Escort at the rear of 20 Humberline Drive. It was parked beside a ravine. The driver’s door was open and the lights were on. Mr. Callaghan was gone. The ETF and canine unit arrived.
244At 4:27 a.m., Mr. Callaghan was located hiding in the ravine behind a Humber College amphitheatre. Ahmed guarded and sealed the red Ford. Those seals remained intact until they were broken by Officer Seguin when she executed the search warrant for the vehicle.
POSITIONS OF COUNSEL
245Proof of possession requires the Crown to prove beyond a reasonable doubt that Mr. Callaghan had both knowledge and control of the firearm.
246The position of the Crown is that both elements have been established. Crown counsel submits that when all of the evidence is considered as a whole, the only rational conclusion is that Mr. Callaghan was the second male observed by Ms. Young, that he had a gun, and that he discharged it in the direction of the male who was on the bicycle.
247The Crown submits that Mr. Callaghan was targeted and shot at as he sat at the top of the stairs at the back entrance of 1 Coin Street. Armed with his own firearm, Mr. Callaghan pursued the cyclist around the corner of Ninth and Garnett Janes, took aim and fired two shots. His gun jammed when he tried to fire a third round. Mr. Callaghan then hid his small black bag containing the gun in the bushes at the corner of the intersection. He “fiddled” with the bag so that it was suspended in the middle of the foliage and not visible from the street. He then returned to where he had left the rest of his belongings, and hid in the bushes by the rear entrance, hoping that he would not be discovered by the police. It was only when that prospect seemed unlikely, and he found himself behind the tape used by police to designate the crime scene that Mr. Callaghan presented himself to Officers Nott and Macdonald. However, he did not want the officers to know who he was, and falsely identified himself as Andre Williams. It was only after Macdonald warned him that he could be charged with obstructing justice if he did not properly identify himself that Mr. Callaghan told him his correct last name.
248Crown counsel submits that Mr. Callaghan’s statements to Nott and Macdonald at the scene and during his interview at 22 Division were filled with half-truths, which successfully convinced the officers that he was a victim/witness as opposed to a suspect. Noticeably absent from those statements was any mention by Mr. Callaghan of having heard a second volley of gunshots, which the Crown alleges Mr. Callaghan fired at the cyclist. Nor did Mr. Callaghan mention having seen a male running south on Ninth Street, which is the direction that Ms. Young testified that the second male ran after hiding something in the bushes. That direction would have taken the second male, whom the Crown alleges was Mr. Callaghan, to the rear entrance of 1 Coin Street, which is where Mr. Callaghan was hiding when the police arrived. Had it not been for Ms. Young and her observations of the second male hiding the gun in the bushes, Mr. Callaghan’s gun would never have been found, Mr. Callaghan would never have been charged with these offences, and he would have been free to retrieve the gun at some later time.
249The Crown submits that there can be no doubt that the black bag containing the gun that was found in the bushes belonged to Mr. Callaghan, given the contents of the bag, which included his identification documents and cell phone.
250Crown counsel noted that according to Mr. Callaghan’s statement to police, there was never a point at which he was separated from his belongings. He told the officers that he was sitting at the top of the stairs at the back entrance of 1 Coin Street for about five or ten minutes before the cyclist fired shots at the two males on foot. Mr. Callaghan dove into the bushes, grabbed his belongings, and remained there with all his property for about five minutes, at which point he presented himself to Nott and Macdonald. Thus, according to Mr. Callaghan, he was always with his property. Mr. Callaghan said nothing to the officers about any of his property being lost, misplaced, or stolen. The Crown submits that based on the evidence, the only reasonable explanation as to how Mr. Callaghan’s black bag containing the gun became separated from the rest of his belongings is that he took it with him when he chased after the cyclist who had tried to shoot him. After firing a couple of shots at that male, he put the bag containing the gun in the bushes so that he could later retrieve it. He did not keep the gun with him as he would have anticipated that the police would be arriving on scene quite quickly. It was almost certain that someone in the neighbourhood would have called 911, given the fact that the shots were fired in a residential and densely populated area.
251The position of the defence is that the Crown has not established beyond a reasonable doubt that Mr. Callaghan was the second male observed by Ms. Young, or that Mr. Callaghan ever had possession of the firearm found in the bushes. Defence counsel submits that Ms. Young’s observations of the two males and their movements are not reliable, given the angle and distance from which she made those observations, the time of night, the poor lighting in the area, and the short period of time over which these events occurred – it was less than a minute.
252Defence counsel submits that Mr. Callaghan could not have been the second male, based on Ms. Young’s description of that individual. Ms. Young estimated the age of the second male as late teens or early twenties. Mr. Callaghan was 31 years old. Ms. Young testified that the second male was wearing a black tee shirt and a dark baseball cap. Mr. Callaghan, when he presented himself to Nott and Macdonald, was wearing a long-sleeved royal blue shirt with a hood. Neither officer recalled whether Mr. Callaghan was wearing a hat. Even assuming that the baseball cap seen on the table during the recorded interview belonged to Mr. Callaghan and that it is the same hat seized by Seguin two days later from the Ford Escort, it is not dark in colour but a light blue with a grey or beige brim. Furthermore, based on the Crown theory, Mr. Callaghan rounded the corner of Ninth and Garnett Janes while in possession of the black bag. Yet Ms. Young made no observations of the second male carrying a bag.
253Defence counsel submits that the evidence does not support a finding that the second male observed by Ms. Young ever fired a gun. Ms. Young did not actually see what that male was holding in his hand or hands, and no cartridge casings were found by the police on Garnett Janes.
254Defence counsel submits that Mr. Callaghan’s behaviour was consistent with his innocence. Mr. Callaghan remained at the scene, even though he would have had time to flee prior to the arrival of the police. He presented himself to Nott and Macdonald and co-operated fully with them, answering all of their questions. He agreed to go to 22 Division to make a statement. His version of events remained consistent: what he told the officers at the scene was more or less the same as what he later told them at the police station. Some of the things he told the police were corroborated by other evidence. For example, he described the group of cyclists that rode by as young white males, which matches Reid’s description of the group of cyclists, one of whom he spoke to briefly when he and Evans were on their way to the scene of the shooting. Mr. Callaghan directed the attention of the police to the presence of his belongings outside the rear entrance, and did not become upset when told that he could not remove them until the crime scene was processed and the police tape had been taken down.
255Counsel for Mr. Callaghan raised concerns with respect to the integrity of the crime scene. Even prior to the arrival of the police, the bicycle ridden by the first male mysteriously disappeared from the spot where he had dropped it. It is not improbable that someone removed Mr. Callaghan’s black bag from his other belongings. It is not improbable and would not be the first time that someone put an illegal item into someone else’s bag.
256Defence counsel noted that no photographs were taken of the black bag in its original position prior to Evans removing it from the bushes and placing it on the sidewalk. Wyard did not photograph any of the paperwork inside the bag prior to taking it out of the bag. Defence counsel questioned whether the bag was continuously guarded after it was seized by Evans. She also submits that based on the evidence, it has not been established that the black LG cell phone that Wyard found in the bag is the same phone that Macdonald examined and which was made an exhibit at this trial. In other words, continuity with respect to that phone has not been established. In terms of the overall credibility and reliability of the police witnesses, defence counsel referred to a number of instances where officers, and in particular, Wyard and Miron, failed to make adequate notes, or any notes at all.
ANALYSIS AND FINDINGS
257Lisa Young was a totally independent witness, with no motive to lie. She gave her evidence in a direct and straightforward manner. It is apparent from her testimony that she took great care not to exaggerate, and to be as accurate as possible in describing what she saw and heard when she looked out her window just after midnight on July 22, 2014. She was prompted to look out the window after hearing two popping noises.
Did the second male discharge the firearm?
258Ms. Young made her observations from the second floor of her apartment building and from a distance that was somewhat greater than 50 feet. I am satisfied that the street lighting, as described by her and which is evident in the photographs filed as exhibits, was sufficient for her to observe the movements of both the cyclist and the second male who rounded the corner of Ninth Street and Garnett Janes. Ms. Young did not observe any other people in the area at the time. I note that there was a street light at the corner that was illuminated and quite close to the bushes where the firearm was found, although the street light to the west of that light was not working. There was a light in the area of the garbage-bay door, and another light over the front door of Ms. Young’s apartment building. Although the lighting was “not bright” and “not the greatest”, the area was “lit” and “not scary dark.”
259It is clear from Ms. Young’s evidence that the first male was fleeing the scene. After dropping his bike in front of the garbage-bay door, he ran fast in a westward direction, although Ms. Young did not see whether he continued west or ran around the building at 1 Coin Street. Just as he dropped his bicycle, the second male came running around the corner. The second male had decreased his pace from a run to a walk when he extended one or both of his arms straight out in front of him. He had something in his hand or hands, but Ms. Young could not see what it was. She heard two popping sounds. The second male then lowered his arm or arms, turned, went over to the corner, appeared to put something in the bushes, and then disappeared from view as he headed south on Ninth Street.
260Ms. Young was outside and on the street five seconds later. She did not see any other people in the area. She went back to her apartment briefly in order to retrieve her cell phone. When she returned outside, the bicycle was gone. Several other people came out and indicated that the police had been called. Ms. Young told her neighbour, Daniel Kosar, what she had seen. She testified that no one went near the bushes where the second male had hidden something. The police arrived a few minutes later.
261Evans and Reid were dispatched to the scene at 12:08 a.m., and arrived at 12:12 a.m. Upon his arrival, Evans was approached by Mr. Kosar, who told him that Ms. Young had seen a black male put something in the bushes at the corner of the intersection. Evans went over to the bushes, parted them, and observed the unzipped black bag suspended in the branches. The butt of a gun was plainly visible. Evans removed the bag from the bushes by lifting it up by the shoulder strap – he did not touch the bag itself – and put it on the sidewalk. He testified that he located the bag about two minutes after arriving on scene.
262Reid’s evidence supports Evans’ testimony that he found the firearm very shortly after their arrival. Reid testified that after parking the scout car on Garnett Janes, he and Evans walked east towards Ninth Street. Reid proceeded fairly quickly onto Ninth Street, while Evans, after receiving information about activity in the bushes, went immediately to those bushes at the corner of the intersection. Reid was on Ninth Street when he heard Evans yell out that he had found a black satchel.
263I am satisfied, based on Ms. Young’s observations of the movements of the second male, along with the testimony of Evans and Reid, that the second male discharged the firearm found in the bushes. Ms. Young saw the second male raise his arm or arms straight out in front of him. She then heard two popping sounds, which is consistent with two shots being fired. The male then lowered his arm or arms, ran to the corner and hid something in the bushes. While waiting for the police, Ms. Young did not see anyone else go near those bushes. When Evans arrived minutes later, he found the firearm in the bushes.
264Defence counsel submitted that the firearm could not have been discharged because no shell casings were located on Garnett Janes. However, given Jennifer Plath’s testimony and the fact that the north side of Garnett Janes was never searched, the absence of casings is not determinative one way or the other with respect to this issue.
265Ms. Plath testified that since the ejection port was on the right side of the firearm, the casings would, generally speaking, be ejected to the right, which, in the present case, would be towards the north, as the second male fired the gun in a westerly direction. Ms. Plath could not say how far the casings would have travelled. Again, generally speaking, casings may fall within two to five feet of the shooter, but this distance can be greater and depends on a number of factors, including where the ejector and extractor are positioned.
266In terms of the search conducted by police, Reid testified that after he and Evans arrived at the scene and parked their vehicle, they walked east along the south side of Garnett Janes towards Ninth Street. As he was walking, Reid did a quick scan of the area, keeping an eye out for possible witnesses, victims, and potential evidence of gunplay. He did not observe any casings on the south side of Garnett Janes. He never searched the north side of the street. He testified that he proceeded fairly quickly onto Ninth Street, while Evans went immediately to the bushes at the corner.
267Evans testified that he looked for casings along the south side of Garnett Janes from Ninth Street westward to the garbage-bay door. He did not find any casings. He testified, however, that he did not do a detailed search as it was dark and he did not have a proper flashlight with which to conduct a search for casings. He did not search the north side of Garnett Jane.
268Wyard testified that she searched for but did not find any casings on Garnett Janes. When asked to describe her search, she stated that she searched the south sidewalk and roadway using a large flashlight, which she panned back and forth in a sweeping motion as she proceeded west along the street until she was about halfway to Coin Street. She did not, however, search the grassy boulevard, sidewalk, or bushes on the north side of Garnett Janes.
269The absence of casings may, in some circumstances, support an inference that a firearm has not been discharged. For example, such an inference might have been drawn in the present case if the search for casings had been more meticulous and included a search of the north side of Garnett Janes – a potential landing area for the casings based on Ms. Young’s description of events and the testimony of Ms. Plath. However, the north side of the street was never searched. In these circumstances, no inference, one way or the other, may be drawn from the fact that no casings were found. The absence of such evidence does not assist the Crown in proving that shots were fired. Nor does it establish that shots were not fired.
270As outlined earlier, the evidence that the firearm was discharged comes from the observations of Ms. Young regarding the movements and stance of the second male just before and after she heard the two popping sounds, her observation that he then hid something in the bushes before heading south on Ninth Street, and the fact that Evans found a firearm in the same location only a few minutes later. No one else was observed going near those bushes. Based on that evidence, I am satisfied that the second male discharged two cartridges from the firearm found in those bushes. I note that although the magazine had a capacity to hold twelve cartridges, there were only nine remaining when Evans seized it – there were eight in the magazine and another one that was lodged in the chamber.
Lisa Young’s description of the second male as compared to Mr. Callaghan’s appearance: similarities and differences
271There is no question that Ms. Young’s opportunity to observe the clothing and physical appearance of the cyclist and second male was hampered by her distance from them, the angle at which she observed them, the limited time-frame over which she made her observations, and the lighting in the area.
272Ms. Young never saw the face of either the cyclist or the second male. She was unable to estimate the height of either of these individuals because she was looking down on them from the second story of her building. She was able, however, to observe their physique and skin colour. She described the second male as black, with dark skin and a thinner build, which is consistent with Mr. Callaghan’s appearance before this court and in the DVD-recorded interview.
273Ms. Young’s estimate of the age of the second male – late teens to early twenties – was younger than Mr. Callaghan, who was 31 years old at the time. However, based on Mr. Callaghan’s appearance in the recorded interview and before this court, it would certainly not be unreasonable to suggest that he was in his twenties. I note that Ms. Young’s estimate of the second male’s age was based entirely on what she could see of his body, as she never saw his face.
274Ms. Young described the second male as wearing faded black or grey shorts. Both Nott and Macdonald testified that Mr. Callaghan was wearing shorts when he jumped out of the bushes at the back entrance of 1 Coin Street. Neither Nott nor Macdonald noted the colour of the shorts. However, the top portion of Mr. Callaghan’s shorts is visible at times during his interview. The shorts appear to be darkish grey in colour.
275I find that the shorts that Mr. Callaghan was wearing during the interview on July 22 are the same shorts that Seguin seized from the Ford Escort that Mr. Callaghan was driving on July 24. The shorts, along with a striped vest and baseball cap, were on the floor behind the driver’s seat. I am satisfied that all three articles of clothing belonged to Mr. Callaghan, who was the sole occupant of the vehicle before he abandoned it during the police chase. There can be no doubt that the striped vest belonged to Mr. Callaghan, given the fact that a receipt in his name from the Ministry of Public Safety and Security was found in one of its pockets.
276Other documents seized by Seguin further strengthen the inference that the male clothing in the car belonged to Mr. Callaghan. For example, at the bottom of the green tote bag behind the front passenger’s seat, Seguin located an unopened envelope addressed to Andre Callaghan, as well as a Money Mart receipt in his name. An application by Mr. Callaghan and Ms. Roche for co-operative housing was found in the trunk. Also in the trunk was a man’s black vest, in the pocket of which was an Enterprise Rent-A-Car receipt in the name of Nancy Morissette. This name is linked to Mr. Callaghan by virtue of the fact that paperwork in Nancy Morissette’s name, including letters from Enterprise-Rent-A-Car, were located by Wyard in the black bag containing Mr. Callaghan’s birth certificate, OHIP card and SIN card, as well as the gun.
277Seguin initially described the colour of the shorts that she found in the Ford Escort as a dark army green, but acknowledged that they appear to be a “little browner” or similar to a camouflage colour in the photograph, Exhibit 21(bb). They could certainly be described as grey or faded black, which were the descriptors used by Ms. Young to describe the shorts worn by the second male.
278Defence counsel pointed out that based on the Crown theory, the second male rounded the corner of Ninth and Garnett Janes while in possession of the black bag that Evans later recovered from the bushes. Yet Ms. Young did not observe the second male to be carrying any bags or knapsacks. She did not see him pull anything out of his pockets.
279In my view, the fact that Ms. Young did not observe the second male carrying any bags does not necessarily mean that he was not in possession of the small black bag found in the bushes. The bag is quite compact and more like a purse. It had a shoulder strap. Since the bag and shoulder strap are both black, it would not likely have shown up against a dark shirt if slung over a shoulder, especially given the distance from which Ms. Young was making her observations and the limitations in terms of the lighting. In fact, if the bag were slung over the male’s left shoulder or on his left side, Ms. Young would not have seen it at all since, according to her evidence, she never observed the left side of his body.
280Ms. Young’s limited view of the male’s upper body was apparent from her testimony regarding his tee-shirt. She testified that she never saw the front or back of the tee-shirt, and was therefore unable to say if there were any logos on it. At another point in her evidence, she stated that when the male was fiddling with something in the bushes, she only had a view of the back portion and right side of his body.
281Ms. Young never described seeing the second male remove anything from his shoulder before he began fiddling in the bushes. However, as stated above, she did not have a view of his left side. In addition, Ms. Young’s attention was not entirely focussed on the second male. She testified, for example, that at one point she looked to see in which direction the cyclist had run. The rapidity with which all of these events took place – less than 60 seconds – must also be taken into account. Given the circumstances, the second male could well have had the black bag on his person without Ms. Young having noticed it.
282According to Ms. Young, the second male was wearing a dark-coloured tee-shirt. Mr. Callaghan, when he came out of the bushes, was wearing what Nott and Macdonald described as a blue long-sleeved hooded sweatshirt. The hood was not up. The shirt, as it appears in the recorded interview, is actually a tighter fitting garment than a sweatshirt and is royal blue. If the lighting were limited, it could appear to be dark in colour, but the style was certainly not that of a tee-shirt.
283Ms. Young made no observations of the second male’s hair style or the colour of his hair, as he was wearing a dark-coloured baseball hat. She only saw the top portion of the hat, and was therefore unable to say whether there were any logos on it.
284Nott could not recall and made no note as to whether Mr. Callaghan had anything on his head when he emerged from the bushes. Macdonald also failed to note whether or not Mr. Callaghan was wearing a hat. He testified that Mr. Callaghan was not holding anything in his hands when he handcuffed him. However, both Nott and Macdonald testified that the baseball hat on the table between them and Mr. Callaghan, as seen in the recorded interview, did not belong to either of them, and that it must have belonged to Mr. Callaghan. Macdonald was adamant that he would not have conducted an interview with some unknown party’s article of clothing sitting on the table in front of them. The only items on the table, aside from Nott’s and Macdonald’s notes, were the hat and a bottle of water, from which Mr. Callaghan took a drink at the end of the interview.
285Defence counsel submitted that the absence of any reference in Nott’s and Macdonald’s notes to Mr. Callaghan wearing a hat suggests that he was not wearing a hat. However, as Crown counsel pointed out, that may not necessarily have been the case. For example, the officers made no reference in their notes to Mr. Callaghan’s footwear, but that does not mean he was not wearing shoes. Unfortunately, the officers also failed to note whether Mr. Callaghan was wearing socks. As a result, there is no way to compare his clothing in that regard to the appearance of the second male, whom Ms. Young described as having his socks pulled all the way up.
286Nott’s and Macdonald’s evidence that the hat on the table during the interview belonged to Mr. Callaghan is supported by the fact that it appears to be the same style and colour as the baseball hat seized by Seguin from the Ford Escort two days later. As stated earlier, I am satisfied that the hat found in the Ford Escort belonged to Mr. Callaghan. Given the similarity between the two hats, the fact that the hat on the table during the interview did not belong to either Nott or Macdonald, and Macdonald’s evidence that he would not have conducted an interview with a potential distraction, such as an unknown person’s article of clothing, on the table between himself and the interviewee, I am satisfied that the hat seen in the DVD recording belonged to Mr. Callaghan. It follows that Mr. Callaghan was in possession of that hat when he first presented himself to Nott and Macdonald. Mr. Callaghan may have been wearing the hat when he emerged from the bushes, and the officers simply failed to note it, or it could have been in one of his pockets. In any event, the hat, which is light blue with a beige or grey brim, does not match Ms. Young’s description of the second male’s hat, which she testified was dark in colour.
287Defence counsel submits that Ms. Young’s evidence that the second male was wearing a dark-coloured baseball hat and a dark tee-shirt clearly distinguishes him from Mr. Callaghan. It was submitted that based on these two descriptors, Mr. Callaghan could not possibly have been the second male, and that he must therefore be acquitted on all counts.
288Defence counsel relied on the decision in Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474 (S.C.C.), where the court stated at p. 494:
Regardless of the number of similar characteristics, if there is one dissimilar feature there is no identification. According to the witness Holland, appellant did not have the assailant’s grey hair. This witness therefore did not identify him; he merely noted a resemblance.
289In R. v. Boucher, 2000 CanLII 3270 (ON CA), [2000] O.J. No.2373 (C.A), the appellants were charged with bank robbery. A customer in the bank testified that one of the robbers was wearing black tear-away pants and that if there had been any white striping on them, she would have seen it. A few minutes after the robbery, a witness observed the appellant Vaillancourt entering a hotel not far from the bank. That witness testified that Vaillancourt was wearing tear-away pants with a distinctive white stripe running from hip to ankle. Relying on the reasoning in Chartier, the court quashed the orders to stand trial. In speaking for the court, Rosenberg J.A., at para. 16, stated as follows:
As I said, the pants themselves were not produced in evidence at the preliminary inquiry. It may be that, if there were other evidence linking Mr. Vaillancourt to the robbery, it would be open to a trier of fact to find that the customer was mistaken about the white stripe. However, there is no other evidence and so what remains is no evidence that the perpetrator at the bank was Mr. Vaillancourt. [Emphasis added.]
290Unlike the situation in Boucher, there is other evidence in the present case linking Mr. Callaghan to possession of the gun, including the fact that it was found in a bag containing his identification, the “Back on Track” document in his name, and the Nancy Morissette paperwork, which is linked to Mr. Callaghan by virtue of the presence of a similar document found in his black vest in the car that he was driving on July 24. The court must take into account all of the evidence and consider and weigh Ms. Young’s description of the second male in the context of that evidence.
291The court must consider factors such as the lighting, distance, and the short time frame in which Ms. Young made her observations in assessing the reliability of her evidence with respect to the black tee-shirt and the baseball hat. The court must also take into account the fact that Mr. Callaghan, who was hidden in the bushes along with all his belongings for a number of minutes, had the opportunity to change his clothing prior to the arrival of the police.
292Evans and Reid received the dispatch regarding the sound of gunshots at 12:08 a.m., and arrived on scene at 12:12 a.m. Reid testified that by the time he walked east along Garnett Janes, south on Ninth Street, and reached the back entrance of 1 Coin Street, the police presence in the area was already obvious. Mr. Callaghan, however, remained hidden in the bushes, along with his belongings, and did not emerge until shortly after Nott and Macdonald arrived at 12:21 a.m. Thus, Mr. Callaghan had plenty of time – at least nine or ten minutes after the gunshots ended – to access the clothes in his bags and change his shirt and hat before presenting himself to the officers. Mr. Callaghan told Nott and Macdonald that he remained hidden in the bushes, along with his bags, for about five minutes, although on his version of events, he never left the bushes after the cyclist fired the shots on Ninth Street.
The black bag: Was the scene secure?
293Defence counsel submits that the scene of the shooting was not secure, and that property was “flying around” or was moved prior to the arrival of the police. Defence counsel noted that the black and yellow bicycle that the cyclist dropped on the road across from the garbage-bay door disappeared from that spot during the brief interval that Ms. Young returned to her apartment to retrieve her cell phone. A black and yellow bike was later located in the archway connecting 10 and 20 Garnett Janes Road. Ms. Young testified that that bike appeared to be similar to the cyclist’s bike. Although she could not say for certain that it was the same bike, it most likely was, given its similarity in size and colour, and its location, which was only a short distance from where the cyclist abandoned his bike.
294Defence counsel suggested that given the evidence regarding the moving of the bicycle, it cannot be concluded with any certainty that the locations in which the police found other items at the scene were necessarily where those items were originally situated. The suggestion was that some unknown party could have placed the black bag in the bushes or the gun in the bag during the same time period that the bicycle was moved and while Ms. Young was inside her apartment retrieving her phone.
295For the reasons already stated, I am satisfied that the second male placed the gun in the bushes after firing two shots in the direction of the cyclist. Again, I base this conclusion on Ms. Young’s observations of the movements and stance of the second male: the raising of his arm or arms straight out in front of him, the sound of two popping noises, the lowering of his arm or arms, and then his fidgeting with something in the bushes for two or three seconds. I note that the male did not simply toss an item into the bushes. His fidgeting is consistent with the placement of something within the shrubbery, which accords with Evans’ evidence that the bag was suspended in the branches when he found it a couple of minutes after arriving on scene. Although part of the shoulder strap was lying on top of the bushes, the bag itself could not be seen by passers-by. Evans only discovered it after parting the bushes with his hands. The shoulder strap would also not likely have been observed by passers-by, as the bushes, which were about a foot-and-a-half high, were growing on top of a five-foot high concrete wall beside the sidewalk.
296Other than the brief period in which Ms. Young returned to her apartment to retrieve her phone, she remained outside. She did not see anyone else go near those bushes while waiting for the police. Given all of the circumstances, I am satisfied that the person responsible for placing the gun in the bushes was the second male observed by Ms. Young.
297The evidence also establishes that the scene was properly secured after the arrival of the police, and that there was no opportunity for someone to tamper with the black bag.
298Evans observed the bag after parting the bushes with his hands. He lifted it up by the shoulder strap and placed it on the sidewalk. He did not touch the bag. The butt of the gun was plainly visible inside the main compartment of the bag, which was unzipped. Evans called Miron over and informed him that he had found a bag that looked like it contained a gun. At the direction of Miron, Evans secured the scene by running police tape from a tree on Garnett Janes to a lamppost at the corner of the intersection of Garnett Janes and Ninth. Evans stood guard over the scene, remaining within about ten feet of the black bag. He testified that no one entered the crime scene. No one went near the bag. At 2:35 a.m., Evans was relieved of his guard duties by P.C. Gill.
299Miron assigned both Evans and Osoba to guard the area where the black bag was located. He testified that although the officers would have made their own decisions as to their exact positions while guarding the bag, they would have been required to maintain the bag in their line of vision at all times.
300Osoba did not testify at this trial. However, the photographs, Exhibits 4(a) and 8, show him standing across the street and facing in the direction of the bag.
301Wyard recalled that when she first arrived on scene at 1:35 a.m., an officer, presumably Osoba, was standing close to the corner of the intersection and guarding the bag. She asked him to step back when she started photographing the bag and the intersection. Osoba does not appear in her photographs of Ninth Street that are facing south, but was captured by her camera in the photographs of Garnett Janes facing west – Exhibits 4(a) and 8.
302Kuhn testified that when he arrived on scene at 3:05 a.m., there was at least one uniformed officer in close proximity to the firearm, or within five feet of it.
303Miron testified that he stood nearby while Kuhn dealt with the gun. Miron never saw any officers other than Wyard and Kuhn touch the gun or go behind the crime scene tape in that area.
304The photograph, Exhibit 22(i), shows a scout car parked and facing west at the intersection of Ninth Street and Garnett Janes. Its headlights are illuminating the corner where Evans had placed the bag.
305In summary, the evidence establishes that the scene was secure and that the black bag was guarded from the moment that Evans found it in the bushes.
Contents of the black bag
306Wyard photographed the bag on the sidewalk as she found it. The butt of the gun was visible in the open unzipped central compartment. She removed the gun and then photographed it on the sidewalk beside the bag. After her unsuccessful attempts to prove the gun safe and her request for an ETF officer to attend, Wyard reached into the central compartment and removed what turned out to be Mr. Callaghan’s birth certificate, OHIP card, SIN card, and various business cards. She did not photograph these items before removing them from the bag. Nor did she photograph each individual card after she removed them. She did, however, photograph them in a stack, with the OHIP card on top. The photograph, Exhibit 11(c), shows the gun, the magazine that Wyard removed from the gun, and the stack of cards, all of which are on the sidewalk beside the black bag. Later on, when she returned to her office, Wyard spread out the cards so that she could photograph them individually. One item that she overlooked and failed to photograph was the document entitled “Back on Track – Six Month Follow-Up Notice,” which was in the name “André Callaghan” and dated April 8, 2013. She testified that this document was in the central compartment of the bag, but was unsure whether it was with Mr. Callaghan’s identification documents or separate from them. The first time that Wyard mentioned this document was at this trial. Despite the fact that Wyard overlooked and failed to photograph this item, I am satisfied that she did, in fact, find it in the bag, along with the other documents in the central compartment.
307Wyard was cross-examined in great detail about the location of the Nancy Morisette documents and other paperwork that she testified were in the open back pocket of the black bag. Photographs taken of the bag at the scene do not show any paperwork protruding from that pocket. In cross-examination, when asked to refold the documents and place them in the back pocket as she had found them, Wyard was unable to do so without some paperwork protruding. In the end, I find that this exercise suggested one of two things: either the paperwork, as a result of being removed from envelopes, unfolded, and then handled during the course of this trial, was not as flat as it originally had been, or Wyard was mistaken as to where in the bag she located these documents. Again, I am satisfied that the documents were, in fact, in the bag.
308Wyard agreed that the preferred practice for her to have followed in this case would have been to photograph all the documents and paperwork before taking them out of the bag. It would also have been preferable if she had photographed the Morissette documents at the scene. Wyard attributed her failings in this regard to her concern about the firearm. Her primary focus after discovering the loaded gun and removing it from the bag was to prove it safe. She agreed that after the firearm had been proved safe, she should have taken more care in terms of photographing the other items as they appeared in the bag. Since she did not photograph the Morissette documents before removing them, and having failed to note their location in her memo book, she cannot say for certain that they were in the back pocket, although she was 100 percent certain that they were in the bag.
309Although Wyard was cross-examined in great detail regarding the location of various documents in the black bag, it was never suggested to her that those documents were not in the bag. There is no suggestion that any documents were somehow planted in the bag.
310Based on the documentation found in the bag, there can be no doubt that the bag belonged to Mr. Callaghan. The bag contained his most important identification documents – his birth certificate, SIN card and OHIP card. The “Back on Track” notice was also in his name.
311The Nancy Morissette documents in the black bag are also clearly connected to Mr. Callaghan. Those documents included, among other things, six letters from Enterprise Holdings regarding parking tickets with respect to rental vehicles. The letters requested that payment be made to Enterprise Rent-A-Car. On July 24, 2014, Officer Seguin located an Enterprise Rent-A-Car receipt for $840.77 in the name of Nancy Morissette in the pocket of a man’s vest in the trunk of the Ford Escort. The receipt related to the rental of a vehicle from March 18 to April 15, 2014. For the reasons stated earlier, I am satisfied that the vest belonged to Mr. Callaghan, who was the sole occupant of the Ford Escort before he abandoned it and fled into the ravine.
The black bag and the black LG cell phone
312The presence of the black LG cell phone in the black bag is further confirmation that the bag belonged to Mr. Callaghan, although its significance in that regard was not immediately apparent when Wyard first discovered it. It was not until July 24, 2014, when Macdonald was processing Mr. Callaghan’s belongings seized from the back entrance of 1 Coin Street that the police made the connection between Mr. Callaghan and the LG phone: Macdonald located the chat-r service contract for the phone in the pocket of a pair of blue jeans in Mr. Callaghan’s grey duffel bag.
313Wyard did not discover the LG cell phone in the bag containing the gun while she was at the scene. Nor did she find it during her initial examination of the bag when she returned to her office. In the end, she only located the phone by happenstance, when it started to ring as she was preparing the black bag and its contents for storage in the property/evidence handling room around 8:25 a.m., which was towards the end of her shift. It was at that time that she realized there was a zippered pocket behind the seam running along the front of the bag, and that the seam was not just part of the bag’s design. The cell phone was the only item in the front pocket.
314Wyard did not attempt to excuse her failure to find the phone. She admitted that she ought to have examined the bag more thoroughly, including “squishing” it in order to check for the presence of any other items. I accept her evidence as to how and when she discovered the cell phone, and that it was, in fact, in the front pocket of the bag.
315Although it was suggested to Wyard during cross-examination that the LG cell phone was not in the black bag – a suggestion that Wyard denied – I understand that the main thrust of defence counsel’s submissions with respect to the phone is that the Crown has failed to establish that the black LG cell phone found in the black bag is the same black LG cell phone that has been marked as Exhibit 44 at this trial.
316I find that continuity with respect to the black LG cell phone has been established, and rely on the following evidence in this regard.
317Although Wyard did not immediately photograph the phone after she discovered it in the front pocket, she secured it by sealing it in the same property bag containing the black bag and the other items found within that bag. She then placed the property bag on a shelf in Room 127, which is a locked room at FIS. The shelf where Wyard placed the bag was specifically designated for property that she was securing.
318Wyard commenced her next shift later that day, that is, on July 22, 2014, at 11:00 p.m. Later on during her shift, on July 23, she spoke to Miron and discussed the processing of the items that she had seized at the scene. It was during this discussion that she told him that she had found a cell phone in the black bag containing the gun. Miron testified that this conversation took place at 1:22 a.m. Miron told Wyard that he would come to her office and pick it up. Miron testified that he intended to get a search warrant for the phone in the hope that it contained information that could lead to the whereabouts of Mr. Callaghan, who had not as yet been arrested.
319At 1:30 a.m., Wyard retrieved the property bag containing the black bag, the cell phone, and other items found in the bag, and broke the seal. She removed the phone. She then photographed the front and back of the phone, and took two more photographs with the home screen activated. The date and time – July 23, at 1:31 a.m. – is visible on the phone, and accords with the date and time recorded by Wyard’s camera.
320Defence counsel pointed out that Wyard did not photograph the phone in the black bag or on top of the bag’s front pocket as a way of demonstrating or recording the fact that she found it in that pocket. That may have been the preferable way to proceed. However, in all of the circumstances, I find that little turns on Wyard’s failure to include the bag in the photographs of the phone. I also find that her failure to immediately photograph the phone upon discovering it is of little moment. She sealed it in the same property bag containing the black bag and other items, and then secured it in Room 127. The next day, she broke the seal and retrieved the phone.
321Wyard turned over the phone to Miron at 1:45 a.m. The phone was in a paper bag. Wyard testified that she noted the time in her memo book because it is important to record when property is transferred from one officer to another. She did not assign a property tag number to the phone, as the phone was not as yet going to the Property Bureau or into the DLMS system. Instead, she “tracked” the phone in her notes: it had been sealed in a numbered property bag and stored in room 127. She later broke the seal, removed the phone from the property bag, photographed it, and gave it to Miron.
322Miron’s evidence confirmed that he received a black LG cell phone from Wyard at 1:45 a.m. on July 23, 2014. The phone was the only property that he received from Wyard. It was in a paper bag. There was no property tag attached to it.
323Miron testified that he put the phone in his desk drawer upon his return to 22 Division. He intended to secure it in the property locker at the end of his shift, but forgot and left it in his desk. The desk drawer was locked. He was the only person with a key.
324Mr. Callaghan was arrested on July 24, at around 4:30 a.m. Miron attended at the scene of the arrest, and returned to 22 Division at 5:30 a.m. He later retrieved the black LG cell phone from his desk drawer and gave it to Macdonald, who was processing Mr. Callaghan’s bags that had been seized outside the back entrance of 1 Coin Street on July 22.
325Miron testified that when he turned over the phone to Macdonald, his purpose in retrieving it from Wyard no longer existed, as Mr. Callaghan had been located and arrested. Miron no longer needed to obtain a warrant for the phone and search it for information that could lead to Mr. Callaghan’s whereabouts. It made sense in these circumstances to give the phone to Macdonald, so that it could be submitted to the Property Bureau, along with the rest of Mr. Callaghan’s property.
326Defence counsel submitted that the phone ought to have been returned to Wyard so that it could be kept with the black bag, where Wyard originally found it. In my view, there was no compelling reason to return the phone to Wyard. Although Macdonald listed the phone on the same property report that included items from Mr. Callaghan’s bags left outside the back entrance of 1 Coin Street, he assigned a separate property tag to the phone, and sealed it in a separate property bag. There is no basis in these circumstances to draw an inference that the black LG phone was found in Mr. Callaghan’s bags outside the back entrance.
327Miron made no notes of having left the cell phone in his desk drawer overnight, or of handing the phone to Macdonald the next day. His first mention of these matters was in a supplementary will-say statement, dated April 22, 2016, which he prepared at the request of the Crown. However, he testified that he had an independent recollection of putting the phone in his desk and giving it to Macdonald the next day. He testified that his notes were prepared to refresh his memory, and the fact that he failed to mention something in his notes did not mean that it did not happen.
328Miron’s evidence that he handed over the phone to Macdonald on the morning of July 24 is supported by Macdonald’s testimony.
329On July 24, at 6:53 a.m., Macdonald located the chat-r service contract for a black LG cell phone, number 647-534-8972, in the back pocket of the size 34 Armani blue jeans that were in Mr. Callaghan’s grey duffel bag. The inference may be drawn that those jeans belonged to Mr. Callaghan: when speaking to Nott and Macdonald, Mr. Callaghan referred to the duffel bag and the three other bags in the bushes outside the back entrance of 1 Coin Street as his property. Defence counsel pointed out that there appear to be some female articles, such as shoes, in the bags. That does not, however, weaken the inference that the male clothing in the bags belonged to Mr. Callaghan, given his declaration of ownership over the bags.
330Macdonald testified that at 7:20 a.m., Miron turned over to him a black LG cell phone, and told him that the phone was found in the same black bag containing the gun and Mr. Callaghan’s identification documents.
331At 7:25 a.m., Macdonald accessed the settings of the phone and discovered that it had the same number as the phone that was the subject of the chat-r service contract found in the jeans. Miranda also accessed the properties of the phone, photographed it (although I note that the photograph of the phone was not produced or entered as an exhibit) and returned it to Macdonald.
332Macdonald attached Property Tag number P321992 to the phone, and sealed it in a clear plastic Property Bag, with the number C1503819.
333On April 29, 2016, P.C. Newmarch retrieved a black LG cell phone with the same property tag and property bag numbers from the Property Bureau, and placed it in a secure locker at 22 Division. He retrieved it from that locker on May 2, 2016, and brought it to court, where it was marked as Exhibit 44. The property tag and Macdonald’s property report are stapled to the property bag containing the phone. The bag was sealed. Writing on the bag indicates that Macdonald sealed it on July 24, 2014, at 8:30 a.m. Macdonald’s signature also appears on the bag.
334There were two other cell phones seized during this investigation. However, they are clearly distinct from the black LG cell phone found by Wyard in the black bag, as they had different brand names. Those phones were as follows:
On July 24, Seguin photographed and seized a Huawei cell phone located on the driver’s seat of the Ford Escort [see Exhibits 21 (f) and (g)].
On July 24, at 5:35 a.m., an officer with badge number 9598 asked Miranda to photograph a black Alcatel phone. This officer told Miranda that the phone had been seized at the scene of Mr. Callaghan’s arrest, although he did not say specifically where the phone was seized. Miranda could not recall this officer’s name, but it was not Macdonald, who has a different badge number.
335Defence counsel relies on hearsay evidence given by Wyard in support of the submission that a fourth phone was seized during the investigation. It was submitted that the existence of this fourth phone casts doubt on the issue of continuity with respect to the black LG cell phone seized by Wyard from the black bag.
336Wyard testified that during her conversation with Miron at 1:22 a.m. on July 23, wherein he told her that he would attend at her office to pick up the LG cell phone, he commented that another cell phone had been recovered from the scene and that it was in his possession. He did not say where it was found, what type of phone it was, or provide any other details about it. This was the first time that Wyard had heard about another phone being found at the scene. She testified that no one at the scene had advised her that a cell phone had been located there. Wyard did not take any photographs of a cell phone at the scene.
337Wyard’s testimony regarding Miron’s statement that he was in possession of a cell phone found at the scene is hearsay and can be given very little, if any, weight. This is particularly so in light of the fact that Miron, who testified for the better part of a day during this trial, was never asked any questions by defence counsel about his alleged possession of a cell phone. It was never suggested, for example, that he had two cell phones locked in his desk drawer and that he may have given Macdonald a phone other than the one he received from Wyard.
338The reliability of Wyard’s evidence in this regard is questionable. It makes no sense that if a cell phone had been found at the scene of the shooting, Wyard would not have been apprised of that fact. The evidence indicates that Miron made efforts to ensure that she was fully briefed with respect to the scene so that she could properly process it.
339Miron and Wyard both testified that upon her arrival at 1:35 a.m., they walked around the crime scene together while Miron briefed her on items of interest that were known to him at that time. He advised Wyard of the shell casings that he had found on Ninth Street. He showed her the location of the black bag containing the firearm, the bullet holes in the glass door at the back entrance of 1 Coin Street, and the bags belonging to Mr. Callaghan near that entrance, which were behind the crime scene tape. Miron testified that he never touched those bags. As far as Miron was aware, the only officers who handled the bags were Wyard, who photographed them, and Macdonald and Nott, who seized and transported them to 22 Division, where they were secured in a temporary locker. It is an admitted fact at this trial that Macdonald was the only officer who accessed that locker between July 22, 2014, at 4:55 a.m. and July 24, 2014, at 10:44 a.m. Macdonald did not begin his examination of the contents of the bags until after Mr. Callaghan’s arrest on July 24. Clearly, any cell phone found at the scene did not come from those bags.
340Miron and Wyard interacted with each other at various times throughout the night as she processed the scene. At 2:38 a.m., Wyard told Miron that she had found Mr. Callaghans identification documents in the bag containing the firearm. She showed Miron Mr. Callaghans OHIP card. Miron was present when Wyard photographed and then seized the firearm, magazine, the black bag and all its contents. Miron never took possession of the bag or its contents.
341Miron arranged for the attendance of an ETF officer to attend when Wyard advised him that she could not prove the gun safe. He was present when Kuhn dealt with the gun.
342Miron waited in his vehicle as Wyard continued to process the scene. At some point, after Wyard had seized the cartridge casings, he reduced the size of the crime scene by re-opening Ninth Street.
343Miron left the crime scene before Wyard: he left at 5:00 a.m.; she left at 5:38 a.m. Given Mirons efforts to brief Wyard with respect to the scene, and their communication during Wyard’s processing of the scene, it seems unlikely that Miron, had he learned of the presence of a cell phone, would not have brought it to Wyards attention at that time. As noted earlier, Miron was never asked any questions about his possession of a cell phone other than the one that he received from Wyard when he attended at her office. He was never asked whether a cell phone allegedly found at the scene was brought to his attention while he was at the scene, or at any time during the investigation after he left the scene and before he met with Wyard to take possession of the black LG phone.
344Having considered all of the evidence with respect to the issue of continuity, I am satisfied that the black LG cell phone seized by Wyard from the front pocket of the black bag is the same phone that Miron handed to Macdonald on July 24. The phone belonged to Mr. Callaghan, as is evident from the fact that the chat-r service contract for it was in his jeans located in the grey duffel bag.
Mr. Callaghan’s ownership of the black bag
345As stated earlier, Mr. Callaghan clearly owned the black bag. It was the bag where he kept his cell phone and his most important identification documents – his birth certificate and OHIP and SIN cards – as distinct from his credit cards, which he kept in his wallet. [The wallet was found in a pair of blue jeans in the black garbage bag outside the back entrance]. Mr. Callaghan also kept the Nancy Morissette paperwork and his “Back on Track” notice in the black bag.
346Crown counsel submits that in these circumstances, the only reasonable inference that can be drawn with respect to the gun is that it, like everything else in the bag, belonged to Mr. Callaghan. He had knowledge and control over the gun, was the person who fired it at the cyclist on Garnett Janes, and then hid it in his bag in the bushes.
347Defence counsel submits that Mr. Callaghan was not necessarily the person who placed the gun in the bag and that there is at least a reasonable doubt in this regard. She suggests that Mr. Callaghan could have at some point become separated from his bag, which ended up in the bushes at the corner of the intersection and where someone, unbeknownst to Mr. Callaghan, placed the gun inside it.
348The difficulty with defence counsel’s submission is that it is mere speculation that some third party was responsible for separating Mr. Callaghan from his black bag. There is no evidence to suggest that Mr. Callaghan could have unwittingly become separated from that bag. In fact, as Crown counsel observed, Mr. Callaghan’s statement to police indicates that there was no opportunity for anyone to take any of his property while he was at the back entrance of 1 Coin Street.
349Mr. Callaghan told the police that he had been sitting at the top of the stairs at the back entrance with his belongings for about five or ten minutes before the cyclist fired shots in his direction. Mr. Callaghan stated that he then dove into the bushes, grabbed “his stuff”, and remained there with his property for another five minutes, at which point he presented himself to the police. Thus, according to his statement, Mr. Callaghan remained in close proximity to his belongings during the entire time that he was at the back entrance, either sitting at the top of the stairs, or hiding in the bushes. He said nothing to the officers about any of his property being lost, misplaced, or stolen. He made no mention of seeing or encountering anyone during that time period who would have been in a position to take any of his belongings, such as his black bag. In fact, when asked by Nott if he saw anyone in the area matching the description of the shooter before any shots were fired and as he waited for Ms. Roche, Mr. Callaghan stated that there was no one around: “No. Nobody was – no, it was dead.”
350Mr. Callaghan’s statement to police is problematic in that based on his version of events, there is no explanation as to how he became separated from his black bag.
351Defence counsel submits that it makes no sense that Mr. Callaghan would leave the gun in a bag that contained his identification documents. However, as Crown counsel pointed out, the bag was secreted in the bushes in such a way that it was not obvious to passers-by and probably would not have been found by police but for the information provided by Ms. Young. Mr. Callaghan could then have retrieved his bag at some later time.
Mr. Callaghan’s opportunity to flee the scene
352Defence counsel pointed out that if Mr. Callaghan was the male who fired shots at the cyclist on Garnett Janes, he had plenty of time to flee prior to the arrival of the police. It was submitted that his remaining at the scene is consistent with his innocence and inconsistent with guilt. However, Mr. Callaghan’s flight from the scene would have been somewhat problematic, given the fact that all his belongings were outside the back entrance of 1 Coin Street. If he had fled, the police would have deduced his presence at the scene in any event, given the credit cards and other documents in his name that were contained in his belongings. I also note that there was not a great deal of time to flee, as the police arrived and secured the scene within minutes.
Mr. Callaghan’s cooperation with the police
353Defence counsel pointed out that Mr. Callaghan presented himself to the police, co-operated with them, and answered all of their questions. In fact, he started explaining why he was at the scene even before he was asked any questions. He agreed to be interviewed at the police station. He did not resist being handcuffed, although I note that it would have been futile to resist or flee at that point, given the number of officers in the area. Mr. Callaghan did not become upset when told that his belongings would not be returned to him until after the crime scene tape had come down. Again, it would have been fairly obvious that arguing this point with the officers would not be productive.
Mr. Callaghan’s delay in presenting himself to the police and his giving a false name to the police
354Although Mr. Callaghan came out from the bushes and presented himself to the police, he delayed doing so for a number of minutes after he would have known that the police were on scene.
355As noted earlier, Evans and Reid were dispatched to the scene at 12:08 a.m., which presumably was very shortly after the shots were fired and residents began calling 911. Evans and Reid arrived at 12:12 a.m. Another scout car arrived virtually at the same time. Evans recalled that Reid, who was driving, had activated the car’s lights and siren, thereby clearly announcing their arrival. According to Reid, he did not activate the lights or siren. However, even if Reid is correct, the police presence became obvious very quickly. Reid testified that by the time he reached the back entrance and observed the bullet holes in the glass door, there were more officers on scene and more police activity. The police presence was “no secret.” Reid, who was in uniform, testified that he may well have gone up to the doors in order to take a closer look at them. If that were the case, Mr. Callaghan would have been just a few feet to his right and hidden in the bushes. Reid notified the dispatcher of the bullet holes and then secured the crime scene by running police tape in a southerly direction from the back entrance to Tenth Street. Another officer ran police tape north on Ninth Street up to the southwest corner of Ninth Street and Garnett Janes. This tape ran right past the area where Mr. Callaghan was hiding in the shrubbery.
356Miron arrived at 12:17 a.m. Osoba, who was already at the scene, informed him about the bag containing the firearm.
357Nott and Macdonald, who testified that they heard the dispatch regarding gunshots at 12:11 a.m., arrived about ten minutes later, at 12:21 a.m. Uniformed officers and officers from the Major Crime Unit were already there. The crime scene tape was in place.
358Given the police activity, it is clear that Mr. Callaghan must have known of the police presence for a number of minutes before emerging from the bushes shortly after 12:21 a.m. The question arises as to why he delayed presenting himself to the officers.
359The position of the Crown is that after discharging his firearm at the cyclist, Mr. Callaghan returned to the back entrance of 1 Coin Street and hid in the shrubbery, hoping that the police would not find him. The Crown submits that Mr. Callaghan only came out of the shrubbery when he realized that he would likely be discovered, given the heavy police presence and the fact that he and his bags ended up behind the police tape and within the designated crime scene. By then, Mr. Callaghan had had time to think about what he would say to the officers. After attempting to mislead them about his true identity, he told a number of half-truths that successfully convinced Nott and Macdonald that he was a victim/witness and not a suspect.
360In my view, Mr. Callaghan’s delay in presenting himself to the police would not, by itself, be particularly significant. Although one might expect that an innocent bystander to a shooting would be relieved to see the police and would not remain hidden from view, different people may react in different ways to stressful situations. There is no doubt that Mr. Callaghan had narrowly missed being shot that night. Five bullets were fired in his direction. However, Mr. Callaghan’s delay in coming forward, when considered along with the fact that he gave Macdonald a false name, casts a different light on the delay and suggests that it was not simply attributable to an emotional reaction from the shooting. It suggests, as Crown counsel submits, that Mr. Callaghan wanted to avoid contact with the police if possible. He clearly did not want the police to know who he was.
361Mr. Callaghan initially identified himself as “Andre Williams.” “Williams” may have been Mr. Callaghan’s mother’s name, but it was clearly not Mr. Callaghan’s, based on the numerous pieces of identification that the police located during this investigation.
362Mr. Callaghan’s birth certificate and OHIP card are both in the name, “Andre Cortney Callaghan.” His SIN card is in the same name but spelled slightly differently: “André Courtney Callaghan.” His passport application, which was found in the black garbage bag outside the back entrance of 1 Coin Street, was in the name “Andre Callaghan.” Mr. Callaghan’s wallet, which was also in the black garbage bag, contained various cards in the name “Andre C. Callaghan.” These included a Manulife Financial Card, a CIBC Aerogold card, an HBC Rewards card, a Hudson Bay Mastercard, and a Hamilton Library card. A Yale lift truck operator’s card was in the name “Andre Callaghan.”
363Documents found in Mr. Callaghan’s grey duffel bag included a Good Life Fitness card and a Budget Rental agreement, both of which were in the name “Andre Callaghan.” A CIBC card was in the name “Andre Courtney Callaghan.”
364Documents located by Seguin in the Ford Escort included a receipt from Money Mart in the name of Andre Callaghan, and an unopened envelope from Liftow Ltd. that was addressed to Andre Callaghan. Mr. Callaghan’s application for co-operative housing was in the same name.
365Macdonald, after receiving no response on the police data bases for the name Andre Williams, warned Mr. Callaghan that he could be charged with obstructing police by providing a false name. Mr. Callaghan responded by stating that he also went by the name “Andre Williams Callaghan.” That response was not entirely accurate based on the documents referred to above. The name “Williams” does not appear on any of them. However, the name Andre Williams Callaghan, along with Mr. Callaghan’s correct birth date, was apparently sufficient for Macdonald to get results from his computer check.
366The question arises as to why, if Mr. Callaghan was merely a victim hiding in the bushes, he would attempt to conceal his true identity from the police. There is no evidence that he was in jeopardy of being arrested. For example, he was not found committing an offence, and there is no evidence that there were any outstanding warrants for his arrest, which might have provided a motive for falsely identifying himself. There was, however, a gun on scene that was in Mr. Callaghan’s black bag, along with his identification in the name “Andre Courtney Callaghan.” The inference could reasonably be drawn in the circumstances that Mr. Callaghan’s act of giving a false name to Macdonald was an attempt to prevent the police from connecting him to the gun in his bag.
367Mr. Callaghan’s attempt to deceive the police about his identity is, of course, only a piece of circumstantial evidence that must be considered along with all of the evidence in determining whether the Crown has established beyond a reasonable doubt that Mr. Callaghan was in possession of the firearm.
After the fact conduct: Mr. Callaghan’s failure to stop for the police and his flight from police on July 24, 2014
368On July 24, Mr. Callaghan led the police on a pursuit through South Etobicoke, across the QEW to Oakville, back to Toronto, and up to Rexdale in Northwest Toronto. He then abandoned his vehicle, fled into a wooded ravine, and hid until he was located about an hour later by the canine unit.
369Crown counsel submits that Mr. Callaghan’s failure to stop for the police and his flight from police is evidence of consciousness of guilt in respect to the firearm offences. The Crown argues that it does not make any sense that Mr. Callaghan would commit two Criminal Code offences – dangerous driving and failing to stop for police while being pursued by police – in order to avoid the Highway Traffic Act offence of driving while his licence was suspended.
370I am not satisfied that Mr. Callaghan’s flight is evidence of consciousness of guilt regarding the firearm, given the existence of an alternate explanation for his conduct. He was committing the offence of driving while his licence was suspended when he was stopped by Officer Tamse. His flight is consistent with an effort on his part to avoid being charged with that offence, and is of no evidentiary value with respect to the charges before the court.
Mr. Callaghan’s statements to police
371Although Mr. Callaghan did not testify, his statements to police, both at the scene and later at 22 Division, were exculpatory. In light of his exculpatory statements and other evidence favourable to the defence, the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, apply. If I believe Mr. Callaghan’s statements to the police, then I must find him not guilty of the offences. Even if I do not believe Mr. Callaghan’s statements, I must acquit Mr. Callaghan if I have a reasonable doubt as a result of those statements or other evidence favourable to the defence. Finally, even if that evidence does not leave me with a reasonable doubt, I must still go on to determine whether the Crown has proved Mr. Callaghan’s guilt beyond a reasonable doubt.
372In assessing Mr. Callaghan’s statements, I am entitled to consider them in the context of all of the other evidence.
373The statements made by Mr. Callaghan to the police were not given under oath, although Nott, prior to commencing the interview, advised him that it was a criminal offence under ss. 139 and 140 of the Code to make false statements to the police during an investigation. He also advised him that if he recanted his statement or claimed it to be false, he could be charged with fabricating evidence under s. 137.
374In assessing the credibility and reliability of Mr. Callaghan’s statements to the officers, I take into account that Mr. Callaghan lied to Macdonald when asked to identify himself, and only provided his correct last name after being warned that he could be charged with obstructing police. Even then, Mr. Callaghan did not provide an entirely correct name, as he indicated that his middle name was Williams.
375Mr. Callaghan denied to Nott and Macdonald that he was the target of the shooting, stating that he did not have any beefs with anyone. I note, however, that Mr. Callaghan was clearly in the direct line of fire, as evidenced by the location of the bullet holes. Mr. Callaghan was sitting at the top of the stairs and in front of the double glass doors at the rear entrance at the time of the shooting. He told the officers that he dove into the bushes just north or to the right of the landing. The police located a bullet strike on the right hand side of the top step, two bullet holes in the lower half of the glass door that was on the right hand side, and a third bullet hole higher up on the door frame to the right.
376There is no doubt that some of the information that Mr. Callaghan provided to Nott and Macdonald was correct, as it was supported by other evidence. For example, Mr. Callaghan described the shooter as one of about eight cyclists heading north on Ninth Street. The first male observed by Ms. Young was on a bicycle heading north on Ninth Street before he turned left at Garnett Janes, dropped his bike and fled on foot in a westerly direction.
377Mr. Callaghan’s statement that the shooter was part of a group of cyclists was supported by the testimony of Reid, who stopped briefly to speak to a group of at least four cyclists on his way to the scene. The group was proceeding north on Ninth Street and coming from the area where the sound of gunshots had been heard. However, unlike the cyclist observed by Ms. Young, these cyclists did not appear to be in a hurry.
378In his recorded interview, Mr. Callaghan described the cyclists, including the shooter, as white youths in their early to mid-twenties. Reid gave a similar description of the cyclists he encountered: they were white youths, 17 to 19 years old, or possibly in their twenties. [I note that Nott testified that in his initial conversation with Mr. Callaghan at the scene, Mr. Callaghan described the shooter as a white or light-skinned black male.]
379Mr. Callaghan’s statement that he heard four or five shots is consistent with the forensic evidence: five shell casings, all fired from the same gun, were located on Ninth Street.
380Although parts of Mr. Callaghan’s statement are true, Mr. Callaghan was not entirely forthright in speaking to the officers. His statement contained a material omission in that he failed to mention anything about the second volley of shots, which were fired by the second male on Garnett Janes. Mr. Callaghan was in the area at the time and could not possibly have missed hearing those shots. If, as he portrayed himself to Nott and Macdonald, he was simply an innocent bystander who happened to be in the wrong place at the wrong time, he would have had no reason not to tell the officers about this second round of gunfire. Yet he said nothing about it. Mr. Callaghan’s silence in this regard is telling. It supports an inference that he was somehow connected to the second volley of shots and did not want the officers to know about it.
381Defence counsel submits that Mr. Callaghan’s statement to police about the popping sounds that he heard could, in fact, be interpreted as a reference by him to a second volley of shots. I disagree. As noted earlier, when asked by Nott about the number of shots he heard, Mr. Callaghan stated that there were four or five, which is consistent with the number of casings found on Ninth Street. Nott then asked if the shots were consecutive or if there were any pauses between them. Mr. Callaghan stated that they were consecutive. Nott then asked him, “Pop pop pop pop?” Mr. Callaghan responded, “Just pop pop pop pop. Maybe ah one pause paw (sic) paw (sic) paw (sic).” The pause indicated by Mr. Callaghan in this response, as evident in the DVD recording, is barely a pause. What Mr. Callaghan was clearly conveying to the officers was that there were four or five shots that were virtually consecutive, with maybe one brief hesitation between them at some point.
382The pause between the first five shots fired on Ninth Street and the shots fired on Garnett Janes by the second male observed by Ms. Young, although not long, would certainly have been longer than the momentary pause indicated by Mr. Callaghan in his interview. According to Ms. Young, a few seconds elapsed between the first popping sounds that she heard and the point where she saw the cyclist round the corner, drop his bike, flee on foot, and the second male appeared. The second male slowed his pace from a run to a walk after he rounded the corner. He then raised his arm or arms, at which point Ms. Young heard two more popping noises. As stated, although the interval between the two volleys of shots would not have been lengthy, and would have been in the range of a number of seconds, it would certainly have been lengthier than the pause of a fraction of a second described by Mr. Callaghan.
383As far as Nott could recall, Mr. Callaghan never referred in his interview to a second volley of shots, although in fairness, the recorded interview was not played during his testimony. The interview was played during Macdonald’s evidence-in-chief. In cross-examination, when Macdonald’s attention was brought to this particular portion of the transcript, at page 18, he agreed that it could possibly be interpreted as a reference to two separate volleys, although his impression was that Mr. Callaghan was speaking about only one event or volley of shots.
384In my view, having reviewed this portion of the recorded interview several times, there can be no question that Mr. Callaghan was referring to and describing only one volley of gunfire, consisting of four or five shots that were consecutive, with maybe one pause of a fraction of a second between them at some point.
385As stated above, there is no question that Mr. Callaghan would have heard the second volley of shots on Garnett Janes. He chose, however, not to disclose this information to the officers.
386Mr. Callaghan told Nott and Macdonald that he dove into the bushes when the cyclist opened fire, and that he remained there until he presented himself to the police. Mr. Callaghan’s assertion that he remained in the bushes is problematic for two reasons. First, if it were true, Mr. Callaghan would have seen the second male running south on Ninth Street, as described by Ms. Young. In fact, that individual would have run right past Mr. Callaghan. It is doubtful that the male could have veered east as there appears to be a fairly high brick wall running along the east side of Ninth Street in that area [see Exhibits 22 (h), (i), and (j), and the aerial photograph, Exhibit 3]. It was very quiet at the time. Ms. Young did not see anyone else around. In these circumstances, it is highly unlikely that Mr. Callaghan could have missed seeing or hearing this individual run by, if, in fact, he was telling the truth that he remained in the bushes by the back entrance and did not leave until the police arrived. Yet Mr. Callaghan said nothing to Nott and Macdonald about having observed such a person. This omission suggests that Mr. Callaghan did not remain in the bushes, and that his statement to Nott and Macdonald is not true.
387The Crown’s position is that Mr. Callaghan did not tell the officers about a person running south on Ninth Street because that person was Mr. Callaghan himself. It is noteworthy that the second male’s direction of travel led directly to the back entrance of 1 Coin Street, where Mr. Callaghan was hiding when the police arrived.
388Secondly, Mr. Callaghan’s statement that he remained hidden in the bushes after the shots were fired until the police arrived is problematic as it is not possible on that scenario for Mr. Callaghan to have become separated from his black bag. As stated earlier, there is no evidence to support the proposition that some third party stole or took his bag, either while Mr. Callaghan was waiting for a ride before the shots were fired, or as he hid in the bushes with his belongings after the shots were fired. According to Mr. Callaghan’s statement, his belongings would have been in close proximity to him at all times, and there were no other people around. Thus, according to Mr. Callaghan’s account, there was no opportunity for some third party to have taken his black bag and put it in the bushes.
389Since no third party could have taken his bag and put it in the bushes, it follows that Mr. Callaghan himself must have separated it from the rest of his property at some point and put it in the bushes. However, it does not make any sense that Mr. Callaghan, while waiting for his ride at the back entrance, would have separated the bag containing his important ID documents and his cell phone, which people normally keep close at hand, from the rest of his property, and hidden it some distance away in bushes at the corner of the intersection. As unlikely and illogical as that scenario may be, it is even more unlikely and indeed would be a very strange coincidence if the second male observed by Ms. Young just happened to pick that same spot to hide the gun, happened to find Mr. Callaghan’s black bag in the dark in the bushes, and then placed the gun inside the bag.
390Since it makes no sense that Mr. Callaghan would have placed his bag in the bushes before any gunshots were fired, the logical inference is that he must have placed it in the bushes sometime after gunshots were fired in his direction. If that were so, the rapidity with which events took place after the first volley of shots, as described by Ms. Young, leads to the inference that Mr. Callaghan was the second male observed by her. Ms. Young testified that after hearing the first two shots or popping sounds, she saw the cyclist round the corner and drop his bike, at which point the second male come running around the corner. All these events took place within a few seconds. Only a further 20 to 30 seconds elapsed between the point where the second male raised his arm or arms, she heard another two popping sounds, the second male lowered his arms, fiddled with something in the bushes at the intersection, and then headed south on Ninth Street. The direction in which the second male headed would have taken him past the back entrance of 1 Coin Street, where Mr. Callaghan told the police he had remained hidden from the moment the first gunshots were fired. However, as noted above, Mr. Callaghan made no mention to the police of seeing a male run past his hiding spot.
391In summary, I did not find Mr. Callaghan’s unsworn statement to police that he remained hidden in the bushes after the cyclist fired shots in his direction until the police arrived to be credible or reliable. In reaching this conclusion, I have considered his statement in the context of all of the evidence. Furthermore, Mr. Callaghan’s statement that he never left the bushes after the cyclist fired shots in his direction, along with other evidence favourable to the defence, including his remaining at the scene, his cooperation with the police, his attendance at 22 Division to be interviewed, and the fact that parts of his statement, as discussed above, were true, does not leave me with a reasonable doubt when considered in the context of all of the evidence. In accordance with the W.(D.) analysis, I must go on to determine whether the Crown has proved its case on the basis of the evidence that I do accept.
The Crown’s case
392When the Crown relies on circumstantial evidence, the evidence must be evaluated as a whole rather than as individual pieces. It is the cumulative effect of the relevant circumstances that must be assessed in determining whether the Crown has met its burden.
393There is no forensic evidence linking Mr. Callaghan to the gun found in his bag. There was insufficient DNA located on the slide and grip of the gun to generate a suitable profile for testing. The fingerprints found on the gun were insufficient for comparison. Mr. Callaghan’s hands and clothing were not tested for gunshot residue when he was at 22 Division because Nott and Macdonald regarded him as a victim/witness as opposed to a suspect at that point in the investigation.
394The fact that the gun was in Mr. Callaghan’s bag is a strong piece of circumstantial evidence that the gun belonged to him, particularly when considered in the context of all the other evidence, including his statement to police that he remained with his belongings after being shot at, thereby negating the possibility that some third party took his bag and put it in the bushes.
395Although defence counsel queried the likelihood of someone leaving a gun in a bag containing his identification documents, the bag in this case was well-hidden from passers-by. It was not on the ground but was secreted in the middle of bushes that were growing atop a five-foot high concrete wall. Had it not been for Ms. Young’s observation of the second male putting something in those bushes, the gun would not likely have been found.
396Ms. Young could provide only a limited description of the second male. Nevertheless, a number of her observations about him match Mr. Callaghan’s appearance.
397Ms. Young’s description of the second male as black, with dark skin and a “thinner build” is consistent with Mr. Callaghan’s appearance. Ms. Young never saw the second male’s face, but estimated that he was in his late teens or early twenties, based on what she could see of his body. Although Mr. Callaghan was 31 years old at the time, it would not be unreasonable to suggest that he was in his twenties.
398Ms. Young described the second male as wearing shorts that were grey or faded black. Mr. Callaghan was wearing shorts that night that fit that description.
399Ms. Young did not observe the second male carrying any bags. However, as stated earlier, the second male could well have had the black bag on his person without Ms. Young having noticed it, especially given the small size of the bag and the circumstances in which she made her observations. These include her limited view of the male’s upper body, the fact that she never saw his left side, the fact that the bag may not have shown up against a dark-coloured shirt, the limited time (less than 60 seconds) during which she made all her observations of both the cyclist and the second male, the distance (over 50 feet), and angle from which she viewed the scene, the limitations in terms of the lighting, and the fact that she was not entirely focussed on the second male.
400Ms. Young described the second male as wearing a dark-coloured baseball hat. She only had a view of the top portion of the hat. Mr. Callaghan was in possession of a light blue baseball hat with a grey or beige brim that night. Given the circumstances in which Ms. Young made her observations of the second male and his hat, including the lighting conditions, she could well have been mistaken as to the colour of the hat.
401Ms. Young testified that the second male was wearing a dark-coloured tee-shirt. Mr. Callaghan was wearing a royal blue long-sleeved shirt with a hood when he presented himself to the police. Nott and Macdonald described it as a sweat shirt, but it appears in the DVD recording to be a tighter-fitting garment than a sweat shirt.
402Again, the limitations on Ms. Young’s ability to observe the second male’s shirt are factors for consideration in assessing the reliability of her description of the shirt. As previously stated, her view of his upper body was quite limited. She never saw the front or back of the shirt. She could only see a portion of his back and the right side of his body when he was fiddling in the bushes. Crown counsel suggested that in poor lighting conditions, Mr. Callaghan’s shirt could have appeared to be darker in colour, and that if the sleeves were pushed up, it could have been mistaken for a tee-shirt.
403Ms. Young’s description of the second male’s hat as dark in colour when the hat that Mr. Callaghan had that night was light blue, and her description of the second male’s shirt as a tee-shirt when the shirt that Mr. Callaghan was wearing was long-sleeved with a hood, must be assessed not only in light of the circumstances in which she made her observations but also by the fact that Mr. Callaghan had the opportunity to change his clothes prior to presenting himself to the police. All his belongings were with him.
404Taking into account all of the circumstances, including Mr. Callaghan’s opportunity to change his hat and shirt, I find that the differences between Ms. Young’s description of the second male’s hat and shirt and Mr. Callaghan’s hat and shirt are of limited evidentiary value and ought not to be regarded as “dissimilar features” in terms of the identification of Mr. Callaghan.
405Ms. Young testified that the second male ran south on Ninth Street. That direction led directly to the back entrance of 1 Coin Street, where Mr. Callaghan was located when the police arrived.
406Although Mr. Callaghan must have been aware of the police presence in the area, he waited some minutes before coming out of the bushes. This delay, along with his deception in identifying himself, is inconsistent with his portrayal to Nott and Macdonald that he was merely an innocent victim or witness. Mr. Callaghan wanted to avoid contact with the police, if possible, and did not want them to know who he was. A reasonable inference in the circumstances is that Mr. Callaghan did not want the police to know his name because he did not want them to connect him with the gun, which was on scene in a bag containing his identification.
407The weight to be attributed to Mr. Callaghan’s apparent co-operation with the police in answering their questions and agreeing to be interviewed at 22 Division is substantially undermined by his delay in presenting himself to the police and his giving a false name when asked to identify himself.
408Mr. Callaghan omitted any reference in his police interview to a second volley of shots. As observed earlier, if Mr. Callaghan were an innocent bystander, there would be no reason for him not to tell the police about the second round of gunfire, which he must have heard. This omission supports an inference that Mr. Callaghan was connected to that gunfire and did not want the police to know about it.
409Mr. Callaghan made no reference during his interview to having seen a male running south on Ninth Street and past his location at the back entrance of 1 Coin – an observation that he would no doubt have made if, as he told the police, he remained in the bushes after shots were fired in his direction.
410In order to convict on the basis of circumstantial evidence, the trier of fact must be convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. I am so convinced in this case. Having considered all of the evidence and submissions of counsel, I am satisfied that the Crown has met its burden. There can be no doubt that Mr. Callaghan had possession of the firearm, that he pursued the cyclist who had fired shots in his direction, and that he discharged two bullets in the direction of the cyclist when they were on Garnett Janes. Mr. Callaghan hid his gun in his bag in the bushes at the corner of the intersection in such a way that the bag was not visible from the street. He then went south on Ninth Street, and hid in the shrubbery by the back entrance of the apartment building. Had it not been for Ms. Young’s observations, Mr. Callaghan’s bag would not have been discovered.
411Mr. Callaghan did not flee the scene because all his belongings were at the back entrance. Mr. Callaghan did not want to reveal himself to the police. He only made his presence known after the police had been on the scene for some minutes, and after he and his bags ended up behind the police tape that cordoned off the crime scene. Mr. Callaghan gave a false last name to Macdonald because he did not want to be linked to the gun in the bag that was on scene and which contained his identification.
412Mr. Callaghan appeared to cooperate with the officers and began explaining his presence at the scene even before he was asked for an explanation. Although some parts of his statement were true – for example, that the shooter was one of a group of cyclists and that he had fired five shots on Ninth Street – the statement was misleading in light of Mr. Callaghan’s omission of any reference to the second volley of shots that occurred on Garnett Janes. Mr. Callaghan purposely omitted any reference to those gunshots because he was the one who was responsible for them. He also made no reference in his statement to having seen a male run south on Ninth Street, as described by Ms. Young. If Mr. Callaghan had been telling the truth when he told the officers that he remained in the bushes by the back entrance of 1 Coin Street after the shots were fired, he would have seen or heard that individual. Mr. Callaghan made no mention of having seen or heard him because Mr. Callaghan was, in fact, the second male observed by Ms. Young. Her description of his direction – heading south on Ninth Street – would have taken him directly to the back entrance, where Mr. Callaghan was hiding when the police arrived on scene.
CONCLUSION
413For the reasons given, I am satisfied beyond a reasonable doubt that Mr. Callaghan had possession of the firearm, that he discharged it at the cyclist on Garnett Janes, and that he then hid it in the bushes.
414The defence has admitted that the firearm was a prohibited weapon, that the magazine was a prohibited device, and that Mr. Callaghan was the subject of orders that prohibited him from being in possession of the firearm and the magazine.
415With respect to Count 8, it was obvious that the serial number had been scratched off the firearm. Leaving a loaded gun in bushes by a sidewalk obviously constitutes careless storage of a firearm, which is the offence charged in Count 9.
416Given my findings and the admissions referred to, Mr. Callaghan is found guilty on Counts 1 to 13 in the indictment.
417Mr. Callaghan conceded that the Crown had proved its case with respect to Counts 14 and 15. Convictions will accordingly be entered on those counts.
GARTON J.
Released: July 29, 2016
CITATION: R. v. Callaghan, 2016 ONSC 2764
COURT FILE NO.: 221/15
DATE: 2016/07/29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANDRE CALLAGHAN
JUDGMENT
GARTON J.
Released: July 29, 2016