Regina v. Sharmarke Farah and Ahmed Siyad
Court File and Parties
CITATION: Regina v Farah and Siyad, 2016 ONSC 577
COURT FILE NO.: CR-15-50000460
DATE: 20160122
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regina v. Sharmarke Farah and Ahmed Siyad
BEFORE: E.M. Morgan J.
COUNSEL: Erin Pancer and Emily Marocco, for the Crown
Brian Irvine, for the Defendant, Sharmarke Farah
Cydney Israel, for the Defendant, Ahmed Siyad
HEARD: January 11-21, 2016
Reasons for Judgment
[1] The Defendants, Sharmarke Farah (“Farah”) and Ahmed Siyad (“Siyad”), are each charged with one count of robbery with a firearm, two counts of discharge of a firearm in reckless endangerment to the life and safety of a person, two counts of discharge of a firearm with intent to endanger the life of a person, and four counts of use of a firearm while confining a person. They were also charged with two further counts of use of a firearm with intent to endanger the life of two additional persons, which have been withdrawn by the Crown.
[2] Further, the Defendants were charged with three offenses relating to the possession of a firearm without a license. At the conclusion of the Crown’s case I directed a verdict of not guilty for both Defendants on those three firearms charges, on the grounds that no reasonable jury properly instructed could find guilt beyond a reasonable doubt: United States of America v Shephard, 1976 8 (SCC), [1977] 2 SCR 1067, at 1080.
[3] All of the charges relate to an incident which occurred in the evening of February 21, 2015 at 21 Richgrove Drive, apartment 809, Etobicoke (the “Apartment”). The Defendants are alleged to have participated in a home invasion at that address. According to the Crown, the Defendants and one or two other unknown perpetrators entered the 8th floor residence around 9:00 p.m., confined the four persons they found there for 15 or 20 minutes, robbed them of a computer, a video play station, and some clothing, trashed the premises, smashed a large flat screen television, and fired two 9 mm bullets into the ceiling and window frame of the Apartment.
[4] At the outset of the trial it appeared that the major issue would be identification of the Defendants. The two complainant witnesses who were in the Apartment at the time of the incident, Mohamed Salad (“Salad”) and Abdalla Rashid (“Rashid”), both testified that the intruders wore black ski masks and that they could not identify them. Indeed, they both know the Defendants and did not think that they were among the perpetrators.
[5] Moreover, Salad, who was the Crown’s lead witness, advised that he knows Siyad quite well, having gone to high school with him. Salad testified that he had himself just been arrested with Siyad the week before the incident in question, and that they were each charged with being unlawfully in an unrelated dwelling. Salad testified that he was certain that Siyad was not one of the intruders in the Apartment; he also said that to the extent that he heard the intruders speak, he did not hear a voice that sounded like Siyad’s.
[6] Counsel for the Crown advised that she intended addressing the identification issue through police testimony, specifically with respect to video footage from security cameras in the Richgrove Drive apartment building. The proposal was for several police officers to testify as to their recognition of the Defendants in those videos.
[7] Counsel for both Defendants objected to the identification evidence proposed by the Crown. As a result, the Crown brought an application pursuant to R v Leaney, 1989 28 (SCC), [1989] 2 SCR 393 for a determination that the police identification evidence and videotapes (and still photos taken from the videotapes) are admissible. That application was heard at the end of the Crown’s case. Since some of the evidence given by the police witnesses was also relevant to other issues in the trial, the Leaney application was heard on a blended basis so that the evidence adduced on the voir dire would not have to be repeated for trial. As this trial is before me as judge alone without a jury, I have kept the two proceedings distinct in my analysis.
[8] Procedurally it is more efficient, and logical, to consider the trial issues before the application issues. It turns out that identification may not after all be the issue on which this case depends. Unlike in many cases where the result of the trial turns on an evidentiary determination made on a voir dire, here the result of the trial might be determined regardless of whether the identification evidence presented by the police is admissible.
[9] The reason for this flows from the theory of the defense as to what transpired in the Apartment on February 21, 2015. Defense counsel submits that there was no actual home invasion that night. The defense contends that what actually happened is that the complainants fabricated the story of intruders in the Apartment in an effort to cover their having accidentally discharged two gunshots themselves, and to pre-empt any neighbours who would have heard the gunshots and who might have called the police.
[10] The identification evidence sought to be adduced on the Application, if found to be admissible, could at most establish that the Defendants were in the lobby, elevator, and stairwell of the Richgrove apartment building at the relevant time and date. The video evidence does not put the Defendants in the Apartment. Crown counsel submits that it can be inferred from the security videos that the Defendants were in the Apartment at the time of the incident in issue, but she concedes that the direct evidence does not extend to the interior or to the front door of the Apartment.
[11] Accordingly, I requested that all counsel prepare submissions on the trial issues on the assumption that the police identification evidence is found admissible. I wanted to consider the question of whether a home invasion actually took place before considering the identification question. After all, it is apparent that if the defense is correct and a home invasion never did take place, it does not matter whether or not the security video and police witnesses place the Defendants somewhere in the Richgrove building just around 9:00 p.m. on February 21, 2015. They would not have taken part in the alleged offenses set out in the indictment.
[12] Salad and Rashid testified as to what Crown counsel refers to as the prosecution’s “core narrative”. According to their story, four friends – Salad, Rashid, Mohamed Mohamed (“Mohamed”), and Ramy Aly (“Aly”) – were “chilling” in the Apartment, playing video games and smoking marijuana like they often do there. The Apartment belongs to Aly, who frequently shares it with Mohamed. It has two bedrooms, a living room, kitchen, linen closet, and bathroom. There are two televisions, one of which is a large flat screen which the police found in the living room tipped over on its side and the other of which is a smaller TV that they found in the spare bedroom (Mohamed’s room) unplugged from the wall socket. Next to the TV in the bedroom was a PS4 video console, also unplugged. The police forensic officer, D.C. Robert Armstrong, documented the scene with photographs upon his arrival on February 21st.
[13] The four friends are part of a larger group that often hangs out at Aly’s place. It has become their party apartment, and they come there primarily to smoke and play video games. Salad testified that the group of friends that gather there frequently includes Siyad, who had been there a couple of days earlier in the week of the incident. Rashid testified that their group of acquaintances also hangs out and parties in other apartments on the 8th floor of 21 Richgrove Drive, as that floor contains several other units where friends of theirs live. According to Salad, the door to Aly’s Apartment is always unlocked whenever Aly is home, and anyone who knows him can simply come in to ‘chill’ with them.
[14] Continuing with the “core narrative”, Salad and Rashid related that they had each arrived separately earlier in the afternoon on February 21, 2015, and stayed there until after 10:00 that night. Sometime around 9:00 p.m. they were sitting on the sofa in the living room playing games on a PS4 video console, when there was a knock on the door. Salad said that Aly answered the door, and that a number of people entered wearing all black, including black masks. One of them shouted “Everybody get on the floor!”
[15] Salad said that he immediately lay face down on the floor in front of the couch. He indicated that he was sandwiched between the sofa and a rectangular glass coffee table that was in front of the sofa, and marked his own position on one of the police photos of the living room. Rashid said that he likewise assumed a prone position on the floor, also next to the coffee table but perpendicular to where Salad lay. He also noted his position on the same photo as had Salad. They both related that they could hear the intruders walking around for about 15 or 20 minutes, and that they then heard two gunshots, after which the intruders left the Apartment and did not return.
[16] The “core narrative” continued with the two complainant witnesses relating that Aly then called 911 to report the incident to the police. Salad testified that he and his friends were very upset by the violent invasion of the Apartment. In the meantime, the friends started cleaning up the place from the mess the intruders had made. Salad himself did not help out much in this regard, as he was on crutches with a broken leg and was not very mobile.
[17] The recording of the 911 call was played at trial. At first, Aly can be heard speaking with the operator. He appeared to have a difficult time expressing himself on the phone, and kept telling the operator that he is “dramatically shocked”. He also persisted for the first minutes of the call in using the singular in referring to a sole home invader before eventually switching to the plural and referring to several intruders. After a few minutes of nervous and near incoherent conversation, Aly turned the phone over to Rashid to speak with the operator.
[18] Rashid seemed surprised to be handed the phone, but was more calm and comprehensible in his conversation with the operator. The operator can be heard telling him that the Apartment must not be straightened up or touched in any way, and Rashid can be heard relaying the message to stop what they are doing to his friends in the background. He then provided the operator with the address of the Apartment, and the police arrived shortly thereafter.
[19] The first officers to arrive on the scene were uniformed officers in a scout car. They were followed by officers from the forensic unit, the major crimes unit, police intelligence, and 23 Division in whose area the Apartment was located. By all accounts, a rather large number of police eventually showed up at the Apartment following the 911 call of February 21, 2015. Surprisingly, given the number of police involved in the investigation, a substantial number of details about the Apartment and its occupants were overlooked by the police.
[20] For one thing, no one seemed to notice that Salad was on crutches and could barely walk. The first officer, P.C. Quoc Kha, even interviewed Salad and took a statement from him (which Salad ultimately refused to sign), but did not notice any mobility issues. Officer Kha told the four occupants of the Apartment to stand out in the hallway when he arrived, as he did not want to contaminate the scene any further. What he did not seem to see, or did not want to acknowledge, was that the four of them were, according to Rashid, joking and laughing out in the hallway.
[21] D.C. Armstrong, the forensic officer, documented the way in which the large flat screen TV in the living room was apparently thrown down and smashed. He dusted it for fingerprints and did find one of Siyad. He was quite emphatic that not only was Siyad’s print on the top of the screen, but it was in a downward-facing position, suggesting that Siyad had not only touched the TV but had been the one who had attempted to carry it. D.C. Armstrong did not, however, focus on the fact that a heavy television was found resting on a glass coffee table and there was not even a scratch on the coffee table glass.
[22] D.C. Armstrong also testified as to the trajectory of the bullets that were fired in the Apartment. The discharged shell casings and bullet holes in the walls were examined, and D.C. Armstrong came to the conclusion that the gunshots came from near the kitchen at the front of the Apartment. What he did not seem to notice, but which defense counsel observes is self-evident in the photographs that D.C. Armstrong provided, is that debris fell from the plaster ceiling when the bullet struck it, and that debris field appears to cover the carpet precisely where Salad and Rashid said that they were lying down. On the other hand, the sofa, where they had been sitting prior to the home invasion, is clear of plaster debris.
[23] Defense counsel submits that the suggestion from the photographic evidence is that the friends were still seated on the sofa when the bullet struck overhead, and that they were not lying on the floor covering the carpet. Crown counsel replies that the scene suggests that the individuals who were lying on the floor at the moment of the gunshots were probably covered with plaster debris, which then fell off of them and onto the rug when they finally stood up.
[24] D.C. Armstrong stated that the discharged bullets were 9 mm. In a further search of the Apartment, the officers found a plastic bag of 9 mm bullets tucked away behind some items in the small bedroom closet. No firearm was found in the Apartment. For some reason, even after finding 9 mm ammunition stashed away in a closet, none of the many officers that were involved in this investigation thought to ask if the occupants of the Apartment had a gun.
[25] Several of the officers testified that there was a strong odor of marijuana in the Apartment. Officer Kha indicated that he had found on the coffee table a number of small plastic “dime bags” typically used for packaging illegal drugs when sold. However, no marijuana or any other drugs were found in the premises.
[26] The police related that they were advised by Aly that some True Religion brand jeans were missing from the Apartment, along with a laptop computer and a PS4 console. The police were provided with no receipts or any other evidence to support this allegation of theft; at the same time, a bag full of costume jewelry, some of which still had the labels and retail price tags attached, was found in one of the closets. None of the officers inquired as to why an Apartment of three young males would have hundreds of dollars’ worth of brand new bracelets, necklaces, earrings, etc. stored in a plastic garbage bag in a closet.
[27] As indicated, D.C. Armstrong dusted the Apartment for fingerprints, and came up with very little. Other than some prints that could be traced to Rashid, the one and only fingerprint that was identifiable in the Apartment was that of Siyad on the side of the broken flat screen TV. This TV also had a distinctive boot print near the part of the screen that was smashed, although neither the forensic officer nor any other police officer appears to have examined anyone’s boots for a match.
[28] Salad testified that the flat screen TV was not set up on its usual stand when he arrived at the Apartment on February 21st, and that it was lying on the floor in the living room. He said that they were playing games on the smaller TV, which was ultimately found by the police in the small bedroom. Salad was not sure how long the larger TV had been lying partly on the coffee table where it was found by the police, but it is worth noting that no one, including Salad, seems to have heard the intruders drop a large TV onto a glass table. Indeed, counsel for Siyad suggests that the TV looks like it was carefully placed or propped up onto the coffee table rather than dropped there. There are no scratches, broken glass, cracked plastic parts, etc. that would suggest that it was actually dropped where it was found.
[29] Moreover, none of the police seemed to pay much attention to the fact that while there were dirty clothes piled in the bedrooms and the beds were unmade, some parts of the apartment – specifically, the kitchen, bathroom, linen closet, and master bedroom closet – were relatively neat for a home that was supposedly just ransacked. Indeed, the entire living room area seemed undisturbed, except for the plaster that rained down from the bullet-marked ceiling and the TV that was oddly perched on the coffee table. When cross-examined on this, several of the officers pointed to clothes piled sloppily in a laundry bag and some small items that were out of place on the coffee table and play station console. However, the photos overall covey the impression that the Apartment is not particularly disheveled given that several single men live and party there together.
[30] It is the defense theory that all of these odd details – the strangely placed TV, the lack of a debris field on the sofa and the existence of plaster dust and debris on the floor in front of the sofa, the coincidence that the discharged bullets were 9 mm and the unused bullets found in Aly’s closet were also 9 mm, the lack of a gun to fire the 9 mm ammunition found in Aly’s closet, the evidence of drugs and stolen items in the Apartment, the supposed victims of a violent home invasion laughing and joking minutes later in the hallway, Aly’s incomprehensible conversation with the 911 operator, etc. – are easily explainable. The defense contends that the home invasion never took place, but rather that the scene was staged in order to look like a home invasion had occurred.
[31] Specifically, the defense hypothesizes that while smoking weed during the course of the party that evening, either Aly, or Mohamed, or one of their guests was showing off their own firearm and it discharged in the living room, firing two rounds. Once they realized that two very loud gunshots had gone off, and that there was some obvious bullet damage on the ceiling and window frame, they needed to make up an explanatory story and fastened on the notion of a home invasion. They placed the TV, which as indicated was already off its usual stand, to look like it was dropped, they got rid of their own gun and all of the illegal drugs, possibly threw some clothes around a bedroom, and then called 911 and reported a violent home invasion.
[32] It should be noted that while Salad testified of his own volition, Rashid was a reluctant witness and had to be served with a material witness warrant before being brought to court to testify. Mohamed never testified, but he apparently has a prior conviction which has led to a mandatory prohibition on possessing a firearm. Aly, the ostensible tenant of the apartment, has left Canada permanently and has moved to Egypt where his father owns a business. Thus, the only complainant witnesses to testify were Salad and Rashid.
[33] Since neither Salada nor Rashid could identify either of the Defendants as being in the Apartment that evening, the only piece of identification that actually put them there was Siyad’s fingerprint on the flat screen TV. That piece of evidence, however, is not particularly strong. Salad specifically testified that Siyad had been ‘chilling’ at the Apartment earlier that week, and D.C. Armstrong conceded that fingerprint identification techniques cannot establish when any print was left. Siyad could easily have touched the TV on his previous visit to Aly’s place.
[34] In addition, Salad testified that he did not know when the flat screen TV was moved from its usual stand, but given that he found it on the floor it stands to reason that earlier in the day or earlier that week someone – either one of the residents of the Apartment or one of their guests – had to touch it with their hands in order to take it down from its perch. That could well have been Siyad; indeed, given that his were the only prints found on the TV, it in all likelihood was Siyad. That seems to indicate the fingerprint found by D.C. Armstrong was most probably an old one from earlier in the week when the TV was moved, and tells us little about whether Siyad was in the Apartment on the night of February 21st.
[35] It is therefore only the video footage, and the police identification of the Defendants from that footage, that can possibly place the Defendants at the scene of the incident. As already indicated, I have proceeded with these reasons for judgment after hearing submissions on the trial evidence and by assuming the admissibility and reliability of the police identification evidence. Since there is a strong possibility that the identification evidence will not impact on the outcome of the trial, I have proceeded in this way before reaching any actual conclusion on the Leaney application.
[36] The security videos show three males entering the lobby of the building, going up the elevator, getting off at the 8th floor and turning right (the direction of the Apartment). The tallest of the three is wearing a black puffy jacket and glasses, and is identified by several officers as Siyad. A second individual, who is not quite as tall as the first, is also wearing a black jacket, and appears to have his shoulders hunched in a distinctive way. His face is at least partly visible for one or two seconds in the video, and he is identified by a number of police officers as Farah. A third individual, who is wearing a grey and orange jacket, accompanies the two Defendants into and out of the building. He has not been identified by the police witnesses.
[37] About 6 minutes after reaching the 8th floor, Farah can be seen getting back into the elevator and descending down to the ground floor. He exits the elevator at the lobby and spends a few minutes pacing randomly around the lobby. He then heads back up in the elevator, gets out at the 7th floor, and stays out of the elevator for about 30 seconds before getting back in and going up to the 8th floor again. Shortly thereafter, Farah and the unidentified man in the grey and orange jacket can be seen descending the stairs and exiting the building from the stairwell exit. Siyad can then be seen entering the elevator and descending to the lobby. The Crown points out that this time, Siyad appears to be carrying a black rectangular bag in his hand.
[38] In all of the videos, no one appears rushed. It is a February night, and so when the three men enter the lobby they have their hoods on and hands pulled up into their sleeves. Otherwise, they appear to be walking at a natural pace. The Crown makes much of the fact that they do not seem to use the buzzer system to gain entry to the lobby but rather wait until someone standing there lets them in, but frankly this seems far more normal than sinister. They come to the front door of the apartment building, and within a second or two someone sees them and opens the door for them. They enter without waiting to be buzzed in by whoever they came to visit.
[39] Once in the elevator, Farah can be seen holding the door open for an older man carrying a case of water bottles. The officer in charge of the investigation, D.C. Brian O’Neill, accurately described this gesture by Farah as “courteous”. As defense counsel points out, it is not only courteous, it is rather remarkable for a person who is supposedly one of a team of intruders on their way to a violent home invasion and robbery armed with a 9 mm gun. Likewise, when Siyad rides the elevator down to the lobby after the invasion is supposedly over, he is in no hurry. Twice the elevator stops at a different floor, and a number of women and children get in and out without seeming to perturb him or make him anxious in any way. It all seems rather ordinary for a person who just shot up his friend’s apartment and is carrying a bag in which the Crown alleges are items stolen from that Apartment.
[40] Salad and Rashid indicated that there were four intruders, but the security video only shows three. Furthermore, they specifically stated that the intruders were all wearing black, and yet one of the three men on the security video is wearing grey and orange. Moreover, the evidence is clear that the 8th floor of the Richgrove building contains more than one party apartment for these young men, and the security video does not show which apartment the three suspects actually went to. Accordingly, even if I were to grant the admissibility of the identification evidence on the Leaney application, there would still be nothing to place the two Defendants in the Apartment at issue.
[41] What Crown counsel says is that while there is no direct evidence of their presence in the Apartment for the alleged armed invasion and robbery, the coincidence of timing makes the inference very strong. Siyad goes down the elevator and out of the building at 20:57:40 according to the security video, which D.C. O’Neill explained is in fact 30 seconds slow and so should be read as 20:58:10. Aly’s call to 911 is made 5 minutes later, at 21:02:01. Counsel for the Crown makes a forceful argument that it is too much to think that Siyad and Farah were not only in the building, but that Siyad was on the 8th floor of the building, with Farah pacing around the lobby perhaps as a lookout, at precisely the time of the home invasion, but were not participants in that incident. She submits that the court is permitted to make findings of fact based on inferences drawn from this kind of strong circumstantial evidence.
[42] Counsel for the defense responds that given the evidence that the Defendants have other friends on the 8th floor, and that the home invasion was supposedly perpetrated by 4 men wearing black and not 3 men, one of whom was wearing grey and orange, the circumstantial evidence is not all that strong. Defense counsel contends that they may well have gone to a different apartment on the floor and that the police missed the real perpetrators, if there were any, in their review of the video. Given how focused the police investigators appear to have been on the Defendants, and how many things they seemed to disregard in the Apartment, defense counsel considers this to be a real possibility.
[43] The other possibility offered by counsel for the defense is that Siyad and Farah were indeed in the Apartment at the time of the incident. That is, they were present at the party when someone discharged a firearm in the Apartment, presumably by accident. Defense counsel speculates that while Aly and the others cooked up the home invasion story and called 911 to report it, Siyad and Farah, together with their orange and grey friend, left the Apartment and went on their way.
[44] The defense theory of what occurred in the Apartment on the evening of February 21, 2015 is highly speculative. We do not really know whether or not Aly and his friends concocted the idea of a staged home invasion in order to cover their own gunplay. The problem is that the Crown’s theory of what occurred in the Apartment that evening is equally speculative. We do not really know whether Siyad and Farah were two of the four men clothed in black who intruded on the otherwise peaceful partiers.
[45] The scene inside the Apartment, as described by D.C. Armstrong and as seen in the photographs that he exhibited at trial, supports either theory. We know that shots were fired in the Apartment and that damage was caused by two 9 mm bullets. Viewed in the Crown’s way, there was no gun in the Apartment, so it must have been brought there by the intruders; viewed in the defense way, there was unused 9 mm ammunition in the Apartment, so the occupants must have had their own gun and disposed of it after firing it that night. Similarly, we know that the bullets rained plaster bits down on the sofa area of the living room. Viewed in the defense way, no one was on the floor at the time of the gunshots since the floor was covered with plaster debris from the ceiling; viewed in the Crown’s way, people were down on the floor at the time of the gunshots and the plaster debris from the ceiling fell off them and onto the floor when they stood up.
[46] One can go through a similar exercise with almost all of the details of the Apartment. We know that the place was somewhat messy. Viewed in the Crown’s way, it was ransacked by home invaders looking for something to rob; viewed in the defense way, it was a bachelor apartment lived in by several males who tended to pile up their laundry instead of folding it neatly in drawers. We know that the flat screen TV was off of its normal perch and lying awkwardly in front of the sofa in the living room. Viewed in the defense way, it was placed carefully on the undamaged glass coffee table in order to stage a scene that resembled a botched robbery; viewed in the Crown’s way, it was dropped there by someone trying to remove it but who ended up smashing it with his foot.
[47] One can also go through a similar exercise with the way in which the incident was reported. We know that Aly called 911 just after the incident took place. Listened to in the defense way, the 911 call sounds like the inane ramblings of a caller trying to make up a story as he goes along; listened to in the Crown’s way, the 911 call sounds like the panicked report of a person whose home has just been shot up and robbed. We know that the complainants spoke with the police when they arrived on the scene. Viewed in the Crown’s way, the four complainants, while not particularly cooperative with the police, were upset at having been the victims of such a violent incident; view in the defense way, the four complainants, while trying to appear to the police to be victims, were joking around with each other as if they were still in party mode following the incident.
[48] As for the security video, the same kind of ambiguity exists. We can assume for the moment, without making a finding on the Leaney application, that the video shows Siyad and Farah going to and leaving the 8th floor of the Richgrove building at the time of the incident in question. Viewed in the Crown’s way, the footage establishes that the Defendants were in the vicinity of the robbery and inferentially shows these two home invaders coming and going from the scene; viewed in the defense way, the footage establishes that the Defendants were in the building either in a nearby apartment or in the Apartment in question and that they left before the 911 call so that they did not participate in the staging of the home invasion.
[49] In every respect, both versions of the events are equally speculative and equally plausible on the state of the evidence. Each side knows what it sees, but the scene can be interpreted in very different ways and neither side has evidence that trumps the other.
[50] Although this is not a case in which an accused person testified, it is worthwhile reminding myself that triers of fact “should not see their task as that of deciding between two versions of events... [and should] not decide the case simply by choosing between the evidence of the complainant and that of the accused”: R v JHS, 2008 SCC 30, [2008] 2 SCR 152, at para 15 [emphasis in the original]. Here, where there are some objectively discernable facts but the overall scene can be interpreted in at least two different ways, I must likewise not see my task as that of deciding between the Crown’s and the defense’s equally plausible extrapolations from the evidence.
[51] The onus of proof is on the Crown to establish its version of the crucial facts beyond a reasonable doubt. This onus is inextricably linked to the presumption of innocence”: R v Lifchus, 1997 319 (SCC), [1997] 3 SCR 320, at para 13. I must be convinced, in view of all of the evidence, that I can determine “exactly where the truth of the matter lay”: R v Nimchuk (1977), 1977 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).
[52] I cannot make such a determination here. I simply do not know what happened in the Apartment on the evening in question. There could have been a violent home invasion and robbery, or there could have been an accidental set of gunshots with a staged home invasion and robbery. Both versions of events are hinted at by the evidence in the record.
[53] Accordingly, the Crown has not satisfied its onus of proof beyond a reasonable doubt that its version of events really took place. I find the Defendants Farah and Siyad not guilty of all charges.
Morgan J.
Date: January 22, 2016