COURT FILE NO.: CR-17-10000376-0000

CITATION: R. v. Duro, 2017 ONSC 4573

DATE: 2017-07-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVIN DURO

COUNSEL:

Michael MacDonald, for the Crown

Antia Kwan, for Kevin Duro

HEARD: July 17, 18, 19, 20, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] In the early morning hours of July 25, 2015 a furious firefight broke out in the parking lot outside Tryst nightclub. Tryst nightclub is in the Entertainment District of downtown Toronto. Police officers were trying to arrest Kwasi Skene-Peters. Mr. Skene-Peters was wanted for a double homicide. He began shooting at police officers through the windshield of his car, a white Ford Focus. He was sitting in the driver’s seat. Kevin Duro, the accused, was sitting in the passenger seat.

[2] Mr. Skene-Peters was killed in the firefight. Mr. Duro escaped from the Ford Focus. He was arrested in the parking lot. The Crown theory is that Mr. Duro crawled underneath a GMC pickup truck that was parked beside the Ford Focus. As he did so he either deliberately or accidently left a gun under the GMC pickup truck. The police arrested Mr. Duro for attempted murder as he crawled out from underneath another vehicle. Later, when the scene was secured, officers from the Special Investigations Unit found the gun. Mr. Duro was charged with one count of possession of a prohibited weapon while not being the holder of an authorization or licence and a registration certificate, contrary to s. 95(1) of the Criminal Code; and one count of possession of a prohibited firearm, knowing that he was not the holder of a licence and a registration certificate, contrary to s. 92(1) of the Criminal Code.

[3] Mr. Duro testified that he did not crawl underneath the pick-up truck. Rather he squeezed between the back of the GMC pickup truck and the wall. He says that he did not leave a gun behind.

[4] For the reasons that follow, I find Mr. Duro guilty of both charges. I do not believe him and his evidence does not leave me in a state of reasonable doubt. I am satisfied beyond a reasonable doubt that he had knowledge and possession of the gun. I am also satisfied that guilt is the only reasonable inference to be drawn.

FACTS

[5] The Crown filed a considerable amount of evidence on consent. That evidence included photographs, videos, and an agreed statement of facts. The Crown also called several police officers.

[6] Tryst Nightclub is located at 82 Peter Street in Toronto’s Entertainment District. Peter Street runs north-south. Tryst is on the west side of the street. The parking lot where the firefight occurred is directly south of Tryst. In other words, the south wall of Tryst is the north wall of the parking lot. The parking lot opens on to Peter Street. This map was entered as an exhibit:

[7] In the early morning hours of July 25, 2015, several cars were parked backed in up against south wall of Tryst (the north wall of the parking lot). The Ford Focus was the third car in from Peter Street. Moving from east to west, beside the Ford Focus was the GMC pickup truck. Beside the GMC pickup truck was a silver van. Beside the silver van was a blue Honda, and beside the blue Honda was a silver BMW.

[8] It is always busy on weekend evenings in Toronto’s Entertainment District. Many of the officers who testified regularly work in other areas of the city, but are called in to help police the Entertainment District on the weekends. The weekend of July 24-25, 2015 was especially busy. It was Caribana.

[9] The clubs in the Entertainment District close at 3 am. At 3:03 am the takedown signal was given to the officers in the area. The plan was for uniform officers to effect the arrest while officers from the Intelligence Unit moved a vehicle to block the Ford Focus from leaving the parking lot.

[10] Constable Reid was doing undercover surveillance in the early morning hours of July 25, 2015. He was looking for Mr. Skene-Peters. He was in a vehicle. The vehicle was in the parking lot directly to the south of Tryst, the lot where the Ford Focus was parked. His vehicle was backed up against the west end of the lot. It was his vehicle that was tasked with blocking the Ford Focus. When takedown was called there were two men in “Up Top” t-shirts near his vehicle. There had been many other people near the club in “Up Top” t-shirts. After takedown he saw them moving north through the alley behind Tryst. In cross-examination he agreed that he is aware that “Up Top” is associated to a gang from the Driftwood area. He was aware that some gang members wore “Up Top” t-shirts. He was not aware that Tryst was a hangout for gang members. He was unable to block the Ford Focus, as there was a burgundy Honda at the entrance to the parking lot.

[11] Constable Duncan was also doing undercover surveillance work that night, also looking for Mr. Skene-Peters. He observed him in a lineup at Tryst with people who seemed to be together. He observed Mr. Skene-Peters have an argument with the bouncer. Mr. Skene-Peters walked to the Ford Focus with other individuals. He saw an individual – who might have been Mr. Skene-Peters – bend over and place something into the passenger side of the vehicle. The men got into the Ford Focus. A short time later they got out and went into Tryst.

[12] Constable Asner was also working undercover that night in the vicinity of Tryst. At around 2:49 am he saw a man he later learned was Mr. Skene-Peters. Mr. Skene-Peters initially got into the back seat of the Ford Focus and appeared to retrieve an item. He then moved into the front seat. At 2:51 am he went back to the front of Tryst. He saw some men, including Mr. Duro, talking to some women. He saw Mr. Duro go to the back of the Ford Focus, retrieve a jacket or a hoody, put it on, and then get into the front passenger seat. After the shots were fired, Mr. Skene-Peters got out of the car and ran through the lot towards Peter Street, where Constable Asner was observing. Mr. Skene-Peters tripped and fell. He had a gun in his hands. The gun slid away from him. Constable Asner went to subdue him. He flipped Mr. Skene-Peters over and then saw that he had been shot in the chest. Detective Greaves, who was also conducting undercover surveillance, saw the takedown, saw Mr. Skene-Peters flee the Ford Focus, and then trip and fall.

[13] Constables Riel, Lambie, and Dunne were on the TAVIS team that night. TAVIS is a kind of roving police team that is deployed to violent areas. They were in uniform and on bicycles. Just after 2:00 am they were detailed to assist the Toronto Police Intelligence Unit with an arrest. They were the officers assigned to effect the arrest. They waited in the alley behind Tryst until takedown was called. They stayed hidden. All three officers believed that there may have been a firearm or firearms in the Ford Focus, based on information that they received from other officers. That information included source information that Mr. Skene-Peters would be armed.

[14] When takedown was called the three officers ran from the alley towards the Ford Focus. Constable Riel saw two people in the front of the car. He pointed his gun at them and yelled words to the effect of “police, hands up, don’t move”. He then saw a muzzle flash and heard bullets snapping. He realized that someone was shooting at him through the front window of the Ford Focus. He returned fire.

[15] Constable Riel testified that he moved to the left (which would have been to the west, away from Peter Street). He was hiding behind a truck and saw movement from under the truck. He saw a person crawling out from underneath. He was not sure where he came from. He tackled the person. In cross-examination he testified that under the truck there was movement – he could not say if it was shadows, or feet, or hands, but he did know that at least one other officer stated that the passenger was getting out of the car. He did say that the person was coming out from under the GMC pickup truck. That person turned out to be Mr. Duro. He tried to get Mr. Duro under control. Mr. Duro wasn’t actually resisting but his arm was under his body. He was concerned that Mr. Duro had possession of a gun. He eventually controlled him by striking him on the head.

[16] In fact, Mr. Duro was arrested not between the GMC pickup truck and the silver van. He was arrested between the silver van and the blue Honda. Constable Riel was initially in error about the location of the arrest.

[17] Constable Riel agreed in cross-examination that there were people in the general area when he was running towards the Ford Focus, but they were closer to the dumpster. He was focussed on the Ford Focus but he was also checking to his right and left. He did not see anyone behind the cars up against the wall but agreed that he may not have seen if someone was there. He did hear someone yelling “PK, PK, PK” which he took to be a warning of police presence.

[18] Constable Lambie testified that he also ran up to the Ford Focus and pointed his gun. He yelled commands. He ordered the occupants to get of the car and show their hands. The driver reversed into the wall of Tryst nightclub. Constable Lambie then realized that the driver was shooting at police through the windshield. He shot back. He saw the passenger – Mr. Duro – get out of the Ford Focus. It looked like he was crouching and running behind the GMC pickup truck. He covered Constable Dunne and Constable Riel as they arrested Mr. Duro.

[19] As Constable Lambie was running towards the Ford Focus he was using his peripheral vision to check left and right. He did not see anyone along the wall of Tryst nightclub. He agreed in cross-examination that he missed other people in the lot, but did not miss anyone along the north wall of the parking lot.

[20] Constable Dunne testified that when takedown was called he also ran to the Ford Focus. He pointed his gun and yelled at the occupants to show their hands and turn off the car. Someone started shooting at them from inside the car. At that point he slipped and fell backwards. He got up and pointed his gun back at the Ford Focus. Another officer called that someone – Mr. Duro – was exiting the passenger door. Constable Dunne saw Mr. Duro crawling back towards the GMC pickup truck and westward along the wall. He actually saw Mr. Duro crawl under the GMC pickup truck. In cross-examination he testified that nobody could crouch behind the GMC pickup truck as there was no room. He agreed that he could not see if anyone else was standing behind the GMC pickup truck, but he also said that nobody else emerged. He lost sight of Mr. Duro but then picked him up again when Constable Riel had him on the ground. He went over to assist. Mr. Duro had his hands tucked under his waistband. He was actively resisting. Constable Dunne was concerned that Mr. Duro might have had a gun in his waistband. He punched Mr. Duro in the face to distract him until he loosened his hands.

[21] There were people in the blue Honda. One of them took a video with her cell phone. In the video Constable Dunne can be seen up against the silver van that was parked next to the GMC pickup truck. He is pointing his gun towards the GMC pickup truck. He testified that he was tracking Mr. Duro as he emerged from under the GMC pickup truck and then under the silver van.

[22] When the takedown was called, Constable Musso Duarte was in a police car equipped with an dashboard camera. She immediately drove to the area. She parked in front of Tryst, facing south on Peter Street. Her police car took up a position just north of the entrance to the parking lot. She heard gunshots. She took cover. The dashboard camera captured much of the action. A man (agreed to be Terrence Johnson) came running out of a red car at the entrance to the lot. That was the red or burgundy Honda described by Constable Reid as blocking the entrance to the parking lot. Another man (Mr. Skene-Peters) came running out of the lot and tripped over Mr. Johnson. He fell on the ground. His gun went skidding and landed where Constable Musso Duarte was taking over. The slide was locked to the back, which meant that the magazine was empty. She secured the weapon. Other officers tried to assist Mr. Skene-Peters. Constable Musso Duarte was then directed to transport Mr. Duro, who was in custody. Constable Riel had him under arrest in the back alley behind Tryst. She transported him to the police station. He had a Blackberry on him, a TD Visa card, and Mr. Johnson’s driver’s licence.

[23] After the shooting the police secured the scene. Seven people were detained in the lot, although none of them were near the Ford Focus or the GMC pickup truck. The Emergency Task Force arrived and cleared the area. They ensured that there were no other people found in the lot or in the cars parked there. The police searched the Ford Focus. They did not find weapons or drugs in it. A police officer secured Mr. Skene-Peter’s firearm.

[24] The Special Investigations Unit took control of the scene at 6:25 am on July 25, 2015. They gathered evidence (including spent casings), took photos, and took videos of the scene. Constable Napholc, an SIU investigator, found a firearm under the GMC pickup truck that was parked next to the Ford Focus.

[25] It is agreed between the Crown and defense that the firearm is a prohibited firearm within the meaning of the Criminal Code. It contained five rounds of ammunition: one in the chamber and four in the magazine. The ammunition is agreed to be “ammunition” as defined in the Criminal Code. Crown and defence also agree that Mr. Duro did not possess an authorization, registration certificate, or licence to possess, own, or handle a firearm. Neither did Terrence Johnson or Kwasi Skene-Peters. No fingerprints or DNA was found on the firearm.

ANALYSIS

[26] Because Mr. Duro testified, I must determine whether I believe his evidence or his evidence leaves me in a state of reasonable doubt: R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I do not believe Mr. Duro or find that his evidence leaves me in a state of reasonable doubt, I must determine whether the evidence I do accept persuades me beyond a reasonable doubt of his guilt. Because the Crown’s case is circumstantial, I must be satisfied beyond a reasonable doubt that Mr. Duro’s guilt is the only rational inference: R. v. Villaroman, 2016 SCC 33 at para. 18.

[27] I will therefore approach the issues this way:

(a) Do I believe Mr. Duro or find that his evidence leaves me in a state of reasonable doubt?

(b) Does the evidence I do accept persuade me of guilt beyond a reasonable doubt?

(a) Do I believe Mr. Duro or find that his evidence leaves me in a state of reasonable doubt?

[28] Mr. Duro testified that he was 26 at the time he was arrested in 2015. In 2011 he was convicted of theft and assault and received a sentence of 40 months on a guilty plea. He had been living in Hamilton most of the summer, but came to Toronto and stayed with his friend Terrence Johnson. He used Mr. Johnson’s identification to get into the club. He went with Terrence to Tryst that night to celebrate the birthday of one of Johnson’s friends, Big Money. He did not know Big Money. He did not know Big Money’s real name. He mingled with people and chatted to the other party-goers. He knew Mr. Skene-Peters from his old neighbourhood. He did not know him well. He was not aware that Mr. Skene-Peters was wanted for a double-homicide.

[29] Mr. Duro’s plan upon leaving Tryst was to meet Mr. Johnson and some women at a restaurant. There was no room in Mr. Johnson’s car because he was taking the women. Mr. Skene-Peters was also going to the restaurant, so Mr. Duro elected to go with him.

[30] When the three police officers appeared in front of the Ford Focus with their guns drawn, he immediately put his hands up. He testified that he saw Mr. Skene-Peters shooting at the officers. He was terrified and decided he had to get out of there. There were bullets flying everywhere. He ran to the wall to get out of danger. He did a shuffle behind the GMC pickup truck so that he moved sideways between the GMC pickup truck and the wall. He made it two vehicles down when two officers tackled him. He went right to his knees and used his right hand to break his fall. That was why his hand was underneath him – not because he was resisting the officers.

[31] Mr. Duro further testified that he did not know that Mr. Skene-Peters had a firearm. He did not know that there was a firearm in the car. He did not place a firearm under the GMC pickup truck.

[32] In cross-examination Mr. Duro denied that the party at Tryst was a Driftwood Crips party. As far as he knew it was just a birthday party. He testified that he had no idea what the UpTop t-shirts were about, other than knowing that it was an area north of Finch in the city of Toronto. He insisted that he remained upright as he got away from the Ford Focus and did not crouch or crawl underneath the GMC pickup truck.

[33] Mr. Duro was also asked in cross-examination about a group called the YBK. He knew that they are a group of musicians from the area. Crown counsel suggested that YBK is a criminal organization. Mr. Duro responded: “That I don’t know.” He insisted that they were musicians and he did not know anything about them being a criminal organization. Mr. Duro was confronted with the fact that in 2014 he pleaded guilty to committing a criminal offence in association with YBK. He then admitted knowing that YBK was, in fact, a criminal organization.

[34] I do not believe Mr. Duro’s evidence. It is not credible. It is also not plausible, and does not leave me in a state of reasonable doubt.

[35] First, Mr. Duro lied about his knowledge of YBK. He would not admit that he knew that YBK was a criminal organization until he was confronted with the fact that he had pleaded guilty to a criminal offence in association with YBK. Mr. Duro is clearly a man who is prepared to lie under oath, although it is difficult to understand why he would lie about something so easily contradicted. That has a great affect on his credibility. I pause to note that this lie only goes to his credibility, and is not evidence that he was more likely to illegally possess a gun.

[36] Second, I accept the evidence of the officers that Mr. Duro was crawling under the GMC pickup truck. I accept this evidence in contrast to Mr. Duro’s evidence on the point that he did not crawl. That is because the cell phone video taken by the woman in the blue Honda shows Constable Dunne pointing his gun down, rather than straight. That strongly suggests that the person who he was pointing it at was on the ground. As he tracked Mr. Duro, his gun remained pointed down towards the ground. That is real video evidence that indirectly, but strongly, contradicts Mr. Duro’s account and supports the account of the officers.

[37] Third, I do not accept that it makes any sense that Mr. Duro would remain upright while bullets were flying everywhere. I leave aside the question of whether the normal human instinct is to take cover and get low or to run away. There was virtually nowhere for Mr. Duro to run. The Ford Focus was backed up against a wall. There was, however, a significant amount of clearance between the bottom of the GMC pickup truck and the ground. There was plenty of room for him to crawl away from the danger. It makes more sense that Mr. Duro got low and crawled away.

[38] Fourth, the GMC pickup truck was parked close to the wall. It would have been extremely difficult for Mr. Duro to “shuffle”, as he put it, along the wall to get away, if possible at all. Even if there was enough room, his ability to get away from the danger area quickly would have been severely limited. It also would have left him standing up, exposed to flying bullets.

[39] Fifth and finally, although Mr. Johnson and Mr. Skene-Peters were seen speaking to some women when they left Tryst, at the time of takedown when Mr. Johnson was driving the burgundy Honda out of the lot there he was alone in the car. I do not accept Mr. Duro’s evidence that he could not go with Mr. Johnson because the car was full. While it is possible that Mr. Johnson simply hadn’t picked the women up yet, that is unlikely – they were all milling about in the same small area. I find that no such plan existed and that Mr. Duro’s explanation for getting into the same car as Mr. Skene Peters is contrived.

(b) Does the evidence I do accept persuade me of guilt beyond a reasonable doubt?

[40] The crux of Ms. Kwan’s argument is that the circumstantial evidence is not strong enough to convict Mr. Duro. Furthermore, there are other explanations for the presence of the gun. There could have been someone standing along the wall of Tryst nightclub when takedown was called. That person could have deposited the gun underneath the GMC pickup truck. There were other people in the parking lot when takedown was called. There were clearly gang members in the area. It is possible that another person left the gun under the GMC pickup truck.

[41] I must respectfully disagree with this submission, notwithstanding the skilful presentation. There is significant circumstantial evidence pointing to Mr. Duro having knowledge and possession of the gun found under the GMC pickup truck:

• Police officers saw Mr. Duro crawling under and emerging from underneath the GMC pickup. Although nobody saw Mr. Duro when he was actually underneath the GMC pickup truck, I find as a fact that Mr. Duro crawled under the GMC pickup truck, and crawled over the spot where the SIU officers found the gun. His proximity to the place where the firearm was found is obviously the most significant piece of evidence.

• There is no evidence that anyone else was in the vicinity of the GMC pickup truck when takedown was called. The only evidence that anyone was anywhere near where the gun was found is the evidence of the officers – and Mr. Duro himself, in the sense that he admitted to being near the GMC pickup truck.

• Mr. Duro resisted the officers when they tried to pull his arm out from underneath him. This is circumstantial evidence that Mr. Duro thought that he still had the gun in his waistband and was protecting it with his arm. I find as a fact that he resisted because he did not realize that he no longer had the gun with him. He thought that it was still in his waistband. Once he realized that he did not have the gun he ceased resisting. I am aware that there was a disagreement between the officers as to whether Mr. Duro’s actions constituted resisting arrest. I do not need to resolve this issue. The salient point is that both officers said Mr. Duro kept his arm under his body. Both officers were concerned that he might have had a gun.

• As I have already noted, it makes sense that Mr. Duro would crawl under the GMC pickup truck rather than run behind it. There was little room behind the truck. More importantly, the firefight was still raging when he crawled under the GMC pickup. As the SIU video and photographs show, bullets were flying everywhere. It was obviously far safer for Mr. Duro to hug the ground under a vehicle rather than stand up and expose himself to the risk of being shot.

[42] I make one other observation. There were men in line for entry into Tryst who were refused entrance. One of the men appeared to place an object in the passenger side of the Ford Focus after he was refused entrance, and then was allowed back in. There was evidence suggesting to the officers that this object may well have been a firearm. It was the experience of several officers that people with handguns are not allowed into clubs but that the bouncers do not tell the police because of fear of reprisals.

[43] This evidence from experienced police officers is of limited weight because it is a form of opinion evidence grounded in the hearsay statements of other people. That said, the knowledge of experienced police officers should not be completely discounted. It was not challenged; in fact some was brought out in cross-examination. The evidence that I do rely on is that an officer observed someone place an object in the Ford Focus after being refused entry to Tryst. A gun was later used to shoot at police officers from inside the Ford Focus. While this small piece of evidence cannot carry a great deal of weight, I cannot say that it has no weight.

[44] I also place limited weight on the evidence of police officers that they were aware of gang members in the area, although that evidence was brought out in cross-examination for the purpose of showing that others may have placed the gun under the GMC pickup truck. I cannot use the fact that Mr. Duro was associated either with gang members or with Mr. Skene-Peters to infer guilt.

[45] As my colleague Corrick J. observed in R. v. Bailey, 2013 ONSC 4742 at para. 27, “the circumstantial evidence must be evaluated as a whole rather than as individual pieces to determine whether the Crown has satisfied the burden.”

[46] I am therefore satisfied beyond a reasonable doubt that Mr. Duro had knowledge and control of the gun. I am also satisfied beyond a reasonable doubt that guilt is the only rational inference to be drawn from the circumstantial evidence.

[47] The Crown is required to negative reasonable possibilities, but it does not need to “negative every possible conjecture, no matter how rational or fanciful” that might be consistent with innocence: Villaroman at para. 37. As Cromwell J. stated in para. 38:

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[48] Cromwell J. illustrated the principle with two statements that he adopted at paras. 40-42:

The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

While this language is not appropriate for a jury instruction, I find the idea expressed in this passage - that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative - a helpful way of describing the line between plausible theories and speculation.

The second is from R. v. Dipnarine, 2015 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences"; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

[49] While it is theoretically possible that someone with a gun was standing along the wall and discarded it at the time of takedown, there is no evidence to support that possibility. It is not a reasonable alternative, it is speculative. None of the police officers saw anyone other than Mr. Duro in the area. The only movement they spotted was Mr. Duro’s movement. No other officers, including the intelligence officers in vehicles at the west end of the parking lot, saw anyone leaving the area of the north wall of the parking lot. Mr. Duro himself testified that he did not see anyone else there. There is evidence of other people being in other parts of the lot at the time of takedown. There is evidence that the arresting officers did not realize they were there when they rushed the Ford Focus. Those people, however, were out of the way and not in close proximity to gun. It is not a logical inference that because the officers missed one group of people in a part of the parking lot that they were not focussed on they must have missed some other person in a part of the parking lot that they were focussed on. The two men observed by Constable Reid were at the west end of the parking lot when the takedown was called. They moved north through the alley, and nowhere near the GMC pickup truck.

[50] In my respectful view, the alternate theories posited by the defence are speculative. I appreciate that there is no burden, legal or otherwise, on the defence, but there must be something real that can ground an alternate theory that is inconsistent with guilt.

[51] There is no evidence at all that anyone else randomly placed a gun in the parking lot prior to takedown. The police had the lot under surveillance for some time prior to take down. There is no evidence that anyone – other than Mr. Duro – was in the vicinity of the GMC pickup truck when takedown was called and during the firefight. There is no evidence that anyone – other than Mr. Duro – was underneath the GMC pickup truck. There is nothing to ground an alternate theory inconsistent with guilt.

DISPOSITION

[52] Mr. Duro is found guilty of both counts.

R.F. Goldstein J.

Released: July 28, 2017