Court File and Parties

COURT FILE NO.: CR-17-0549-00 DATE: 2018 07 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN David Maylor and Ann-Marie Calzavara for the Crown

- and –

DAVID KAWAL Laurie Galway and Arif Alibhai for the Defendant Kawal

HEARD: June 29, 2018

PRE-CHARGE RULINGS

D.E HARRIS J.

[1] David Kawal, Tyrel Nicholson and Devonte Rowe are charged with robbery, kidnapping and the former two accused, attempted murder. These are my reasons on three issues which arose with respect to Kawal at the pre-charge conference. Bottom line rulings on each have already been issued. The three rulings are with respect to consciousness of guilt evidence, a directed verdict application with respect to one of the attempted murder allegations against Kawal and an alternative suspects issue. I am issuing these rulings after the fact as the verdicts in this case were delivered by the jury on July 13, 2018.

[2] A very brief outline of the allegations will suffice as background. The allegations are that Kawal and Nicholson and Chris Osborne, who has pled guilty and been sentenced, robbed and kidnapped Mohammed Ibrahim and D’Onna Ellis from the underground garage of their condominium in Toronto. Ibrahim was known to the men as a drug dealer who flaunted his wealth. The men stole jewellery, cash and clothing from Ibrahim and Ellis’ condo. Ibrahim was assaulted and his teeth were broken.

[3] The two were then driven separately to an address in Brampton, Ibrahim in his Mercedes Benz and Ellis in a VW Jetta allegedly used by the perpetrators.

[4] The Mercedes was driven by Osborne. Nicholson has admitted being in the back seat with a gun held to Ibrahim ensuring he did not escape. The Crown alleges that the Jetta with Ellis in it was driven by Kawal.

[5] The Mercedes arrived first in Brampton and parked in the one car garage at 10 Stokes Road. The men had omitted to do a thorough search of Ibrahim. He had a cell phone in his sweater. Soon after he arrived, while still in the back seat of the Mercedes, he had a moment alone and called 911, saying that he was about to be shot. The dispatch operator was able to ping the phone and discover its whereabouts.

[6] The 911 operator called back. The men heard the ring and realized that Ibrahim had a cell phone and had called the police. Ibrahim fled out the back door of the garage but was quickly tackled and after being kicked and beaten, was dragged back into the garage.

[7] Meanwhile, Kawal’s Jetta had arrived by the curb of the 10 Stokes residence with Ellis as the passenger. He got out of the car to investigate what was going on in the garage. Almost immediately, the first police responder to the 911 call arrived in his police cruiser. Acting Sergeant John Alwyn, seeing the man alleged to be Kawal masked and walking away from him on the 10 Stokes driveway, yelled at him to come back through the open passenger window. Kawal turned and in one motion fired 9 or 10 gunshots at the cruiser, one of them hitting Alwyn just above the right elbow. Alwyn was luckily able to take control of the cruiser and drive haphazardly away from the scene. Alwyn survived but his right arm was permanently damaged.

[8] Ellis testified that Kawal drove off in the Jetta after the shooting and, in response to her entreaties, dropped her a short distance away. He was not apprehended for two months. That night soon after the shootings, the Jetta was found abandoned in a driveway near 10 Stokes Road.

[9] When Osborne and Nicholson heard the shooting of the police officer, they ran out of the back door of the garage. A moment later, a man alleged to be Nicholson, came back in and shot Ibrahim three times with a 9mm Ruger gun which was later recovered in a nearby creek. Ibrahim, amazingly enough, was not badly injured. Both men then disappeared. Osborne was arrested within an hour and Nicholson was arrested in the area the next morning.

[10] Rowe lived in the basement of 10 Stokes Road. He is alleged to have made his residence and specifically the garage available to the main perpetrators to hold Ibrahim captive. He was charged with robbery and kidnapping.

Consciousness of Guilt

[11] The factual foundation for the consciousness of guilt instruction requested by the Crown is based on several circumstances. As is now commonplace, the investigators were able to glean valuable information from the accuseds’ cell records. Within a couple of hours of the shootings, Kawal had changed cell phone sim cards, the removable device in cell phones which enable the cell phone to function on the network and often hold the contacts and other information.

[12] When Kawal was arrested two months later, the sim cards were not found in the phone.

[13] The Crown argues that these circumstances raise a consciousness of guilt inference and ask that I charge the jury to this effect. In their view, this inference can be used to put Kawal on the scene of the shootings, a factual matter he disputes.

[14] Dealing first with the actions taken soon after the shootings, clearly these are very suspicious. The coincidence between the alleged offences and these actions suggests an attempt to avoid detection. While the evidence would have been stronger if several months of records had been adduced to demonstrate that there had never been a similar sim card switch in the past, in isolation, the evidence still retains not insignificant probative value.

[15] One minor caveat is the fact that any efforts by Kawal to avoid detection and tracking of the phones were unsuccessful. If the steps taken were in fact deliberate, Kawal did not understand the methods by which cell phones can be traced. If the subscriber information stays the same, the phone still leaves a trail no matter what sim card is used. But just because an attempt to avoid apprehension or detection is unsuccessful, does not mean that the consciousness of guilt inference is frustrated.

[16] I am less convinced of the probative worth of the disappearance of the sim cards. Proximity in time to the offence is absent, a common and important feature of consciousness of guilt evidence. It cannot be said when the cards went missing, only that they were not found upon Kawal’s arrest and the seizure of the phone. The two-month stretch of time makes it more likely that something happened to the cards other than deliberate destruction.

[17] In summary, taken collectively, there is some probative value to the phone evidence. To measure it with any precision, however, the other evidence in the case must be considered.

[18] It may well be true from the prosecution’s perspective that there is never enough evidence to prove guilt when allegations as serious as these are being tried. But my task, as I see it, is to consider what the evidence meaningfully adds to the Crown’s case and balance it against the potential prejudice to the accused.

[19] In my opinion, the cumulative probative value of the evidence viewed in full evidentiary context is meagre. The Crown’s ultimate goal for the consciousness of guilt evidence is to prove presence and opportunity. Yet the existing circumstantial body of evidence forms a persuasive web tying Kawal to the car and the car to the shooting. If the jury is not convinced by what is already before them, the cell phone evidence will not make much if any difference.

[20] To summarize the existing evidence, Kawal’s phone is shown moving from the abduction site after the time of the abduction to the shooting site. After the shooting, the phone is tracked moving away, ending up in Scarborough. There is constant interaction before the shooting with the phones of the other alleged perpetrators, other than Rowe.

[21] The association of Kawal with the Jetta and then the car with the shooting is buttressed by an impressive array of circumstantial evidence. Kawal is seen in video surveillance driving the Jetta at Yorkdale mall about an hour before the abductions begin. A Pickle Barrel bag he was eating from on the video was found in the car. A toque and a t-shirt found in the car had his DNA on them. His fingerprint was found on the driver’s door handle.

[22] The car was found abandoned in a driveway close to the shooting location. Ellis’ eyewitness evidence was that the driver of the car shot the police officer-albeit not based on significant identification descriptors. There were 94 particles of gunshot residue found in the car. Furthermore, the shoulder holster found in the car containing a Glock 45 calibre magazine clinches the link between the car and the shooting. The bullets in the magazine are the same calibre and general type as the shell casings found in the aftermath of the shooting on the 10 Stokes driveway.

[23] The connection between Kawal and the car and the car to the shooting was strong. Given this evidentiary context, the extra probative value contributed by the cell phone switch evidence is minimal. It would nonetheless be admissible if it were not for the potential prejudicial effect on Kawal.

[24] The potential prejudice outweighs the probative value. Despite the somewhat complicated limiting instructions which would have to be given, in my view, there is a substantial risk that the jury would give in to the temptation to use this evidence for more than mere proof of presence at the time of the shootings.

[25] The prejudice articulated in the consciousness of guilt case law is typically about a jury leaping to conclusions of consciousness of guilt without considering the reasonable alternative explanations of fear and panic: see R. v. White (White No. 2), 2011 SCC 13 per Rothstein at paras. 55-60; per Charron at para. 106-107; per Binnie at para. 138-139; R. v. White (White No. 1), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57 at para. 22 per Major J. But there are other dangers as well, it being recognized universally that consciousness of guilty evidence is often ambiguous and prone to both judicial and jury error. Improper admission and misdirection on consciousness of guilt evidence is common at trial.

[26] While there is significant ambiguity and complexity in the evidence here, I am more troubled about the general prospect of jury error. The problem is the risk of the jury taking the evidence for more than it is worth. I am also concerned with the very real potential for the evidence to distract and confuse the jury.

[27] It has been recognized that consciousness of guilt admissibility, like other evidence, can fail on the probative value versus the prejudicial effect formulation: White (No. 2) per Justice Charron at para. 109.

[28] I conclude that the evidence is inadmissible to ground a consciousness of guilt inference. There is limited probative value to the evidence when viewed in full context. The prejudicial effect is not insignificant and exceeds the low probative value.

[29] I concluded that the record can be left as is, there being no real prospect that the jury will put the evidence in question to any use. Crown counsel was prohibited from arguing the consciousness of guilt inference in her closing address.

Kawal's Liability Under Section 21(2) of the Criminal Code for the Attempted Murder of Ibrahim

[30] The Crown alleges that Nicholson shot Ibrahim in the garage at 10 Stokes. He is charged with attempted murder for this act. At the time Ibrahim was shot, according to the Crown, Kawal had seconds before fired 9 or 10 bullets from a 45 calibre Glock into Officer Alwyn and his police cruiser. He did not directly participate in shooting Ibrahim nor was he involved as a Section 21(1) aider or abettor.

[31] Kawal is charged in count #5 as a party to Nicholson’s alleged attempted murder of Ibrahim. The Crown relies exclusively on 21(2) of the Code. The question raised at the pre-charge conference was essentially a directed verdict application for Kawal on this count.

[32] The Crown accepts that the men intended to accomplish their criminal purposes without killing anyone. This would be counterproductive in a scheme that in the end must have called for Ibrahim convincing a friend to pay a ransom or buying his freedom with his own wherewithal. The Crown also accepted that there was no evidence that the men had agreed to kill everyone if the scheme went wrong. The thrust of the Crown argument was that the men were very heavily armed, prepared for violence and committed violence on Ibrahim from the outset. There were threats to shoot Ibrahim made by Osborne and by Nicholson. All three men possessed handguns. Ibrahim was assaulted. He understandably feared for his life.

[33] Could a jury find Kawal party to Nicholson’s alleged shooting and attempted murder of Ibrahim? Section 21(2) reads:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew … that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[34] I have removed the “or ought to have known” clause from Section 21(2) as the Supreme Court in R. v. Logan, [1990] 2 S.C.R. 731, [1990] S.C.J. No. 89 held that it was unconstitutional as applied to murder and attempted murder.

[35] There are several elements to the operation of this subsection: 1. An intention in common must be shown to exist and the party must be part of it; 2. The principal must commit an offence —in this case attempted murder- outside the common intention; 3. The consequential offence must be committed while carrying out the common purpose; 4. The offence must be a probable consequence of carrying out the common purpose; and 5. In the context of attempt murder or murder, the party must know the offence of attempt murder is a probable consequence of the carrying out of the common purpose: see Justice Wilson, dissenting in the result, in R. v. Kirkness, [1990] 3 S.C.R. 74, [1990] S.C.J. No. 119 at pp. 109-110.

1. "Intention in Common"

[36] Care must be taken in characterizing the scope of the intention in common. This element forms the predicate to the operation of this provision and it is from this foundation that the ultimate offence of attempted murder must be anticipated by the party.

[37] There is no difficulty in this instance. Clearly there is a prima facie case that Kawal formed an intention in common to rob and then kidnap Ibrahim. At the time Ibrahim was shot, the men still hoped to reap spoils from Ibrahim by holding him for ransom. He was confined by Osborne and Nicholson at gun point. Both the kidnapping and robbery offences were ongoing.

[38] A common purpose can shift from the original agreement if the members to it come to a consensus. That did not happen here. When Officer Alwyn arrived on the scene, Kawal and Nicholson were not together. There was no communication between the time Alwyn was shot and the time Ibrahim was shot. The robbery and kidnapping offences as originally put in motion were continuing.

2. The "Offence" Committed by the Principal

[39] The Court of Appeal recently reiterated in R. v. McLellan, 2018 ONCA 510 that a Section 21(2) party to murder must not only foresee a killing but must foresee the commission of a murder in all of its constituent elements: see para. 81, citing R. v. Jackson, [1993] 4 S.C.R. 573, at pp. 9-10 and 14-15; R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 61; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 43 and 53, leave to appeal refused, [2010] S.C.C.A. No. 459; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 42 and R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at paras. 244-245.

[40] The clear wording of Section 21(2) requires that the “offence” be foreseen. “Offence” must have its ordinary meaning. It encompasses both the act and mental element.

[41] The mens rea for attempt murder as affirmed in Logan is nothing short of an intention to kill. So the full question to ask is whether Kawal saw that a probable consequence of the abduction or robbery would be that Nicholson would commit physical acts against Ibrahim with the intention to kill him.

[42] The Crown’s obligation to show an act to kill with the accompanying intention to kill is a tall order. Murder is a specific intent offence. The perpetrators’ scheme, as shocking and brazen as it was, did not envision murder. If anything, murder would be likely to frustrate the ultimate goal of enriching themselves.

3. Attempt Murder Committed While "Carrying Out" the Common Purpose of Robbery and Kidnapping

[43] The “carrying out” requirement should be broadly construed. If the predicate offence is ongoing in any significant way, this element will be satisfied. Here, the shooting of Ibrahim took place simultaneously with the common purpose of robbery and kidnapping. The consequential offence was committed while “carrying out” the common purpose.

4. The Offence of Attempt Murder Must Be a "Probable Consequence" of the Common Purpose of Robbery/Kidnapping

[44] The crucial question on this application is whether there is some evidence that a reasonable jury properly instructed could find beyond a reasonable doubt that a probable consequence of the abduction/robbery scheme was the attempted murder of Ibrahim. I think the answer is no.

[45] There need not be any assistance or encouragement of the ultimate offence by the Section 21(2) common intention party. This is the expansion brought about to the aiding or abetting party provisions by Section 21(2).

[46] A Section 21(2) party in the context of attempt murder must only know of the consequential offence which it is probable the principal will commit. The fault element is the participation in the common design predicate offence and subjective foresight of the consequential offence.

[47] Justice Doherty said in R. v. Jackson (1991), 68 C.C.C. (3d) 385 (Ont. C.A.) aff’d R. v. Jackson, [1993] 4 S.C.R. 573:

119… Section 21(2) widens the circle of criminal culpability [from aiding and abetting] to include those who do not participate in the alleged crime, but who do engage in a different criminal purpose and foresee the commission of the alleged offence by a party to that criminal purpose as a probable consequence of the pursuit of the criminal purpose: see R. v. Simpson, [1988] 1 S.C.R. 3, 62 C.R. (3d) 137, [1988] 2 W.W.R. 385, 81 N.R. 267, 38 C.C.C. (3d) 481, 46 D.L.R. (4th) 466, 23 B.C.L.R. (2d) 245, at p. 11 [S.C.R.], pp. 488-491 [C.C.C., pp. 143-146 C.R.].

131 … Section 21(2) is triggered by the commission of an offence which, while it is committed in pursuit of a common unlawful purpose, is not itself part of the joint venture. The liability of the non-perpetrator for incidental offences depends not on whether those offences were within the scope of the joint venture, but on the foreseeability, actual or imputed, of the probability that one party to the joint venture would commit that offence in the course of pursuing the common design.

[48] The “carrying out” and “probable consequence” language imports a relationship or connection between the common intention and the ultimate offence committed. This is a causation requirement: see Rose, “Parties to an Offence” (Carswell, 1982) at p. 97. The offence must emerge out of the common intention such that it can be termed a consequence of it.

5. The Party Must "Know" That the Offence of Attempt Murder Is a Probable Consequence of the Common Purpose of Robbery/Kidnapping

[49] It was held in Logan that there must be knowledge that the ultimate offence is a probable consequence of the common intention. Subjective foresight is required. This is reminiscent of the structure of the recklessness for murder mental element in Section 229(a)(ii) of the Code. The accused must intend to cause bodily harm that he “knows is likely to cause death.” Both focus on consequences and require subjective foresight.

[50] In the context of a directed verdict application, although knowledge is the most refined and specific element of the offence, little attention need be paid to it. Circumstantial inferences drawn from the fulfillment of the probable consequence will generally lead on this diminished threshold to the conclusion that there was knowledge of the ensuing crime. If there is a prima facie case on probable consequence, there will almost inevitably be a prima facie inference of knowledge available from it.

Conclusion

[51] In my view, the Crown cannot show that the attempted murder by Nicholson of Ibrahim was a probable consequence of the robbery\kidnapping scheme. The connection between the two is tenuous and broken by intervening events.

[52] The Crown concession that the men hoped to accomplish their objectives without killing anyone – a reasonable and virtually inescapable concession in the circumstances –pushes the Crown back on to the proposition that there may have been a contingent plan to commit murder. But that puts the Crown up against their other reasonable concession--there was no plan to kill if things went awry.

[53] Violence and the threat of violence fails to demonstrate sufficient evidence of an intention to kill. In law, robberies and kidnappings definitionally and as a practical matter involve violence of one type or another. The prospect of violence does not equate to the probable consequence of the full offence of second degree murder.

[54] Professor Colvin writes in Principles of Criminal Law (Carswell, 1986) at page 323:

… in the most common type of case where s. 21(2) is used, which is the commission of a murder during the course of an armed robbery, it is by no means obvious that the condition [of probability] is met. To say that a consequence is ''probable'' (or ''likely'') is ordinarily to say that it can be expected to occur, that its occurrence is more likely than not, or that there is a better than even chance of its occurrence. Armed robberies do not usually lead to killings. Killing might be regarded as a possible outcome of any armed robbery, but it will rarely be a probable outcome. Thus, if the calculation of probability is made from the time the implementation of the common purpose commences, the condition would place stringent restrictions on the extension of secondary liability.

[55] Some limited guidance is available from the English common law. The one important difference between the English common law and Section 21(2) is that the common law focuses entirely on the scope of the common unlawful purpose. If within the scope, the accused is guilty. If not, the accused must be acquitted: Rose, pp. 75-77. Foreseeability, whether objective or subjective, does not enter into it.

[56] Rose at pp. 74-78, refers to several common law cases on the scope of the common purpose. In one, several men agreed to assault another man with their fists. One of the assailants later took up a weapon and killed the man. The court held that the offence was “not done in pursuance of the common design”: R. v. Caton (1874) 12 Cox C.C. 624.

[57] In another old case cited by Rose, a number of soldiers stole fruit from a pear tree and, when the owner’s son came upon them, one of the soldiers killed him. Again, the other fruit thieves were not guilty of the homicide as the consequential offence was beyond the scope of the common design: see R. v. Jackson (1857) 7 Cox C.C. 357 at 360.

[58] Glanville Williams quotes Foster saying:

Much has been said by writers who have gone before me, upon cases where a person supposed to commit a felony at the instigation of another hath gone beyond the terms of such instigation, or hath in the execution, varied from them. It the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt...

Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961, Stevens and Sons Ltd.) at pp. 396-397

[59] The English cases in their examination of the scope of the common purpose are of some assistance in scrutinizing the relationship between the common purpose and the consequential offence. A consequence, if remote enough from the common intention, may not be reasonably foreseeable. The greater distance the ultimate offence is from the common intention, the less likely it can be termed a probable consequence.

[60] In this sense, the scope of the common intention retains central importance under Section 21(2). Some consequences are more readily foreseen than others. Both scenarios above from the English case law have the principal venturing outside the parameters of the plan to commit a consequential offence more or less on his own. However, a killing in the context of the first fight would more likely have been perceived as a probable consequence then would the murder of the fruit tree farmer: also see R. v. Bannister (No. 1) (1936), 66 C.C.C. 352 (N.B.C.A.). The fruit tree example did not take place in a context of violence. Murder as a consequence of the perpetrators stealing some fruit was an incomprehensible overreaction. It was both outside the scope of the common purpose of theft and unforeseeable consequence.

[61] In the case at hand, clearly attempted murder was outside the scope of the common intention. If it were not, Section 21(1) aiding or abetting would apply and no resort to Section 21(2) would be necessary.

[62] Was attempted murder a probable consequence? Although Kawal was charged with respect to Nicholson’s attempt murder of Ibrahim, Nicholson was not charged as a party to Kawal’s alleged attempted murder of Officer Alwyn. The Crown defends this surface inconsistency by saying that the intercession of a police officer was outside the contemplation of the men and shooting him could not have been foreseen by Nicholson. This is sound reasoning.

[63] But something similar can be said about Nicholson’s shooting of Ibrahim. Unexpectedly, Officer Alwyn arrived on the scene. The two men holding Ibrahim-- Nicholson and Osborne--took flight. One of them, alleged to be Nicholson, in what appears to be an afterthought, ran back in to shoot Ibrahim. The act of shooting Ibrahim played no clear role in the robbery, abduction or ransom scheme.

[64] A party need not foresee the precise circumstances which lead to the offence actually committed. But here, what happened was a split-second strangely malicious decision which could not have been anticipated. If the men had attempted to beat Ibrahim in order to get information about how to separate him from his wealth and, being unsuccessful, had attempted to kill him, that would be different. Those would be actions evolving from the scheme itself, not reactions to external unanticipated events.

[65] In his book, at page 72, Rose adopts language from the English case law and concludes that a trial judge must direct the jury concerning whether the offence was the result of a “supervening causative event wholly outside the agreed plan.”

[66] In this case, the act and mental element grounding the attempt murder was formed spontaneously and was independent of the ongoing plan. It was the result of an intervening unanticipated event which was not a probable consequence of the kidnapping\robbery nor could it have known to be.

[67] In conclusion, taking the Crown evidence and the inferences available at their highest as I must in a directed verdict application, I found there was insufficient evidence that a reasonable jury, properly instructed, could convict Kawal of attempted murder of Ibrahim: R. v. Arcuri, 2001 SCC 54. I directed a verdict of acquittal on count #5. I informed the jury that this charge had been removed from their consideration and they ought not to draw anything from it: see R. v. Rowbotham, [1994] 2 S.C.R. 463, [1994] S.C.J. No. 6.

The Alternative Suspect Application

[68] The defence launched an alternative suspect application in reference to the shooting of Officer Alwyn at the beginning of the trial. It was taken under advisement as before hearing any of the viva voce evidence, it was vague and formless.

[69] Now that the evidence is completed, it is easier to assess the application. The law in this area is well-settled. The Court of Appeal summed it up this way,

120 It is fundamental that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), at p. 757, affirmed, R. v. McMillan, [1977] 2 S.C.R. 824; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. The evidence on which an accused relies to demonstrate the involvement of a third party in the commission of the office with which the accused is charged must be relevant to and admissible on the material issue of identity: McMillan, at p. 757; Grandinetti, at para. 46.

121 It is essential that there be a sufficient connection between the third party and the crime, otherwise any evidence about the third party would be immaterial. An accused must show that there is some basis upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship: Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70. Absent a sufficient connection, the "defence" of third party authorship lacks an air of reality and cannot be considered by the trier of fact: Grandinetti, at para. 48.

R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127

[70] The defence argues that there is an air of reality with respect to two individuals: Zachary Cust and Q.H. Cust was originally charged with the abduction and robbery offences but the Crown did not end up proceeding against him. The totality of the evidence leaves no doubt but that he was a full participant in these offences.

[71] The difficulty for the defence is that Cust and his gold Honda are captured on video at an Esso station not too far away from the victims Toronto condominium shortly after the abduction. He leaves the gas station at approximately 9:52 p.m. The shooting of Officer Alwyn is at 10:26 p.m. in Brampton. It is possible for Cust to have driven to Brampton and the 10 Stokes address in that time but it would not be easy. Be that as it may, the main point is that neither Cust nor his car is seen near 10 Stokes in the time frame of the shooting. There were two video cameras in neighbouring houses in the vicinity of 10 Stokes but neither the car nor Cust are seen. Police swarmed the area shortly after the shooting and again, nothing of Cust or his car were seen. That is not conclusive, but it is substantial evidence pointing away from Cust as the perpetrator of either shooting.

[72] I believe that it is both permissible and necessary to look at the full evidentiary record when evaluating an alternative suspect issue. The rudimentary rule at trial is that all the evidence must be considered together. As the case against an accused moves from weaker to stronger, the air of reality to an alternative suspect application is correspondingly diminished. In this case, I have already in the consciousness of guilt section considered the evidence against Kawal concerning his presence on the scene of the Alwyn shooting. Pitting that wealth of evidence against the Cust evidence has the effect of shrinking the latter alternative evidence to virtually nothing. The strength of the case against Kawal tends to exclude the possibility of other perpetrators. There is no air of reality to Cust being the man who shot Officer Alwyn.

[73] The other person articulated as an alternative suspect is Q.H., a young person. He lived close by 10 Stokes. Ibrahim knew him and his parents. H. communicated with Rowe’s phone at the time of the incident. Defence evidence showed that he fled the area right after the shootings and took to a bus at about ten minutes after the shootings and then a cab. Video and the testimony of the cab driver shows him to be exceedingly apprehensive and surveillance adverse. He is ducking in the cab and trying to avoid being seen. However, it was agreed between counsel that H. was on home arrest at the time. So there was a possibility his consciousness of guilt conduct arose out of that and not out of involvement in these crimes. In any case, soon after boarding the cab, the police arrested him.

[74] Nicholson spoke of H. being involved when he held forth upon arrest to the undercover officer in the holding cell. Rowe mentioned him in his utterances as well. These pieces of evidence may be inadmissible for Kawal but they do establish independently that H. was involved in some manner. I would be loath to cut off the defence knowing that there is evidence, albeit inadmissible for Kawal, of an alternative suspect’s general complicity, if not his direct involvement in either shooting.

[75] The point is that there is admissible evidence which goes far enough to lend an air of reality to the evidence and clear the admissibility hurdle. The function of the inadmissible evidence is simply that it counsels caution when approaching the admissible evidence and, on general fairness grounds, confirms my inclination to allow it to be used.

[76] I repeat what I said above with respect to Cust concerning the strength of the case against Kawal diminishing the reality of an alternative perpetrator. It is a close call, but I think there is enough evidence to suggest that H. was the person who shot Officer Alwyn. The defence is free to pursue the admissible evidence on the point in her closing address.

D.E HARRIS J. Released: July 25, 2018